Apr 28

Politics and Law

Posted on Friday, April 28, 2017 in The Friday Times (Editorial)

Politics and Law

As expected, instead of settling the issue, a 3/2 judgment in the Panama Leaks case before the Supreme Court has triggered bitter political controversy and tension. Both the PMLN and PTI have celebrated their respective “victories” – one side says that all the judges agree that the Sharifs have lied about their money trail while the other says that a majority has not disqualified Nawaz Sharif. The argument has spilled over to the credentials, credibility and ability of the Joint Investigation Team to deliver a fair result in 60 days. Each side is also mulling the pros and cons of filing a review petition to swing the judgment in its favour conclusively. Meanwhile, most analysis of the judgment is coloured by the political prejudices of commentators.

Some facts, as opposed to opinions, may be stated to clear the fog. First, the “dissenting” judges have charted new legal territory in forming their opinion. This will have significant repercussions in state and society. Reliance on Articles 62 and 63 of the constitution – who is a good Muslim and who is not – is particularly fraught with dire consequences. Second, the “conformist” judges have tasked a JIT to probe the matter. This comprises most investigators from the very civilian accountability institutions in which they had earlier expressed little faith. Third, all the judges are agreed that Maryam Nawaz Sharif is not a dependent of Nawaz Sharif even as they have asked the JIT to investigate the ownership of the London properties in which she figures as a beneficial owner (according to the petitioner) or “trustee” (according to the respondents).

This last fact is important. Legally, Maryam is the only link to the London properties at the heart of the matter relating to Nawaz Sharif. He is not listed as a beneficial owner in any foreign property or offshore company. The judges have also held that his statements in or out of parliament are “irrelevant” regardless of the inaccuracies or omissions. In other words, the question of the “money trail” is now confined to the two sons and daughter of Nawaz Sharif. If the JIT can prove they have lied, they will be for the chop. Since Maryam is not dependent on Nawaz Sharif, he is not responsible for her actions.

There is, however, another way the JIT can get at Nawaz Sharif. That is by reopening the Hudaybia Paper Mills case and proving that it is a central plank in a big money laundering trail involving the Prime Minister. Whether this can be done in 60 days is a different question altogether.

There is an even more troubling fact at work here. Politics rather than law is dominating the debate. Justice Asif Khosa’s quotation from The Godfather and Balzac (“behind every great fortune there is a crime”) betrays his political prejudice. Chief Justice Saqib Nisar’s personal request to the “extraordinary” Imran Khan to relieve the political pressure on the courts is extraordinary in itself. Earlier, Justice Nisar had to publicly swear his neutrality on the Quran when he was regaled by allegations of being “close” to Nawaz Sharif. The statement from the ISPR on behalf of the Army High Command that the institution will conduct itself with neutrality and transparency is another manifestation of political pressure. A campaign of vilification against one of the “conformist” judges for obtaining a plot of land (which is his legal due routinely) from the government is also primed to shunt him into the other camp.

The fact is that from Day One, political pressure rather than legal nicety has been at the heart of the movement to oust Nawaz Sharif. It started with Imran Khan’s dharnas and protest rallies through 2014-15. When that failed to dislodge Nawaz Sharif, the opposition led by the PTI went to court, alleging massive and planned electoral rigging. When a judicial commission headed by the chief justice of the Supreme Court and approved by the opposition rejected that allegation, the PTI went back to the streets, threatening a lockdown of Islamabad last October. When the government foiled that “uprising”, the PTI returned to the Supreme Court and pressurized it into forming a commission to investigate Panamaleaks (earlier the same SC had rubbished the same petition by refusing to hear it). Meanwhile the PTI has been pressurizing the Election Commission of Pakistan to do its bidding. The PTI doesn’t want it to adjudge a petition against Imran Khan alleging massive fraud in the money trail that feeds into his election funds. The Chief Election Commissioner is now threatening to hold Imran Khan in contempt for undermining the credibility and writ of the ECP.

The scene is now set for a further politicization of the matter. The PMLN is likely to resort to counter-pressure tactics to protect itself. This is bound to draw the military into the fray as arbitrator of the last resort. We have been through that route before and it is not good for Pakistan.

