Syed Sharfuddin*

The concept of no confidence vote in a parliamentary democracy is based on the premise that political power rests with the people and they have the right to choose or reject a government formed in their name. This right is exercised through people’s elected representatives in parliament. While the tenure of an elected government is fixed for five years, the timing for its dissolution is left open ended, emphasising that the executive shall remain in office so long as it enjoys the confidence of the majority in the legislature.

Almost every democratic country has a history of no confidence votes which have been historically less successful than their original intent. The first time a no confidence vote was used was in 1782 in the parliament of England when legislators, angry over the defeat of the British military by the American volunteer army forced Lord North to submit his resignation to King George III. In the UK there have been a total of 11 prime ministers who were defeated in no confidence motions. In India 27 no confidence motions have been moved in Lok Sabha to date but only three have been successful.

In Pakistan which has had a history of interrupted democracy, two no confidence votes were used against the sitting prime ministers (Benazir Bhutto in 1989 and Shaukat Aziz in 2006) which did not pass. A third no confidence motion was filed on 8 March 2022 against the current Prime Minister (Imran Khan) and is yet to be voted in the National Assembly.

The difference between the no confidence motions in India and Pakistan is that in India the leaders of the house resigned in the wake of no confidence motions submitted by the opposition and refusal or absence of support to them from the coalition partners (V P  Singh in 1990, Atal Bihari Vajpayee in 1996 and H D Deve Gowda in 1997), but in Pakistan the leaders of the house decided to face the vote of no confidence motions and were successful in retaining their office. This same pattern is visible in the vote of no confidence motion against Prime Minister Imran Khan who has decided to confront it in the National Assembly instead of tendering his resignation and calling a fresh election as demanded by the combined opposition. However, one Pakistani Prime Minister (Hussain Shaheed Suhrawardy) was not allowed to seek a vote of confidence in 1957 and resigned under threat of dismissal by President Iskandar Mirza.

In the Westminster style of democratic governance, a motion of no confidence is a vote of impeachment against the entire council of ministers, including the prime minister. When it is passed by the majority of legislators, the government must resign or in the alternative, offer to dissolve parliament and/or call for a general election. No confidence motions are usually brought on account of serious disagreement on policy issues of governance or on questions of broader national interest or for personal issues of corruption and graft.

In the present no confidence motion in Pakistan against the incumbent Prime Minister, the reasons cited are both policy issues and personality factors. Prime Minister Imran Khan is accused by his political opponents of harming the country’s national interest by unwise economic policies which have led to rampant inflation, uncontrollable price hikes in food items and essential commodities, and visiting Russia on the eve of Russian invasion of Ukraine which allegedly compromised Pakistan’s neutral position in the conflict and annoyed Pakistan’s Western donors and trading partners who have abundantly made it clear that any country siding with the aggressor in the Ukraine conflict will be made to face the consequences of its decision. In Pakistan’s case this has been taken too far as the Foreign Office took exception to the letter of NATO envoys urging Pakistan to condemn Russia in the UN vote and the Prime Minister going public to say he cannot be bowed down to external pressure. On the personality front, the Prime Minister is accused of being reckless and deeply personal in his verbal tirades against the leadership of the opposition and critics of his government, including the media. The army has stated that it is neutral and does not want to get dragged in the matter. However, the military’s interests are served better by not making the US, UK, EU and other Western allies unhappy with Pakistan, even though they welcome Pakistan’s growing ties with Russia and support continuation of Pakistan’s economic and strategic cooperation with China.

The Prime Minister avoided a similar vote of no confidence last year when in March 2021 his Finance Minister lost a crucial election in the Senate, by pre-empting it with a vote of confidence which he won with 178 votes in the National Assembly , as against the required number of 172.

In countries where there are fragile federations or political parties are fragmented and region based, the frequency of no confidence votes is relatively high. As a safety measure for political stability, these countries place restrictions on the number and process of initiating no confidence motions in legislature. Historically, no confidence motions do not have a high success record in world parliaments. Some constitutions also include a defection clause to discourage legislators from switching their membership or vote in the legislature from the party on whose ticket they were elected to another party during the legislative tenure of parliament. Sometimes these restrictions encourage former members of old parties who are electable in their constituencies to form small parties and avoid the defection clauses because they can exercise influence on a minority government by joining government coalition with the ability to switch support from the ruling party to the opposition when it suites them. Prime Minister Imran Khan’s governing party PTI has 155 members in parliament which is supported by 23 legislators from its coalition partners comprising 7 from MQM, 5 each from PML(Q) and BAP, 3 from GDA, one each from AML and JWP, and one independent member. The opposition consists of 163 members, comprising 84 from PML(N), 56 from PPP, 15 from MMA, 4 from BNP, one from ANP and 3 independent legislators.

There are two types of no confidence motions: a regular motion of no confidence, and a constructive motion of no confidence. The regular motion of no confidence is prevalent in many parliamentary democracies. This system calls for the removal of an existing government and beginning the process of either replacing it by another government or calling for a general election through a vote, supported by the majority of legislators in the legislative house. The voting is done either secretly, or through a vote of Ayes or Nos or through a division of the house, usually with no third option of abstaining. In the regular motion of no confidence a government can be brought down if those who are supporting the motion are larger in number than those against whom the motion has been moved. Usually, in the regular vote of no confidence, the majority of the total number of legislators elected to the house is not required to determine the success or failure of the motion, as long as those who are present and taking part at the time of the voting pass or reject the motion. The onus of proving that they have the required majority to bring a government down rests with the opposition parties that have moved the motion of no confidence and not with the government against whom the motion is moved. There are some limitations placed on the regular motion of no confidence such as the minimum number of legislators required to bring a motion to the floor of the house, the requirement of a quorum and whether it is a secret ballot.  

A constructive motion of no confidence on the other hand severely limits the ability of the opposition to vote out government. A constructive motion has two safety features which are not present in the regular motion of no confidence. These are the requirement that a majority of the total membership of the House should pass a motion of no confidence as against the majority of those present; and an agreement must be achieved on an alternate candidate who would be voted in to replace the leader of the house against whom the vote of no confidence is passed. Where these requirements are not met, the motion of no confidence fails. A constructive motion of no confidence is therefore a vote for a new government to replace the one which is being removed by a vote of no confidence. In a constructive vote of no confidence, a government can survive even if it has the support of only one or two members, as long as the rest of the members are not agreed on an alternate candidate to form a new coalition government.

The constructive motion of no confidence is further strengthened by the caveat of having a higher number of legislators who can present the motion or a resolution of no confidence against a sitting government. On a global average this number varies between 10 to 25 percent of the total number of legislators. Pakistan has placed this limit at 20 percent which means that a motion of no confidence should have at least 68 or more signatures to be accepted by the Speaker of the National Assembly for taking necessary action. A second method is to place a limit on the number of no confidence motions that can be introduced in the same session and the interval between them. The Pakistan constitution places no limit on the number of no confidence motions that can be initiated against a government but in the Rules of Business (Rule 113) the time limit for resubmitting a resolution of no confidence to parliament is 6 months.

The constructive motion of no confidence is also strengthened by allowing slightly longer time to the government to react to the motion. It can vary from 48 hours to 2 weeks. In Pakistan’s case it is roughly 2 weeks.

The system of constructive motion of no confidence is followed by the parliaments of Germany, Spain, Hungary, Slovenia, Poland, Belgium and Israel. Three of the seven countries are former east European states. Two of these countries, Belgium and Israel introduced this system not due to historical tradition but as a result of political reforms. The system encourages continuity of government during the term of parliament and prevents smaller coalitions partners from extracting higher political concessions from a government struggling to keep its majority in parliament.

There are three ways through which a government can be constitutionally dismissed in Pakistan. The first is under Article 58; the prime minister advises the president to dissolve the National Assembly and call fresh elections before the expiry of the electoral term of parliament. The second is under Article 91 (7); the president may ask the prime minister to seek a vote of confidence from the National Assembly if he believes that the prime minister does not command the confidence of the majority of the Assembly. The third method under Article 95 (1 to 4); a resolution for a vote of no confidence, moved by not less than 20 percent of the total membership of the National Assembly, is passed against a sitting prime minister by a majority of the total membership of the National Assembly.

The Pakistan constitution combines the features of both the regular and constructive forms of vote of no confidence without making it mandatory that in the event of a vote of no confidence vote having been passed by the National Assembly, the same Assembly should simultaneously elect a new leader of the National Assembly to form a new government.

