INSIGHT AND FORESIGHT

February 25, 2017

The Panama Pyre

Filed under: Uncategorized — sharafs @ 5:53 am

 

The hearings of a Public Interest Litigation (PIL) on Panama by a bench of the Supreme Court of Pakistan have concluded and the judgment reserved for future. Litigations filed by Pakistan Tehrik e Insaf (PTI), Jamaat e Islami, Watan Party and Sheikh Rasheed Ahmad were earlier dismissed. The Registrar of the Supreme Court had ruled that these petitions were frivolous for pecuniary gain but was overruled by the Chief Justice who constituted a bench that dissolved on his retirement and was again reconstituted with Justice Asif Khosa heading it.

What is important is that the Supreme Court ‘in principal’ accepted the petitions in the spirit of public interest in as much it exercises the jurisdiction of suo moto, (representative of people and strengthening democracy in public interest). It took on the onerous task of ascertaining the wrongs done to the fundamental rights and interests of the people of Pakistan. In the days of Justice Retired Iftikhar Chaudary, the Supreme Court has invoked this jurisdiction repeatedly.

The proceedings were never about the petitioners versus PML-N. Though the media did try reflecting debates as adversarial they were in fact inquisitorial with the Supreme Court Bench acting as a surrogate of public interest. The questions on money trails were inquisitorial in nature and the respondents exercised evasion. As PILs the world over imply, it was the bench ascertaining facts with assistance of litigants who represented the people of Pakistan. It was in this spirit that Imran Khan, Chairman of PTI invoked Article 184 (3) of the Constitution of Pakistan and reminding the court that his petition was justified in advocating the interests of the people.

In such cases as provided in Article 184 (3) of the Constitution of Pakistan, the inquisitorial and judgment writ of the Supreme Court extends beyond what exists in judicial precedence. It is for these reasons that while the petitions provided leads to the violations of public interest, the onus of ascertaining the truth and facts fell on the Supreme Court. For this reason, many jurists in Pakistan commented that the ‘Supreme Court was on trial’. The petitioners repeatedly reminded the bench that they were not an investigating agency. To invoke the inquisitorial jurisdiction of the Supreme Court and enable it to question investigative agencies and lower courts, PTI had prayed for the following actions by the court: That Mian Nawaz Sharif, Captain Retired Safdar and Ishaq Dar be declared to be disqualified to be Members of the National Assembly. There should be a direct recovery of looted/laundered money along with properties purchased through British Virgin Island Companies and companies in other safe havens. A direction to Chairman NAB must be given to discharge his obligations under S.18 read with S.9 of the National Accountability Ordinance 1999 and complete investigation in mega corruption cases pending for the last fifteen years. The Secretary Interior was to be directed to take steps for placement of the name of Mian Nawaz Sharif and his family members named in Panama leaks on the Exit Control List. Secretary Law and Chairman NAB must be ordered to initiate claims on behalf of Government of Pakistan for recovery of the properties in question. The FBR is to be directed to probe and minutely scrutinise the tax returns and assets declarations of the respondent and the entire Sharif family. Any other relief, direction or order deemed just and proper may also be afforded, issued and given.

PILs and suo motos have a historical precedence and past decisions of the Supreme Court have an effect of law. These are always inquisitorial and non-adversarial.  Judicial activism and what some may call the power of the Suo Moto emerged in Pakistan post-1985. According to Rafay Alam, “the creation and development of the PIL jurisdiction can also be seen as a manifestation of the Islamic and democratic ideals enshrined therein… the non-adversarial nature of PIL proceedings often result in consensus which appear similar to the principle of Ijtma in Islamic law…PIL jurisdiction is one of the few places citizens can challenge their elected representatives and the institutions they operate without recourse to the polls. With some Islamic scholars arguing that the use of Ijtma makes Islamic law compatible with Democracy, the link between PIL and Islamic and democratic principles is becoming difficult to ignore.”

It appears that the court hearing the Panama PIL forayed into unchartered territory and therefore learnt as it proceeded. The case itself that spans irregularities from 1992 to this day, requires unprecedented inquest. This is the reason why PTI had made NAB and FBR as respondents and also included the proviso of ‘deemed just and proper’. The challenges for the honourable judges were reflected in the exchange of dialogues during the proceedings.

