By Syed Sharfuddin

It seems there is always more credit given to military establishment by the Pakistani public than it actually deserves. Whether this credit is borne out of a deep embedded fear of an overwhelming brutal force tapping their phone calls and scanning their e-conversations, or it is an expression of the public respect for a patriotic peace-keeping institution depends on who one talks to and where the interlocutor comes from. However, most of the time the credit is not positive but almost invariably critical when civil society and media see it impinging upon civil liberties and constitutional freedoms taken for granted in a democratic society.

Whether it is the fall of a single tree or bulldozing an entire forest, the military establishment is an easy scapegoat to name as the mastermind behind such actions. The ‘love’ of military establishment is so deep in the hearts of people that they have invented many nicknames for it such as Aabpara, Lalkurti, Establishment, Agriculture Department, Aliens or Militablishment. Everyone knows where it resides but no one wants to be on record to identify it publicly. Even those who claim that they have received intimidating phone calls can’t say for sure if the caller was real or an imposter. Missing persons who are fortunate to come back after receiving the hospitality of the establishment say they cannot be certain about their abductors.

While it is true that the military establishment has always taken an interest in trimming the trees or even causing the fall of certain leaves and fruits before they ripen and fall naturally in the autumn winds, it is not true that this machine is so powerful as to manage the entire echo system, bring storms and infest the forest with fungus. On the contrary it may be the making of its nemesis, the powerful land or business or peasant controlling politicians and bureaucrats working in league with the many private mafias at work in society to serve vested interests.

At this general election, I was hoping to see a perfect outcome of the systematic pre-poll rigging reported by human rights and civil society organisations and curbs on media freedoms which forced certain media houses to exercise self-censorship in covering the narrative of the pariah political party PML(N). I had heard that the military establishment had decided to bury both PML(N) and PPP and instead bring PTI as the majority party in parliament led by its favourite lad Imran Khan. I was told that the presence of army security inside police stations and the unexpected delay in the ECP’s much acclaimed RTS was designed to rig the election in the dark hours of 25 July to make sure that things went according to the establishment’s plan. But the results, when these were eventually announced, disappointed me as much as they surprised everyone.

It turned out that the military establishment was quite inefficient in translating its plans into reality. PTI did not get outright majority in NA; none of the independent candidates proudly waving Jeep as their electoral symbol during the campaign made it to NA; the blue eyed boy of the military establishment, Chaudhry Nisar lost three of four seats contested by him, winning only one PA seat; and the hand-fed parties of the establishment PSP and TLP never made it to the NA. The older rightist parties which always support he establishment also did poorly in the election, despite forming an alliance to benefit from seat adjustments.

The credit given to military establishment by its critics for everything that goes wrong in politics is not new. It is said that ever since the martial law of Iskandar Mirza, military establishment used the judiciary to advance its agenda and legitimise its influence in the public. May be it was so and the judges who thought that by legitimising coups they could keep at least one civilian institution, i.e. judiciary free from military takeover, were wrong. Devotees who regard military establishment as their Nakhuda say that even the judges’ movement against a uniform wearing President Musharraf in 2007 was sponsored by the military establishment because he wanted to settle the Kashmir dispute with India which the latter did not approve of. The current judicial activism of 2018 is also credited to military establishment instead of the CJ who has gone out of his way by taking ‘suo moto’ actions on administrative matters only to stress that the judiciary as an independent institution, not open to any influence from any outside agencies.
 
Assuming that the military establishment is all powerful and always correct, then it is hard to understand why the 2018 election did not result in an outcome which the military establishment wanted; why security lapses took place which enabled terrorists to carry out three suicide bombings during the election campaign; why Mullas became radicalised and decided to field their own candidates; and why PML(N) and PPP are still the majority parties in Punjab and Sindh after all the punctures and engineering purported to have been applied in last month’s election to push them back against the wall.

Many will answer that this is how military establishment wanted it and this is what it got in the form of a fragile coalition government so that it could still play the cards behind the scenes. But this is like saying whatever extraordinary happens in the world is sponsored by the CIA. True, Pakistan has had military governments which stymied the growth of democracy and did not allow democratic institutions to mature on their own. True, money was spent freely in buying loyalties of candidates in past elections and form GHQ-approved governments. But after 2008, democracy was supposed to have taken roots in Pakistan and whatever went wrong was supposed to be blamed on politicians instead of the military establishment, even if some elements tried to drag it into the fray. Even after two civilian governments which completed their term successfully, if the politicians are unable to take responsibility for their actions then the change will remain elusive even if the new boy on the block force implements it in the honeymoon period of his government which is always the best time to show that as a good governor you mean what you say.

One can pick even bigger questions from the past to find out the truth about the powerful establishment that Pakistanis never tire of dreading. Why this powerful establishment lost Bangladesh, the Kargil war and the strategic depth in Afghanistan? Why it did not know about the presence of UBL in its territory? Why the marine helicopters landed in Pakistani territory to take UBL away and its ADS did not activate in real time?
 
My view is different from that of the sun worshippers. The military establishment is a terrestrial institution, not an alien force to turn things around with a magical sceptre. It consists of the same people and same families which produce politicians, judges and civil servants. It has the same limitations and weaknesses as the other institutions of the state. It is human and liable to sometimes think the moon and stars but deliver only the earth. 

The sooner Pakistani people realise this the easier it will be for them to start thinking what is wrong in their policies and processes instead of passing the buck to the military establishment and say they must answer all the questions because they are the do all and be all of Pakistan. 

If you disagree please rest assured that I am open to correction. 

3 August 2018

By Syed Sharfuddin

Pakistan completed its eleventh general election last month amidst serious security concerns, questions about the role of the military establishment in election and reported restrictions on certain media houses and journalists to prevent them from discussing sensitive issues. The elections were observed by 19000 volunteers from Fair and Free Election Network (FAFEN), a domestic citizen observer group, the European Union Election Observation Mission (EUEOM) and the Commonwealth Observer Group (COG).

The conclusion of all three observer groups was that on polling day, voters expressed their will freely with no complaints received from any stakeholder about the military interfering in the voting process. They also concluded that in the pre-poll period, political developments helped Pakistan Tehreek Insaf (PTI) increase its vote bank at the cost of Pakistan Muslim League-Nawaz (PML(N) and to some extent, Pakistan Peoples’ Party (PPP). The post-poll process is yet to be wrapped up as preliminary results have been contested and the Election Commission of Pakistan (ECP) has ordered recount in over 70 constituencies for both the National Assembly and Provincial Assemblies’ seats.

While the outcry of pre-poll rigging had not faded from the minds of the supporters of PML(N) and PPP, which secured second and third places respectively in the National Assembly in the 2018 general election, the long delay in the announcement of results immediately after the poll, contrary to the claims of the ECP to announce results starting 2:00 am took away the gloss from what was otherwise a peaceful and orderly polling day, except for one terrorist explosion near a polling station in Quetta which claimed the lives of 31 people.

As the midnight of 25 July 2018 approached, questions were raised about the failure of the ECP’s Rapid Transmission System (TRS) as to whether this was simply the crash of the Android App developed by the ECP for the secure online communication of the result-count of each polling station on the prescribed Form 45, or was it the real game changer in rigging which overturned the will of the people in the early hours of 26 July 2018 to produce fixed results favouring PTI.

The ECP had aimed to beat private TV channels by announcing early results instead of allowing the latter to guess the results and cause a controversy about the ECP’s counting and tabulation process. The ECP had also gone a step further to avoid criticism from losing candidates and parties that it was an ROs election, as was alleged by PTI in 2013. At this election, the ECP had recruited returning and district returning officers (ROs and DROs) from the judiciary to ensure they did not come under political pressure from the local administration or political parties to alter the results of the poll during compilation. Yet, on the day itself the ECP’s RTS App miserably failed. Its website was also woefully lacking in information about unofficial results ahead of private TV channels.

