INSIGHT AND FORESIGHT

March 11, 2017

ODE TO SAJJAD ALI SHAH

Filed under: Uncategorized — sharafs @ 4:19 am

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Ex Chief Justice Syed Sajjad Ali Shah passed away this week. May his Soul Rest in Eternal Peace? Unlike lateral entrants who form the majority of Supreme Court, he was a career jurist rising through the ranks from 1967 t0 1998. Consequent to a long tussle he had with Mian Nawaz Sharif, he was stripped of his title by his fellow judges in 1998. Amidst the PSL finals and controversies, the news of his death was damp and insignificant. Akin to the cantankerous nature of Pakistani politics, the man who made headlines from 1994 to 1998, died in oblivion. Yet the cause for which he lived and died remains unaccomplished. The battle between corrupt elites and public interests of the people is ongoing in the very courts that disgraced him.

The anonymity of Justice Sajjad Ali Shah is explainable in the interrelationship of ‘Raw Power’ in Pakistani politics with short public memory that makes truth the first casualty. It also reflects a yawning gap in the ability of opinion makers and media to sift real from fiction. Most, it is a grim reminder that nations that forget history and do not self-correct continue to suffer indignity and pain. It is also an indictment on public perceptions that are managed to eclipse realities. Lastly it represents a collective flexible conscience of the elites that only awakens when self-benefits can be reaped. Justice Sajjad Ali Shah’s death reflects the dearth of the ‘Rule of Law’.

His autobiography, ‘Law Courts in a Glass House’ rots in dustbins with no reviews. Not a single readable copy of his memoirs is available on the internet. Oxford University Press that published his book does not have a copy. Many legal experts are reluctant to talk about him. When confronted with existing controversies, they reluctantly agree but only so. Being on the wrong side of history is an admission impossible to come by. The only introduction available is, “Supreme Court Justice Sajjad Ali Shah was about to reach a major constitutional decision when Legislators of the ruling Muslim League Party stormed the Supreme Court in Pakistan, physically preventing him from delivering judgment. Here, Shah provides the judiciary’s version of this bizarre episode, shedding new light on Pakistani history, law, and politics.”

Ironically his autobiography corroborates with the existing political culture of Pakistan with a bench of Supreme Court seized with an ‘event in succession’, that could make judicial history. Once again the party exerting implied pressure on the Supreme Court is PMLN that masterminded the humbling of Sajjad Ali Shah. If past is precedence, the culture of gratification will prevail and therefore reflect the divides in the bench. There may be insignificant few who will ‘pity the nation’. Apex Courts are on trial ‘to come of age’ or fall to the temptations of a judicial culture put in place by Zia Ul Haq, PMLN and Chaudary Iftikhar. Odds are uneven.

Despite many controversies that surrounded him, history will record him as a jurist who led a single handed campaign against forces of corruption and nepotism. Had he succeeded, the constitutional and political history of Pakistan would have been remarkably different. There would have been no military rule; a different military chief; and a better line of political succession. Also the highly politicized judiciary would have been purged. Most, Pakistan’s nuclear capability would have been boosted by political stability and economic development.

As a prelude to Pakistan’s nuclear explosions, this was perceived in 1997-98 as a logical course of events put off-track by forces of political greed and inertia. General Karamat’s departure as the COAS was the last nail in the coffin of wishful thinking. His capitulation was too docile, drowning the aspirations of a nation. Alas, Pakistan was to take a most wrecking course leading to present controversies. With Malik Qasim’s report and Rehman Malik’s investigation on money laundering, Panama, offshore investments and Swiss Bank accounts would have been nipped in the bud. Pakistan would have been richer by scores of billions in US Dollars.

Effort by him to unsuccessfully alter the course of Pakistan’s tainted constitutional and corrupt politics caused his isolation. Live by the sword and you die by it. Himself a beneficiary of political expediency, he miscalculated his services and failed to realize that he was surrounded by fellow judges who owed a lot to their political masters. As his differences with Mian Nawaz Sharif reached a crescendo, he was controversially removed by his fellow judges. The two justices who created the factions were politically rewarded to become the President of Pakistan and Governor of Sindh.

Eventually, neither the military not the President came to his support. Thumped with a two thirds majority, Prime Minster was quick to move the Thirteenth Amended that deprived the President of powers. Disarmed, President Laghari had a choice to get impeached or resign. Besieged by a majority he had craftily managed to put in place, he chose resignation. In mysterious circumstances, the COAS General Jehanghir Karamat also resigned.