Article 95 of the Pakistan constitution, read with Articles 58, 63 (A) and 91 (7), provide guidance about the conduct of vote of no confidence. The procedure for initiating a motion or resolution of no confidence and taking a vote on it is provided in the Procedure and Conduct of Business of the Pakistan National Assembly, 2007. Rule 37, read with Rules 323 and 38 of the Rules of Business, state that the Speaker has a period of 14 days from the date a resolution of no confidence has been received by him to bring it to the floor of the National Assembly for action. In addition, the Speaker has the discretion to call for a vote on the resolution between three to seven days of the circulation of notification of the resolution, during which time he may also set aside a number of days for a debate on the motion. On the conduct of the poll, Pakistan follows the most transparent but democratically questionable method of members voting by an open vote by the division of the house. At the election of the Senate Chairman in 2021 the Supreme Court set aside the request of the government to cast an open vote and instead ruled in favour of the secret vote.

Since the restoration of civilian democracy in 2008, Pakistan’s political parties have placed a great deal of emphasis on parliaments completing their full term of five years. Cutting short a term through a vote of no confidence or a snap election called by a prime minister is an expensive affair for countries like Pakistan which have large budget deficits. Over the years there have been efforts to strengthen the office of the prime minister by removing the obstacles placed on his authority by intermittent martial laws. In 1997 two landmark constitutional amendments were adopted to strengthen the office of the prime minister. The 13^th amendment removed Article 58(2B) of the constitution which was introduced in the constitution in 1985 by General Zia ul Haq. The 8^th amendment, as it was called, gave the president the authority to dismiss a sitting prime minister and his government on charges of corruption.

The 14^th amendment further strengthened the position of the prime minister by giving the heads of political parties the authority to dismiss a legislator who was elected on the party ticket for breach of his party’s discipline or voting contrary to party direction. Article 63-A of the constitution states that a legislator who was elected on the ticket of a party may be deemed to have defected and unseated after due process, if he resigns from the membership of his party or joins another parliamentary party, or votes or abstains from voting contrary to the direction by his parliamentary party when the Assembly takes a vote on the election of a prime minister or chief minister, a vote of confidence or no confidence, or a money bill or a constitution amendment bill.  

In 2003, the omnibus 17^th amendment giving legitimacy to General Musharraf’s Legal Framework Order restored the defunct 8^th amendment in Article 58 in a different form and empowered the president to dissolve the National Assembly without consulting the prime minister or a resolution passed by the legislature. It also made the president’s action subject to reference and approval of the Supreme Court. However, under a civilian government in 2010, the 18^th amendment removed this power from the president and gave it back to the National Assembly.

Recommendations

Since the constitution includes many features of a constructive vote of no confidence, the parliament should consider adding to it the condition that the passage of a vote of no confidence should be dependent on the opposition being able to elect a new leader of the house in the same session which votes to bring a government down by a majority vote of no confidence to guarantee continuity of governance, political stability and avoiding an expensive election exercise outside the parliament’s fixed 5 year term. If the opposition fails to get the required majority for the proposed alternate leader of the house, then a no confidence motion passed against a sitting prime minister should be declared null and void. In other words, the same majority that votes to bring down a sitting government should be in a position to vote in a new government as long as they have 50% plus one vote of the total number of house in their favour.

Parliamentary democracy encourages continuity of the political process through the representative institutions of the people. It is when these institutions fail to perform their function or are denied their role, the question of fundamental rights of people comes into play. As long as the National Assembly is functioning and the parliamentary parties are able to exercise their rights under the constitution as the representatives of the people, there is no reason why the parallel route of agitation and mass rallies should be simultaneously followed by opposition leaders. The government should enact a law outlawing political agitation, mass rallies and public ‘dharnas’  if the parliamentary route for resolving political issues is open to political parties under law and if the judiciary is playing its role to ensure that the opposition gets the required space within the political system to challenge the government on corruption charges, matters of national interest and important policy issues. There is also a need for the parliament and the judiciary to work together to reinforce parliamentary good conduct and promote high standards of interaction between the government and opposition political parties and their leadership, in particular discouraging their political workers to use abusive language and shun the disgusting vocabulary of vagabonds and street urchins. That the political elites should be told to censor their language is itself most regrettable, let alone them advising their workers to be careful in shaping an acceptable discourse of political debate in the country.  

A debate has ensued in political circles about the interpretation of Article 63A of the constitution whether the vote of a legislator who has voted against the party direction in a vote of no confidence in the National Assembly is to be counted or discarded for deciding the result. The government’s position is that if the ruling party has decided not to be present in the National Assembly when the vote of no confidence is in progress , the very presence of a legislator from the ruling party is an act of defection and it is right for the Speaker to discount his vote. The opposition on the other hand believes that the reading of the Article 63A is unambiguous about the defection and its due process, and that it does not prevent a legislator from exercising his fundamental right to vote. In the event of a constitutional crisis arising out of a tie on a vote of no confidence, this question is likely to go to the Supreme Court creating further instability in the country. The parliament should reconsider amending this Article to clearly state whether a vote cast by a defecting legislator in a vote of no confidence is to be denied or counted to decide the result.

Finally, in a parliamentary democracy power rests with the people who elect their representatives to exercise it on their behalf in the act of governance. However, in reality the political representatives of the people rarely connect with the people except at the time of election. When an opposition threatens the government with a vote of no confidence or when a government defends it in the Assembly, it is hard to establish whether the legislators are indeed reflecting the will of the people or pursuing their own personal agendas to advance their political careers. It therefore make a strong case for the political reform of the electoral system and within it the replacement of the regular system of no confidence vote with that of a constructive system of no confidence vote as has been done in Belgium and Israel. If Pakistan does this, it will be the first country in the Commonwealth to take the first step toward strengthening parliamentary democracy by one more notch.

*Mr Sharfuddin is a political analyst and a former Special Adviser, Political Affairs, Commonwealth Secretariat, London UK (2200-2006).

Syed Sharfuddin

The past few days in the politics of Pakistan have been reminiscent of the sunset days of the PML-N era when a small but significant interest group, best classified as a non-state actor, played on the most sensitive Muslim religious issue in the country and used it to hold the government of the day on tenterhooks leaving it undecided whether to use police force to end its widespread public protest or follow the way of compromise through negotiations.

Last April, when the government was faced with the TLP protest of similar magnitude, it decided to enter into a dialogue with the protestors in the wider national interest of peace and tranquillity. The negotiations and resulting agreement signed between TLP and the government achieved the objective of ending the protest but at the cost of three big give aways: 1) acceptance that TLP is a political force which cannot be ignored or proscribed; 2) admission that the government’s hand can be forced in matters of foreign policy by mob action; and 3) acknowledgement that the ideology of TLP concerning the Prophet of Islam is the same as that of the government. This meant that: 1) the government could not prevent TLP from fielding its representatives at coming local and national elections; 2) the government could not assert its role of making foreign policy and agreed to place the TLP demand before Parliament ; and 3) that there was no ideological difference between the government and TLP on core issues, even though they differed on tactics.

TLP says it is out on the roads again in October 2021 because the government breached the signed agreement to take its demand to Parliament for a decision. The government’s position is that it submitted a resolution in Parliament on this matter, and that the demand of TLP is invalid because the French Ambassador is not in the country. Then, there are issues of TLP engaging in violence resulting in the tragic death of police officials; conflict between its demand and action which violates the teachings and Sunnah of the Prophet for tolerance and good public behaviour; breach of a written agreement by the government; and question on the government’s credibility and ability to assert its will on non-state actors with authority.

The aim of this article is not to go into the background of this repeat episode, which is already covered in the media, but explore the options for the government in dealing with such issues in the future.

There are four fundamental issues that need wider public conversation to reach a national consensus. These are, namely, the power of government and the calibre of those who govern; the role of state institutions to regulate non-state actors within the ideological moorings of the State; balancing legitimate state authority versus people’s democratic right to protest; and the role of government and political parties.

1) The power of government and the calibre of governors

People often ask why the writ of the government is openly flouted in Pakistan by non-state actors, including informal religious outfits and organised opposition parties? While it is correct that at every occasion, the State seems helpless, but this is not by choice. There are political coalitions or pluralistic compulsions which prevent the government from coming hard on an activity where its authority is challenged, including with armed resistance. It is not an easy task to establish a political equilibrium. While the government has the means to electronically listen into people’s personal conversations, issue search warrants for suspected persons, enter their residences and even arrest those suspected of flouting the law, the government cannot cross the established red lines because of democratic and human rights considerations, and the adverse reaction of civil society which has its sympathisers internationally. This delicate balance is also affected by how well prepared the government is in enforcing its political will and whether those tasked with the mandate to govern have the integrity and courage to implement policy into action. It cannot work if those who are vested with authority are unsure of their own positions or if there is a history of political insecurity. Sometimes, the cabinet is also not united on policy matters and the statements of two or more ministers on the same issue are contradictory or confusing. The buck in a parliamentary system for all such contradictions stops at the door of the Prime Minister who must be seen to be in-charge of his team and ahead of everyone’s game. Always in a crisis, he must be visible and lead from the front.

