A Critique of the ICJ Ruling of 17 July 2019 on the Case of Commander Kulbhushan Sudhir Jadhav, Indian Navy, cover name, Hussein Mubarak Patel, Businessman

By Syed Sharfuddin

In May 2017, India filed an application against Pakistan at the International Court of Justice (ICJ) in the Hague, maintaining that Pakistan had breached its obligations under the Vienna Convention on Consular Relations of 1963 (the Convention) to provide a fair trial to its national, Kulbhushan Sudhir Jadhav, who was arrested in Pakistan in March 2016 on charges of espionage and was awarded death sentence by a Pakistani military court in April 2017. 1

The ICJ admitted India’s application under Article 1 of the Optional Protocol to the Convention concerning Compulsory Settlement of Disputes to which both India and Pakistan are signatories. In admitting the Indian application, the ICJ dismissed the objections of Pakistan to India’s application citing abuse of process, abuse of rights and unlawful conduct by India.

The ICJ jurisdiction was limited to “providing reparation only for the injury caused by the internationally wrongful act of Pakistan that fell within the Court’s jurisdiction, namely Pakistan’s breach of obligations under Article 36 of the Convention and not of the International Covenant on Civil and Political Rights”. 2

In admitting India’s application for a hearing, the ICJ disregarded a well established rule of customary international law that normally a complaint of a State against another State regarding its national is not considered until the accused has exhausted the legal remedies available under the law of that State. In this case, ICJ did not ask India to wait for the appellate remedy available to the Jadhav to be fully exhausted in Pakistan.

The 149 paragraph verdict, given by a panel of 16 distinguished judges, including the sole dissenting ad-hoc judge from Pakistan, Justice (Retd) Tasadduq Hussain Jillani, has been claimed by both State parties as vindication of their respective legal positions.

The ICJ accepted India’s assertion that Pakistan was in breach of Article 36 of the Convention and asked Pakistan for the continued stay of the sentence pending finalisation of the proceedings in the light of the ICJ ruling.

The ICJ did not accept India’s position that the reparation of the injury should annul the decision of the Pakistani military court and ask Pakistan to free Jadhav.

The ICJ accepted Pakistan’s submission that the appropriate remedy in this case was the effective review and reconsideration of the conviction and sentence of the accused .3

The ICJ did not accept Pakistan’s position that Article 36 did not apply to persons arrested on charges of espionage 4.

Legal experts agree that the ICJ could go only as far as it has gone; that the Court had no mandate to annul the decision of the military court, within the scope of its jurisdiction, having acknowledged that Pakistan and its criminal justice system were fully compliant with due process. 5

The full summary of the ICJ ruling announced on 17 July 2019 is contained in paragraph 149 of the decision. 6

The ICJ found that “Pakistan acted in breach of its obligations under Article 36 of the Convention: firstly, by not informing Mr. Kulbhushan Jadhav of his rights; secondly, by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by the consular officers of India, contrary to their right, inter alia, to arrange for his legal representation”.

The ICJ acknowledged that Pakistan notified India on 25 March 2016 of the arrest and detention of Mr. Jadhav, as required by Article 36, paragraph 1B, of the Convention. 7

However, the fact that the notification was made some three weeks after the arrest, constituted a breach of the obligation to inform “without delay”, as required by Article 36, paragraph 1B of the Convention. 8

The ICJ held that Pakistan’s breach of paragraphs1A &1C of Article 36 of the Convention constituted “internationally wrongful acts of a continuing character”. 9. Pakistan was therefore “under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1B, and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraphs 1A and 1C.”

The ICJ ruled that “the appropriate remedy in this case for Pakistan” was to undertake an “effective review and reconsideration of the conviction and sentence of Mr. Jadhav” by giving this process “full weight” to the “effect of the violation of the rights set forth in Article 36 paragraph 1 of the Convention, and guarantee that the violation and the possible prejudice caused by the violation are fully examined”.

The ICJ took full cognizance of the fact that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”.