In their preliminary report released on 27 July, the European Observers pointed out that the advances made in the legal framework of elections and the measures introduced for increased women’s participation in the election had been overshadowed by the timing of criminal convictions of key politicians on account of corruption; contempt of court cases against certain candidates; and terrorism charges against the workers of one political party. The EUEOM claimed that the level-playing field for campaign lacked in equality of opportunity.

In its interim statement, the Commonwealth Observers noted that Pakistan’s 2018 general election was conducted under a substantially reformed and improved legal framework but some stakeholders questioned the impartiality of the military and judiciary and cited the timing of court cases against certain political leaders and candidates as an example on uneven playing field. The COG also noted that the media and civil society representatives they met had mentioned that editors and reporters received threats and were prevented from covering certain issues, such as the rights of minorities, performance of judiciary and the role of state institutions. Some journalists and bloggers were reported to have been kidnapped, harassed or intimidated for their critical coverage. These incidents reportedly resulted in increased self-censorship.

The 2018 general election should be seen in the context of Pakistan’s long transition to democracy. This was the second time the general election was held under a civilian administration. It was also an election which had the war on terror still waging in the background in which Pakistan lost 76,000 people, of whom 68 percent were civilians and 32 percent from the armed forces. In the weeks prior to election, three terrorist attacks in Khyber Pakhtoonkhwa and Balochistan provinces claimed the lives of 170 people including 2 provincial assembly candidates.

There is not a single election in Pakistan where the level-playing field was not disputed. The 2008 general election was organised under a caretaker government but General Musharraf held both the office of President and Chief of Army Staff. In that election, even if the PPP had not benefited from the sympathy vote on the eve of Benazir Bhutto’s assassination, the only party which suited General Musharraf’s vision of enlightened moderation was PPP. The 2013 general election was held under a civilian administration but PTI called it an ROs election alleging that it was fixed by the army and the judiciary in favour of PML(N). The same accusations are now being traded by PML(N), PPP, MMA and MQM, all losing parties against PTI in the 2018 election results.

A walk through Pakistan’s political landscape two years prior to the 2018 general election shows how PML(N) dominated the political field in the country. In the 342-seat National Assembly, PML(N) held 188 seats, followed by PPP (46 seats), PTI (23 seats), JUI (13 seats) and Independents (9 seats). The remaining parties represented in the 2013-2018 Parliament held five or less seats.

It was not just the Parliamentary majority PML(N) enjoyed in the centre. PML(N) also formed governments in Pakistan’s largest province Punjab and in Balochistan, the latter with the help of local parties. The state institutions, such as the National Accountability Bureau (NAB), Federal Investigation Agency (FIA), the Intelligence Bureau (IB), other regulatory authorities such as PEMRA, the Parliament and the Judiciary were under the control of the ruling party and unable to address the charges of corruption raised by the opposition against PML(N) leader Nawaz Sharif and his family.

Had this situation continued, there would have been no level playing field for the 2018 general election, as PML(N) would be all powerful to use the same state institutions against its opponents. But this may be a hypothetical question because what was supposed to be a realignment of institutional independence in relation to the ruling PML(N) eventually ended up clipping its wings so close to skin that it became the underdog in the weeks preceding the election, with its leader imprisoned for graft and some of its top leaders disqualified from contesting the election on account of aiding and abetting corruption or contempt of court. The fall of PML(N) from grace was not natural but induced and “all the king’s horses and all the king’s men couldn’t put ‘Humpty’ together again”.

As early as 2016, when Nawaz Sharif realised that the sceptre of Panama Papers was not going to go away, he made a clever move to play the ‘Establishment’ card, which was politically designed to restore his public image and undermine the military which he never trusted after the 1999 military coup. His two interviews to a local journalist in the daily Dawn in October 2016, and again in May 2018, were designed to nail the military as the ‘bad guys’. Although in the long run this proved unhelpful, he was able to get on board the liberal civil society and the outward looking media on his side. They bought his story that there were parallel governments in Pakistan and that not only there was a government within government but a government on top of another government.

This resulted in the making of strange bedfellows. The centre-right PML(N) and centre-left liberal media such as Dawn and Geo, and civil society organisations such as the Human Rights Commission of Pakistan (HRCP) expressed concern over military interference in civilian democracy and stressed the supremacy of civilian institutions over the military establishment. Ironically, the same liberal media and civil society, on the other hand, shared the army’s zero tolerance for corruption and graft associated with Nawaz Sharif and his family, as well as other politicians in PPP and PTI. The army was sanguine in the view that the war on terror in which it had played a major role could not be won while politicians indulged in corruption under the veil of democracy and got away with it. Still more interesting was the role of the official opposition PPP which shared the view of the liberal media and centre-right PML(N) about civil-military relations but decided against upsetting the apple cart of democracy by forcing the PML(N) government to resign half way without completing its term of office.

This explains to a large extent the two rulings by the Supreme Court in July 2017 and February 2018 which disqualified Nawaz Sharif from holding the office of Prime Minister and preventing him from keeping an official position in his party. In the first ruling, Nawaz Sharif was convicted of violating Article 62(1)(f) of the Constitution which requires a member of National Assembly to be “honest and trustworthy”. In the second ruling he was convicted of corruption resulting in his imprisonment for ten years and a fine of GBP 8 million.

Although Article 62(1)(f) of the Constitution is open to subjective interpretation and has been applied inconsistently by the courts, it was the only smart, although strictly not technically legal, way to create a level-playing field by freeing other institutions of the state such as the NAB, FIA, PEMRA and the Judiciary from the clutches of the PML(N)-led Executive and Parliament to play their independent role in exposing the corruption of politicians across all parties.

The July 2017 ruling of the Supreme Court against Nawaz Sharif was hotly debated by lawyers on both sides of the political divide supporting or opposing him. His protest phrase ‘mujhey kiyun nikala’ (why did you oust me) went viral on the internet and was used both by his supporters and the opposition to express their views. In the same ruling, the Court directed the NAB to file references against Nawaz Sharif and his family in an accountability court using the findings of the Joint Investigation Team (JIT) which it had established to probe the charges of corruption. The accountability court completed its proceedings without any pressure from the once powerful PM House. It is, however, another issue that the July 2018 judgement of the Accountability Court, convicting Nawaz Sharif for corruption, had many holes and stands a good chance of quashing if the defence is able to prove that the judge failed to find evidence of Nawaz Sharif’s corruption in the unnamed ownership of Avenfield Apartments in London and instead, relied on circumstantial inference. The conviction has been appealed by Nawaz Sharif’s lawyers in the Islamabad High Court.

The military establishment got what it wanted in the conviction of Nawaz Sharif but it went for the overkill by gagging media to write editorials on civil-military relations or cover the narrative of PML(N). Conversely, no restrictions were imposed on media supporting PTI or denouncing PML(N). The military establishment’s alleged encouragement of new and small parties such as TLP in Punjab and PSP in Sindh emboldened these parties to nominate candidates in the election beyond their electability, which eroded the right wing vote of PML(N) and the liberal but parochial vote of MQM, both of which were not kosher in the military establishment’s books. But the military establishment neither intended to, nor was it capable of stuffing ballot papers and overturning the results by hijacking the counting and tabulation process in the night of 25-26 July 2018 to get the result it wanted.

For example, the strong watch of civil society organisations and local and international observers on the military personnel who were assigned security duties inside and outside polling stations acted as a deterrent and there were no complaints of their meddling in the voting process on election day. Similarly, the extraordinary delay in election results which created doubts about the transparency of election and systematic rigging of results did not materially affect the outcome of the poll because the tabulation of Constituency result on Form 49 was based on the results of Form 45 which contained the initial count conducted by presiding officers at the 85,000 polling stations in the presence of security personnel across the country, and was shared, although not in full compliance of the ECP rules, with party agents present at the count.

Any reviews admitted by the election tribunals will take into account the data entered by presiding officers on Form 45 and the record of ballot papers on Form 46. The military establishment could not have changed thousands of Forms 45 and 46 in one night even if it planned to affect the outcome of the votes. This is substantiated by the fact that contrary to media reports that the establishment had forced a large number of PML(N) candidates to change loyalties and contest elections as independents, only 13 independents out of 1623 who contested the election, won seats in the National Assembly. Of the 120 independent candidates believed to have been backed by the military establishment for using the Jeep symbol, none, including the blue eyed boy of the military (Chaudhry Nisar), secured a place in the National Assembly.