The PTI government may rightfully claim credit for acting wisely last April in defusing the crisis and not showing full force of the State in ending TLP protests, but it has certainly failed on consistency of policy. For example back in April it was ludicrous for the interior minister to rush to announce that his ministry had decided to approach the cabinet to ban TLP as a political party without due process but two days later the interior minister presided over a meeting with TLP leaders and reached an agreement with them to end the protests peacefully. It was also embarrassing that the Prime Minister, who is so rightly against the dishonouring of Prophet Mohammad, peace be upon him, and who addressed the UN General Assembly about Islamophobia, made no hard hitting statement, nor took any action last year when the French government officially supported the reprinting of the offensive cartoons by a French magazine in the name of freedom of speech. On the TLP crisis, the Prime Minister said one thing in his speech to the nation holding firm on not giving in to the key demand of TLP, but the very next day he appreciated his interior minister sitting down with TLP elders to sign an agreement accepting that in return for TLP ending the protests, the government would send their demand about the French ambassador’s return to France to Parliament for a decision. In October the interior minister again offered an olive branch to TLP to talk to government and end their protest in the interest of peace and security of the country. The mixed signals are too confusing to the public. It is hard to say, when everything is considered, where the government stands on TLP’s status.

The question of government credibility does not rest only with domestic audience. It is noted internationally. Once the international community starts to suspect that a country’s leader cannot be trusted for his word, then there is nothing left for the government machinery under that leader to convince the world that you are serious about a matter which they consider important. Pakistan has been through this storm before and we know that in the previous US governments, there were officials who did not trust Pakistan’s commitments.

Unlike the Turkish President who is unequivocal on the question of blasphemy against the Prophet, the Pakistani leadership has indirectly conveyed to France and the EU the wrong message that its had stand against the blasphemous cartoons is meant only to appease the mullas domestically. In conveying this message, the Prime Minister is not alone. He is joined by the whole caboodle of liberal politicians, many of whom, are represented in the PPP, ANP, BAP, and also to a certain extent in PML-N. Pakistani social media also shows this major ideological divide. On the one side are the liberal civil society, media and overseas Pakistanis living in the west who couldn’t care less about western far right media writing about the Prophet, or French lawmakers outlawing Islamic head-gear for French Muslim girls attending schools. On on the other side are those Pakistanis who genuinely think that raising their voice against Islamophobia is important, even though it is a bit late in the day to revisit this issue, and not helpful because Pakistan needs friends in the west to take Pakistan out of the FATF grey list, continue with their aid and trade programmes and support its Afghanistan policy for improving the uncertain security situation is the region. The TLP protest has come at the wrong time and is outdated considering that the cartoon controversy is over a year old.

The issue about the French Ambassador is something the Prime Minister’s Office or the Pakistan Foreign Office should have put to rest by acting immediately without wasting much time which gave TLP the excuse to take it up on behalf of the people of Pakistan. Last week the Turkish President threatened to expel ten western Ambassadors from Turkey on the ground that it was not their business to comment on the Turkish activist Osman Kavala who is under arrest and trial on charges of overthrowing the government in the failed 2016 coup. The reaction from Erdogan was so quick and credible that the US and some other western embassies retracted their statement the next day and Erdogan accepted their response. The matter was finished even before it could go to Turkish cabinet for approval of action. It is true that Turkish Lira tumbled in the week when all this was happening, but it was not a big cost to pay for protecting the sovereignty and credibility of the Turkish State internationally. Unfortunately, Pakistan’s leadership could not handle the problem of one foreign government and its Ambassador credibly on time. Islamabad does know very well how such things are done but it is terribly scared to risk anything, without realising that not taking action on time also costs the nation, if not the leaders personally.

The TLP demand for sending he French Ambassador home as PNG makes no diplomatic sense. As Ambassador he is only a high official of his government sent to establish secure communication between two governments. His function is not to make or change French policy but to act as a high representative of his government who acts professionally with tact and sensitivity. Sending the high representative packing to his home or downgrading diplomatic relations with a country makes sense only if an unacceptable act by a foreign envoy or a hostile act by his government requires a swift and proportional response. The host government alone can decide on such matters and no other entity, party or NGO can force the government to do so on its behalf. When signing the agreement with TLP last April, the government should not have accepted that it would table the TLP demand for the return of the French Ambassador before Parliament.

Three subjects, namely, national defence, conduct of foreign relations with sovereign states and printing currency are federal subjects and no federating unit, let alone a political party or religious group, has any authority to start dictating heir terms in these areas. The role of Pakistan Foreign Ministry is to advise the government through its envoys what is best and possible in the interest of the country. The interior minister has said that the French Ambassador is not in the country and may not return. His staying or returning is a matter only for the French government to decide. If Pakistan has any problems with the policies of the French government, it should take it up with Paris at the higher political level through diplomatic channels. The Pakistan Prime Minister has spoken to the people of Pakistan about Islam, morality and good deeds. He should also speak to the foreign diplomatic corps in Islamabad over a working lunch that if any foreign government condones or supports its ‘intellectual terrorists’ to cause anger and violence in the Muslim world through blasphemy against the Prophet and hate speech against Islam, Pakistan would consider it as an unacceptable act against its friendship and bilateral relations. The Prime Minister should also direct the Foreign Office to draw up a list of Islamophobia promoting entities and countries and move the UN and the Organisation of Islamic Conference to react reasonably and proportionately. This may include such action as issuing official protests, boycotting their products; stopping to attend conferences held in these countries, putting a freeze on their tender submissions or commercial deals, and temporarily suspending sporting activities with them.

2) Role of state institutions to regulate non-state actors within the ideological moorings of the state

This issue has been publicly debated at every public and official forum in the last ten years. However, what is new is that when the State has a constitution, which declares Islam as the state religion of Pakistan; when the elected leader of the country is a practicing Muslim and talks about making the country a welfare state modelled after the State of Madina; and when the state broadcaster dubs and airs for two years a Turkish TV play Dirilish Ertugrul which is half history and half fiction but it takes the entire country, as well as the Muslim Ummah all over the world by an audience-following never witnessed before, then you are obviously talking about a nation that is not prepared to ignore blasphemy against its Prophet, as well as its religious icons, and that its people expect their government to react strongly if the government of a western country where the blasphemous act has occurred wilfully to hurt or infuriate Muslims does not condemn such act or refuses to take action to stop it.

We live in a funny world. Governments and humanists who were so loud in condemning the destruction of the ancient Buddhist icons in the Bamian province of Afghanistan during the first Taliban rule in 2001 are not bothered with the insults hurled at the Prophet of Islam from their lands. Many tears have been shed over reversing the status of Hagia Sofia in Istanbul from a museum into a mosque but not a word has been said about the disappearance of ancient classical mosques in Seville, Cordova, Malta and Greece where Muslims once lived, worshipped and ruled. Most of these mosques were turned into churches. The long conflict in Syria for and against the incumbent Asad regime has resulted in the destruction of a rich historical heritage common to the adherents of three great Abrahamic faiths. No one bemoans this great loss. The far right in Europe has no problem with the whole humanity wearing face-masks to protect against the spread of Covid-19, but it has issues with innocent young Muslim girls wearing Hijab in deference to their beliefs. No one should be allowed to get away with blasphemy of the Prophet of Islam whose name, when recited in public, results in billions of hands rising to touch their hearts as a mark of deep respect for Muhammad, peace be upon him. The same rule of respect should apply to the gods and founders of all recognised religions.

Strictly speaking, TLP protests do not fall under the category of a non-state actor challenging the power of the State. Their leaders have not called the government to resign. TLP is a registered political party in Pakistan, or was so until it was shut down arbitrarily without involving the election commission or invoking a due process by the interior ministry. They still have the third largest political following in Punjab, which is Pakistan’s largest province. TLP has two elected representatives in Punjab’s provincial assembly.

This TLP protest is not new. This party has held similar protests earlier on one single issue, but the government did not take action despite promising to do so. In 2018 during their mass protest in Rawalpindi, some political parties tried to take advantage of TLP protest by demanding new elections. A lot of foul language was used in those dharnas, including verbal attacks on the State’s constitutionally protected institutions. Against the high tempers and the fluid political background of the country, the TLP episode was only a small jolt in the present uncertain situation. The PTI government which did not condemn the 2018 protest by TLP when it was in opposition then, should have known that a sleeping giant could always wake up one day to challenge its power, yet the government did nothing to remove the root cause of the problem, except join the giant in its sleep.