Apr 21

Panamaleaks: to be continued

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

Panamaleaks: to be continued

The Supreme Court bench hearing the Panamaleaks case has finally announced a 3/2 decision after two months of deliberations over the matter of the “money trail” that led to the purchase by the Sharif family of various properties in London in the 1990s. Its conclusion: further investigations are needed before arriving at definite decisions. The voluminous and time consuming judgment suggests that a consensus eluded the bench, with some judges inclined to clutch at the spirit of the law and others still reluctant to depart from the letter of the constitution.

The judgment has not disqualified PM Nawaz Sharif as a Member of Parliament and Prime Minister of Pakistan. Instead, it has decreed the formation of a Joint Investigation Team comprising representatives of Military Intelligence and Inter Services Intelligence, plus National Accountability Bureau, Federal Investigation Agency, State Bank of Pakistan and Securities and Exchange Commission of Pakistan, to investigate (within 60 days) whether and how the Prime Minister and his two sons Hassan and Hussain acquired the money with which they bought expensive properties in London in the 1990-2005 period. The Chief Justice of Pakistan is now expected to constitute a separate bench to peruse the JIT report in July and determine the culpability of the accused. In other words, Nawaz Sharif is not yet off the hook even though the PMLN is crowing about a victory.

The opposition led by the PTI is focusing on some other salient points. Two judges have declared Mr Sharif guilty as charged while three judges think the evidence is still unconvincing in this regard. But the three judges have not ordered the PM to “step aside” while the JIT conducts its investigation. This suggests that these judges were cognizant of the dangers of setting such a legal precedent that would spell instability in the future. But this has also provoked the opposition to clutch at notions of morality and transparency and demand that the prime minister do so in order not to erode the impartiality of the JIT report. Indeed, we should expect this theme to be a central plank in the opposition’s agitation for the next two months because the heads of the SECP, NAB, FIA and SBP are appointed by the PM and questions have already been raised by the dissenting judges about the professional competence of both NAB and FIA and the impartiality of their heads.

The critical dimension of the JIT relates to its TORs. It is tasked “to collect evidence to prove that Mr Sharif and his dependents or ‘benamidars’ own, possesses or have acquired assets or any other interest therein disproportionate to his known wealth…” In other words, it is up to the JIT to collect the evidence and provide answers to the following questions: How did Gulf Steel Mills come into being? What led to its sale? What happened to its liabilities? Where did its sale proceeds end up? How did they reach Jeddah, Qatar and the UK? Whether Hassan and Hussain at that tender age had the means in the early 1990s to possess and purchase the flats; whether the sudden appearance of the letters of Hamad bin Jassem Jaber Al Thani is myth or reality. How did the Bearer Certificates crystalize into apartments? Who is the real beneficial owner of Nielson Enterprises Ltd and Hill Metal establishment? Where did the money for Flagship Investments Ltd and other companies set up by one of the sons come from? Where did the huge sums of money gifted by one of the sons to Nawaz Sharif come from? And so on.

This is going to be a tough act to follow. The members of the JIT are not exactly renowned for being forensic sleuths in money laundering cases with trails in foreign lands, especially in the short time given to them.

The most astonishing part of the judgment is Justice Asif Saeed Khosa’s dissenting opinion on the disqualification of the PM on the yardstick of Article 62 (f) for not coming clean on the money trail. Justice Khosa, it may be recalled, had earlier frowned on attempts to clutch at Articles 62 and 63 to disqualify any member of parliament. But this is offset by Justice Ijaz Afzal (who wrote the majority judgment) who argues that the Supreme Court cannot make declarations directly on the basis of Articles 62/63 and must refer these to the Election Commission if the question so arises.

Nawaz Sharif should be worried about his indictment at the hands of two senior judges. This reflects on the intensity of popular pressure on the judiciary. Equally, his sons can’t be too comfortable with the idea of appearing before the JIT to answer searching questions. But all three gentlemen must appear before the JIT and give due respect to it as a surrogate for the judiciary. Everything will now depend on the consistency and authenticity of their depositions as much as on the professional ability of the JIT to unearth any alternate and contending facts of the case.