Equipped with the Thirteenth Amendment, Nawaz Sharif could now have a Chief Justice and Army Chief of his choice. He did, but was removed through a coup led by his handpicked military chief. With good overseas connections, he bounced back in controversial elections to only begin from where he had left. The issues that Justice Sajjad Ali Shah tried addressing aggravated with time, and remain unresolved.

The cardinal sin committed by Justice Sajjad Ali Shah was the even application of law. This he manifested in his dissenting judgment in Nawaz Sharif case in 1993 and dismissal of PPP government in 1996. Though he is discredited with upholding this dismissal, the decision came from the highest office under pressure from USA for her reconciliatory efforts in bringing peace to Afghanistan (Nation: I August 2010. The Elusive Peace: A War of Error).

Eventually, the system isolated him. In desperation he asked the three services chiefs to protect him and his court under Article 190 of the constitution. This was not done and ultimately PMLN mobs ransacked the Supreme Court. At his weakest, suddenly the elastic conscience of his brother judges to gang up against him came to fore. Belatedly, they realized after three years that his appointment was illegal and stripped him. With him ended one chapter of Pakistan’s judicial anarchy [interpretation of Article 184 (3)] only to successively re-sink Pakistan whenever it suited the benefactors and beneficiaries.   The tug continues.

If one was to draw an organogram of Pakistan’s judicial and bureaucratic elites, factorise events with empiricism, the conclusions would be shocking and heart breaking.  These would authenticate the memoirs of Justice Sajjad Ali Shah.

As a hypothesis, the present judicial system is a continuation of the courts of Justice Nasim Hassan Shah and the young bureaucrats inducted into service in the 90s. One way or the other, the majority are directly or indirectly placed as beneficiaries of political gratification and what Qaid e Azam abhorred; jobbery.  As regards Panama Public Interest Litigation proceeds, these findings will be staring down the throats of many judges of the apex courts who are beneficiaries of the system.

The Shah has died. Long live the Shah.

Samson Simon Sharaf

The writer is a political economist and a television anchorperson

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SOCIOLOGY OF CONFLICT

Filed under: Uncategorized — sharafs @ 4:10 am

Conflict is a science of sociology emanating from conflicting interests. Not only wars but conflicts across the entire spectrum are competitive in nature. A modern nation state is a creation of this conflict and can only integrate when its diversities are bonded by complementary interests. This is called nation building.

Two very contrasting headlines captured Pakistan in the past weeks. The federal government announced mainstreaming Federally Administered Tribal Areas adjacent to Khyber Pakhtunkhwa, Balochistan and Afghanistan. The second related to stereo-typing Pashtuns in Punjab by a hyperactive police notorious for its high handedness. Both headlines affect Pakistan’s efforts at nation building and have to be handled like an artisan making his crafts. Given the hasty manner in which the government came out in mainstreaming FATA, the two events also seem interconnected and an effort at damage repair.

Like the Nation Action Plan which was more talk than action, the merger plan is conspicuous by its insensitivity. Given the hasty modalities, the meanings of nationalism, nation building and devolution seem to be least understood. The government does not seem to realize that it is about to embark on a journey into unchartered waters. Pakistan’s record at building inclusiveness and using diversity as strength is not good. The crises within All India Muslim League, separation of East Pakistan, Punjab centric approaches and existing marginalization of ethnic and religious minorities are a sorry tale at building nationhood. History has many examples where good ideas were ruined by bad plans. Pakistan needs a surgeon’s incisiveness and not a butcher’s cleaver.

There is only one way to merge FATA into KPK. This way is the RIGHT WAY drafting the aspirations of the people reflected in their ethnic, cultural and historical aspirations as also creating opportunities for mutually beneficial complementary alliances that strengthen national cohesion. Though the people of FATA have always yearned for a more inclusive identity within Pakistan, the abrasive manner of handling Pashtuns in Punjab was shameful to say the least. It provided an opportunity to the forces of disintegration and ultra nationalists to reopen the Pashtun question that is already dead in Pakistan. If the people of FATA feel that their immediate problems are not being addressed, how would they feel comfortable with a 5-10 year rolling plan whose outline is already controversial?