Pakistan’s present and past civilian governments have not fully used the available state institutions and apparatus, such as the Council of Islamic Ideology or the Ministry of Religious Affairs to bring about an understanding between the State and the religious parties (not just political parties) on issues that have caused confusion and distrust between the State and clergy. Not too long ago, a federal Minister of PTI government with no formal religious education attacked the Moonsighting Committee for being out of times for physically sighting the Ramadan and Eid moons. His seemingly well-meaning but controversial actions caused more harm than good in promoting goodwill between Muslim secularists and orthodox Muslims. It is not just this government that has been casual about religious sensitivity. The last government also did not realise that an important Annex was removed from the Election Amendment Act 2018 which resulted in a nationwide protest over certification of the finality of prophethood. Another past government had ministers in the cabinet who did not want official Qaris at the opening of parliamentary committee meetings , yet they themselves could not recite Quranic verses from Surah Al-Akhlas correctly on microphone.

The issues where the government needs to work hard include inclusive reform of the madrassas and their state financing, incorporating Imams and Muezzins in its state employee structure, and drawing TORs for their recruitment, employment and retirement and delivering a pre-approved single Friday sermon all over the country under the authority of the Ministry of Religious Affairs. This will be possible only if the clergy sees these government institutions as sincere and qualified for promoting Islam and finding common ground, and which are run by officials who are not corrupt and who could be trusted with the religious knowledge and services they provide. The government also needs to address issues around application of blasphemy laws in relation to cases brought against poor and uneducated minority citizens; protecting and checking the status of principal witnesses who are called to testify and the way FIRs are drafted and filed by police; challenging the insistence of Ahmadis to defy the 14th amendment and their boycott of electoral rolls, which result in distrust against their community; and the more recent question of blasphemy of the Prophet by foreign-based provocateurs who clearly have an agenda to foment hatred and violence in the Muslim communities and countries, and who are officially protected by their governments for carrying out such racist and divisive acts.

3) Balancing legitimate state authority versus democratic right to protest

Organising protests is an essential feature of democracy and defines the political space in which the government and opposition parties operate. In a representative democracy, protests are not the right of political parties alone. Any interest group or gathering of citizens has the right to start or join a public protest in a democracy. In western countries protests are staged against the policies of the government on issues the protestors do not agree with. Sometimes their demands are ignored and at other times these are accepted fully or partially and result in change of policy. A protest is organised to register a dissenting point with the government, but it is not meant to force the government to accept it fully and immediately. A normal political protest is different from a popular revolution. Protests can happen many times in a year; a revolution happens only once in many years. Unfortunately, in countries where democracy is nascent or has repeatedly suffered from military or authoritarian rule, protests have not evolved into an established form of political expression. The Arab Spring protests resulted in premature revolutions in countries which were not prepared for post-revolution governance, resulting in great loss of life, instability of state, and devastating impact on the economic well-being of their people. Last year Sudan went down this slippery road. Today it is under a second military takeover. In fact, there are more examples in Africa to quote but I do not want to digress from the topic at hand.

In Pakistan, protests do not take place to convey a message of dissent to government. They sound more like a clarion call for a people’s revolution that thunders loud but never happens. The protesting side believes that the government has to bow down to its demands or else go home. The long history of political protests in Pakistan shows that these have been used to bring down a weak government through violence or by creating unstable conditions, which enable the military to intervene in the name of restoring peace and stability. This is how Ayub Khan’s rule was ended in 1969; and how the lawyers’ movement forced General Musharraf to convene multi-party elections in 2008. Since then, a good understanding has been reached between political parties that a regime change through public protests is not the best thing for democracy. However, they have yet to develop the understanding that the place to protest and make political noise is Parliament and not the back-end of someone’s else’s protest on the street or conversations on social media or debates on the country’s private TV channels.

Last April it was to the government’s credit that it showed flexibility and agreed to listen to the demands of TLP to end their protest in the long hot days of Ramadan. Although the interior minister’s U turn so soon after a threatened administrative action against the party was a surprise for the country, it was in retrospect a good thing in clearing the position of TLP as a party which has no hand in terrorist activities. The Sarina Hotel bombing in Quetta on 21 March, only a day after the successful talks between the government and TLP, is evidence of how foreign enemy planned to exploit the TLP protest to destabilise Pakistan and achieve multiple aims. Planning and executing a terrorist act from overseas using local sleepers does not happen quickly, and that’s why the enemy failed to anticipate how quickly the TLP protest would end. The enemy could not fast track the planning for its proxy terrorist act. Another lesson for the government is that if public protests on religious questions are allowed to continue without taking urgent and reconciliatory prudent action, Pakistan’s enemies will try to take advantage of it and make the situation worse.

4) Role of government and political parties

There are justifiable questions on the performance of government for not finding a permanent solution to the irritating religious issues resurfacing frequently despite its best intention to make Pakistan a moderate Islamic state. However, the silence of other political parties, as well as role of other religious parties during the peak of the TLP crisis is most unfortunate and unacceptable. As the country’s opposition they have a responsibility to set aside politics when it comes to issues like Kashmir, Palestine, Afghanistan, Islamophobia, attacks on the honour and character of the Prophet, and the defence of Pakistan. The opposition and other religious parties have often failed to meet this expectation leaving the government and TLP to sort this out between them. It is most unfortunate that some security personnel have lost their lives and public property is torched and in retaliation many protestors have been arrested for disturbing peace. This circus must come to an end with prudent policies that are not just aimed at shutting up the mulla but should go deeper than blaming only one side and addressing inefficiency and inertia within the government and concerned agencies on tackling sensitive issues.

5. What’s Next

The government must learn to make contingency plans on matters of utmost importance to the country where public sentiment cannot be ignored. It must learn how to create space for public protests and draw up a modus operandi for their organisation and acknowledgement and ensure that it will deal with them not by force but through flexible yet firm hand. On the question of protecting Islamic icons, values and traditions, there will always be a difference between the orthodox and liberal Pakistanis. This difference must be respected and nurtured as part of Pakistan’s rich ethnic and cultural diversity. However, if the country’s constitution envisages Pakistan to be an Islamic State and be guided by the holy Quran and Sunnah in its affairs, then the State should use its mandate, resources and institutions to bring about a new ‘entente cordiale’ between the clergy and the State to work for the common objective together, and not as mutually exclusive forces. The alternative is to follow the example of Bangladesh and change the constitution declaring that religion is a private affair of Pakistanis and nothing to do with the State. However, a referendum, not a constitutional amendment, will decide it, should God forbid, things go out of control that far.

Syed Sharfuddin

The G7 countries met virtually on 24 August under the chairmanship of British Prime Minister Boris Johnson and demanded that Taliban must extend the deadline for foreign troops to leave Afghanistan beyond August to complete evacuation of all US and NATO troops, as well as stranded foreign nationals in Kabul and those Afghans who do not wish to live under a Taliban rule. The G7 statement also repeated the call of the UN Security Council (UNSC) made at its meeting on 16 August for Taliban to observe human rights and prevent terrorist acts against third countries. The only difference was that while the UNSC statement did not mention Taliban by name, the G7 did so as an indication that there is now an acknowledgement that the next government in Kabul will be formed by Taliban and they will be making the future decisions in Afghanistan. President Joe Biden, however, did not agree to the G7 demand. He insisted that the US was on course to complete the ongoing evacuation operation by 31 August. He also said that extending the deadline in the absence of an agreement with Taliban, which was not expected, will endanger the security of the US and other foreign troops remaining in Afghanistan after the August deadline.

Regrettably, the G7 call carries the potential of conveying a confusing message to the Afghans who are afraid of atrocities and human rights violations in a future Taliban government. After the airport is cleared and those Afghans whose papers are complete fly out of Kabul, thousands more will be getting ready to leave Afghanistan by air, land or long walk in the next few months to claim asylum in the countries which contributed troops to ISAF in the past. But their expectations would remain a pipe dream against the hard reality of international dynamics. The West had not foreseen such a large emigration of Afghans coming so soon, and neither is the public in the US, EU, UK, Australia and Canada ready to welcome new waves of refugees from Afghanistan. If this happens, thousands of Afghans will be disappointed and become marginalised in their own country because of the false hopes being built by civil society and media.

Ideally, the US and NATO should extract guarantees from the Taliban for giving the Afghan people full civil and political liberties and respecting their human rights in return for a Taliban government’s recognition by the UN and international institutions, including access to the much sought after trade and financial institutions such as the WTO, IMF and the World Bank. Afghanistan is a richly endowed but GDP wise a poor nation, but it is a member or partner of over fifty  intergovernmental, regional and international organisations. This may look like a huge burden for a small country to be representing itself in this high number of organisations, sometimes duplicating and at other times working at cross purposes, but it is also a huge reservoir for starting constructive engagement and promoting global good practice with the Taliban. It will be a waste not to use this great network of knowledge and resource for the rebuilding of a new, peaceful, just and rules-based Afghanistan owned and run by Afghans themselves. By not agreeing to the demand of his European allies in the G7 to extend the 31 August deadline, President Biden seems to be in favour of not pushing Taliban too much in a corner to force them to take unwanted extreme measures which would only add to the instability of Afghanistan in an already volatile strategic region which remains an active theatre of great power rivalry close to Iran, China and Russia.