The PSP was also totally wiped out in Urban Sindh and TLP barely managed to get one seat in the National Assembly. The pro-military MMA got only 12 seats. Interestingly, PTI which was allegedly the favourite of the army failed to win outright majority in the National Assembly, and PML(N) which held the army responsible for its misfortunes still got a robust tally of 64 seats in the National Assembly followed by 43 by the PPP. The PML(N) received the most number of seats in Punjab Assembly and PPP received the most number of seats in Sindh Assembly. There was no way the military establishment could have prevented these parties from securing these results.

Although the new and improved legal framework for the 2018 general election was strong, and the ECP had full autonomy and powers to conduct the 2018 general election, there were many areas where its shortcomings were notable. One was its inability to effectively use IT to collect and assimilate voting results electronically and to make its website live and user-friendly for the general public; to extend the voting rights to overseas Pakistanis; to adequately security vet candidates against their proscribed status and links with groups placed on anti-terrorist lists; and to take timely action on the violations of various codes of conduct by media, political parties, presiding officers and polling agents. The ECP was also criticised for lack of clarity in assigning the powers of the presiding officers and the military officers who commanded the security personnel inside and outside polling stations; for insufficient voter education; for not imparting full and proper training to election management staff; and for imposing no financial limits on political parties to hire print space and airtime for their campaign advertisements.

On the positive side, the ECP deserves congratulations for completing the voter registration and delimitation exercise based on the new Census 2018 despite numerous challenges; for enabling 53 percent electorate to come out and vote peacefully on the polling day; for giving magistrate powers to DROs, ROs, and POs to take legal action on the spot, where required; for encouraging women participation by requiring political parties to allocate at least 5 percent share in their nominations; for discouraging political parties to conclude agreements for women-free voting by requiring each constituency result to have at least 10 percent women votes balloted; and for facilitating transgender persons and people living with disabilities to cast vote without hurdles.

Democracy is not just about holding free and fair elections. Elections are the first step toward a representative government and a robust opposition safeguarding the constitutional rights of all its citizens irrespective of their vote preference; and enacting policies which benefit all, especially minorities and marginal communities. But this first step should be right, and follow right channels. It is a good sign that all opposition parties, including PML(N) and PPP have agreed to attend Parliament and seek redress through the conflict resolution mechanism provided by election tribunals.

Until the wider political issues such as civil-military relations, separation of powers between the three branches of government, an active opposition in Parliament and the enhanced role of oversight parliamentary committees as well as other institutions of the state to end corruption and misuse of privileges in public office are addressed separately and comprehensively, it cannot be said with certainty that Pakistan is out of the woods as far as the future of democracy is concerned. However, these issues relate more to political governance than election management and will take time as democracy flourishes in Pakistan, one step at a time.

London: 1 August 2018

By Syed Sharfuddin

A two-day Commonwealth Heads of Government Meeting, known in the Commonwealth family as CHOGM, concluded on Friday 20 April in Windsor, the home of Windsor Castle in England, after a busy week of activities ranging from celebrating Commonwealth linkages between diverse groups of people and organisations to Foreign Ministers’ and Heads of Government consultations on global issues, including democracy, cyber security, protecting oceans, climate change, immigration, trade and investment. 

The meeting could not have come at a better time for Great Britain whose Prime Minister became the chairperson of the organisation for the next two years in addition to the British monarch remaining the Head of the Commonwealth after Queen Elizabeth II. For the first time in Commonwealth history the Secretary-General of the Commonwealth is also a British national, Baroness Patricia Scotland, who was elected at the last CHOGM as Secretary-General replacing a former Indian diplomat Kamalesh Sharma. As Chair of CHOGM, Britain is also represented on the reconstituted Commonwealth Ministerial Action Group which monitors compliance of Commonwealth Charter by member states.

The 25th CHOGM was originally planned to be held in Vanuatu late last year but it could not be held there because of severe floods which seriously affected the infrastructure of the small island state in the South Pacific. Britain came to the fore and volunteered to host the Summit in the summer of 2018 in London. The last CHOGM hosted by Britain was 21 years ago in Edinburgh in 1997. Pakistan was represented at both these meetings by a PML(N) government’s Prime Minister.

By hosting the London CHOGM almost by chance, Britain has successfully settled an old in-house debate in the Commonwealth, going as far back as 2005, about the role of the British monarch in the Association after the departure of Queen Elizabeth II who has admirably guided and led the Commonwealth since 1952 but is now showing signs of old age and fatigue. On her birthday on 21 April she will turn 92. The Queen has already cut down her official engagements and is no longer travelling overseas. At Commonwealth receptions and other public events, she has been represented by Prince Charles, the Prince of Wales. 

The Opening Ceremony of CHOGM was held on 19 April at the official residence of the Queen at Buckingham Palace, London. It was for the first time that the question of succession was mentioned in the speeches of the outgoing Chairman, the Prime Minister of Malta, as well as by the Queen herself. In 1952, the mantle of Commonwealth leadership passed from King George VI to his daughter Elizabeth II on his sudden death almost without any discussion by the membership which then comprised only eight countries. The shock of a young King’s death and a 25 years old princess holidaying in Kenya taking over as the Queen, as well as the close post-colonial association of the newly independent states with Britain left no room for a debate or discussion on the heredity principle to apply to the Commonwealth’s 1949 Declaration which founded the modern Commonwealth and required the newly independent states of the former British Empire, if they opted to become republics but wished to remain in the Commonwealth, by recognising the British monarch “as a symbol of their association and as such the Head of the Commonwealth.” Pakistan is a founding member of the modern Commonwealth born out of the London Declaration in 1949.

While it is an agreed convention for the British public to have the crown pass on from the British monarch to the Prince of Wales as the new Head of Great Britain and Northern Ireland and 16 other Commonwealth realms, there has been no such convention for Commonwealth member states to follow this principle in selecting the Head of their Association after the departure of Queen Elizabeth II. Although the Queen has admirably served the Commonwealth for over 6 decades in ways that perhaps no other Head could, always being there as a pillar of strength and symbol of unity in times of crisis, there have been open and muted republican voices in Australia, New Zealand and Canada not to continue with the tradition of the British monarch as the head of the modern Commonwealth. In the past, some nationalist African states also seemed to hold the view that an organisation of free states which promotes the values of democracy, equality and sharing power should do away with the British royal presence at the top of the organisation after the departure of the present Head of the Commonwealth. In other countries such as India or Pakistan, the sensitivity to Britain’s overwhelming weight in the Commonwealth, but not to its symbolic royal presence, remains strong but is never mentioned in official discussions. Pakistan allows its nationals to keep dual nationality with Britain but bars them from contesting the general election to parliament or from holding top positions in public office.

This matter concluded successfully at the Windsor Retreat on 20 April after 46 Heads of Government and seven Foreign Ministers representing their countries unanimously agreed in principle to have Prince Charles succeed the Queen as the new Head of the Commonwealth at the appropriate time in the future. A separate Statement of Leaders issued at the conclusion of their meeting confirmed this arrangement in the following words: “We recognise the role of The Queen in championing the Commonwealth and its peoples. The next Head of the Commonwealth shall​ be His Royal Highness Prince Charles, The Prince of Wales.”

This was, however, a foregone conclusion. A consensus on this agreement had been carefully developed through informal consultations among member states in the weeks preceding the CHOGM. Earlier, in his address at the Opening Ceremony of CHOGM the outgoing Chairman of CHOGM, the Prime Minister of Malta had praised Prince Charles for his commitment to the Commonwealth values and said: “We are certain that when he will be called upon to do so, he will provide a solid and passionate leadership for our Commonwealth.” In her address The Queen also said: “It is my sincere wish that the Commonwealth will continue to offer stability and continuity for future generations, and will decide that one day the Prince of Wales should carry on the important work started by my father in 1949.”