The ICJ left the choice of ways to Pakistan for performing its obligation to provide effective review and reconsideration of the case but it noted that “freedom in the choice of means is not without qualification”, which is that the “obligation to provide effective review and reconsideration is an obligation of result, which must be performed unconditionally”. Therefore, “the violation of the rights set forth in Article 36, paragraph 1, of the Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed; that Pakistan take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation; and [observe] a continued stay of execution which is an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav” 10.

Observation 1
In May 2017 the ICJ admitted the application of India under Compulsory Settlement of Disputes without allowing the appellate process in Pakistan to be completed.

Yet two years later, in its ruling on 17 July 2019 the ICJ took cognizance of the fact that the “Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available” to persons under consideration 11.

Observation 2
In its July 2019 ruling, the ICJ said that Pakistan consistently maintained that Article 36 did not apply to Jadhav who was not just an Indian national but also a spy. The ICJ therefore inferred from this position that under Article 36:1A, Pakistan breached its obligation to inform Mr. Jadhav of his rights under that provision”. 12

On the other hand, under Article 36:1B, the ICJ did not infer that since the concerned Indian national was doing espionage on behalf of his government, his arrest and detention in Pakistan (which was not his normal place of residence on duty) should have come to the knowledge of India on the same day on 25 March 2016 when his phone went unanswered and messages stopped coming, thereby invalidating the obligation of the receiving State to inform the sending State of the arrest of its national without delay.

Observation 3
The ICJ further stated that it will interpret the 1963 Convention according to customary rules of treaty interpretation, as reflected in Articles 31 & 32 of the 1969 Vienna Convention on the Law of the Treaties in order to remove any ambiguity or obscurity in the 1963 Convention. India has not signed the 1969 Convention. Pakistan has signed the 1969 Convention but not ratified it.

It is interesting that while the Court declined to consider Pakistan’s plea for declining India’s request for admissibility of the case on the basis of customary law, the ICJ did not mind recourse to customary law in the interpretation of the 1963 Convention.

Observation 4
In considering the provisions of the bilateral agreement of 2008 between India and Pakistan, which covers “cases of arrest, detention or sentence made on political or security grounds” and commits each side to “examine the case on its merits” 13, the ICJ noted that it does not take away the right of the accused to have consular access under Article 36 of the Convention.

The ICJ accepted that under Article 73 paragraph 2 of the Convention, the 2008 Agreement is consistent with the Convention, as it confirms, supplements, extends or amplifies the provisions of the Convention and regulates matters not covered by the Convention. Yet, the ICJ did not direct the two State parties to resolve this matter in accordance with the bilateral Agreement of 2008 15.

It may be recalled that since 1972, India has consistently maintained that the Kashmir dispute should be resolved between India and Pakistan bilaterally in accordance with the provisions of the Simla Agreement between the two countries. The two State parties, the UN and the international community have supported the bilateral option, but never said that the Simla Agreement should be disregarded and the dispute should be resolved on the basis of the UN Resolutions on Kashmir calling on India to hold a plebiscite in the disputed territory.

Observation 5
The ICJ noted that if the signatory State parties to the 2008 Agreement “had intended to restrict in some way the rights guaranteed by Article 36, one would expect such an intention to be unequivocally reflected in the provisions of the Agreement.

The ICJ ruled that Article 36 of the Convention does not exclude from its scope persons suspected of espionage, despite the clear omission of espionage in the Convention, as opposed to a bilateral agreement between two sovereign countries which explicitly provides a framework for arrest, detention or sentence made on political or security grounds and calls for consideration of cases falling under this provision on merit.

Observation 6
In regard to the breach of Article 36 paragraphs A & C of the Convention, 14, the ICJ did not accept Pakistan’s submission that Pakistan had asked for vital information such as confirming the passport details and activities of the accused to verify his nationality and profession, which were not provided by India.