On their part, the Taliban should not prevent any Afghan who has valid documents to travel to another country freely and without intimidation. The life and property of those Afghans who do not agree or welcome Taliban should be fully protected, and their rights should be recognised and granted by the new rulers. The Taliban have an opportunity to clear their image as barbarians and human rights violators. If any doors are to be knocked in Kabul by their fighters, they should be knocking these doors to offer scared people food and transport to the airport, should they have the right travel documents. As custodians of a new Islamic government in Afghanistan, the Taliban should follow the example of prophet Mohammad, peace be upon him, when he entered Makkah ten years after Hijrah. They should force no one to stay in Afghanistan against his/her will. This will be their first major test the world will be watching closely.  

What has happened in Afghanistan in August 2021 is not less than a revolution. Afghans have paid dearly until this moment whether they supported Taliban or fought against them. Their capture of Afghanistan was not a peaceful and constitutional transfer of power from one party to another. A Taliban-led government cannot automatically expect to be recognised by the UN and other countries. Taliban also cannot, as a matter of routine, lay claim to Afghan overseas assets and development funds committed to the former government of Afghanistan by international financial institutions. They will need to work their way to earn it back. They will need to show with their actions in the next few months and years that they are capable of running a responsible and law abiding government.

But the revolution also gives Taliban advantages. They are not obliged to follow the commitments the previous government made to its international partners, or continue with the projects the previous government signed with foreign investors and countries. They are free to renegotiate investment agreements with overseas private investors, institutions and governments. They can launch an inquiry into corruption and kickbacks on commercial deals made by the leaders of the previous government. They are also free to impose limits on the number of foreign diplomats a country can send to its embassy in Afghanistan or open consulates or trade offices in their country. They can sign new treaties of friendship and cooperation with their neighbouring countries or request technical assistance from third countries if faced by brain drain in the short term. They do not have to give a blanket approval for accepting the UN and international covenants without adding any reservations on clauses which contradict their Islamic ideology. They do not have to stop narcotics production or sell arms they have acquired in the war booty to third parties in order to pay their officials salaries. They do not have to give any guarantees that they will not use unconventional methods to defend Afghan territory if it is attacked from outside. All these instruments are now open to Taliban for fresh negotiations with international organisations and third countries. Everything is on the table for negotiation on both sides.

The Taliban have postponed the announcement of their government structure until after the withdrawal of the US and NATO troops from Afghanistan. This has more to do with their own internal issues than international troops withdrawal. It is hard for them to reach power sharing arrangements within their ranks on forming an inclusive government with Pashtun, Hazara, Tajik and Uzbek leaders, women and tribal elders. It will be even harder for them to make compromises on implementing their Islamic ideology and its acceptance by the people of Afghanistan. They will also need to make compromises when political expediency, pluralism and diversity require them to go slow, when they are writing the new laws and regulations.

The Taliban have indicated that they will keep the 2004 constitution of Afghanistan but change it to incorporate their vision of an Islamic Emirate. The 2004 Constitution is a document which was adopted without wider consultations among Afghans. It was drafted with the help of Afghanistan’s external partners. As a primary legal document of the country, it must be Afghan written and Afghan owned. The Taliban were not part of the of the constitution writing process. It was drafted in a hurry in December 2003 and approved and ratified within one month in January 2004.

Even from the perspective of a modern democratic constitution, the 2004 constitution lacks many important features. It provides for an independent election commission (article 86) but it is silent about the appointment, terms of reference and statutory funding of the chief election commission and other members of the commission. The 2004 constitution provides for the establishment of an independent human rights commission (article 58), a central bank (article 12) and an attorney general (article 64.11), but it does not provide for the establishment of an independent public services commission (article 50), an armed forces commission, a truth and reconciliation commission, an inter-provincial disputes resolution council, an auditor general and an independent police commission. Afghanistan needs these institutions backed by the constitution in order to overcome its special vulnerabilities through its internal political processes.

With regard to the Islamic character of the constitution, it is clear that an attempt was made by the framers of the constitution in 2003 to give it an Islamic baptism without much thought. For example, article 4 of the constitution states that “national sovereignty in Afghanistan shall belong to the nation, manifested directly and through its elected representatives.” In the Islamic system of governance, sovereignty belongs to Almighty Allah and is exercised by the people on earth as his representatives, who in turn mandate their leaders to govern them in their land according to the teachings of Quran and the sunnah of prophet Mohammad, peace be upon him. However, the people retain the power to change their leaders if they do not follow Allah’s commands in the function of governance, especially in administering justice, ensuring peace and providing livelihood and sustenance. This concept is missing in the constitution. In another example, article 64.11 mentions, among others, the appointment of the head of the Red Cross. It could be a typo but it reveals the written source. In Islamic countries, including Afghanistan it is known as Red Crescent.

In the Afghan constitution, the idea of presidential form of government is derived from the US system. However, the safeguards provided in the US constitution to prevent a situation where individual electors might be inclined to choose a leader from their own tribal and political circle, creating the danger of a crippling post-election deadlock are not provided in the Afghanistan constitution. Afghanistan is a deeply divided state with as many as 14 recognised ethnic nationalities. It is also divided along linguistic and sectarian lines. These safeguards are necessary to give confidence to ethnic and religious minorities that they will not be swept by the tyranny of majority in the name of democracy. Under article 6, the presidential candidate is not obliged to provide the names of two vice presidential running mates on the panel from another ethnic group or region. There is also no provision to break a tie if the two vice presidential candidates receive the same number of votes as happened in the US elections in the year 1800 resulting in a political crisis and leading to 12^th amendment.

The 2004 constitution mentions ‘national treason’ twice in articles 69 and 78 but it does not define what constitutes national treason and what should be the sentence for a person who commits this crime and is convicted by the courts.

In articles 3 and 35, the constitution says that no law shall be enacted that contravenes the “tenets and provisions of the holy religion of Islam” and that “manifestos and charter of political parties shall” also abide by this restriction. However, in article 34 relating to the right of expression, no restriction is placed on individuals to respect the religion of Islam and refrain from expression of “thoughts through speech, writing, illustrations, as well as other means” that attack the beliefs, principles and values of Islam, as enshrined in the Quran and sunnah, including attacks on the Quran, the personality of prophet Mohammad and members of his noble household, and his companions.

Articles 7 and 8 relating to multilateral and bilateral relations of Afghanistan should be amended to state that “the the guiding principles of Afghanistan’s foreign relations will be: promoting regional and global peace and cooperation, respecting the territorial integrity of other states, pursuing friendly relations with Islamic and other countries, applying the UN principles of non-interference in the internal affairs of other countries, and actively pursuing mutually beneficial economic and trade relations with Afghanistan’s regional and external partners.

Afghanistan has been through wars for most of its history. Defence of the fatherland is a quintessential part of the Afghan national character. However, the document is silent about the composition and mandate of the armed forces of Afghanistan and the appointment of the chiefs of the army and air-force. The constitution also does not mention that the military commanders will be subservient to civilian authorities and overthrow of a civilian elected government by the military overtly or covertly will amount to national treason and invoke capital punishment for those involved in treason. Only under the powers of the president, article 64.3 states that the chief executive of the country is the commander in chief of the armed forces.

The 2004 constitution incorporates the concept of social welfare by making the state responsible for providing free of charge education up to college level (article 43), free healthcare and medical facilities (article 52) and financial support to families of martyrs and handicapped persons (article 53). However, the constitution does not state anywhere that the country will follow the principles of social welfare economy. Instead, the constitution declares in article 10 that the state shall protect and encourage market economy. The article should be amended to say that “the guiding principles of Afghanistan’s economy will be Islamic social welfare system and a privately-owned but state-guided free trade and individual enterprise that supports investment, services, equality of opportunity for all citizens, and fair division and circulation of national wealth.”

The 2004 constitution is silent about the territory that comprises the state of Afghanistan. Articles 1 and 21 should be amended to read: “the territory of a sovereign, independent and unitary Islamic Emirate of Afghanistan shall comprise 34 provinces (wilayaat) each of which will be an integral part of the indivisible Afghan state. The capital of Afghanistan shall be Kabul.”

The articles relating to the judiciary should be sufficiently amended to incorporate in the country’s criminal justice system the traditional Afghan system of dispensing justice by involving the local jury and fast tracking the process to avoid delays in the judicial process. This system has been practiced by Taliban in the areas under their control and was popular with the people.

