Aug 18

Who rules Pakistan?

Posted on Friday, August 18, 2017 in The Friday Times (Editorial)

Who rules Pakistan?

As Pakistan turns 70, political scientists are trying to fathom the dimensions and implications of a new twist in an old paradigm: who rules Pakistan. Until now the prevailing view was that the civil service and military have jointly exercised power directly or indirectly, with the judiciary serving as a handmaiden, while civilian politicians have intermittently been in office. The distinction between “being in power” and “being in office” was central to the paradigm. Now there seems to be a change in the equation, with the judicial-military bureaucracy co-opting power, and the civil service playing the role of the handmaiden (prominently NAB), while civil politicians vainly struggle to remain in a greatly diminished office.

The Movement for the Restoration of Iftikhar Mohammad Chaudhry and his fellow judges of the Supreme Court, culminating in restoration in 2009, had two important consequences. It greatly strengthened the judiciary. But it also politicized it immeasurably. Under Justice Chaudhry, the SC lashed out at a PPP president and two PPP prime ministers. It put the military on the mat for “disappeared” persons in Balochistan and ordered investigations into the financial affairs of the National Logistics Cell run by the military. It pressurized two NAB Chairmen to quit for neglecting to act impartially against ruling politicians. Finally, it broke free from the doctrine of parliamentary supremacy by establishing the doctrine of judicial self-accountability and constitutional supremacy.

After Justice Chaudhry’s departure, the SC has moved to consolidate its political power by two flanking movements. It has signaled its readiness to cooperate rather than conflict with the military establishment. The most obvious case in point is the composition of the Joint Investigation Team led by two powerful military intel agencies. It has decided to target the PMLN prime minister in order to establish its “neutrality” vis a vis both mainstream political parties. It has also decided to take effective control of NAB jointly with the military whose retired officers run it.

The modus operandi of the SC has, however, raised troubling and unprecedented questions in the popular imagination. How did it suddenly come to accept a writ petition by Imran Khan against the Sharifs after the failure of his dharna to overthrow the regime when it had earlier scoffed at it as “rubbish”? Why did it deem it necessary to order the formation of a JIT led by two senior military intel officers when the investigation pertained to money laundering rather than terrorism? Why did it appoint one of the three judges who kicked out the PM to oversee the same premier’s NAB trial in a lower accountability court? Why did it set short time limits for the investigation of the Sharifs in the SC itself and their accountability trial subsequently?

A host of powerful legal questions have also been raised in the five Review Petitions lodged by the ousted prime minister and his family. How the court deals with these will shed further light on its political and legal behavior.

The theory of an imminent “judicial coup” has been doing the rounds for some time. Its proponents have argued that sooner or later the military will nudge the judiciary to center stage because it cannot directly challenge the civil order without openly running afoul of the Constitution. The tipping point probably came when the military was compelled by the force of public opinion and constitutionalism to withdraw its tweet “rejecting” the PM’s notification regarding Dawnleaks. Henceforth, it was decided, a constitutional stick whose legitimacy cannot be questioned should be used to whip the civilians into obeying its “orders”.

If all this is reasonably true, then we can safely predict the turbulence ahead.

Regardless of whether the ousted prime minister’s review petitions are granted relief or not, it is certain that summary NAB proceedings in a lower accountability court will humiliate and then convict the Sharifs and other accused before the scheduled Senate elections next March. The idea is to weaken the ruling Sharif family, and by association, the PMLN so that they cannot threaten the new judicial-military paradigm by winning the Senate elections and making a bid to clip the powers of the SC. Simultaneously, efforts will doubtless be made to try and effect defections from the PMLN so that its ability to mount popular resistance to this “operation” is significantly reduced.

The judiciary’s new role is manifest not just vis a vis PMLN but also PPP. The Sindh High Court has put paid to the Sindh Assembly’s bid to counter NAB with its own accountability mechanism. Ominously enough, a NAB accountability court in Rawalpindi has suddenly woken up to speed up the trail of Asif Ali Zardari in a case of assets without known sources of income.

