Business Recorder Column January 22, 2019

In cold blood

Rashed Rahman

The incident that led to the killing of four people and injuries to two children near Sahiwal on January 19, 2019 raises hackles as well as some reflections on and questions about our law enforcement culture. The facts revealed by the surviving son of the unfortunate parents killed through the point blank firing on their car by a Counter Terrorism Department (CTD) team completely refutes the shifting versions of the so-called ‘encounter' by CTD and police officials. They claimed the incident was the result of an intelligence-based (but obviously unintelligent) operation against Daesh terrorists in which the car carrying the tragic couple, a friend, a 13-year-old daughter, were all killed and three children survived. This shifting, ever-changing cock-and-bull story that characterised the occupants of the car first as kidnappers, later, as an afterthought it seems, as terrorists, was completely contradicted by the son’s and eyewitnesses’ statements. The car stopped when signalled to, the father pleaded with the CTD team to search the vehicle if they did not believe him that they were not carrying any weapons or explosives, evening offering money if they would let them go, but all to no avail.

The point blank, unprovoked firing resulted in 13 bullets hitting the father, Khalil, four hit the mother Nabeela, six the 13-year-old daughter Areeba and 10 riddled the friend, Zeeshan. These alone total 33 bullets. While the CTD and police versions have proved patently false, post facto justificatory mea culpas, the deaths provoked massive street protests and a storm on social media. The opposition parties lambasted not only the perpetrators, but in consonance with the street protestors, roundly condemned and demanded the resignation of Punjab Law Minister Raja Basharat for spinning out the CTD/police version of events, insensitively terming the deaths of the woman and child “collateral damage” in the language employed by the Americans in the context of drone strikes and other attacks against terrorists.

The government, from Prime Minister (PM) Imran Khan to Chief Minister (CM) Punjab Usman Buzdar promised a thorough investigation, punishment to any wrongdoers, state responsibility for the surviving three children and compensation of Rs 20 million. This did little to assuage the anger throughout the land. The Joint Investigation Team (JIT) that has become so beloved of governments in recent years inspires little confidence as it is headed by the very police that is in the dock.

For those unaware, it may be necessary to point out that the CTD is a bifurcated branch of the police charged with anti-terrorism responsibilities, while the remaining police looks after other crimes. Both employ so-called ‘encounters’ to extrajudicially murder terrorist suspects and alleged criminals respectively. Thousands lose their lives every year because of this free-for-all but no one has ever been held responsible. The police protects its own, the judiciary remains silent, and the old thana (police station) culture of torture and worse is alive and kicking.

PPP Chairman Bilawal Bhutto Zardari is either too young to remember or is simply scoring political points when he says the Pakistan Tehreek-i-Insaaf (PTI) government has turned Punjab into a police state. In fact, Pakistan has remained a police state since its inception. The postcolonial police’s culture did not change after Independence. The British colonialists chose the Irish Constabulary model for the Subcontinent’s police in order to suppress any resistance to their occupation. This implied the use of force freely, subject only to executive magistrates’ relative check on the use of lethal force except when considered necessary.

General Naqvi, our local Plato, ushered in the Police Reforms 2002, gifting thereby complete autonomy if not independence to a police force whose character had been well established as a trigger-happy, increasingly militarised, brutal, criminal, corrupt entity. Such a force needed control, reform to the thana culture of torture to obtain confessions, and elimination of the growing tendency to take the law into its own hands and act as judge, jury and executioner through so-called ‘encounters’. We are reaping the crop thus sowed, exacerbated by the free hand given to the law enforcement agencies and deep state to extrajudicially kill suspects, thereby avoiding the usually long drawn and difficult process of conviction through the courts, ordinary and special.

The first recipients of this lawless behaviour by our law enforcers in the early years and upto the 1980s were Leftists and progressives of all hues. They suffered arbitrary arrest and detention, torture and much worse through these decades. With the decline of the Left in the 1980s, and the incremental emergence of terrorism on our soil because of the misplaced use of religious fanatics as proxy warriors in the region, the police, CTD and the deep state have virtual carte blanche to act against and even use lethal force to eliminate suspected terrorists and alleged criminals without recourse to the law, courts, or due process. The Sahiwal tragedy is the bitter fruit of these trends.