The texts of the oaths of the President, ministers and higher judiciary in articles 63, 74 and 119 should be removed from the main body and placed as annex to the constitution.

Given that Taliban will need to satisfy many smaller minority groups and ethnic populations about the decisions they make in the new government, there is a need to expand the composition of the House of Elders (Mashrono Jirga) hundred percent from the present 102 to 204. Of these, 102 members should come through the procedure stated in article 84 of the 2004 constitution but the other 102 members should consist of the tribal leaders and religious elders representing the ethnic and regional breadth of Afghanistan, as well as gender representation, irrespective of whether they supported the Taliban or the previous governments. These representatives should be elected by the local Jirgas of people from their respective tribes and regions for a fixed but renewable term.

If Taliban use the present constitution as the basis of forming a new government, President Ashraf Ghani’s escape from Kabul together with his entire team of two vice presidents, foreign minister and other ministers, makes it impossible to implement articles 67 and 68, as well as 69 to appoint a new chief executive and his team through fresh elections. The Taliban can also ignore the procedure of forming a new government in the 2004 constitution but still announce new elections within 3 to 6 months. However, holding elections  before a new constitution is agreed and adopted would be a meaningless exercise and could weaken their hold on power.

For amending the existing 2004 constitution, Taliban can use the procedure provided under article 150 of the 2004 constitution. They can use the present independent commission (article 157) or appoint a new independent commission to amend the 2004 constitution. Alternately, they can dismiss the previous Loya Jirga and start the process of drafting the constitution from the scratch. However, they should not throw away the work that has been done so far and has the agreement of many parties and groups, if not them. They should therefore announce a new interim and inclusive administration with a view to drafting, as a first step, a new constitution in a period of 12 to 18 months, using the 2004 constitution as the basis of their new draft. In the next stage, the new draft constitution can then be presented for a national debate. The government can then convene a Special Loya Jirga, constituted only for the purpose of discussing and approving the new constitution. This should be followed by an announcement for a free, inclusive and multi-party election in Afghanistan, observed by local and international observers, hopefully in 2024 or earlier, if possible.

*The author Syed Sharfuddin is a regular contributor to the Weekender. He is a former Pakistan diplomat and a former Special Adviser for Political Affairs in the Commonwealth Secretariat, UK (2000-2006). He is also a former ex-officio board member of the Commonwealth Human Rights Commission, UK Chapter.

Syed Sharfuddin

Executive Summary

This essays argues that the major reason for the fall of Afghanistan was Taliban fighters’ surprisingly quick move into Afghan provinces and the capital Kabul in August 2021 in a matter of weeks rather than months. It cannot be doubted that the Taliban had prepared for this move in advance, making deals with local Afghan leaders where possible, and using violence or twisting arms where required. Their organised and speedy advance was not foreseen by the intelligence community, nor by diplomats who were assisting the US and UN-led peace process in Doha, New York and other cities for a political settlement of the conflict in Afghanistan.

The unexpected refusal of the former Afghan government to confront Taliban militarily added to the failure of expectations for holding the ground and preventing a total collapse of the government and its institutions. Had a civil war ensued, which seemed imminent, it would have been bloody, dirty and prolonged. It would have threatened the territorial integrity of Afghanistan and gone deep in the country along regional, ethnic and sectarian lines. It would have inevitably forced the UN Security Council (UNSC) to mandate the creation of a UN Peace Keeping Force in Afghanistan replacing US and NATO troops with UN peacekeepers.

The seeds for such a scenario were sowed in the Doha peace talks, which began cautiously in 2018 between the US and Taliban. The talks did not initially include a road map for a political settlement of Afghanistan but focused only on Taliban ceasefire and phased US troops’ reduction and withdrawal. The former government of Afghanistan was not part of the Doha peace process from the very start of the talks except when the exchange or release of Taliban prisoners was discussed between the US and Taliban. It was only after February 2020 when a peace deal had been reached between the US and Taliban that the US and UN started talking about the political future of Afghanistan following the US troops’ withdrawal. By then, it was too late for the former government to extract any concessions from Taliban. On their part, the Taliban regarded the former government of Afghanistan as a puppet administration imposed by force from abroad whose days were numbered with the dates of the US troops’ withdrawal from Afghanistan.

Despite the surprise takeover of Afghanistan by Taliban and an expected new and peaceful beginning announced by them, the country remains exposed to armed conflict and proxy wars in a post US/NATO troops free Afghanistan, reinforced by the geopolitical location of the country in the arena of great power rivalry for political influence and global trade routes. They have been tied in so many knots of international conditionalities that their goose appears to be dressed up for an easy meal. But no one could guess that the Taliban would be back after 20 years. They could still surprise everyone despite the odds being against them at the national and international level.

Introduction

Everyone from military analysts to political leaders, war veterans, intelligence community, Afghans, Indians, Americans and Europeans is asking one question: “Why were Taliban able to retake Afghanistan so easily and quickly when in the assessment of Afghanistan’s friends and supporters, the former government of Mr Ashraf Ghani was well armed and claimed to be under control of the situation?”

After the collapse of the former Afghan government on 15 August 2021 with dramatic scenes of Taliban fighters taking photos in an empty presidential palace in Kabul and saying they were waiting to hear from their leadership what was the next task for them, President Biden said in a televised address to the Americans that evening that he stood by his decision to pull out US troops from Afghanistan by September 2021. But he also blamed the former Afghan government for surrendering to the Taliban and refusing to fight against them, despite the superior firepower and aircover of the Afghan armed forces which the US had ensured after spending $82 billion in creating, funding and training the Afghan military in the last twenty years.

The Big Conversation

Western analysists are trying to find answers to the question what went so wrong in Afghanistan that an investment of over 2 trillion dollars, spent over the last 2 decades did not produce any results when it came to defending the country against a tribally based and loosely organised group of hard core militants not backed by any country in the world. A number of reasons are being advanced. These include the US decision to withdraw US troops from Afghanistan and its bad timing, backing the wrong horse in the race, failure of military intelligence, the rising influence of Taliban in those areas of Afghanistan where the writ of the former government was missing, rampant corruption of Afghan leadership at the centre and the provinces, a bad criminal justice system and poor governance, and fatigue on the part of the Afghan people to carryon fighting after the US troops left the country without giving an agreed political roadmap for the future of Afghanistan

A Fall Guy

There have been accusations against Pakistan from some retired Western diplomats, resident news reporters and NGO personnel, who served in Kabul, that Pakistani agencies created, armed and trained Taliban. But if the US, NATO and the UN could not find any evidence to support those allegations, revisiting these now is no more than a hogwash and amounts to passing the blame of failure to a weaker ally. These diplomats forget that working in a foreign country with the host government 24/7 for a couple of years creates sympathy for the host government of the day and they no longer remain impartial and neutral. This condition is known as “localitis’ in the Foreign Ministries of many countries. To mitigate this, governments keep rotating their diplomats and expatriates on their posts. Pakistan was and remains a partner of the US and NATO on the war against terror but like the US which changed its policy last year about not sending troops to fight in foreign conflicts, Pakistan has also taken a decision that it will not be involved in other countries’ wars in the future. 

Doha Talks

The seeds of Afghanistan’s fall to the Taliban were sown in the Doha negotiations which started cautiously in the capital of Qatar in 2018 and gained momentum in the spring of 2019. The negotiations were long and protracted and had no timeline. Eventually the US and Taliban reached an agreement in February 2020. In November 2020 at the end of his first term, President Trump announced a reduction in active US military presence in Afghanistan, Iraq and Somalia. After Trump, President Biden followed on his predecessor’s policy of cutting down US involvement in foreign conflicts and decided that US troops will leave Afghanistan by May 2021. He later extended this date to September 2021. The February 2020 peace agreement agreed at Doha did not include the political future of Afghanistan after US troops’ withdrawal. The US assumed that the former government in Kabul will remain in-charge of Afghanistan and defend itself against the Taliban, who are already subject to sanctions’ measures under the 1988 UN sanctions regime, which is implemented through the 2011 UN Security Council (UNSC) Sanctions Committee . Taliban are still regarded as a threat to peace, stability and security of Afghanistan in the UN documents. In many capitals of the world, they are seen as a threat to human rights, liberty, peace and security of the world.