For some years, the Prince of Wales has been making occasional low key appearances in Commonwealth receptions and gatherings. He has established beyond doubt that he is a Commonwealth man and the most suited replacement to head this organisation after the Queen. He represented the Queen at the 2018 Commonwealth Games in Australia. He also addressed the Opening Ceremony of the London CHOGM in addition to the Queen’s valedictory address. It is most likely that Prince Charles will attend the next CHOGM in Rwanda in 2020 in lieu of the Queen. 

Britain also benefited from hosting the CHOGM at a time when the Parliament is discussing UK’s Brexit negotiations with the EU. Although the economies of Commonwealth countries do not offer an alternative to European technology, goods and expert services traded by the UK, the Commonwealth statistics give an impressive picture of finding new partners and markets for Britain outside the EU in the area of trade and investment. The Commonwealth’s strength lies in its 53 diverse nations, six continents outreach, 2.4 billion population, a robust combination of three developed and half a dozen rapidly developing economies, and a huge network of civil society organisations and professional associations kept together by a common language and shared principles and values.

The London CHOGM discussed the overall theme: ‘towards a common future and how to make it fairer, more secure, more prosperous and more sustainable’. Heads of Government adopted a Communique at the end of their meeting which reiterated Commonwealth’s established position on trade, health, education, gender equality, protection of the environment, cyber security, immigration, human trafficking and child exploitation, supporting UN efforts toward peace and dealing with violent extremism, elimination of chemical weapons, organised crime and economic sustainability. Heads of Government adopted a Commonwealth Blue Charter on ocean governance and committed themselves to taking action on safeguarding the ocean for future generations. They also agreed to enhance intra-Commonwealth trade and investment using the comparative advantages of member countries.

The side events of the Summit, namely the Commonwealth Youth Forum, Commonwealth Business Forum and Commonwealth People’s Forum covered a host of other related discussions in which the Commonwealth has developed a high degree of expertise and shared knowledge. These include human rights, gender equality, sports development, youth empowerment and leadership, international trade, technical assistance, support to small and vulnerable states and people to people contacts. 

The challenge for the Commonwealth now is to put into action the commitments its leaders have made for a better future for their 2.4 million people and the world at large.

London: 20 April 2018
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The author is a former Deputy Conference Secretary of CHOGM and served as Special Adviser in the Commonwealth Secretariat from 2000-2006. Email: sharfuddin@commonwealthconsultants.co.uk

By Syed Sharfuddin

Ever since the Hon Chief Justice of Pakistan Justice Sahib Nasir mentioned the unidentified Baba in his 16 December 2017 address at a seminar in Lahore, the Baba has become a persona incarnate and the talk of the town in Pakistan’s ongoing political discourse. In his address, the Chief Justice said: “The judiciary is your Baba … do not doubt its integrity…”If a decision is issued against you, don’t abuse (the judiciary) by saying the Baba has become a part of a design or a grand plan…The Baba has not and will not become a part (of a plan).”

Pakistani social media activists subsequently identified this Baba as Baba Rehmata without bothering to explain who is he and where did they get this name from. Of course, the reference to Baba came by the Chief Justice himself but it was by way of an analogy and carried no name. However, the very fact that he used this word indicates he had someone in mind who commands respect and awe in the society and deserves to be listened to without any doubt or controversy.

I have trawled the internet and have not found the answer to who is Baba Rehmata. Is Baba Rehmata the Chief Justice himself? Is he the whole of judiciary as an institution? Is he only the higher judiciary but not the entire institution? Is he the ‘rule of law’ to which everyone bows? Is he the illusive Baba the late intellectual Ashfaq Ahmad Khan tried to find in his book Baba Saheba? Is he the forgotten Barrister Choudhary Rehmat Ali who was the first person to propose the name of Pakistan in a letter written in January 1933? Or, is he the Rehma of Allah Taala which everyone is in need of to attain peace and unity amongst our ranks?

Am I thinking too deep for a nation which is not given to stoicism and basically when it says Baba it either means a father figure or a homeless recluse at the corner of the street whom everyone thinks is a true Sufi? Or still to make the imagination work hard, is he one of the famous Babas whose wise couplets in Saraiki and Punjabi still capture our attention and teach us a word or two about morality and godliness in this materialistic business minded quid pro world? Let us join the search for Baba Rehmata. Even the honourable judges who re-summoned the loud-mouthed Nihal Hashmi on contempt of court charges yesterday asked him the question: Who is Baba Rehmata?

This might appear as an entertaining piece of writing but actually what the Chief Justice has said points to a much deeper problem in our polity. And it is truly sad that instead of taking his comments seriously people have made fun of it and even assigned an arbitrary name to the Baba. What it points to is the lack of respect for authority in the country. Or to make it even more precise the lack of a central authority whose word is final for all. In monarchies this authority rests with the king who is the head of state. In democracies this authority is divided between the three branches of government, namely the executive, the legislature and the judiciary all of which derive their authority from a written constitution or a repository of statutes which form the historical legal record of that country. In theocracy the central authority rests with the head of the Church; and in a dictatorship it rests with the chief of the military, working as the collective voice of the ruling junta. In Pakistan the debate is still going on as to where this unchallenged and uncontroversial authority rests; it is with the parliament, the judiciary, the military, the people or with something which the people of Pakistan can agree to install and move on.

March 8, 2018

By: Syed Sharfuddin

At the start of 2018 the biggest news in Pakistan and perhaps the world was Pakistan Taehrik Insaaf Party’s (PTI) maverick leader Imran’s Khan had married again, this time with a homemaker divorced woman named Bushra Bibi aka Peerni. The news of the marriage was kept in close covers until it was broken by Geo News’ investigative reporter Umar Cheema on 6 January. The journalist claimed that the PTI leader got married on 1 January in a private ceremony attended by a handful of selected friends and family members of the married couple. Mufti Saeed, a PTI supporter and also a religious scholar presided over the Nikah.

While Mr Khan and his marriage conductor remained quiet about the breaking news, PTI supporters called Mr Cheema’s findings fake news. Some PTI members admitted that Mr Khan had proposed to the lady but had not married her. Most hurled abuses at the investigative journalist on social media because he works for a media house whose owners are detested by PTI leadership. As is the nature of Pakistani politics, the news became a butt of jokes in the social media about Imran Khan’s priorities in an election year and the rumours that he had married a spiritual person whose blissful company would bring him good luck and lots of victories in the forthcoming electoral battles against Mrs Khan’s political rivals, and enable him to achieve his grand vision about Pakistan.

Mr Cheema broke another news on the evening of 18 February maintaining that while Imran Khan and Bushra Bibi had actually got married on 1 January, the marriage was re-enacted on 18 February in Lahore for media consumption. This time PTI did not deny the news and owned it the next day. Imran Khan also hosted a Walima at his residence for selected invitees but decided not to travel for Umrah or honeymoon.

On 5 March Mr Cheema came out with another intriguing piece of information about the reported marriage on 1 January that it was held inside the period of Iddat of Bushra Bibi after her divorce with her former husband on 14 November last year. This raised many an eyebrow in Pakistan, an Islamic country where religious injunctions are taken seriously especially when these apply to public figures who are both the spokespersons of the nation and public models for its youth. The journalist was, however, unable to get Mufti Saeed to admit or deny the report. Apparently, the Mufti has promised Imran Khan that he will honour the latter’s request not to share the details of his marriage with anyone.

It is a legitimate question to ask whether the public have a right to poke their nose into a private matter between two individuals who are now happily married. The answer is yes because it is not the standard first-time marriage of a political leader who was already a popular public figure long before he entered politics, and also because the marriage itself is mired in mystery and drama often attached to celebrities. Now an additional layer of religious confusion has been added to it by the news about Iddat. So what is it that the News journalist doesn’t know but is willing to share and what is it that the Mufti knows but is not telling us?