The Sharifs have realized this impending fate much too late in the day for their own good. But the Zardaris are still posturing with their heads in the sand. The greater tragedy for Pakistan at 70 is that the new “powers-that-be” are as morally and politically bankrupt as the old ones.

Aug 11

Pakistan at 70

Posted on Friday, August 11, 2017 in The Friday Times (Editorial)

Pakistan at 70

As Pakistan turns 70, the cry for “change” becomes ever more shrill and violent. On the surface, it is an angry rally for an end to “corruption” because everyone – young and old, male or female, rich or poor, Sindhi or Punjabi, Shia or Sunni, religious or secular, urban or rural – is morally and politically outraged by it. But the underlying reality of the country is more unsettling. Far from the prospect of a “Pakistani spring” on the wings of the latest troika of judiciary, military and Pakistan Tehreek-e-Insaf, the “awakening” portends a deepening of the crisis with fearful longer term consequences. Consider.

A British Council survey three years ago indicated the direction of “change” in Pakistan. The country is increasingly “young” and “urban”. Half its citizens are under 20 and over 65 percent are under 30. The population has trebled in fifty years. Another 14 million youth will be eligible to vote in 2018.

Over 94 percent of the youth think the country is headed in the “wrong” direction. Over 80 per cent think their economic position will not improve. Across all divides, pessimism is the defining trait of this next generation “youth bulge”. Violence stalks everyday life. Over 70 percent think life is not safer for Pakistanis compared to the past – Pakistan ranks 149th of 158 countries in the Global Peace Index.

The survey reveals that the greatest source of anxiety for the youth is not terrorism but insecurity of jobs and justice and economic inflation. Only 10 per cent have full time contracted employment.

The report notes that approval rates are lowest for political parties and parliaments. Other institutions – religious, media, military and judiciary – have high approval rates. Less than 30 percent think “democracy” can deliver development and employment whereas nearly 70 percent think military rule and shariah can be better solutions. Nearly 70 percent are conservative/religious. A majority of those with mobile phone access to social media are politicised and want to vote because they think they can “change” the system. Significantly, over 8o percent of countries in which over 60 percent of the population is under 30 years of age like Pakistan are prone to violence and civil conflict because the “system” isn’t delivering expectations of social and economic well-being.

This raises the question of whether forced “regime change” for reasons of selective party-political “corruption” can stem the tide of insecurity, violence and pessimism in the body politic of Pakistan.  The empirical evidence suggests that corruption has not declined despite recurring “regime change” of “corrupt governments” in the last seventy years of independent Pakistan. In fact, corruption has not abated despite alternating civil-democratic and military-dictatorship rule in the country. Indeed, regime change in the current circumstances based on the aspirations and reactions of the religious-conservative youth bulge that favours military-judiciary rule will sound the death knell of Pakistan.

The “Arab Spring” in the Middle East is a good yardstick by which to measure the nature of “change” prompted by the youth bulge. Instead of delivering a dividend in the form of a democratic system that spurred economic growth, security and stability, one after the other the countries of the ME succumbed to dictatorship, anarchy, religious civil war, foreign intervention and state breakdown, transforming the anticipated “Spring” into a “Winter of discontent”. Given the social and political propensities of the youth bulge in Pakistan, this route for change will destroy Pakistan too.

Nearly 15 million youngsters, most of whom are conservative, unemployed and angry, will be added to the voting list in 2018. If they veer to the religio-fascist right at the instigation of unelected state institutions whose own record of delivering jobs or justice is abysmal, the country will inch closer to renewed violence, instability and separatism. But if they are accommodated within the “corrupt” democratic system, Pakistan still has a chance of reinventing a new democracy that is better able to cope with the demands for state security and economic welfare.

It is, of course, true that political parties and their dynastic leaders are no less culpable for the dysfunctional state of Pakistan’s economy and democracy than military coup-makers and their judicial legitmizers. However, what is interesting in the current quagmire is the political contest between an old party of the conservative-right that was midwifed by the military and judiciary but is now shifting to the centre and trying to become autonomous of both state institutions and a new party of the same leanings and origins that is swinging further right on the basis of the youth bulge and dependence on the same state institutions.