The Cost of Withdrawal

The exclusion of the former Afghan government from the Doha agreement of February 2020 meant that whatever the Taliban offered to the US in their peace deal was limited between them and the US, and did not apply to the former government of Afghanistan except when exchange of prisoners was involved. An intra Afghan dialogue commenced in September 2020 to reach a political settlement of the conflict but it was too late to extract any concessions from Taliban who were aware that the US would not be militarily supporting the puppet government in Kabul indefinitely. President Ghani on his part insisted that Taliban announce a ceasefire and agree to his government’s terms for a peace deal. Could this be a neglect on the part of the US not to include the political settlement of Afghanistan in the February 2020 peace deal is hard to say. But the historical record of foreign troops’ withdrawal from conflict countries is poor in supporting the claim that the departing powers care about resolving ongoing disputes politically and peacefully after them. Take for instance the recent examples of Somalia and Iraq. Going further back in time, the departure of the British from the Indian subcontinent in 1947 shows a similar pattern. There was no agreement on the boundary in Punjab or the status of Muslim majority princely states in the dominion. The partition itself was bloody and painful because no thought was given to peacefully manage the mass migration of Hindus and Muslims between the two newly independent countries. In Afghanistan two major mistakes were made: 1) absence of the former Afghan government in the Doha peace talks from the beginning, and 2) absence of a timely agreement on the political roadmap of Afghanistan after the withdrawal of US troops from the country.

Flawed Assessment

The US assessment that the former Afghan government was capable of defending itself against the Taliban was wrong, even though Taliban had gained more firepower in the last few years and had captured many remote regions of Afghanistan. The US and NATO miscalculated that the withdrawal of their troops from Afghanistan would result in reduction of Taliban’s attacks and dampen their appeal to the people of Afghanistan as freedom fighters against foreign troops. But it was obvious that their fight was not against foreign troops only. They were after political power which was snatched away from them by force in November 2001.

The US was also wrong in concluding that if Taliban continued their attacks against the former government, it would mount a credible defence for at least between three to six  months. During this period, the US and NATO countries among the P5 could move a resolution at the UNSC to establish a peacekeeping force for Afghanistan. A friendly India at the UNSC would be too happy to support the passage of such a resolution by the Council on grounds of responsibility to protect. The US and its NATO allies would have also agreed to provide supplementary funding for the deployment of UN peacekeepers in Afghanistan and a contingent comprising military and intelligence officers from many troops-contributing countries including from India and other non-Western countries would be effectively based in Afghanistan to stop the Taliban advance and overthrow of the former government by force. In August, a panel of experts set up by the UN Human Rights Council had suggested to the UNSC to consider invoking Chapter VII for Afghanistan. It allows the Council to respond to threats of peace, or acts of aggression by authorising military and non-military action. Decisions taken by the UNSC under Chapter VII are mandatory.

As an added option, the former government, in the event of a civil war and attacks on civilians, could request a Muslim country such as the UAE, Morocco or Turkey to provide troops to defend Kabul, Kandahar, Heart, Badakhshan and Mazar Sharif against Taliban attacks. Under international law asking a foreign government to send troops to supplement a country’s defence force against militants would be deemed legitimate which would push Taliban deeper in the quagmire of war crimes. But their quick takeover of Afghanistan before the end of August pre-empted all these options.

Changing Deadlines

One of the reasons for their quick movement was the uncertainty of US troops’ withdrawal date. President Trump lost the election in November leaving in limbo the claim that the US would reduce its troops’ presence in conflict countries. President Biden decided to follow through the announcement of his predecessor but in April 2021 he changed the May 1 deadline negotiated with the Taliban to 11 September 2021 to coincide with the anniversary of the Nine Eleven incident. The Taliban were not consulted about the extension and were unsure about September, lest the Biden Administration change this deadline again. The Taliban were also unsure about the outcome of negotiations at the Doha talks which resumed in 2021 involving the former Afghan government for a political settlement. Formation of an interim government of national unity which would include Taliban representation and calling new elections were not on the agenda of these talks. Meanwhile the agreements Taliban had made with individual provincial governors and army commanders individually to cooperate with them were drying on the vine. They had little option expect to move fast to achieve their military objectives in the summer.

Multilateral Diplomacy

While the actual situation on the ground in the years prior to Taliban takeover was mainly dictated by what happened in the military theatre, there was no shortage of diplomatic activity to seek peace and reconciliation in Afghanistan. But these efforts were focused on strengthening the government in Kabul and asking Taliban to reduce violence and agree to a ceasefire, respect human rights, especially rights of women and minorities and not allow the areas under their control to be used for terrorist attacks against the US and its allies. In these negotiations, Taliban were no one’s favourite and suffered from their image as a backward and unorganised militant group.

The UN Secretary General (UNSG) periodically appointed Special Representatives (SR) to Afghanistan. The current SR is Deborah Lyons of Canada. She briefs the UNSC periodically on the situation in Afghanistan. She is also a member of the UN Assistance Mission in Afghanistan (UNAMA). The Mission was established in 2002 on the request of the Afghan government. Its mandate has been subsequently extended by the UNSC periodically to support the Afghan government, assist peace and reconciliation efforts and monitor human rights and protect civilians. This year in March, the UNSG additionally appointed Mr Jean Arnault of France as his new Personal Envoy on Afghanistan and the regional issues. The UN officials have worked closely with the diplomats and special representatives of the US and other NATO countries  to support the presence and mandate of foreign troops in Afghanistan. The UNSC also implements the 1988 Sanctions Committee mandate in proscribing and delisting members of Taliban by the US and other governments.

Security Council’s Engagement

In the wake of the fast deteriorating security situation in Afghanistan in August, the UNSC met on 6 August for a closed briefing and consultations on Afghanistan. Under rule 37 of the Council’s Rules of Procedure, it invited the Permanent Representative (PR) of the former Afghanistan government to the UNSC to brief members. But India blocked an invitation to the PR of Pakistan to brief the Council on Pakistan’s consultations with the Afghan government and Taliban for promoting peace and security in Afghanistan. The UNSC did not issue a statement at the end of its meeting.

The Council met again on 16 August 2021 under the Presidency of India and issued a statement reiterating its earlier demands made to the Taliban. It took cognizance of the change on the ground after 15 August 2021 but did not mention Taliban. In a clear indication that recognition of the de-facto situation in Afghanistan was a long way away, the Taliban were referred to in the UNSC statement as “all parties”.  

The UNSC statement copied the demands made by the US administration from the Taliban. These were earlier reiterated by the US Special Envoy Zalmay Khalilzad who attended the resumed Doha talks on 12 August. These talks, however, collapsed due to the non-arrival of the Afghan High Council Representative at Doha on 15 August 2021. In that meeting Taliban were expected to agree to commit themselves to observe a comprehensive ceasefire, refrain from use of force, respect human rights, including rights of women and minorities, denounce terrorism and engage in an inclusive, Afghan-led and Afghan-owned peace process for a political settlement to maintain the status quo in Afghanistan.

The fact that this meeting did not take place and an agreement was not reached with the Taliban is the biggest failure of multilateral diplomacy on Afghanistan.

Taliban’s Military Strategy

The multiple layers of US and NATO military strategy supplemented by bilateral and UN diplomatic efforts to keep the Taliban under a straightjacket were timed out by the speed of Taliban’s move to different provincial capitals from end July to mid-August 2021 starting from the periphery and ending with the encirclement of Kabul on 14 and 15 August. On their part, the Taliban ensured that their peace agreement with the US concluded at Doha in 2020 was not violated. Technically, their agreement with the US had ended in May 2001 but they went along with the US extension in the withdrawal date without giving any commitments. They did not have any peace agreement with the former government to honour.

Having been left out of the Doha talks until November last year, and recovering from the shock that it will be all alone to fend for itself after the US and NATO troops had left Afghanistan by the end of the month, the former government in Kabul came under great pressure. Moreover, despite its bold claims to defend itself, its unpopularity with the Afghan government troops who had been underpaid, under fed and unmotivated did not help mount a defence of any sorts, let alone put up a good fight supported by air cover which the Taliban lacked. The Taliban capitalised on this weakness effectively. President Ashraf Ghani was not alone in his decision to leave the country. He had received credible reports that any armed resistance against the Taliban fighting machine would collapse like a pack of cards, leaving him and his close associates at the mercy of Taliban as war captives.

It is important to mention that Taliban had done elaborated planning before they moved to capture Afghanistan’s provincial capitals. They expanded their control in the rural areas by  exerting pressure through threats and offering social services where the government had completely failed to run basic services for the people. By July 2021, they were already in control of half of Afghanistan. They made deals with the provincial governors for surrender in return for money and other inducements, perhaps including a general amnesty or a role for them under a Taliban government. The Taliban started from the North where they expected the hardest resistance and moved to the South. They also started from the periphery cutting out supply routes before coming to the urban cities. They capitalised on the demoralised Afghan army and coerced their family members to ask them to sell them weapons and not take up arms against Taliban fighters. The Taliban fought a perfect guerrilla battle of modern times.