According to Surah 2 verse 235 in the Holy Quran, Muslim men who intend to marry divorced women are allowed to pass a hint to them that they wish to marry them; if they cannot keep such a desire to themselves for the time being. However, they are not allowed to formally propose to such women, nor enter into a secret arrangement with them, nor contract a marriage with them until the end of their Iddat.
وَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّضْتُم بِهِ مِنْ خِطْبَةِ النِّسَاء أَوْ أَكْنَنتُمْ فِي أَنفُسِكُمْ عَلِمَ اللّهُ أَنَّكُمْ سَتَذْكُرُونَهُنَّ وَلَـكِن لاَّ تُوَاعِدُوهُنَّ سِرًّإِلاَّ أَن تَقُولُواْ قَوْلاً مَّعْرُوفًا وَلاَ تَعْزِمُواْ عُقْدَةَ النِّكَاحِ حَتَّىَ يَبْلُغَ الْكِتَابُ أَجَلَهُ وَاعْلَمُواْ أَنَّ اللّهَ يَعْلَمُ مَا فِي أَنفُسِكُمْ فَاحْذَرُوهُ وَاعْلَمُواْ أَنَّ اللّهَ غَفُورٌ حَلِيمٌ

Mr Cheema’s investigative reporting reveals that Mufti Saeed did not know that the Iddat of Bushra Bibi had not completed by 1 January when he conducted the Nikah of Imran Khan with Bushra Bibi on that day. Since Mr Khan was in the habit of not making his marriages known immediately, the ceremony was kept to close friends and family members of the couple and not publicised. That was also his good luck and saving grace because it turned out to be a terribly wrong timing for him.

Ibn Katheer in Tafseer Quran-Al-Azeem (774 AH) writes that the marriage of a man to a divorced woman within the period of her Iddat stands nullified for violation of Allah’s commandment in Surah Al-Baqarah, chapter 2 verse 235. In offering an explanation of this verse in Jamia-Al-Ahkam-Al-Quran, Sheikh Qurtubi (671 AH) mentions that during the time of Caliph Umar there was a woman from the tribe of Quraish who married a person from the tribe of Thaqeef before her Iddat was completed. This was done in ignorance. But Umar annulled their marriage and forbade the couple to marry each other again even after the completion of the Iddat. They were spared the punishment of ‘Had’ because they had not consummated the marriage before it was annulled. There is a difference of opinion among scholars on the question whether the same couple can remarry after the completion of the period of Iddat. One group of scholars says that after the annulment of their marriage they cannot remarry each other ever again. The other group says they will have to get married again if the consummation of marriage had not taken place during the period of Iddat.

Mufti Saeed, being a scholar of Islam must have advised Imran Khan and Bushra Bibi after learning that her period of Iddat had not come to an end on 1 January that their marriage stood null and void and required a fresh Nikah after the end of the Iddat. Mr Cheema tells his readers that this period ended on 14 February being exactly three months after Bushra Bibi’s divorce was materialised on 14 November 2017. The couple were remarried on 18 February by Mufti Saeed after meeting the requirements of Surah Al Baqarah verse 235. Therefore, both the dates (1 January and 18 February) uncovered by Mr Cheema are correct because on these dates the ceremony of Nikah between the same couple was presided over by Mufti Saeed twice, but the first Nikah got nullified and the second had to be conducted again to validate their marriage according to Islamic injunctions.

Nobody expects people who are not religious scholars to know the legal requirements of Islamic marriage as prescribed in the holy book and confirmed by the sayings of prophet Muhammad, peace be upon him. It was an honest omission on the part of the Mufti not to ask the details of the Iddat from the divorced lady out of courtesy. It is also admirable that after he discovered that the marriage he conducted on 1 January was null and void, he advised the principals properly and they took his advice and contracted the marriage again on 18 February after the requirement of Iddat had been met.

Imran Kham may have feared that if he admitted the fauxpas of I January he will become a political football and his rivals will reduce him to pieces. But it was a misplaced fear. Leaders are not infallible but their measure lies in their ability to rise from a fall quickly and honestly. The PTI leader should be bold enough to admit the Mea-culpa and come clean on the mystery of his third marriage. He should also acknowledge that as long as there are good investigative journalists like Mr Cheema in the country, the future of an independent media, working as the watchdog of society, is bright.

6 March 2018

Mr Syed Sharfuddin is a retired diplomat and contributes regularly to a religious blog http://www.rahbar.co.uk. He can be reached at sharaf.sharfuddin@gmail.com

Syed Sharfuddin

The controversial disqualification of an elected Prime Minister by a five-member panel of Pakistan Supreme Court on 28 July 2017 on charges of corruption and perjury has revived the debate in Pakistan’s political circles and social media on the status-quo of civil-military relations and its implications for the future of democracy in Pakistan.

In an established democracy a discussion on civil-military relations is unthinkable since military establishment is not an equal partner of civil administration in wielding political power. Being a state institution, it is subordinate to the political organs of the government. However, in Pakistan where the armed forces have played an active role in the country’s politics since the first martial law in 1958, this debate is not only necessary but also healthy to settle the question of which comes first, the military establishment or civilian administration in the governance of the country.

Historically, Pakistani military coups have been justified by pro-military actors, including the then judiciary on grounds that civilian administrations failed to carry out their electoral mandate of governing the country properly, leading to instability and causing grave threat to the survival of the country as an independent sovereign state. Thus, the doctrine of necessity was born and remained a strong instrument to justify military intervention in political matters. Pro-democracy circles, on the other hand, reject this thesis on the grounds that if democracy is not allowed to take roots in a society still recovering from the mistakes of its past military rulers how can a democratic culture be promoted and nurtured to bring maturity in political parties and produce leaders who will deliver successful elected mandates. Theirs is a democracy argument which takes inspiration from people power and advocates that political parties learn from their mistakes and move on to do better provided they are freely left to do so.

After the end of General Musharraf’s rule, the 2008 elections resulted in the full restoration of civilian democratic government in Pakistan. It was then assumed that the country had come away from the shadow of military take-overs and wholeheartedly embraced democracy based on fundamental freedoms, the rule of law and independence of the judiciary. The ruling Pakistan Peoples’ Party (PPP) completed five years of its electoral term in parliament although it faced political challenges and had to swallow the humiliation of its elected Prime Minister resigning from his office. The PPP government was criticised by the then opposition for closing its eyes on rampant corruption and letting the former dictator leave Pakistan despite many court cases against him. The PPP kept the military establishment busy but it survived its term without a major crisis. The PPP lost the 2013 general elections making way for the Pakistan Muslim League (N) to form the next government.

The personal distrust harboured by the new Prime Minister (Nawaz Sharif) about the military leadership did not augur well for improving confidence between the new civilian government and military establishment. Mr Sharif’s friendly overtures to India to improve the climate of peace in the region did not please the military establishment which considered these premature until India ceased to sponsor terrorism inside Pakistan and made a genuine effort to cool off tensions along the Line of Control in Kashmir. The military was also frustrated with the lack of political will on the part of the civilian government to improve governance, control law and order and take pro-active steps to end corruption. Halfway in the term, the PML(N) faced political agitations from Imran Khan, head of Pakistan Tehreek-e-Insaf party which emerged as the third major political force in Pakistan after PPP and PML (N) following the 2013 elections, and from Tahirul Qadri, head of a Muslim Sufi organisation Minhajul Quran International, as well as head of Pakistan Awami Tehreek (PAT). Qadri is a dual citizen of Canada and Pakistan. He shows up in Pakistan only at the time of protests and then returns to Canada. This has led his critics to say that his visits have been sponsored by the military establishment to keep PNL(N) on the edge. Imran Khan and Tahirul Qadri accused PML(N) of massive corruption and demanded the resignation of the then Prime Minister and his brother, the Chief Minister of Punjab. In 2014-2015 they attempted a complete shut-down of the capital Islamabad for many days and tried to bring down the government of Nawaz Sharif on the model of Tahrir Square rallies but PML(N) survived because PPP and Awami National Party (ANP) did not support an extra-election change of government by public agitation.