Under the circumstances, the current political crisis that is pegged to “corruption” and regime change is actually about the direction in which Pakistan is headed in a contest between imperfectly democratic, centrist but corrupt political regimes and equally corrupt but violent, religio-fascist autocracies that are a recipe for anarchy and state breakdown as in the Middle East.

Aug 4

Collective wisdom

Posted on Friday, August 4, 2017 in The Friday Times (Editorial)

Collective wisdom

If perceptions are more important than reality in the popular imagination, then the perception that Nawaz Sharif is corrupt is dogged by the perception that he has been targeted for punishment. The perception that the Sharifs did not come clean before the JIT is tarred by the perception that the JIT was rigged against them. The perception that there was no escape from a proper accountability trial in the proper criminal forum as ordered, is blotted by Mr Sharif’s disqualification for life on a questionable application of Article 62(1)(f) of the Constitution based on contrary definitions of law and mistaken interpretations of statements made by members of the Sharif family. Consider.

The judges say that Mr Sharif is not “sadiq” and “ameen” because he made a false statement before the Election Commission when he didn’t declare his unreceived salary or income from a UAE company as an “asset”. The problem is that, under Pakistani law, as every tax practitioner will swear, individuals (unlike private and public limited companies or partnerships) are not required to list “receivable income” (other than contracted rent) as income subject to income tax in their personal tax returns. Nor is such unreceived income treated as an asset. But the judges made the unprecedented leap from “income” to “asset” on the basis of a definition in a dictionary rather than the established and practiced tax law in the country. Indeed, the perception of a populist bias has gained currency because there is no mandated or specific constitutional requirement to disqualify him for life.

It has also been pointed out that the statements of various members of the Sharif family, notably that of Mr Sharif in parliament, are open to interpretations and conclusions quite different from those made by the JIT and judges. This suggests that these do not necessarily contradict one another or any of the documents or subsequent arguments and statements made by them.

The appointment of a judge of the three-member tribunal to oversee the trial in a NAB court is unprecedented. It also raises serious concern about the ability and willingness of a judge of a lower court to exercise independence of judgement when he is constantly looking over his shoulder at the senior SC judge supervising the process.

The SC decision to set a time frame for the whole legal process in this case involving several accused to end in six months is also unprecedented. Unlike the JIT investigating the charges, which couldn’t complete the job satisfactorily in 60 days and left Vol 10 of its report hanging in mid-air, this is a trail court which is obliged to give sufficient time for all to collect and present evidence and for the evidence to be challenged and debated. This would suggest a decision before the general elections next year that would tilt the scales one way or another, an act that could be classified as controversially political rather than legal in nature and consequence.

It is significant that, in the process of setting new precedents of far reaching consequences for state and society, some of the honourable judges have overturned their own earlier legal opinions and judgements, notably in reference to Articles 62 and 63. This has strengthened the unfortunate perception that populism is influencing the judgments of the apex court.

Understandably, therefore, the debate is shifting to more substantial issues related to the role and powers of the SC.Why are the judges, like the military, unaccountable to parliament? Why is the SC increasingly offering its platform as a court of first appeal when there is no significant and due process of appeal against its judgments in such cases? Are these manifestations of a creeping “judicial coup” against the letter and spirit of the Constitution in which both due process of law and accountability of all, subject to checks and balances are deeply enshrined? Are the judges to a man all “sadiq” and “ameen” themselves so that they can fairly determine who is “sadiq” and “ameen” among the 240 million populace of Pakistan?

Given the logic of the situation and legal reservations, Imran Khan and Jehangir Tareen too cannot escape the same fate. There are similar holes in accounts of their money trails. Indeed, if Asif Zardari is investigated, he too will have a hard time surviving the wrath of this sort of law. We may further agree that if petitions are lodged against parliamentarians of all sides by all sides demanding investigations of money trails and assets and written-off loans to justify lifestyles and incomes, there won’t be a parliament to talk of in the country and the stage will be set for dictatorial unaccountable disorder.

There is still time to stop this slide into anarchy. Eminent neutral opinion holds that a full SC should consider an appeal against the judgement to disqualify Nawaz Sharif on the basis of powerful qualifications and considerations presented here. The righteous outrage of the five judges should be tempered with the collective legal wisdom of all the 17 judges of the Supreme Court.