At the same time, the Taliban kept their political representation in the Doha talks, showing willingness to talk to the representatives of the Afghan High Council for National Reconciliation even when their fighters were entering the palace of the former President who had fled the country on 15 August with the message that he did not want to cause any bloodshed by fighting the Taliban. The Chairman of the Afghan High Council Mr Abdulla Abdulla never reached Doha on 15 August 2021 to achieve what he had discussed with the US Secretary of State Antony Blinken ten days before: “to accelerate peace negotiations and achieve a political settlement that is inclusive, respects the rights of all Afghans, including women and children, allows the Afghan people to have a say in choosing their leaders and prevents Afghan soil from being used to threaten the US and its allies and partners.” It was too late in the day by a losing side to offer Taliban a power sharing arrangement and then not show up when they were ready to talk peace with the former government in Doha on the day Kabul fell to their fighters without any armed resistance.

Political Minefields

Taliban’s political strategy is at present unknown. Perhaps the capture of Afghanistan came too soon for them. They are now trying to agree among themselves and with their allied partners a political arrangement for the future governance of the country reflecting their Islamic ethos and also meeting the expectations of the international community to be recognised as a legitimate, responsible and representative government. Afghanistan is a country with rich tribal, ethnic, sectarian and political diversity. If Taliban do not play their cards with political wisdom and inclusive governance, they could meet resistance from places such as Panjsher Valley where the First Vice President of the former government, Amrullah Saleh, former Defence Minister Bismillah Khan Mohammadi, and Ahmad Massoud can become a problem for them in the future. The 300,000 Afghan army which melted away in the air still harbours hard core anti-Taliban commanders who can be organised by a disgruntled political group and used against the Taliban. Former President Hamid Karzai and Head of the still uncertain National Reconciliation Council, Abdulla Abdulla, are also potential threats to a Taliban government if they do not respect the political rights of minorities and repeat the mistakes of the earlier 2001 first Taliban government which made them unpopular in Afghanistan, as well as in the comity of the world. These potential pitfalls can be exploited by foreign powers who may want to settle scores with the Taliban for causing them humiliation and create small pockets of armed resistance witch overtime could become hotbeds of proxy wars, once again pushing Afghanistan into instability and conflict.

Conclusion

Capturing Afghanistan from the former government without a major battle was the easier part for the Taliban. Keeping Afghanistan united and peaceful and securing recognition from the international community to play their part as a government that respects international conventions and agreements and promotes democracy, peace and human rights is a much harder task the Taliban now face as they form the next government of Afghanistan. They also have a long road ahead clearing the political minefields inside the country and the institutional hurdles Western powers and multilateral institutions will place on their way. The country’s rich mineral wealth and sensitive geo-strategic location may also cause Afghanistan to remain unstable and in conflict for a long time before it can see the dawn of peace which has evaded the Afghan people for over half a century. But then, no one could guess that the Taliban would be back after 20 years. They could still surprise everyone despite the odds being against them at the national and international level.

*The author Syed Sharfuddin is a regular contributor to the Weekender. He is a former Pakistan diplomat and a former Special Adviser for Political Affairs in the Commonwealth Secretariat, UK (2000-2006). He is also a former ex-officio board member of the Commonwealth Human Rights Commission, UK Chapter

Syed Sharfuddin*

The present conflict in the Middle East involving the Zionist State of Israel on the one side and the Palestine Administration of Mahmud Abbas and Hamas on the other side, is about to end with a UN approved ceasefire, with the Palestinians emerging as deeply wounded but victorious in this round. The responsibility for losing this round of hostilities short of a full scale war, despite Israel’s superiority in weaponry and its staunch support by the Biden Administration, rests solely with Prime Minister Benjamin Netanyahu, who is only an interim head of government in Israel, and is under investigation on corruption charges.

In March this year, Mr Netanyahu wrongly calculated his moves to quell local protests over forced evacuations in East Jerusalem carried out by Israeli authorities to continue with new Jewish settlements replacing indigenous Palestinian homes in the disputed Al Quds area. His government’s heavy-handed response brought more protests all over the occupied territories, including Gaza. With the entry of Hamas in the conflict to back the helpless Palestinians, Netanyahu ruthlessly sacrificed civilian Palestinian lives like Paschal lambs to increase his political ratings in Israel. He probably did not realise, despite Biden Administration’s unconditional support for Israel, that his government’s illegal actions in Sheikh Jarrah, storming of the holy Al-Aqsa mosque in Ramadan, and IDF’s continued rocket bombings of Gaza in a completely disproportionate and indiscriminate manner would create such a strong global reaction, including serious concern from Israel’s European friends. The international outcry resulted in the convening of several inconclusive meetings of the UN Security Council and an extraordinary session of the UN General Assembly in New York on 20 May to call on Israel to observe an immediate ceasefire, respect human rights, implement the UN resolutions on Palestine and cooperate in finding a just and lasting two-state resolution of the Arab Israeli conflict.

Until a few weeks ago Israel seemed all set to quietly swallow Jerusalem following establishment of diplomatic relations with half a dozen rag tag Islamic and Arab countries, blessed by the former Trump Administration. Israel was also able to divide the Islamic countries into two blocks: those who believe that it is better to deal with Israel as a friend in order to resolve the Arab-Israeli problem, and others who want Israel to deliver on its international obligations on Palestine first before they establish diplomatic relations with Israel. But after the present show of force by Israel, all those diplomatic gains for Israel have reversed as far as international goodwill for Israel is concerned, and to add salt to Israel’s wounds, its sole challenger in the occupied territories, Hamas, has increased its popularity among the Palestinians in the occupied territories. This conflict has politically proved costly for Israel.

Israeli government grossly underestimated the international reaction for attacking Muslim worshipers in Al-Aqsa mosque in Jerusalem in the holy month of Ramadan. It therefore decided to divert the attention of the world away from the third most respected holy site of Islam which was desecrated by its security forces in front of live videos which later went viral on social media all over the globe. Instead, Israel tried to portray the crisis as a ‘war’ between Israel and Hamas. With the continued aerial bombings of Gaza in a totally ruthless manner for several days, under the rubric of the right to defend itself, Israel wanted to create the impression that the most important thing for the international community was to ask Israel for ceasefire instead of censuring Israel for building new settlements on Palestinian lands, using force to evict indigenous Palestinians from their homes in occupied territories and alter the disputed status of Jerusalem by illegally making it the capital of Israel. This was also the focus of the Israeli Ambassador’s speech at the extraordinary UN General Assembly Session on the Israel Palestine conflict on Thursday.

Israel is now caught up with another problem of facing the charges of war crimes when the evidence of destroying civilian infrastructure, hospitals, schools and killing women and children in Gaza is presented against Israel before the International Criminal Court at an appropriate time in the future. Israel cannot defend itself against such evidence because Netanyahu is on record to have said that Israeli forces only targeted Hamas militants. Surely, hospitals, schools and women and children in their homes cannot be counted as Hamas militants. Among the 300 plus Palestinians killed by Israel only one was claimed by Israel to be a senior Hamas militant. Until now Israel has got away with the impression that Hamas was the problem in the Occupied Territories and neither the Palestine Administration nor other Palestinians who do not support Hamas were any problem. However, while trying to make the ceasefire an important element in the current conflict to make the root cause of the problem fade away from public eye, Israel has gone too far in its aggression against innocent Palestinians. They have been punished not because they were involved in the rocket attacks against Israel, but because they support and vote for Hamas. The message Israel has given Palestinians is that if they continue to vote for Hamas in the elections, this is how they will be responded by the Zionist regime.

Israel tried to reduce the impact of international horror at the indiscriminate killing of civilians in the aerial strikes by reviving the memories of the Holocaust through the Zionist controlled media and pubic speeches of politicians and government functionaries. The Holocaust memories were meant to create public support for the government of Israel when the world felt sorry for the killing of innocent women and children in Palestine by the Israeli raids. The Holocaust is now a major theme in the Israeli and Zionist propaganda machinery in the global print and electronic media.

The Israeli government also tried to create an equation between anti Semitism and anti Zionism, which are two opposite things. While hate speech against Jews, as followers of a great and oldest Abrahamic faith, is unacceptable in any community in our times, sentiments against Zionism are always linked to Israel’s occupation of Palestinian territories and its political agenda to keep expanding Israel’s borders through illegal land grabs by national legislation, intimidation and forced evacuations.

The implementation of a UN brokered ceasefire between Israel and Palestine should not be an end in itself but a prelude to involving the Quartet and the US as a neutral arbiter between the two sides. If it is ignored like any other incident dominating world headlines for a few days and then fading out in the oblivion, the conflict could come back again to haunt the Israelis and Palestinians in the future. It is our collective responsibility to ensure that we act now to avoid this unwanted scenario.

*The author is a former Pakistani diplomat and a former Special Adviser for Political Affairs at the Commonwealth Secretariat, London. He was also formerly a Board member of the Commonwealth Human Rights Initiative, UK Chapter, and CEO of Muslim Aid, UK.