After the discovery of the Panama Papers in April 2016 which exposed the tax evasion of many world leaders and important business concerns, including the Prime Minister’s family, the pressure on PML (N) for resignation snowballed. PTI and PAT, as well as some other opposition leaders intensified their demand for the Prime Minister to resign. The government ignored their calls because its main rival PPP favoured the democratic course of PML (N) government completing is five-year term in office in principle. However, after the Parliament decided not to take further action against the Prime Minister on the Panama leaks, the matter did not subside and instead became more prominent involving media and civil society to take it to a final conclusion.

The PML (N) government bought rumours that the military establishment was behind the PTI and PAT to pressurise Prime Minister Nawaz Sharif to abandon his soft stance on India, move against home-grown terrorists in his home province of Punjab and take a U turn on his Pro-Saudi position (which would have alienated Iran had it been allowed to be taken) on the Yemen war and the establishment of a Saudi-led Islamic Alliance Force against terrorism.

2016-2017 were the low water mark years in the country’s civil military relations since the restoration of democracy in 2008. In October 2016 an attempt by the government to undermine the armed forces through a leaked minutes of the meeting on security which were reported chapter and verse in a prominent daily of Pakistan (Dawn Leaks). The news story proved to be the last straw on the camel’s back and led to a total breakdown in the relations. In the same month the Supreme Court formed a bench to decide on the petitions filed by PTI and other opposition leaders against the Prime Minster on corruption and tax evasion, as well as application of clause 63 and 64 of the constitution on the eligibility of the Prime Minister under these circumstances. The appointment of a new Chief of Army Staff in November 2016 did not help much in mending these relations.

Many observers called the 28 July 2017 decision of the Supreme Court bench a judicial coup. The bench agreed that giving a ruling on corruption charges was the jurisdiction of the Accountability Court of Islamabad or Rawalpindi. At the same time, the bench recognised that the matter had reached an impasse which the institutions of the state and parliament had failed to resolve. The bench therefore found perjury as the reason for his disqualification which was not in the initial petitions, and asked the National Accountability Bureau to file references in the Accountability Court for further trial. Mr Nawaz Sharif’s party believes that behind his disqualification is the hidden hand of the military which did not find in him a friendly ally willing to take on board their views on many aspects of the government’s security and foreign policy they did not feel comfortable with, especially in the light of the poor governance record of the federal government and failure of Mr Sharif to come clean on allegations of corruption, money laundering and tax evasion.

This brings Pakistan to the key question of how it can fine-tune a perfect balance in the civil military relations where each side could cohabit amicably while also satisfying the constitutional requirement of making the armed forces an institution under the full command and control of the civilian government. It is a hard nut to crack because the civilian administration needs the armed forces in non combatant roles to clean up its mess partly created by bad governance and partly because there is too much of it in maintenance of law and order, disaster preparation and mitigation and committing resources to lead the fight against terrorism.

The problem faced by Pakistan is not peculiar to this country. For a number of reasons, part historical and part cultural, there are many African and Asian countries where the armed forces function as a paramount institution of the state almost at par with the ruling civilian administration. Examples of such countries include Turkey, Indonesia, Egypt, Sudan, Nigeria, the Gambia, Uganda and Pakistan. When a civilian leader is strong and holds the moral high ground the armed forces follow him and comply with the policies of the civilian government (e.g. Turkey, Uganda and Nigeria). Where a civilian leader is weak, indecisive and himself questionable on moral or financial propriety the armed forces feel embarrassed and resist his policies especially if they see these as running against their, as well as the country’s security and stability. Examples of such countries include Egypt. Pakistan unfortunately has often found itself in the latter category. The PML (N) leadership is seen very much by the armed forces through this lense even if facts on the ground are different.

Uganda solved the problem of civil military relations in 2005 by officially recognising the armed forces as a political interest group and assigning them constitutionally protected political representation in Uganda’s parliament. This is ideally not desirable in a mature democracy, but Museveni, a military-turned-civilian President, realised that this was the only way to satisfy a mammoth force which often regarded civilian administrations as untrustworthy, whether by their inefficiency, tendency toward ease and corruption or the very nature of politics where everything is based on expediency rather than principles. Museveni also did a clever thing. He got the Commonwealth to endorse this role by inviting them to observe Uganda’s first multi-party elections in 2006 under a constitution which sanctioned a legislative role for the armed forces in the politics of the country.

Article 78 of the Ugandan Constitution which was amended in 2005 states that “ (1) Parliament shall consist of— (a) members directly elected to represent constituencies; (b) one woman representative for every district; (c) such numbers of representatives of the army, youth, workers, persons with disabilities and other groups as Parliament may determine; and (d) the Vice President and Ministers, who, if not already elected members of Parliament, shall be ex officio members of Parliament without the right to vote on any issue requiring a vote in Parliament. (2) Upon the expiration of a period of ten years after the commencement of this Constitution and thereafter, every five years, Parliament shall review the representation under clause (1)(b) and (c) of this article for the purposes of retaining, increasing or abolishing any such representation and any other matter incidental to it. (3) The representatives referred to in clause (1)(a) of this article shall be elected on the basis of universal adult suffrage and by secret ballot. (4) Parliament shall, by law, prescribe the procedure for elections of representatives referred to in clause (1)(b) and (c) of this article.

Uganda has successfully completed 10 years without any major rift between the civilian and military establishments, although it can be said that the credit for this goes more to the longevity of the Ugandan President than the system itself. Nevertheless, the amendment has worked for Uganda and although clause (1)(b) and (c) of this article has become due for a review, a constitutional commission has not been established yet to review this sub-clause.

If Pakistan takes the Ugandan example as something that could work for itself, the armed forces would not need to set up a separate camp such as a political wing in the GHQ or a separate media operation like the ISPR to monitor what the civilian administrations are up to in regard to making security and foreign policies, as well as other policies such as visas policy for foreign nationals, monetary policy and media and communication. The representatives of the armed forces in Parliament would be in a secure and recognised position to observe proceedings, join committees, debate issues and vote in the legislative business. They would be free to vote as independent members or vote with a political party to play their role in the country’s good governance. 

A beginning toward this has already been made by the Supreme Court bench perhaps without the realisation that it was setting up a precedent for other things to follow when it included two Brigadier-level representatives of MI and ISI in the joint investigation team to probe the disqualified PM and his family against allegations of corruption. Supporters of the JIT justified this inclusion on the grounds that this will ensure that JIT was not under any political pressure form the government and would do its job in a neutral and non-partisan manner. The same logic can be extended to bring a constitutional amendment through which representatives of the armed forces could be elected against a quota of seats reserved for the armed forces. The candidates filing papers for these seats will be retired or about to retire military officers above the rank of Brigadier and would be elected by the people after their nominations have been jointly cleared by the military establishment and the election commission.

This arrangement, if enacted, will bring the required balance and confidence in the military establishment and civilian administration and crate a democratic process within the political system to resolve misunderstandings and reach consensus without upsetting the fancy apple cart of democratic governance which takes so much time, money and effort to organise every five years. A glimpse of what the future in-house consultations may look like with this type of composition can be seen in the way the former Interior Minister has walked his course vis-a-vis his other cabinet colleagues. For the sake of strengthening democracy and ending the circular argument of “we are better than you” by both protagonists, this practical arrangement is worth giving a serious try.

London: 19 August 2017

By: Syed Sharfuddin

On 28 July 2017 a five-member bench of the Supreme Court of Pakistan announced its final verdict in the widely publicised hearing of the case on corruption-in-high-office involving the Prime Minister of Pakistan Mian Mohammad Nawaz Sharif and his immediate family members (Panama Case).

Earlier, one of the judges on the Panama Panel had said that this will be a verdict to remember for a long time in the history of Pakistan. Unfortunately, this mother of all judgements will indeed be remembered for a long time but for all the wrong reasons and will raise questions about the level of sophistication of the judiciary and the type of orders judges issue in protecting the rule of law and independence of the judiciary in a transitional democracy that is Pakistan.