Jul 29

PCB challenges

Posted on Saturday, July 29, 2017 in The Friday Times (Editorial)

PCB challenges

A host of TV naysayers had advised the Pakistan Cricket Board to book the return flight of the Pakistan cricket team immediately after it lost to India in the opening match of the Champions Trophy in England last June. One TV commentator, an ex-captain of Pakistan, was so disgusted that he demanded PCB be disbanded, its domestic and international tournaments be cancelled and its management, selectors and coaches all be sent packing. Two months later, however, the “nation” is still celebrating Pakistan’s heroic win over hot-favourite but arch-enemy India to grab the coveted Champions Trophy. How did this cricketing “revival” come about? What are the obstacles in its path?

The single most important development in Pakistan’s cricket history since winning the World Cup in 1992 has been the Pakistan Super League. For eight years, three PCB Chairmen tried to launch it and failed. Today it is a resounding success. It has revived PCB’s fortunes in three significant ways. First, it has dug up a wellspring of fresh talent that was on scintillating display recently. Second it has enabled our youngsters to rub shoulders with and play against the top international players of the world in a high-pressure environment, a learning experience of immense value. Third, the profits from PSL are poised to become a major independent source of PCB funding equivalent to nearly 50% of PCB revenues from the ICC, which means more funding for cricket development in the country. But PSL is already threatened on two counts.

For PSL to become a truly dynamic and self-sustaining force, it must be played in Pakistan. The UAE is a very expensive venue. Ticket sales are insignificant. Local sponsors non-existent. But periodic acts of terrorism at home make this a difficult objective. That is why the Final in Lahore last March was an extraordinary achievement. But the task ahead is daunting. Whenever a bomb goes off in Lahore or Karachi, PCB’s hard work in trying to convince international players and cricketing bodies that Pakistan is safe to play goes up in a pall of smoke.

PSL is also threatened by powerful vested interests. Disgruntled ex-employees of PCB and perennially blackmailing job seekers are constantly dragging the PCB to court on frivolous grounds. Currently, PSL faces “inquiries” in NAB and FIA sponsored by such complainants despite the fact of highly intensive and independent internal and external audit procedures. In fact, instead of protecting a valuable national asset, parliamentary sports watchdog committees are riven by party political differences which spill over into undue criticism of PCB which is a statutory body of the federal government. Now attempts are underway in the courts to destabilize PCB by challenging the constitutional transition to a new elected Board of Governors and Chairman of PCB for the next three years. If this is disrupted, we can say goodbye to PCB’s efforts to bring PSL and international cricket back to Pakistan and revive cricket in the country.

Pakistan cricket is also threatened by greed and corruption. The recent spot fixing in the PSL involving a clutch of players would have wrecked PSL if the evil hadn’t been nipped in the bud. Yet a section of the media and ex-cricketers’ establishment seem to display more sympathy for the crooks than for their prosecutors. This is remarkable in view of the constant refrain from much the same sort of critics that if the Justice Qayyum Report of a decade ago had been ruthlessly implemented by the PCB and the errant cricketers rooted out, this corrupt practice would never have reared its ugly head again. Indeed, the very success of PSL makes it a potential high value target for bookies which necessitates a zero-tolerance policy by the PCB based on strict and swift punishments. But instead of supporting PCB, sections of the media are hell-bent on thwarting its anti-corruption squad.

Negative Indo-Pak relations have also adversely impacted the PCB. The BCCI is refusing to honour an eight-year contract for six bilateral series which were expected to yield over Rs 150 billion to PCB. It says the Modi government has stopped it from playing Pakistan at home or abroad. But by dragging politics into cricket, the Modi government is doing a great disservice to a game beloved of billions. The money from these series with India is earmarked for the development of cricket academies and stadiums across Pakistan and its loss is a huge blow for the PCB which receives no funding from the government.