But the first prayer of PTI had no ambiguity. It related to Sadiq and Ameen about which the court had set precedence in the past like disqualification of elected representatives failing Articles 62-63 of the Constitution of Pakistan. In the case of the disqualification of Yusuf Raza Gilani, the Supreme Court itself had disqualified the Prime Minister after conviction rather than refer it to the Election Commission of Pakistan. The litigants felt that based on evidence, past precedence and the evasive attitude of the respondents in the court, the bench in a short order could disqualify Mian Nawaz Sharif under Articles 62-63 of the Constitution of Pakistan.

Other prayers of PTI will take time to address. The respondents, cognisant of dire consequences, deliberately kept the issue of money trails ambivalent. Stopping the buck at 2006 and Qatari letters were used to confuse the court. The crucial links to untangle the knot and discover the trails back to 1992 lay in the Economic Reforms Act of 1992, Hudaibya Paper Mills and Ishaq Dar’s confessional statement on money laundering. These cases were not probed enough and governor State Bank of Pakistan never questioned.

The appearance of Chairman NAB in the courts was more for optics. It was the courts and not NAB that had shut doors on the Hudaibya Paper Mill case. In one case, the judge who closed the case is named in Panama papers. The Lahore High Court, while quashing a NAB argument admitted that Nawaz Sharif had nominal shares in the business. Judge Anwar Ahmed of accountability court termed all charges ‘politically motivated’, a remark that was never deliberated. The bench should have investigated these court decisions before admonishing Chairman NAB, who stood his ground with grace.

Another missing link and not probed enough was the Economics Reforms Act 1992 and its relevance to money laundering. These trails are mentioned in detail in FIA report investigated by Rehman Malik. Though the report did find mention in the proceedings, it is available with the bench to determine the relevance with evidence provided by the litigants. While the bench deliberates over the final outcome, it is hoped that State Bank of Pakistan will be asked to furnish crucial financial data from 1992-98. These, combined with the judgments of British Courts will make a water tight case. Indeed, if proved, it will result in convictions and recovery of Pakistani assets. Individuals who abetted in hiding money trails before the bench will all be in the firm grip of the long hand of law.

Given the damage done to Pakistan and its people, the final judgment of the bench could comprise a short order followed by more investigations. During that phase, the courts that ruled in favour of Sharifs, FBR and State Bank of Pakistan will all be under inquest.

In case the prayers of Imran Khan are not addressed, the litigants will always have a right of review. Then a legal team of PTI will raise issues on questions of law (not framed by the bench) leading to more inquests. To assume that Panama Case will be dead after the bench gives its judgment is wrong. To the contrary, the game would have just begun. The Panama Pyre will burn.

Published in Nation. 25-2-17

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February 18, 2017

RED ALERT

Filed under: Uncategorized — sharafs @ 4:37 am

What has happened within a week in Khyber Pakhtunkhwa, Mohmand Agency, Quetta, Lahore, Karachi and Sewan Sharaf was a matter of time. According to counter terrorism analysts it was long overdue. Two years of military led operations in North Waziristan with a napping National Action Plan (NAP) scattered militants like flies on a heap of filth (Nation: 17 September 2016, NAP or Napping). Now they have regrouped and returned with vengeance. With NAP in deep slumber, a government preoccupied with Panama and frail linkages of the center with the provinces, the environments were most lucrative for militants to swim like fish in water.

I have remained a fierce critic of NAP for deliberate inaction on political, judicial and social responsibilities. I had cautioned the military that in absence of political and social responsibility, it was impossible for it to handle counter terrorism like a comical Western Lone Ranger. Absence of a comprehensive policy aggravated by lack of political will and expediencies brew a lethal mixture. The paragraph below sums up the appraisal on terrorism.

“As time passes, the suspicions will become the obvious. At that point of time, Pakistan will pass through another phase of bloodshed. This will happen when the LEAs, even in absence of orders will be head on with many islands of militancy lying dormant in Punjab and operating in Sindh/Balochistan. It could also happen if militant organizations on a nod for any reason, take on the LEAs at their own” (Nation:  21 January 2017, Pakistan, the dependent state Part 2). Unfortunately, as events indicate, Pakistan has passed that point of time and terror is revisiting urban Pakistan. It is now Red Alert; creating panic that propagates the narrative of militants.

What makes the situation more ominous is that Pakistan’s internal security has linkages to the international environment. Militant sanctuaries within the Kacha Areas of Punjab, Sindh and Balochistan with Punjab’s reluctance to take on sectarian outfits combine with hostile intelligence agencies supporting intrusions from Afghanistan. This is now a very serious security threat. Government’s leverage to equate these outfits to negate the larger policy interests of Pakistan in order to appease India is now ‘talk of the town’.