Since 1947, tribal regions were loosely federated with Pakistan with the will of the people represented by their tribal maliks. The Rahadari System and pastures permitted cross border movement which has now become extremely contentious. What separated Pashtuns living across the Durand line were the strong economic linkages with Pakistan. But the non compliance of federal laws had created an environment where FATA became a haven for illegal activities. This apathy and disregard gave way to turmoil, violence and lawlessness. Therefore, Pakistan must make the best of this decision. FATA with its people and its abundant natural resources that spread from Chitral to South Waziristan must be mainstreamed under a social, economic and political plan that benefits everyone. The rich rare earth minerals of Waziristan must not face the same fate as Reko Diq. If exploitation is avoided FATA has the potential to become the powerhouse of Pakistan.  In this backdrop, the merging of FATA into KPK is a landmark decision warranting astute socio-political, administrative and socio-economic handling. This is where the catch lies.

FATA comprises seven tribal agencies and six frontier regions. To cut a long story short, the arrangement represented the British forward policy against Afghanistan and Russia. This arrangement served the imperial designs of the Cold War when USSR occupied Afghanistan. FATA became the base of operations for launching a mock Jihad and so called Mujahedeen. Statistically, only a small group amongst these militants was Pashtuns. Others included Arabs, Chechens, Uzbeks and Punjabis. Though FATA under the arrangements was designed a lawless area, the conflict, drugs, proliferation of weapons and diverse fighting groups marginalized the Maliks and made it a free for all hornet’s nest. It is only after a series of operations by law enforcement agencies that the area has been cleared of militants but only temporarily. Most fled to Afghanistan and parts of Pakistan to reorganize and live to fight another day.

If someone in Pakistan’s elitist decision makers thinks that palming off FATA to KPK is a good idea, he is grossly at fault. This thinking without an imaginative back up plan will only make things worse. The much touted FATA Reforms Package and merger plans spread over five to ten years may just be the beginning of the challenges. No plan works to perfection and practical challenges will emerge as and when the plan is put into effect. Widespread criticism of lawmakers of Khyber-Pakhtunkhwa over the hastily agreed arrangement is only the beginning of challenges. At the same time the government should resist the temptation to put the merger plan at the mercy of Pakistan’s polarized and corrupt politics. But this is exactly what it seems to do.

First the much touted six-member committee constituted in November 2015 based its consultations and recommendations on a two day flying visit to FATA.  In this time it was impossible to consult over 3,500 representatives it claims. Consultations have only been peripheral and exclusive.

Secondly, it is impossible to ordain inclusiveness to a problem that has lingered ever since the Sikhs handed over FATA to the British. The scars of history, questions of identity and culture, the miseries of people, and their aspirations cannot be absorbed and articulated in hastily called jirgas within two days. People of FATA as a start point want their return to homes, reconstruction and rehabilitation (3Rs) under their own supervision. The merger plan is non representative and controversies will emerge along the way. This is avoidable.

Thirdly, the province that has to absorb FATA is only in an indirect loop. No KPK representatives are part of the merger committee. It is unimaginable that a province that has to do all the donkey’s work is not represented in such consultations. There is an immediate need that all elected representatives of FATA and at least three members of the KPK cabinet should also be co-opted in the merger committee.

Fourthly, the civil society and activist of FATA, many of whom are highly accomplished individuals are not happy with the merger plan. As a start point they want the 3Rs to begin under their own representatives. This means either constituting Jirgas at Tehsil level or conducting local body elections immediately. As is obvious from the Prime Minister’s statement, this is not a federal priority. All development work will be conducted under the unpopular political agent’s office.

Following measures are of extreme importance.

The government must assemble a consultative group of eminent sociologists and those with hands on experience in FATA to reevaluate the FATA merger plan. This group must be cognizant of the sociology of conflicts and draft best measures to promote nationalism.

The work on 3Rs must begin forthwith. This will reassure the people of FATA that they are not being exploited for someone else’s political gains.

The federal government must direct all chief ministers of provinces to exercise caution in exercising authority that appears racist and counterproductive to Pakistan’s nationhood.

As a last comment what happens to devolution of larger provinces? To the contrary, another mega province is being created. I only hope that halfway in implementation, a future government does not decide that devolution is a good idea. Then we will be back to square one. So why not consider devolution right now?

Samson Simon Sharaf

The writer is a political economist and a television anchorperson

 

 

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