Apr 14

April, the cruelest month?

Posted on Friday, April 14, 2017 in The Friday Times (Editorial)

April, the cruelest month?

Are things coming to a head in April?

The staff of the Prime Minister’s House has just been given a “bonus” equivalent to four months salary. This is unusual because bonuses and salary increments are normally given at the end of the financial year in June.This has fueled speculations that Prime Minister Nawaz Sharif is worried about being dislodged by the Panamaleaks judgment any day now and is therefore “wrapping up” domestic matters. A sweeping remark by one of the Panamaleaks judges — to the effect that the judgment will be a historic one that will be remembered for decades to come — has also put wind in the tail of the “Go Nawaz Go” brigade.

As if to confirm its detractors, the PMLN government has swung into high electioneering gear after the federal cabinet announced a series of “voter-friendly” measures. The ban on recruitment into government has been lifted; over 50,000 government employees have been “regularized”; new housing schemes for the have-nots have been announced in important political constituencies; the moratorium on gas connections and new gas supply schemes in rural areas has been lifted; a friendly Hajj policy has been unveiled; and so on. All this follows on the heels of a whirlwind tour of remote areas by Mr Sharif during which he focused on highlighting the “good development work” done by his regime despite the disruption caused by conspiratorial dharnas, strikes and protests by opposition parties.

The truth is that it has been a rough ride for Mr Sharif so far and there is no respite in sight. He was nearly toppled on two occasions during the“#ThankYouRaheelSharif” period. Then Panamaleaks hit him like a bolt from the blue. In between, he has had heart surgery and gall bladder problems. All this while, he has had to contend with angry protests over “missing political persons”, souring relations with neighbours India and Afghanistan, power shortages, civil-military tensions, terrorism, and constant attempts by the judiciary to clip his wings. The worst cut of all is that the development agenda pegged to his pet CPEC project and brownie points by the World Bank and IMF over the prospect of 5% growth in the economy are threatened by a rising gap in the current account deficit that is threatening to lead to currency devaluation, higher interest rates and inflation.

The impending judgment in the Panamaleaks case could unravel Nawaz Sharif’s future. But there is no assurance that the next elections will be more ordered and less controversial than the last ones which led to acute instability and destabilization. Despite four years of judicial commissions and negotiations over electoral law reform, the political parties have still not come to any meaningful agreement over the way forward. At last count, the all-parties parliamentary committee tasked to prepare a bill had still not overcome dozens of objections posed by the Pakistan Tehreek-i-Insaf (PTI). Indeed, at one stage the Election Commission of Pakistan (ECP) felt so harassed by the PTI that it walked out of the committee and threatened to hold the party in contempt.

The problem has arisen because the PTI is seeking not just to change the law in the interests of more fair play and transparency but also to tilt the scales in its favour. For instance, it wants the ECP and caretaker governments to be approved by a parliamentary committee in which both houses of parliament and all mainstream parties are represented fairly rather than just the government and main opposition party as the law currently stands. This is fair. But it also wants the ECP to abolish the rules and restrictions on election funding and sources because its main funding comes from foreign donors and has been challenged in the ECP for lacking accountability and transparency. Similarly, its demand for a universal application of Electronic Voting Machines is misplaced. Most local and foreign experts insist that this should not be implemented without first learning from the results of pilot projects for correction and adjustment. Much the same sort of impracticality stems from its demand for biometric verification of all votes before a ballot paper is issued at every polling station. But its demand for the army to play a more intrusive role inside and outside polling stations is understandable given the suspicions attached to the role of civilian ROs from the judicial branch of the state. Much the same may be said about its insistence that fresh projects and development schemes should not be announced by sitting governments as “pre-election bribes” to voters after a date has been announced for holding elections. However, its proposal for mandatory vote recounts of runner-up candidates is only going to delay election results and create unnecessary controversies. Under the circumstances, the ECP’s frustration at the lack of consensus is understandable.

And so it goes on. The English poet TS Eliot wrote depressingly of longing and loss in “the cruelest month” of April. Nawaz Sharif could do worse by mixing memory with desire.