Pakistan currently presents a sorry picture. A selected government allegedly imposed through a rigged election is all at sea, particularly on its handling of the economy. The government’s day-to-day functioning is reportedly micro-managed through regular ‘tutorials’ by the powers-that-be. ‘Peace’ initiatives, west and east, reflect the current difficulties the country has landed itself in through past adventurism in so-called jihad abroad and at home. But their outcome is clouded by the neighbours’ and world’s suspicions about our intentions, based on past experience. Pakistan stands relatively isolated in a world more connected than ever before in history. The few friends we are relying on such as Saudi Arabia, UAE and China can only help so far and no further.

In the times we are living through, which may be characterised as The Age of Distraction, Imran Khan and the PTI represent the acme of using issues such as corruption, alleged or actual, to divert focus from the country’s real and critical issues begging for departures from the past and hewing fresh paths to stability and prosperity. Their performance in office so far indicates that they are clueless about the real problems and their solutions. That seems to point, miracles aside, towards a disaster of immense proportions looming on the dark, threatening horizon.

We all hope I am wrong, but until proof to the contrary emerges, best to keep our powder dry and our counsel fresh.

rashed.rahman1@gmail.com

rashed-rahman.blogspot.com

Business Recorder Editorial January 21, 2019

Here comes ‘poetic Justice’ Khosa

Former Chief Justice of Pakistan (CJP) Mian Saqib Nisar doffed his robes on January 17 and his successor, Justice Asif Saeed Khosa, was sworn in as the 26^th CJP on January 19. With this change of guard at the apex of the country’s superior judiciary, ex-CJP Mian Saqib Nisar’s tumultuous two-year tenure seemed to be attended by the bursting of the dam of resentments and reservations about the Supreme Court’s (SC’s) jurisprudence under him. Adverse comment and criticism of ex-CJP Mian Saqib Nisar’s judicial activism and perceived judicial overreach flooded the mainstream and social media. It is a measure of the strength of this feeling that critics held their silence while he was in office, but felt emboldened to relieve themselves of pent up frustration as soon as he was gone. As to the legacy of the Nisar court, let it be noted that as a judge of the Lahore High Court, Justice Nisar penned solid judgements advocating judicial restraint and displeasure at ex-CJP Iftikhar Mohammad Chaudhry’s judicial activism. Yet when he ascended to the august office of CJP, Mian Saqib Nisar seemed to throw all caution to the winds and far exceeded the very excess by the Chaudhry court that he had earlier decried. Not only were suo motu notices almost daily affairs, upending decades of Pakistan’s jurisprudence in which the original jurisdiction of the SC was used all too sparingly and by way of exception, Mian Saqib Nisar’s interpretation of Article 184(3) of the Constitution enlarged the scope of judicial intervention in matters pertaining to fundamental rights to a degree where virtually nothing was beyond its scope. His muscling into the remit of the executive and even parliament eroded the trichotomy of power that is at the heart of the Constitution. The provinces, hospitals, schools, virtually anything that caught the former CJP’s eye could not escape his by now famous wrath. His behaviour on the bench with lawyers, litigants, accused and members of the bureaucracy bordered on rudeness and insult. The very power bestowed upon his person by the high office required sobriety, patience, politeness and fairness. Instead even independent opinion or argument brought the wrath of possible contempt of court on the heads of those who dared to question his seemingly infallible wisdom. The high courts were treated as virtual subordinate courts whereas they are independent of dictation by the apex court, so much so that the former CJP went so far as to order the high court benches’ formation, a power only the chief justices of the high courts enjoy. Intervention in cases being heard by the high courts was one more ‘innovation’ to the credit of the former CJP. District courts’ inspection, an act beyond the scope of the SC and whose supervision resides in the high courts, led in one unforgettable incident in insult in his courtroom of a district court judge who subsequently resigned because of the humiliation. Last but certainly not least, when as a member of a SC bench hearing a case in the Peshawar registry of the SC, Justice Qazi Faez Isa asked during the hearing whether Article 184(3) could be applied in the instant case, ex-CJP Nisar abruptly reconstituted the bench, a patently unconstitutional and illegal act unless the bench breaks up of its own accord because of a judge recusing himself. Justice Mansoor Ali Shah, a member of the same bench, has written a note on this incident labelling it as an act usurping judicial independence. Ex-CJP Nisar decided one day to ‘rescue’ Pakistan from water scarcity by announcing a dams fund, leading in some cases to remarks to the effect that those charged could hope for lenient treatment if they contributed to the fund. It is difficult to comprehend this plethora of objectionable precedents set by the Nisar court except to regard it as publicity-seeking with a vengeance.