In rejecting the notion of any conditionality attached to right of the accused for consular access and the right of the State of the accused to arrange legal representation for him, as provided under Article 36:1A, the ICJ did not take into consideration the facts that the accused was an employee of an Indian spy agency and his alleged terrorist activities in Pakistan had made India complicit in the crime and created a direct conflict of interest, not foreseen in the Article at the time of the drafting of the Convention. The ruling also did not mention that Pakistan partially implemented Article 36 paragraph 1A by allowing the family of the accused to meet him in person.

As for the intent of the drafters of the Convention to include espionage in Article 36, it is correct that espionage was a well known state instrument when the Convention was negotiated, but it is also correct that state-sponsored terrorism and deploying spies as terrorists’ handlers in enemy states had not been invented.

Observation 7
In considering India’s complaint, the ICJ focused its attention on Article 36 of the Convention. It did not take into consideration Article 55 of the Convention, which obliges the officers of the sending state to respect the laws and regulations of the receiving state. Although the Article is about immunities and privileges of the consular officers of the sending State, it implicates all Indian consular officers posted in Pakistan as an extension of the Indian state, which appointed Kulbhushan Jadhav to carry out espionage activities in Pakistan, and also issued him a genuine Indian passport under a false alias.

The ICJ ruling of 17 July 2008 adds the following to the international case law:

1.The ACJ can disregard the established principle of customary international law which states that local remedies be fully exhausted before a State brings a case to the ICJ for consideration.

2.Irrespective of the provision in Article 36 paragraph 1B which states that “if he [the accused] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” about his arrest, it is now established by ICJ that the request of the accused, even if not expressed, is always implied under paragraph 1B. 16

3.A State arresting a foreign national is obliged to unconditionally observe Article 36 paragraphs 1A, 1B and 1C of Vienna Convention on Consular Relations (1963) regardless of the nature of the accusation, including terrorism and espionage.

Suggestions for Pakistan

While giving full effect to the detailed ruling of the ICJ in its judicial process for the Jadhav case, Pakistan should consider taking the following additional steps with the relevant national and international bodies:

1.Propose to the UN to convene a comprehensive review of the 1963 Convention and its Optional Protocol in the light of the changed nature of international relations, which include, inter alia, misuse of consular premises by sending States to undertake anti-state activities in the receiving State; State-sponsored terrorism through contracted intelligence officers and civilians posing as journalists, businessmen and INGO personnel; spread of terrorism and hatred though social media; inter-state cyber wars; and, cross border illegal financial transactions.

2.Pakistan can also, should it so wish, submit a reservation or declaration to the 1963 Convention stating that it will not consider Article 63:1B binding on the State in instances of foreign nationals arrested for proven terrorist activities or espionage, pending completion of its internal investigation. Such as resolution or declaration should first be passed by the Parliament.

1. ICJ ruling. Paragraph 25. Full Text: The remedies requested by India in its final submissions have already been set out (see paragraph 19 above). In summary, India requests the Court to adjudge and declare that Pakistan acted in breach of Article 36 of the Vienna Convention on Consular Relations. Pursuant to the foregoing, India asks the Court to declare that the sentence of Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, and that India is entitled to restitutio in integrum. It also requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, to direct Pakistan to release Mr. Jadhav and to facilitate his safe passage to India. In the alternative, and if the Court were to find that Mr. Jadhav is not to be released, India requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence awarded by that court. In the further alternative, India asks the Court to direct Pakistan to take steps to annul the decision of the military court. In either event, it requests the Court to direct a trial under ordinary law before civilian courts, after excluding Mr. Jadhav’s confession and in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr. Jadhav’s legal representation.
2. Ibid. Paragraph 135
3. Ibid. Paragraph 130
4. Ibid. Paragraph 147
5. Ibid. Paragraphs 139 & 145
6. Ibid. Full Text of Paragraph 149. The Court, (1) Unanimously, Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017; (2) By fifteen votes to one [and in all other subsequent paragraphs], Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible; (3) Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision; (4) Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations; (5) Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations; (6) Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations; (7) Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment; (8) Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.
7. Ibid. Paragraph 111
8. Ibid. Paragraph 113
9. Ibid. Paragraph 134
10.Ibid. Paragraphs 141 & 149
11. Ibid. Paragraph 145
12. Ibid. Paragraph 102
13. Point vi of the Agreement on consular access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India. Islamabad, 21 May 2008.
14. ICJ ruling. Paragraph 96
15. Text of Article 36: Communication and contact with nationals of the sending State.
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
16. Ibid. Paragraph110

London: 18 July 2019

Okey, We Bought Imran Khan’s Dream last July but What’s Next!