Apr 7

Foretelling an election

Posted on Friday, April 7, 2017 in The Friday Times (Editorial)

Foretelling an election

Mr Asif Zardari says he will pick the next prime minister of Pakistan. He also says he will personally contest the next elections. From these two statements we can logically deduce that Mr Zardari will only get to pick the next PM instead of being the PM himself. That is to say, the PPP will not win the next elections and therefore the PM will come from some other party. That will happen because the PPP will win a sufficient number of seats, largely from Sindh, to hold the balance between the PMLN and PTI, neither of which will win enough seats to form a government on its own and instead look to the PPP and regional parties to form a coalition government in Islamabad. That is how Mr Zardari will cast the deciding vote.

This is the first time a PPP leader has ever admitted that his party is not likely to win the next general elections. Between them, the Bhuttos, father and daughter, won four elections despite being on the wrong side of the military establishment, the last one in 2008 in absentia (as it were) and paid with their lives for it. This shows how far the PPP has plunged in the esteem of Pakistani voters. Indeed, Mr Zardari’s singular achievement has been to transform a truly national, mass based, mainstream party largely of have-nots into a regional party of vaderas that is clinging to power in Sindh on the basis of the politics of corruption, patronage and martyrdom. A fleeting sense of rejuvenation at the prospect of young Bilawal infusing vigour and inspiration into the party has vanished with the return of Mr Zardari. His statements suggest he is sharpening his deal making tools to play the role of king maker because he knows he can’t conceivably be king himself.

Significantly, Mr Zardari’s analysis of how the mainstream parties are placed in the run up to the election is based upon a poor showing of his own party no less than upon similar calculations for the PMLN and PTI. He thinks the PMLN has been cut to size both by the military establishment and by Panamaleaks. He also believes that the PTI has lost the support of the military establishment and Imran Khan has disillusioned many supporters by his U-turns, lack of grass roots party development and failed dharnas, long marches and the like. In other words, while each may emerge stronger than the PPP, neither will be in a position to form a government without the PPP’s support.

Mr Zardari is also banking upon an election later this year rather than next year as scheduled. This prediction is based on the expectation of a seriously adverse court decision in Pananamaleaks for Nawaz Sharif that compels an early election and forestalls a PMLN sweep of the Senate [in which the PPP has a majority currently] and elections in February next year based on its current strength in the Punjab and Islamabad. Certainly, if elections are held this year and no party obtains a majority then the composition of the senate will also reflect that of the National Assembly and governance by coalition compromise will be the order of the day. That will suit Mr Zardari admirably because he will be able to manipulate Islamabad to get a freer hand in Sindh, which remains his top priority.

In the meanwhile, it also suits Mr Zardari to create political space for himself by focusing on running Nawaz Sharif down rather than buttressing Imran Khan by joining hands with him. It is interesting that Imran Khan is attacking both Nawaz Sharif and Asif Zardari for corruption while neither Mr Zardari nor Mr Sharif is attacking the other or Imran Khan for corruption. It is as if Imran Khan wants to peg his election campaign on corruption and Nawaz Sharif on economic development but Mr Zardari is content to swing through Sindh with his Cheshire cat smile showering patronage all round.

In all this, there is one significant factor that could make prediction difficult. For once, the military establishment under General Qamar Bajwa doesn’t seem to have any party favourites to plug or undesirables to pull down. Imagine the lump in Imran Khan’s throat when he emerged from a recent meeting with General Bajwa and proclaimed that the good General was all for democracy. Since his foray into politics, Khan has egged on each army chief to raise his finger and declare either Mr Zardari or Mr Sharif out and give him a short cut to office. And when he didn’t succeed he was quick to turn against those very army chiefs and extol the virtues of democracy.

For one reason or another, the elections in 1988, 90, 93, 97, 2002, 2008 and 2013 were all foretold because of the overlying likes and dislikes of the military establishment. Only the election in 1970 stumped everyone because GHQ kept its hands clean. Under the circumstances, who knows what tricks fate will play upon us all.