Whatever history may say about his person, the damage done to the institution of the superior judiciary by these aberrations will take time to undo. A hopeful note has been struck by incoming CJP Asif Saeed Khosa in declaring a reorientation of the SC’s jurisprudence towards traditional judicial restraint, sparing use of Article 184(3) and suo motu powers except in cases where no other remedy lies, and, perhaps most important and a neglected area under Mian Saqib Nisar, reform of the judicial system to tackle its pendency crisis of some two million cases. CJP Khosa, who is widely known as a ‘poetic Justice’ for his habit of citing works of literature in his judgements, has also wisely called for an inter-institutional dialogue to mitigate the frictions between state institutions that may have arisen as a consequence of Nisar’s extraordinary overreach. Ironically, while welcoming the proposal, Information Minister Fawad Chaudhry has once again in his inimitable style queered the pitch by excluding the opposition from such a dialogue, not realising that the political system too, accountability notwithstanding, is in crying need of some modicum of reconciliation and normalisation if the country is to prosper.

Business Recorder Editorial Jan 19, 2019

 Pakistan’s Afghan policy changing?

Senior US official Lisa Curtis has arrived in Pakistan and held meetings with our officials amidst reports that the process of engagement with the Afghan Taliban for the purposes of advancing the peace process has stalled. While no details of Ms Curtis’ discussions are available, US Special Envoy for Afghan Peace and Reconciliation Ambassador Zalmay Khalilzad’s arrival had been delayed. The peace process has lately been facilitated by Pakistan in arranging a meeting between Khalilzad and the Afghan Taliban in Abu Dhabi. The follow up meeting that was tentatively announced would be held in Saudi Arabia has not so far been settled. In fact no date or venue for the next meeting has been set so far. The major roadblock that has emerged is the repeated refusal of the Afghan Taliban to meet representatives of the Afghan government. The US wants Pakistan to pressurise the Afghan Taliban leadership based on its soil to accept direct negotiations with the Afghan government, a dialogue without which no solution to the unending war seems possible. Pakistan says it has little control over the Afghan Taliban. Fears being expressed by insightful observers that US President Donald Trump’s impatience with the long drawn out conflict is tending towards a precipitate departure of US troops from Afghanistan. From Pakistan’s point of view, this could lead to an exacerbated civil war and a fresh wave of refugees fleeing the fighting into its territory and those of neighbouring countries. The wisdom seems to have sunk in amongst Pakistani policy circles that the shelf life of the policy of support to the Afghan Taliban or at the very least turning a blind eye to their presence on our soil and activities across the Afghan border may have come to an end. An outright Afghan Taliban military victory after the US troops depart is a distinct possibility, but may not end the fighting. Therefore the best arrangement would be for some form of power sharing between the Afghan government and the Taliban. Pakistan is also attempting to put its best foot forward in relations with Afghanistan, including an agreement for prisoner exchange with Kabul. In the absence of an extradition or prisoner exchange treaty with Afghanistan, this agreement provides for the first time the possibility on a reciprocal basis of the release of prisoners charged with relatively petty crimes, granted bail but yet to be released, and those who have served out their sentence but are yet to regain their freedom. The new Afghan Ambassador, Shukrullah Atif Mashal has told Pakistani media that he had also raised with the Pakistani authorities the issues of treatment of Afghan citizens at Torkham, apart from the problems of extortionate ‘fees’ for visas at the Pakistan Embassy in Kabul and Consulate in Jalalabad and the extraction of bribes from Afghan truckers.