The verdict immediately disqualified the Prime Minister from remaining a member of the National Assembly of Pakistan and from keeping the office of Head of Government not on charges of corruption which the court asked the country’s National Accountability Bureau to fast track through filing specific references in the Accountability Court of Islamabad, but on account of Mr Sharif failing to disclose a receivable asset of insignificant monetary value in his Asset Declaration Form submitted to the Election Commission of Pakistan for the 2013 General Election. This has nothing to do with the Panama leaks and is a decision which can be applied to all members of the National Assembly equally and the honourable court can order similar disqualification for them if their solemn declarations are found to be incorrect or missing any entries.

In Pakistan where corruption is rampant and unfortunately has become an acceptable social evil from the rich to the poor, and where everyone knows someone who has climbed rags to riches or riches to mega riches status from illegal money, it is unimaginable that only Mr Sharif’s ‘crime’ is so grave that would cost him his job. If he committed perjury by withholding information, which still needs to be debated whether withholding information in a standard form is the same as lying with intent, do we know for sure that all other elected representatives, including some of the petitioners among them, filled out correct asset declaration forms in the 2013 elections.

If the judges were compelled to apply this principle so strictly, they could have in disqualifying Mr Sharif also asked the National Accountability Bureau to scrutinise the 2013 forms of all MNAs. This ‘public good’ aspect completely escaped the honourable judges and quietly landed in the missed opportunities basket of the supreme court.

One would imagine that the judges know well about corruption-in-high office in the country where many big guns have built a reputation on that very ill. But probably they do not really live here. Consider this sentence from a quote in their earlier judgement of 20 April 2017 which is repeated again in the judgement of 28 July 2017 at the end of paragraph 9. “We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.”

How old is the judiciary of Pakistan? 80 years? Yet the honourable judges are talking about building up their jurisprudence in centuries in their sweat, toil and blood. And in these 80 years one cannot but smile at the repeated collusion of the judiciary with past military regimes in justifying these under the much flogged doctrine of necessity. Yet the judgement is set in the background of Don Giovanni’s Godfather and talks about protecting due process for centuries. Are these British judges or Pakistani judges? Can someone please clarify.

But that is not the point. The point is that for most part of the April and July’s judgment the judges have placed emphasis on preserving the integrity of national institutions and reiterated that disqualifying a person without due process is not their call. After affirming that the court would not dispense with due process, and after instructing the National Accountability Bureau to file specific references against the Prime Minister and his immediate family members in the Accountability Court of Islamabad, the judges surprisingly contradict themselves in paragraph 13 and 15 by proceeding to disqualify the Prime Minister without due process.

The issue on which the disqualification is based could be debated either way as being sufficiently grave to call for a drastic action, i.e. disqualification, or not important enough in the larger context of the case, given the events of 2007 and Mr Sharif’s exile during the time of General Musharraf’s military rule when it was important for him to find a way to travel internationally without requiring lengthy visa processing time.

This omission in declaration was not a material factor to have a major impact on the full judgement on the Panama case and yet it turned out to be the only less convincing reason for the disqualification of the Prime Minister disposed of in two paragraphs in the entire judgement.

The Supreme Court decision against Mr Sharif is also procedurally flawed. The Joint Investigation Team (JIT) was formed after two senior judges had spoken their clear mind about the accused and written their verdict, and three had deferred their decision. This half disclosure of the verdict which some have called 40% decision, created an unavoidable prejudice in the mind of the investigators and made it difficult for the JIT to find anything other than what went against Mr Sharif and his co-accused family members.

The manner in which the JIT members were head-hunted by the court administration after the judgement of 20 April 2017 gave the impression that Mr Sharif’s goose was cooked but required some more seasoning before it was served. The old adage was proved right that the more you dig the more you find the dirt. This is what JIT did. Although the additional investigation conducted by the JIT could not uncover any seedy scandals of perverted sex, family feuds, pub crawling or casino hunting involving the Sharifs, it did find a lot of Aqamas for them in a Gulf State every Pakistani loves to visit. One of the petitioners in the case Mr Siraj-ul-Haq, Ameer Jamat-e-Islami Pakistan could probably explain it better what else is meant by Sadiq and Ameen if a person holding a high office in Pakistan has none of these major vices in his character.

In the manner of popular soap series the ‘final’ judgement of 28 July 2017 does not put any closure on the Panama case. The next episodes will be showing the Sharifs in the Accountability Court in response to the various references the National Accountability Bureau will file in compliance with the court order, and a nominated judge will supervise its implementation. A good western principle of justice is its speedy dispensation but here the court has made it a point to keep the saga alive perhaps to teach a lesson that corruption does not get punished once but comes in instalments.

It is not denying that the past record of Mr Sharif and his submissions to the JIT did not help his case but the verdict was also not perfectly stitched up in both substance and procedure that has made the decision open to question by the Noon team and by future lawyers who may study it as case material.

London
28 July 2017

http://www.g-l-f.org/index.cfm?id=62090&modex=blogid&modexval=19826&blogid=19826#.VO2E_9K8gJI

 

Professor the Hon Gareth Evans

Personal background as academic constitutional lawyer (5 years); Member of Parliament 21 years (18 upper house, 3 lower); Cabinet Minister 13 years (4 major portfolios, domestic and external); President of International Crisis Group 9 years  (addressing, inter alia, conflict prevention/peacebuilding/transition/ stabilization situations). But acknowledge experience does not always equate to wisdom…

Basic Principles

• One size does not fit all. No two country situations are alike – history, political culture, religious/ethnic/social diversity. Great care needed in applying experience elsewhere.
• But certain fundamentals of good governance universally applicable:
• Legitimacy – representativeness: everyone has significant voice in how governed
• Accountability – governors sense of responsibility to governed; mechanisms
• Honesty – no corruption in electoral and governing mechanisms
• Competence – making good policy, delivering effectively

Institutional Legitimacy, Accountability and Honesty

Core themes

• Assume for present purposes commitment to some form of representative democracy – where government’s legitimacy based on people having significant voice in who governs. If authoritarian model preferred – e.g. ongoing communist party rule, or military rule – my experience of little relevance.
• But in devising democratic constitutional system, many imperatives – some competing. Crucial issue in institutional design and management is how you balance them:
• Government  must be elected by majority – but must govern for all, be sensitive to minority rights, interests and opinions
• Government must govern for whole country (esp defence, foreign affairs, economic management) – but must be sensitive to different local or regional interests, and the principle of subsidiarity (matters should be handled by lowest or least centralized competent authority)
• Government must be strong enough (and able to govern for long enough) to deliver on policy imperatives – but not be immune from criticism, pressure or accountability
• Can be room for trade-offs/compromises in institutional design in addressing these competing imperatives. But no room for any trade-off when it comes to
• Governing in accordance with the rule of law (not the arbitrary rule of individuals, in which like cases not treated alike) – recognizing that the law itself must be sensitive to the needs and interests of the country as a whole, not just those running the government
• Governing honestly  –  corruption in the operation of the election system, or the carrying out of any government functions, cannot be tolerated: completely at odds with all principles of democratic governance

Experience/Thoughts

1. Parliamentary systems (viz. where executive government is determined by the majority vote of elected members, rather than directly elected or appointed) are generally to be preferred to presidential systems

–  avoids paralysis between executive and legislature (cf. US now)

–    better chance of  leader being seen to represent whole country cf. particular region or group   (cf Afghanistan under Karzai)

2.  The best systems of parliamentary government, in my experience, start with electoral rules designed to produce strong and stable governments, but supplement this with necessary checks and balances on how they exercise that power.

3.  It is an illusion to think there is some perfect or ideal electoral system which can simultaneously ensure that the composition of the parliament perfectly reflects voter choices (which proportional representation [PR] systems are designed to do) and that a government can be formed with a stable and workable majority (which majority/plurality systems are designed to do): hard choices always have to be made.