By Syed Sharfuddin

Last July I was packing my bags and tidying up my papers to fly to Pakistan. The assignment was to accompany the Commonwealth Observer Group for the 2018 General Election as an independent Political Consultant. While in Pakistan I observed that the dream PTI leader Imran Khan sold to the public for a Naya Pakistan had made deep impact on the mindset and imagination of the middle class, especially women and young persons and those entering the job market. PTI was winning and the electoral campaign said so clearly. Imran Khan had his critics too, most of whom belonged to powerful feudal dynastic families in Sindh and Punjab. They feared for the loss of their own power and privileges in the political Tsunami that was overtaking the length and breadth of the country. The second and third tier of rival politicians who were considered electable in their constituencies, jumped ship and joined PTI. Some of them even got tickets to contest election from PTI platform and some who were not that lucky stood as independents.

I also noticed that the military, which was not interested in manipulating the elections or changing the results of the ballot on the night of the count, and the judiciary which found itself unwillingly caught between the devil and the deep sea with high profiled corruption cases, were both covertly pleased that finally Pakistan was going to take a breath of fresh air with the victory of PTI. The opposition’s allegations of military rigging the election under the pretext of providing security cover were eventually proved false.

The road to PTI victory was not smooth. Coming very lose to election date, and often incomplete, judicial verdicts on the corruption cases of the outgoing Prime Minister Nawaz Sharif and his family members and a covert externally-funded global cyber campaign to link the Pakistan military with PTI’s campaign had soured the electoral atmosphere and divided the media which fuelled controversies and conspiracy theories in the traditional fashion of singing the tune of whoever gave them political advertisements and stuffed their pockets, euphemistically called lifafas. Pakistani social media also contributed to this senseless blitz without realising the damage they were doing to the reputation of the country. In this unfortunate discourse Imran Khan unwittingly painted Pakistan as a corrupt and misgoverned country. In the first few months of his Prime Ministership he continued to harp on this narrative in his meetings with foreign dignitaries and overseas investors, little realising that the image that went out to them was of a country they should not trust and stay away from by a barge pole.

Not only the campaign was bitter and conveyed the impression of absence of level playing field, in the night of the poll count the disappointing performance of the results management system which was jointly built by NADRA and ECP, left a bad taste in the mouth regarding Pakistani politicians who remained true to the reputation of not conceding their electoral defeat gracefully.

Following the elections, PTI emerged as the largest party in the National Assembly but it could not secure outright majority in the House, which was another proof that the elections were not rigged. The talk of selected Prime Minister therefore appears both irresponsible and undemocratic indicating lack of faith in the political process which is the result of a parliamentary consensus by politicians themselves. In the provinces, PTI won Punjab and KPK but needed coalition partners in Sindh and Baluchistan to form majority governments.

Since coming to power last year, the government of Prime Minister Imran Khan has discovered that governing a country like Pakistan is no mean task. It has also learnt the importance of doing thorough homework before making any political promises because it is only after being in government that a leader comes to appreciate the true state of affairs and the pressures that decide the common denominator in taking national decisions. A perfect example of this is the electoral promise of PTI that it will not go to the IMF for emergency financing, or the claim that the looted money which was illegally sent abroad by corrupt politicians will be repatriated to Pakistan with the help of friendly countries and the international anti-money laundering bodies.