While the war rumbles on in Afghanistan, with a grim reminder in the shape of the attack on the Green Village foreign compound in Kabul that killed four and wounded over a hundred people, Pakistan seems to be looking at its options in Afghanistan in a new light. The arrest in Peshawar of Hafez Mohibullah, former religious affairs minister in the Taliban government, may or may not be to exert some pressure on the Afghan Taliban to reconsider their rigid stance on not talking to the Afghan government. Informed observers say such arrests usually point to desired changes in Taliban policy, especially if they are followed up by more arrests. On the other hand, if that does not happen and the arrested people are released after some time, it may be due to other considerations of a transitory nature. Pakistan must safeguard its interests against an unravelling of the already precarious security on its western border because of the Afghan conflict escalating for not yielding to the current peace and reconciliation process, thereby destabilising the situation because of fresh refugee influx and other undesirable ‘imports’.

Business Recorder editorial Jan 18, 2019

Supreme Court relief

The Supreme Court has rejected the National Accountability Bureau’s appeal against the bail granted to Nawaz Sharif, Maryam Nawaz and Captain (retd) Mohammad Safdar by the Islamabad High Court in the Avenfield apartments case. An accountability court had sentenced the three to 10 years, seven years and one year imprisonment respectively on July 6, 2018. After spending about two months in jail, the Islamabad High Court had provided them interim relief by accepting their bail application. As a result, Maryam and Safdar were set free while Nawaz Sharif continues to languish in jail because of the seven year imprisonment verdict by the accountability court in the Al-Azizia case. While the Supreme Court interrogated the National Accountability Bureau special prosecutor Akram Qureshi on the grounds on which the Bureau was asking for the bail to be cancelled, he was unable to satisfy the court. The Supreme Court asked whether Nawaz Sharif or the others had violated the bail conditions in any way, reminding Akram Qureshi that Nawaz Sharif had been appearing regularly before the accountability court and in any case was already in jail. The then Chief Justice-designate Asif Khosa inquired whether the National Accountability Bureau wanted its pound of flesh, but then quickly added he may be blamed again for quoting from literature (in this case Shakespeare’s Merchant of Venice), an allusion to his famous Panama case judgement in which he had quoted from Mario Puzo’s novel The Godfather. The Supreme Court scrupulously avoided any discussion on the merits of the case, while remarking that the Islamabad High Court had made observations on this aspect but had clarified in its order that these were tentative in nature. The Supreme Court informed Mr Qureshi that such observations in any case were not going to impinge on the final outcome of the case. Having brushed the question of merit aside, the apex court then bore down on and grilled the National Accountability Bureau special prosecutor for cogent reasons for interfering in (not normal practice in higher courts, it was pointed out) and cancelling the bail. The whole affair took half an hour and after the National Accountability Bureau special prosecutor signally failed to satisfy the court, the appeal was dismissed.

The Pakistan Muslim League-Nawaz has greeted this development with unconcealed joy. Other commentators have speculated whether the relief from the Supreme Court will not positively impact the other Al-Azizia case in terms of relief for Nawaz Sharif. This may be highly premature, not based on any facts of the case, and skirting dangerously close to discussion of a sub judice matter. Neither the Avenfield nor the Al-Azizia references have by any stretch been finally adjudicated by the Islamabad High Court. The former’s appeal against the accountability verdict awaits a date while the latter will reportedly be heard by the Islamabad High Court on January 21. It is understandable that the Pakistan Muslim League-Nawaz may wish to clutch at the straw that the Supreme Court’s relief seems to offer, but since both cases are at the appeal stage in the Islamabad High Court, it would be appropriate not to kite-fly at this juncture as to their outcome. Politically of course the Supreme Court’s relief to Nawaz Sharif, his daughter and son-in-law may legitimately provide grounds for hope. But beyond that, and as far as the final outcome of both cases is concerned, the appeals process is far from exhausted, with the possibility that a further appeal may lie to the Supreme Court, whatever the final verdict in the Islamabad High Court.