Mar 31

Fresh approach

Posted on Friday, March 31, 2017 in The Friday Times (Editorial)

Fresh approach

In a recent article in the Washington Post, Hussain Haqqani, ex-Ambassador to US, admitted that he had issued visas in 2011 to dozens of Americans, including covert US intelligence agents, which ultimately facilitated the elimination of Osama bin Laden in Abbottabad by US Special Forces in May 2011. This has stirred up old accusations of “treachery” on the part of Mr Haqqani who, it may be recalled, was hounded into resigning and then put on the mat in Memogate in 2011 for standing with the PPP leadership and challenging the writ of the military establishment of the time.

Mr Haqqani has always defended his position by claiming that the visas were issued with the express permission of the then prime minister of Pakistan, Yousaf Raza Gillani, and the then Defense and Air Attache in the Pakistan Embassy in Washington DC, Brigadier Nazir Butt, who is now a Corps Commander. Now, finally, after a month or so, the ISPR has broken its silence on the matter with a tweet that simply says that the stance of “state institutions on the issue of visas has been vindicated”.

This raises two interesting questions. First, why did the ISPR wait so long before wading into the matter? Second, why is it confining itself to a brief and general statement that neither sheds much light on the matter nor pours fuel over it? Indeed, this is significant because it is a visible departure from previous practice in which the ISPR under General Ashfaq Kayani and even more so under General Raheel Sharif was aggressive and vocal on many matters including some that were not strictly in its domain. Has the current military establishment under General Qamar Bajwa departed in some subtle manner from the ways of its predecessors? If so, is that a good or bad thing?

Two other recent developments raise similar questions. Consider.

Imran Khan has alleged some sort of a crooked “deal” between Nawaz Sharif and Asif Zardari that has facilitated the return of Mr Zardari, the return and bailing out of Mr Sharjeel Memon to Pakistan, the flight of Ayaan Ali out of Pakistan and the release from prison of Dr Asim Hussain (the latter three are alleged to be “close” associates of Mr Zardari). Certainly, it is curious that all three developments favour the PPP. But if there has been some sort of deal, how has Nawaz Sharif benefitted from it because Mr Zardari continues to blast him on one count or another. So if there has been some deal, it must be on some other count.

On two issues, the PPP has conceded critical space to Nawaz Sharif. One is the issue of military courts and the other is the issue of the Rangers’ stay and powers in Sindh. But both are dear not so much to Mr Sharif as they are to the military establishment in its war on terrorism. On both the PPP had taken a tough stance. It was threatening to torpedo the Bill extending the legitimacy and scope of military courts (it has a majority in the Senate) and it was warning Islamabad that it would not extend the stay of the Rangers in the province unless it was assured that the military establishment would not target its party for corruption under the guise of combating terrorism.

On both counts, it seems an “understanding” has been cemented between the civilian and military establishments that will lead to a reduction in friction and greater stability that enables both to get on with their respective jobs.

This is not to say that the current military establishment has decided to condone corruption among politicians and ruling parties or to blithely accept civilian hegemony in running Pakistan. It is simply meant to signal a new way of addressing Pakistan’s national security problems by trying to create a minimal consensus with the civilian governments in office on core existential issues. This is to be done by diminishing overt rifts over policy instead of seeking constantly to establish military hegemony by exacerbating conflicts that undermine and undervalue civilian institutions.

This shift is very welcome. Pakistan desperately needs political stability to encourage foreign investment and economic development to alleviate poverty and ignorance that feed into the narrative of terrorism – CPEC is the most critical ingredient in this paradigm. Pakistan also needs civil-military cooperation and consensus to confront threats on its eastern and western borders and to showcase its willingness and ability to negotiate fruitfully with both neighbours and foreign powers that it is a responsible state that is determined to combat terrorism rather than sponsor it in any manner.

The arrival of General Qamar Bajwa has heralded a fresh and more fruitful approach to civil-military relations and the national interest that augurs well for Pakistan in its tortured journey to democratic and stable nationhood. It is time for politicians like Nawaz Sharif, Asif Zardari and Imran Khan to respond in like fashion by eschewing personal or party political interests in favour of the same national interest.