In the last 12 months in which two and a half budgets were given by the government, including the one just passed in the National Assembly, revenue collection has been less than forecasted, inflation is rampant and foreign debt is higher than ever in the history of the country. Despite large injections of cash Dollars amounting to 9 billion, 3 billion each from Saudi Arabia, China and the UAE, the foreign exchange reserves of the country have not been able to prevent the steep fall of the Pakistani Rupee vis-a-vis the US Dollar. The recently signed IMF agreement has come with tough conditionalities calling for radical restructuring of the economy, an overhaul of the revenue collecting apparatus, expansion of income-tax base and putting an end to government subsidies on utilities and food items designed to be poor friendly. The restructuring is taking a toll on the ordinary public, as well as the business sector which has been hit hard by low investments, high import tariffs and a bearish stock market behaviour. Manufacturing has suffered due to high costs of production and utilities, rising interest rates, cuts on export credits, low export yields and disappointing results in the exploration of oil and gas reserves in the country’s potentially promising subterranin fields. Many from the middle class and the poor who expected a quick change in their circumstances are disenchanted and think they made a mistake voting for PTI. The opposition is also not quiet. It keeps flogging the government for every word they say and every bill they bring to parliament to debate and enact.

In this situation, the  military has found a firm place for itself in the major decision-making institutions of the country by becoming members of the country’s key economic bodies, the National Development Council and Economic Advisory Committee. The military is also represented or has visible presence in the National Security Council, National Counter Terrorism Authority, National Disaster Management Authority, Civil Aviation Authority and Airport Security Force which is quite understandable given the security and defence challenges Pakistan faces internally, as well as on its external borders. But while their representation in civilian and political institutions may be good-intentioned and tactically helpful, in the broader context of democratic governance it is an overkill. The reason is because the military enjoys the status of a neutral, non-partisan and credible institution which could act like an A&E call to 911 when needed by civilian government. The military should always stay invisible in the background as a final deterrent to caution inept politicians, and in times of crisis call on them to put things right or else face a mid-term election. The military’s formal institutional presence in the political decision making forums of the country undermines their role as a neutral arbiter and as an insurance policy against disaster.

A number of Pakistanis think that the military is actually running the country from the shoulder of Imran Khan who is Prime Minister only in name. They point to the present harmony in the civil-political relations not as a sign of stability but as the capitulation of civilian authority by the military. These people draw their inspiration from liberal civil society, anti-military and anti-Islam lobbies and friends of India and the Sharifs, some at home (muted) and many overseas (vocal). Irrespective of their intentions, their argument holds ground to the extent that while the military is excellent as a rescuer in a disaster situation, it is unhelpful in governing the country by proxy and taking decisions which dominate, if not bypass, national and provincial political processes in a federation. The hybrid semi democratic rules of Generals Ayub, Zia and Musharraf are seen by many as democracy’s dark periods, each of which kicked Pakistan back into the past instead of leading it to the future.

In many ways Pakistan is today re-living the political history of Bangladesh in the years 2006-2008 during which an extended interim government, covertly supported by the Bangladesh military, cleaned up the mess left by the government of outgoing Prime Minister Begum Khaleda Zia and paved the way for Awami League to win the December 2008 election and form a government in January 2009. The example of Bangladesh may not be perfect because in Pakistan the interim government lasted only over 2 months and not 2 years. It took office on 1 June 2018 and resigned on 18 August 2018 when Imran Khan was sworn in as Prime Minister. But the fact remains that in the present Pakistan government, which is the third democratic civilian government since General Musharraf gave up power, a press release from DG ISPR carries more weight than a press release from the Ministry of Information or the Prime Minister’s Office. There is no country in South Asia other than Pakistan where the military leadership is given more space in the country’s electronic and print media for news, photos and statements. Even foreign envoys and visiting overseas dignitaries find it necessary to pay a courtesy call on the COAS after calling on the PM or FM. The powerful religious lobby ‘bows’ to no one except the military. DG ISPR’s Twitter account which comments on developments ranging from sports events to development projects, which are purely civilian matters, is run in parallel with the Tweets of some of the more energetic and media-savvy Ministers of the present Cabinet whose job is to keep PTI in the public eye. At least in Bangladesh, after the initial hiccups, the government of Sheikh Hasina took full control of the political process from the military and cleaned up corruption and graft using the parliament and judicial institutions, leading to political stability, investor confidence, rapid economic growth and elimination of extremist voices. Could Pakistan do the same using its elected political capital with precision and come out clean from the muddy waters?