Business Recorder Editorial Jan 16, 2019

Better sense at last

India has finally seen fit to allow an inspection visit by a three-member delegation from Pakistan headed by Commissioner for Indus Waters Syed Mehr Ali Shah. The Pakistani experts will inspect the 1,000 MW Pakal Dul and the 48 MW Lower Kalnai projects in the Chenab basin on January 28-31. Mr Shah said the general inspection tour will not be limited to the above two projects but may also visit the contentious Ratle hydropower and other projects in the Chenab basin. The delayed visit comes after the 115^th meeting of the Permanent Commission for Indus Waters (PCIW) held in Lahore on August 29-30, 2018 had scheduled this inspection visit on October 7-11, 2018. That visit was postponed by the Indian side on the basis that local government elections were about to take place in the area, followed by the winter session of the Indian parliament. The Pakistan Commissioner’s subsequent reminders to his Indian counterpart, Pradeep Kumar Saxena, to reschedule the visit for November or December 2018 had failed to bear fruit. The Lahore PCIW meeting had not only agreed to the inspection of the two projects above but also another contentious project, Kishanganga in the Jhelum basin, at a later stage. Reciprocally, Pakistan had agreed to allow India to inspect the Kotri Barrage after September, although what good that would do, other than being a ‘sweetener’, is beyond comprehension. Now it seems better sense has prevailed and India has allowed the inspection visit to go through.

The Indus Waters Treaty (IWT) is one of those rare agreements between Pakistan and India that has stood the test of time since it was signed in 1960 and weathered the ups and downs in the relationship between the two South Asian neighbours. The scheduled visit is a good breakthrough, and raises hopes that a similar spirit will infuse other contentious water issues between the upper and lower riparian. The IWT allocated the waters of the three western rivers, the Indus, Jhelum and Chenab, to Pakistan and the three eastern rivers, Ravi, Beas and Sutlej, to India. The IWT allowed India to construct hydropower projects on the three western rivers but not to dam their waters, which by right belonged to Pakistan. However, despite the IWT’s sterling record of managing differences and conflict between the upper and lower riparian, contentious issues have dogged the steps of the process over many years. For example, the Pakistani Water Commissioner has been demanding for many years the inspection of the Pakal Dul and Lower Kalnai hydropower projects. Pakistan’s objections revolve around the pondage and freeboard of the Lower Kalnai, and pondage, filling criteria and spillway of the Pakal Dul project. It also has a long standing complaint regarding the design of the 330 MW Kishanganga storage and hydroelectric project on River Jhelum and the 850 MW Ratle hydroelectric project on the Chenab. Pakistan has approached the World Bank (WB) as the arbiter and guarantor of the IWT to appoint an arbitration court on these two projects, arguing their design is in breach of the IWT. India has countered this with the demand the WB instead appoint a neutral expert to arbitrate the dispute. The matter appears to lie in cold storage at the WB. Pakistan’s suspicions because of this experience and the breach of the provisions of the IWT for meetings between the Water Commissioners of the two sides twice a year to arrange mutual inspection visits of project sites and river headworks veer towards wondering if these tactics of delay are intended to create facts on the ground favourable to the upper riparian that then become difficult to reverse. The present breakthrough will go some way towards allaying some of these suspicions. International law and the IWT are very clear on the water rights of upper and lower riparians. Instead of getting bogged down in fruitless debates, delays and postponements of visits under the provisions of the IWT, both Pakistan and India’s interests would be better served by adherence to the IWT’s provisions and processes. This could also serve to ease the tensions that bedevil mutual relations.