The challenges ahead for the PCB are formidable. A necessary condition is stability of the management that has produced a successful “Made in Pakistan” brand like PSL, which has cobbled a successful coaching and selection squad behind a resurgent, “new look and new feel” Pakistan team, which is attacking corruption, and which is reforming the domestic cricket structure. If we can ask BCCI to keep politics out of bilateral cricket, we should demand the same from vested political interests at home.

Jul 21

End the crisis

Posted on Friday, July 21, 2017 in The Friday Times (Editorial)

End the crisis

The moment of reckoning for Nawaz Sharif has come. The three judges of the Supreme Court bench have digested all the arguments and will now decide whether Nawaz Sharif is “sadiq and amin” for speaking the truth or lying about the sources of his wealth. If the bench believes he has lied, he will be disqualified from being a member of parliament and holding the office of prime minister. Moreover, the bench will decide whether the case merits being sent to an accountability court for further investigation and criminal prosecution of one or more members of the Sharif family, including Mr Sharif.

The Sharifs’ lawyers have punched holes in the JIT’s credentials and conclusions. But the bench has shrugged away the charge by saying it is not, in any case, bound by the JIT’s findings. Instead, the judges aver that the Sharifs haven’t answered relevant questions about the source of wealth that led to the purchase of the London flats many years after they were in possession of the property. The Sharifs’ lawyers ask how can Nawaz Sharif explain the money trail of a property he does not own in the first place. The opposition counters if that be the case why did Nawaz Sharif stand on the floor of Parliament and declare that he would answer all questions and provide all documents relating to the wealth of the Sharif family? Forget everything else, say the judges in frustration, just show us how the flats were legitimately bought and we will wrap up the case. The Sharifs argue that if the JIT had asked the Qatari prince to confirm his involvement in the matter as the primary source of funds for the flats, this question would have been answered satisfactorily. Why the JIT didn’t question the Qatari prince – who expressed a readiness to be examined — remains a mystery, and one that weakens the legal case against the Sharifs.

The case is both simple and complex. It is simple in the sense that if at least two of three judges on the bench hold the prime minister guilty of lying, then it is curtains for him. It is complicated in the sense that if two of the three judges hold him innocent and one holds him guilty, how will this bear on the status of the judgment, since two out of five judges of the original bench had already declared him guilty? Unfortunately, the judges have not clarified whether a majority of three will decide Mr Sharif’s fate or a majority of five.

There are other issues to address. If the SC is not a trial court, as per the constitution, how can it hold a trial of Mr Sharif or any member of the Sharif family for corruption? By this argument, if the SC thinks that there is, prima facie, a criminal case to be made out against one or more of the Sharifs, it must refer the matter of a proper trial to an accountability court. But on the other side of the coin is the fact that two out of five judges of the original bench have already declared Mr Sharif to be not “sadiq and amin” on the yardstick of Article 62/63 of the constitution and disqualified him from being a member of parliament. An additional complication has arisen because there is both a disqualification precedence – MNAs were disqualified directly by the SC because they could not verify the authenticity of their BA degrees – as well as a strong judgment by Justice Asif Khosa, one of the two judges who have disqualified Mr Sharif on the basis of 62/63, against clutching at Article 62/63 for disqualifying members of parliament because that will open a Pandora’s box of arbitrariness and uncertainty. Confusion and contradiction is further compounded by certain written and oral remarks of some judges that point to preconceived notions and prejudices against powerful and wealthy men (like Mr Sharif).

Parallel to the trail of Mr Nawaz Sharif in the SC, there is a case against Imran Khan in the SC that mirrors much the same sort of issues. The SC is asking him to show the money trail of his London flat, of his Bani Gala property and of his party funds from foreign sources. The problem is that Mr Khan is having as much difficulty convincing the judges investigating him as Mr Sharif. If the two groups of judges trying them base their judgments on two different sets of laws and legal precedents, then all hell will break loose. But if they concur, then the likelihood is that both Mr Khan and Mr Sharif will meet with the same “innocent” or “guilty” fate.

It would be good for the country if the coming judgments do not deepen the political crisis. But if they do, it will reinforce the old wisdom that judges may wade into raging political matters only at peril to the rule of law and constitution, to the institution of the judiciary and to their own personal selves.