But Pakistan is not Bangladesh. It has its own security threats, political processes and developmental paradigm. It has its friends and its enemies. In a nutshell, Pakistan is personified by its national cricket team which is capable of touching the zenith of success in one match and in another match falling to the ground like a busted missile which is going nowhere. Interestingly, this unpredictability gives Pakistan a unique advantage. Neither its public nor the international players who are interested in this country can completely write off the present government, or the country for that matter, nor can they embrace it fully until the results are final.

It is fair to say that having completed one year out of the mandated five years in its electoral term, it is too soon to judge any government’s performance, let alone that of the PTI government in Pakistan. Therefore the dreamers will have to go on dreaming for at least another couple of years to see whether the austerity measure and resulting economic reforms are working for the country, and whether a Naya Pakistan is finally coming to take shape. While the critics of PTI may continue to boo the government for its shortfalls or gaffes, and while the supporters of this government may continue to applaud every step it takes for better or worse, Prime Minister Imran Khan and his government must be given space and time to do the right things this country needs. After all, Pakistan is only 72 years old in the journey of a thousand years.

7 July 2019.

Background Note:
1. On 28 July 2017, the Pakistan Supreme Court while ruling on the petitions of PTI Chairman Imran Khan, MNA Sheikh Rashid Ahmed and other political leaders, disqualified ex-Prime Minister Nawaz Sharif from politics and directed NAB to file three references — Avenfield Properties, Al-Azizia and Flagship Investment — against Nawaz Sharif and other members of his family in the NAB accountability court. 2. On 6 July 2018, an Accountability court of Judge Mohammad Bashir convicted ex-Prime Minister Nawaz Sharif in the Avenfield Properties reference and sentenced him to 10 years in prison. 3. On 24 December 2018 another Accountability court of Judge Mohammad Arshad Malik convicted Nawaz Sharif in the Al-Azizia reference and awarded him 7 years’ imprisonment, besides imposing fines of Rs1.5 billion and $25 million on the former PML-N leader. 4. In January 2019 the Ex PM’s  legal team filed an appeal, as well as a petition against the decision in the Al Azizia steel mills case. 5. In July 2019 the family of PML(N) which includes the top leadership of the party alleged that the Accountability Court’s Judge Arshad Malik was blackmailed to give a verdict against the ex-Prime Minister under duress. They produced a video clip and an audio recording in support of this allegation. The allegations were refuted by Judge Arshad Malik as false, and based on doctored evidence.

Mr Syed Sharfuddin is a political analyst and a former Pakistani diplomat. He was Special Adviser in the Political Affairs of Commonwealth Secretariat in London from 2000 to 2006, and CEO of Muslim Aid UK from 2010 to 2014.

Pakistan Electoral System: Multiple Constituency Candidatures and their Impact on By-Elections