4. The requirement of strength and stability can most easily be met if the electoral system is designed to produce a small number of strong parties in the chamber which elects the government.  Ideally this will be achieved by systems which tend to produce just two major parties alternating in power (ideally of the centre-left and centre-right respectively, giving voters policy and not just personality choices). Strong coalition governments, usually of no more than two parties, are also achievable where the coalition partners bring complementary interests to the government (eg the rural based National Party in Australia which has for decades been in coalition with the Liberal Party, or in Germany the Free Democrats usually in coalition with the Christian Democrats, or the Greens with the Social Democrats).

– What is to be avoided in constitutional design are systems almost guaranteed to produce weak coalition governments of three or more parties. Mixed systems like Germany’s MMP can be designed which are basically proportional, but (by excluding parties with low voter support) enable reasonably strong and stable coalition governments to be relatively easily formed: they are much better than pure PR systems like Israel or Belgium, which make the formation of strong and stable governments a nightmare.

5. The most appropriate such checking and balancing mechanisms in my experience are (a) regular fairly conducted elections at which a bad or unpopular government can be removed; (b) an upper house which places some limits on the government’s freedom of action; (c) a court system able to check outright criminal misuse of power, and to strike down unconstitutional legislation or executive actions; and (d) other independent watchdogs designed to keep the government, parliament and public service honest and disciplined.

6.  Check (a): Regular elections. These should be conducted at no more than 4-yearly intervals, and be conducted with impeccable fairness by an independent electoral commission in which all sides of politics, and all major groups and regions in the country, have complete confidence.

7. Elections should be the only mechanism for removing a bad or poorly performing government: Australia had experience in 1975 of a constitutional coup (in which the Queen’s representative, using formal powers under the Constitution which had long been thought unusable, dismissed an elected government) and the scars lingered for many years. Impeachment processes to secure the removal of political leaders should only be considered in the most extreme cases, where manifest illegality is involved as determined by properly functioning independent courts.

8. The solution to removing a poorly performing populist government is for opposing politicians to provide a better alternative at the next election:  clean, competent, sensitive to wider national interests and the concerns of all major groups and regions in the country, and seeking common ground. As New York Governor Al Smith famously put it in the 1920s, “The only cure for the ills of democracy is more democracy”.

9. Check (b): Upper house. The best upper houses have clear but limited powers, and bring a wider range of voices to bear on government processes than may be reflected in the composition of the executive government of the day.  Ideally they are elected on a proportional representation basis (though with some limits, like a 5% threshold vote requirement) or, if they have an appointed component, do so on the basis of some mechanism which ensures that only persons of genuine experience and stature are chosen.  Upper houses should have no power to block budgetary or other legislation crucial to the survival of the government of the day (a problem with the Australian Senate, which is much too powerful in this respect). And in my view ideally they should be limited (like the House of Lords in the UK) to scrutinising and delaying government legislation, not ultimately defeating it. Upper house committees can and should play an important role in holding governments to account through public hearings and reports, and contributing to the policy debate.

10. Check (c): Courts.  Respect for the rule of law demands the existence of courts and judges universally accepted as independent and beyond reproach. If these conditions are satisfied, political leaders in or out of office should not be immune in any way from criminal prosecution for corruption or other breaches of the criminal law.  But political leaders should never be prosecuted for policy mistakes or errors of judgment: the sanctions for poor government must be political not legal. The role of constitutional courts should be limited to adjudicating on whether legislation or executive action is in breach of specific provisions of the constitution; and those specific provisions should, in turn, be very clearly and  narrowly defined.

11. Check (d): Independent Watchdogs.  The best systems of democratic governance also usually have built into them a variety of additional scrutiny, accountability and reporting mechanisms designed to keep the government, parliament and public service honest and disciplined, e.g. anti-corruption agencies, human rights commissions, and Ombudsman processes.  If these are to be of any use, however, they must be, and be seen to be by everyone, as scrupulously independent and non-partisan

12. Free Speech. Effective democratic governance depends absolutely on the traditional rights of free speech and political association being totally respected, in both law and practice. It is one thing to ban speech or writing which manifestly incites to violence, but quite another to ban speech which merely insults, offends or humiliates: participants in the political process should have thick skins, and governments should earn respect, not try to compel it.  Use of defamation law as a political weapon to silence opponents, as has regularly been the case in Singapore, is at odds with fundamental democratic principles.

13. Devolution of power. The proper distribution of power between central government, and local or regional authorities, is always extremely difficult to get right. Federal systems like Australia, Canada and the US can be an important way of meeting regional needs and aspirations, particularly in the delivery of health, education and welfare services, and in areas like land management and urban planning, but it is important not to concede too much ground. Complex modern societies, strongly internationally interdependent, need much standard setting at the national level, and all the key instruments for effective economic and fiscal management must be available to the national government.

14. At the end of the day even the most elaborately and carefully designed constitutional arrangements cannot guarantee stable and effective democratic governance. That depends ultimately on the prevailing political culture, and the mindsets of those exercising the levers of power.  And even the best constitutional arrangements cannot guarantee competent government: that depends on a whole set of different factors, to which I now turn.
Competent Government

Experience/Thoughts

• Perhaps the most basic thing I have learned from 13 years as a Cabinet minister and watching many other governments is that there is wisdom in crowds – when leaders go it alone/don’t consult with interest groups and colleagues/don’t pay detailed attention to professional advice before announcing policy initatives, things invariably end in tears. The Hawke-Keating Government ‘83-96 widely seen as gold standard in Australia (certainly as compared with its Labor predecessors and successors Whitlam/Rudd/Gillard, and the non-Labor governments of the ‘60s and ‘70s, and Abbott now, although the Howard non-Labor government of 1996-2007 was also fairly generally respected).  From my own experience in that government I would spell out more specifically five factors – I think applicable to any government anywhere – which are crucial for competent government performance:

• One: have clear philosophy and sense of policy direction.  Maintained consistently throughout the Hawke-Keating  term:  very dry in our economic policy, very moist in our social policy, and liberal internationalist in our foreign policy, with the concept of the “social wage” – delivered mainly through health, education, superannuation gains – being at the heart of our capacity to sell wage restraint, deregulation, and tough economic reforms generally to the wider community. Rarely let politics drown good policy, certainly in the crucial area of economic policy, because we were confident of the strength and coherence of the policy we were making.
• Two: have agreed system of internal government management. Coming into office with memories still strong of dysfunction of Whitlam Government, we had developed a structure-and-process blueprint addressing relations between Prime Minister and other Ministers and their respective offices, between Cabinet and Parliamentary Party, between Executive government and public service: lot of attention paid to consultative processes, committee structures, and lines of decision-making authority. The model served the government well, with little modification, for whole 13 years.
• Three: operate internally on the basis of argument rather than authority. We argued everything out, often very fiercely (and in language which reflected the strength of the views held) and didn’t just succumb passively to the exercise of leadership authority. The Prime Minister may have been first among equals, but only just. Everything was contestable, and contested. The concept of captain’s picks and captain’s calls, after a couple of early mishaps, just didn’t apply. Our leaders didn’t always love the reality of Cabinet peer group pressure, but both of them accepted that they were running a Cabinet, not a presidential, system.

• Four: listen and consult with relevant industry, profession and community stakeholders, on every major policy issue. We  also respected and welcomed the advice of the public service, not just in policy implementation but in conceptualisation and design, and had at least as many public servants seconded to our ministerial offices as political and personal staff.
• Five: explain and argue the case for everything the government does. Hawke and Keating both outstanding communicators, remorseless in their determination to ensure that the major opinion-moulders knew what we were trying to do, why and how.  If the focus groups told us we had a problem, that was the beginning of the public argument, not the end of it.

It is true that we didn’t have in the mid-‘80s some of the technology-driven, 24/7 media pressures that present governments are under, or quite so difficult a set of minority parties to have to negotiate with in the upper house.  In all sorts of ways it is now tougher than it has ever been for governments to deliver good policy outcomes. But I’m not persuaded that the problem is wholly a systemic one: it ultimately comes down to intelligent, competent political leadership.

The bottom line, again, is that governments cannot compel the respect of the people: they have to earn it.