Many assessments by me and other analysts are remarkably similar. Given the environments and politician’s games of expediencies, terror is revisiting urban areas of Pakistan with more ferocity.  The strategic appraisals on incomplete counter terrorism operations were validated by Quetta Commission Report that singled out Punjab with hideouts and open presence of sectarian organizations.  The Federal and Punjab government frowned over these assessments but facts float on the surface. As I wrote, “Threats from Punjab are always implied. They leave enough room for Houdini acts,” (Nation:  21 January 2017, Pakistan, the dependent state Part 2). Local body elections in Jhang (Punjab) and Dawn Leaks provide linkages to this assessment.

It was no coincidence that after the departure of General Raheel Sharif who had kept the civilian establishment on toes, a malicious slandering campaign began against him. This campaign was a reflection of a carefully planned and astute thinking to slander the armed forces for the ends of civilian supremacy even before the military had completed 50% of its task in counter terrorism operations. As General Kayani had assessed, a 100% military success would bring only a 20-30% success in counter terrorism. The remaining 70-80% pertained to politicians and civilian establishment. As the government reluctance and inaction continues, the 10% portion of military success will also erode for two reasons. First, treating people of FATA like disposable commodities and secondly, by providing space to militants in urban areas and allowing them to propagate.

This reinforces the dictum that unless the hammer and anvil are not used immediately, the sacrifices of civilians and Law Enforcement Agencies that account for over 100,000 lives and many more maimed, Pakistan could return to square one. The anvil was and remains missing in the external and internal environment. Ominously, the battle for winning hearts and minds has not even begun.

Counter Terrorism Operations were never a choice but a compulsion. The government and Parliament have treated it like a choice. But most, it is the responsibility of the government and it cannot shy away from taking bold decisions.

For whatever Zarb e Azb stood for, the government failed to pursue an effective foreign policy that required Afghanistan and USA to seal the Pakistan Afghan Border like an anvil in North Waziristan and Tirah Valley. Yet the military tried sealing it on the Pakistan side. But due to the rugged nature of terrain, most militants found sanctuaries in Afghanistan and were facilitated to fight another day. This was a continuation of the policy of 2002, when India helped denude Pakistani forces on Afghan Border by mobilizing with a very threatening posture in the East. Pakistan has failed to garner allies of peace. The third dimension is that that an anvil on the internal front is also missing.

As I have maintained, Middle East, Afghanistan and Ukraine comprise a triangle of instability. (Nation: 22 March 2014, The Devil’s Triangle). Russian intervention in the region was a matter of time. It came first in Ukraine followed by Middle East. Now it is also getting involved in Afghanistan.  The space on ISIS is shrinking in Middle East. The theatre along with the ISIS threat is shifting to Afghanistan and Pakistan. The regrouping of old hands with new names has already taken place. A loud battle cry has been made in Lahore and Sewan Sharif. Militants are more emboldened in attacking security forces along the Pak-Afghan Border and also in depth. Ultimately, this new game will hit CPEC.

More so, due to government inaction and non cooperation, Zarb e Azb never reached the political objective of forcing militants into negotiations on Pakistan’s terms. It is the government and not the military that is to be blamed. Sparing them to flee to Afghanistan was no solution for extremist whose narrative was up and running.

So the conclusion is that though the tactical battles were won and FATA garrisoned, nothing was done to inflict a crushing defeat to the foes. Ill conceived notions of peaceful co existence in Punjab are too wishful at best, or too dangerous at worse.

The threat dynamics explained above are neither new nor an impulsive reaction to latest events. They are a continuation of a thoughtful analysis by many analysts in Pakistan and abroad. Successive governments rather than read the winds showed complacency and lack of political will. Deep down, they are guilty of complicity by allowing their ambitions and expediencies to override national concerns. Though alarming to comment, the truth is that destruction of the edifice is coming through own hands. Redoubts in Waziristan may have crumbled but the state is being consumed from within.  Then many redoubts like termite citadels will come up.

It would be wrong to assume that all this has come to pass due to incompetency. The script that counters Pakistan’s interests is well articulated and extremely well executed. It is RED ALERT and let’s brace for battle. To eat ‘Lohay ke channay’, the country needs teeth of tungsten carbide.

Samson Simon Sharaf

The writer is a political economist and a television anchorperson

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