Syed Sharfuddin

On 14 October 2018 over 5 million voters will be going to the polls again to elect public representatives for the vacant 35 seats in the federal National Assembly and Provincial Assemblies of Pakistan. According to Pakistan Election Commission, over 300 candidates are contesting in the forthcoming bye-elections. Only last July, these seats were contested in the 2018 Pakistan General Election and voters freely exercised their right to vote. However, this exercise went waste because the candidates who won, had also won in other constituencies and decided to opt out of these constituencies resulting in fresh vacant seats.
The revised 2017 Electoral Law and 2017 Election Rules which allow citizens to contest elections from multiple constituencies need to be reviewed by the Parliament and the Election Commission of Pakistan in the light of good international practice. In a developing country like Pakistan, this second exercise is a waste of scare economic resources and a blatant abuse of democracy. Multiple candidacies mean depriving other candidates of their fair chance to get elected in the primary ballot in the first place at the time of the General Election. We all know that the incumbency factor plays a major role in the by-elections which are not held under a neutral caretaker administration which is mandated by the constitution for the conduct of a General Election.
The argument in favour of multiple-constituency candidacies is undestandable in the context proportionality. It is meant to protect the right of individual candidates to contest elections within the stipulated timeframe of the Election Commission’s published schedule of elections. If any candidate gets disqualified by an RO in a district for some reason which is disputed before an electoral tribunal, or if elections are postponed in a constituency for some reason where s/he is a candidate, s/he can still contest from another constituency where s/he is a double candidate. But at the last General Election in July 2018 there were popular politicians contesting from not just two but as many as four constituencies in order to “protect” their chances of becoming MNA or MPA. This is the height of enthusiasm you might say. At the end of the day, it was this devouring ‘yahan bhi woh, wahan bhi woh’ tendency which resulted in 35 fresh vacancies for the 14 October by-elections, enough to cause an upset in a delicately balanced Parliament if the ruling party and/or its allied parties do not win most seats.
The arrest of the opposition leader in the current circumstances immediately before the by-elections lends weight to the outcry of the opposition parties that for the second time round, they are being victimised on the eve of an important poll.
It is a matter not just for the Parliament to reflect but also for the ECP which brings good international practice in the management of elections. The custodians of democracy individually and institutionally must try to improve the electoral system irrespective of their personal preferences for systems, parties and candidates.
Any comments on the reform of multiple constituency nominations system are welcome.

13 October 2018

The Power of Establishment: Myth and Reality

By Syed Sharfuddin

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

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

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

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

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

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

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

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

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

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

3 August 2018

Level-Playing Field in Pakistan’s General Election 2018

By Syed Sharfuddin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

London: 1 August 2018

The Commonwealth London Summit 2018

By Syed Sharfuddin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Search for Baba Rehmata


By Syed Sharfuddin

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

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

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

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

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

March 8, 2018

What Umar Cheema Doesn’t Know and What Mufti Saeed is Not Telling

Wedding Card

By: Syed Sharfuddin

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

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

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

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

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

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

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

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

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

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

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

6 March 2018

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

President Trump’s August 2017 speech on Afghanistan is a serious statement of US Administration’s new Afghanistan Policy. Well Done Sir!

President Trump’s address on Afghanistan delivered last night in front of the US service personnel in Fort Meyer, Virginia curiously coincided with the long full solar eclipse in the United States for over 99 years. Whether it is a good omen for the US and a bad omen for the Taliban we will know in about five years which is the normal time to see the results of a major policy initiative and also a good time to discuss the achievements of the President’s first term in office. The morning after, President Trump’s speech made major headlines, especially in countries directly concerned with the peace and stability of Afghanistan.

President Trump’s core campaign supporters, those belonging to the Steve Bannon camp were expecting him to announce a troop withdrawal in line with his campaign criticism of Obama’s policy of wasting America’s resources in fighting other nations’ wars. On the other hand, political and military observers who have access to official documents expected President Trump to announce an increase in US troops serving in Afghanistan. But he surprised both by siding with the current status quo and by not telling the exact US strategy to win this long drawn war in a country that is still far from stability despite millions of dollars spent by Washington on training Afghan security personnel and eliminating the Taliban threat to the US, not to mention an increase in their attacks on the politically fragile and highly corrupt and incompetent government members in Afghanistan.

The US President’s speech cannot be simply dismissed as Trump talk because it is, frankly speaking, the product of seven months of hard deliberations in the new US Administration, involving both civilian and military advisers. It is the 2017 policy statement of the President of the United States on Afghanistan. The US has made the right move by announcing that it has no intention of withdrawing from Afghanistan. A withdrawal would have created a vacuum which would have intensified the proxy war between India and Pakistan and encouraged Taliban and other local warlords to fill in the breach and reverse all the gains which have been made so far in eliminating terrorism from Afghanistan.

However a new twist in the fresh US Afghan policy is to rely more on Afghanistan, US’ NATO allies and the regional powers to pursue the scorched earth policy against Taliban in Afghanistan. But a greater reliance on India instead of Pakistan with a view to reducing the US liability of funding the stability and development of Afghanistan is the red herring in Mr Trump’s new jar of jellybeans. The US Administration earlier tried a military surge with the support of NATO led ISAF but did not succeed. It earlier tried to strengthen the Afghan security forces against the Taliban through training and capacity building but did not succeed. It earlier gave millions of Dollars to Pakistan in military and economic aid in the hope that Pakistan will eliminate the Taliban but it did not succeed. Now the US aims to play the India card to see if New Delhi can help bring stability to Afghanistan by using India’s economic muscle.

But unfortunately the US Administration will fail in its new approach because of four key factors. 1) India is not yet used to pumping millions of Dollars into economic aid of other countries like China and Russia and whatever development it will carry out in Afghanistan will be too small to make any substantial change in the lives of the poor Afghans and buy their loyalties. 2) the US will be ignoring the local militants who are not Taliban but their sympathisers for a host of other reasons. They will feel left out and will take to the hills again to join Taliban and continue to destabilise Afghanistan as they have done for the past many years. Theirs is a low maintenance militancy which requires modest means and is far less costly compared to the US servicemen and other foreign armed personnel deployed in Afghanistan. Russia and China will be only too pleased to see the Americans continue to drain their resources by remaining militarily preoccupied in Afghanistan. 3) The Taliban know that the US is completely stretched out in Iraq and Syria and has identified ISIS, Iran and DPRK as greater threats to global peace and stability. Its capacity to commit more resources in Afghanistan is much reduced; and 4), the US is making a strategic mistake by undermining the sacrifices of a key ally Pakistan in the Afghan equation.

The key to solving the problem of Taliban is with Pakistan and not with New Delhi. The US can use its aid muscle to obtain this key but it won’t be able to do so because of other choices available to Islamabad. As a BBC correspondent in Islamabad has noted, “Pakistan has grown increasingly closer to China, and has also experienced millions of Dollars withheld by the US for allegedly not taking enough action against the Taliban-allied Haqqani network”. The relationship is already sour and can’t be made worse by brow beating and finger pointing. Without Pakistan, neither the US nor India can make any progress in Afghanistan.

The Afghan government, besides cheering the US for its support is woefully inefficient and unable to govern a multi-ethnic and communally pluralistic Afghanistan. On its own it cannot keep all its ethnic communities united and satisfied. Pashtun Afghans from where the Taliban are largely drawn need to be made stakeholders in Afghanistan’s future decisions. Moreover, the people-to-people contacts on both sides of the border between Afghanistan and Pakistan are deep and unbreakable. External pressure, whether exerted through a carrot and stick approach or applied through direct military action led by drones and airborne strikes can hardly bring positive results. If anything, by pursuing an aggressive do more agenda, the US will draw Pakistan closer to China and Russia and erode its influence in Islamabad which it enjoys to this date, thanks to a pro-US bureaucracy and the military whether it be the product of their Western training or the result of the millions of Dollars of aid, which President Trump has mentioned as the fee America has paid to Islamabad for receiving its services in the past years. Islamabad’s reply to this kind of rhetoric is: “you gave us the money and we rounded up all the bad Arabs and gave them to you. Period.”

So where do we go from here. Will the US be able to persuade India to play a greater economic role in Afghanistan? Will Pakistan be happy to see the US ignore it in Afghanistan at the cost of India? Will Russia and China let the US bring peace in Afghanistan and keep their hands off from a country which offers so much business prospects in economic rebuilding and infrastructure development in the future? Will Taliban give up arms and become absorbed in the Afghan melting pot if they are not all blown off in Tora Bora mountains or lured with huge sums of money to change loyalties? The US Administration must have thought-through these scenarios before the speech was finalised and delivered yesterday but President Trump did not speculate anything in his speech for a good reason. He does not want the US to show its pack of cards on Afghanistan. He did say however: “The American people expect to see real reforms, real progress, and real results. Our patience is not unlimited”. But as far as speeches go, it was a brilliant piece of speech the President delivered yesterday. Thank you sir.

London 22 August 2017

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