Sunday, 25 February 2018

Pakistan on the Grey List, Lal Khan

Pakistan on the Grey List, Lal Khan
Throughout the last seventeen years of war and occupation, the Americans could not convince Afghans that the presence of US troops has been helpful and their aims benign.

Last Friday the global money-laundering watchdog, Financial Action Task Force (FATF) decided to put Pakistan on its terrorist financing watch list. The placement will come into effect from June this year. This move could seriously jeopardise Pakistan’s already crisis ridden capitalist economy. The 35-member body works by consensus and even China and Saudi Arabia, Pakistan’s closest allies withdrew their objections after intense pressure from the US. The move is part of a broader US strategy to pressurise Pakistan to cut its links with terror groups in Afghanistan.
Being placed on the FATF watch list brings extra scrutiny from regulators and financial institutions that will be wary of doing business with Pakistani banks. The government in Islamabad has been scrambling in recent weeks to avoid being added to this list. The US motion, to have Pakistan added to the “grey list” of countries was backed by Britain, France and Germany. Washington has been threatening to get tough with Islamabad over its alleged ties with Islamist Jihadists, and last month President Donald Trump’s administration suspended aid worth about $2 billion.
Pakistan’s decadent and reactionary ruling class and its crisis-ridden state has increasingly been relying on religious extremism to perpetuate their rule. Although the Pakistani deep state’s spooks have been complicit in such covert operations, the Americans have never been naïve spectators either. After World War II, as the US asserted its role as a world policeman, Islamic fundamentalism has been used as a tool in crushing revolutionary movements in majority Muslim countries. US Secretary of State John Foster Dulles, under President Eisenhower, was the architect of modern Islamic fundamentalism in the aftermath of Egypt’s victory under Jamal Abdul Nasir in the Suez War of 1956.
Ever since then, successive US regimes have been fostering religious fundamentalists all over the Muslim world, from Afghanistan to the Middle East. But with American administration’s betrayals and the higher funding offers from other world and regional imperialist states some of these US nurtured terrorist outlets and their religious warlords have been switching sides and often turn out to be Frankenstein monsters for their US and Pakistani mentors. The imperialists also failed to handle their installed puppets in Afghanistan’s democratic façade they engineered.
Throughout the last seventeen years of war and occupation, the Americans could not convince Afghans that the presence of US troops has been helpful and their aims benign. Hamid Karzai, the West’s manufactured leader of “liberated” Afghanistan, finally called the US an occupying power. Karzai believed, not without reason, that US officials paid lip service to his concerns and were willing to cut deals behind his back and occasionally even plotted to replace him with someone more obliging. In response, the Americans painted Karzai as indecisive and paranoid. They seemed to be forgetting when he first became President of Afghanistan in December 2001, Washington had praised Karzai as an Afghan “Mandela”. At the end of his presidency in 2014, the American dubbed him the Afghan “Mugabe”. With Ashraf Ghani the US occupiers’ war prospects have deteriorated even more.
In his latest book, “Directorate-S”, Stephen Coll has elaborated on the dynamics between the US, Afghanistan and Washington: “Washington’s relationship with the Pakistani Army, which effectively calls the shots on all matters related to internal and external security, is dysfunctional. Pacifying Afghanistan was always going to pose a challenge. Absent full-throated Pakistani collaboration, it would become next to impossible. The United States needed two things from Pakistan: first, that it would permit supplies bound for coalition forces in landlocked Afghanistan to transit its territory; and second, that it would prevent Qaeda and Taliban remnants from using Pakistan as a sanctuary and operating base.”
While Pakistani Army’s Inter-Services Intelligence made a show of cooperating with the US, they were backing their Taliban proxies in Afghanistan simultaneously, which they considered vital to their security. With its own record of having broken promises to Pakistan, Washington was in no position to coax the ex-colonial state. As a waning super power, the United States could only exert minimal leverage. While Pakistan’s nuclear arsenal limited its susceptibility to threats and sanctions. Coll concludes that, ” Washington’s inability to solve the riddle of Pakistan’s Inter-Services Intelligence and to stop its covert interference in Afghanistan constituted the greatest strategic failure of the American war.”
Mutually deceptive bilateral relations have driven the US-Pakistan partnership towards an irreparable trust deficit
Although Pakistan has weathered previous US aid cuts, mutually deceptive bilateral relations have driven this partnership towards an irreparable trust deficit. According to The Diplomat, “over time, both the US and Pakistan governments accepted the losses grudgingly and gains ungratefully and still found each other relevant in times of need… It is never easy to handle a war-related relationship, especially when that war has not been going well. This is even more so when there are multiple stakeholders with competing interests.” Washington’s growing ties with India have further deteriorated US – Pakistan relations. This is pushing Pakistan further into Beijing’s arms.
Pakistan’s deep state is autonomous and seems accountable to none. Similarly, US leaders have a history of betraying their allies and deceiving ordinary Americans. In Steven Spielberg’s latest film, The Post, depicts the 1971 Pentagon Papers revealing how the White House has been lying about its foreign affairs. These classified documents had laid bare the secretive crimes of the US politicians including Harry Truman, Dwight Eisenhower, Jack Kennedy, Lyndon B. Johnson and Richard Nixon. The subsequent leaders have been no different. In this blind race for imperialist hegemony, these leaders have committed gruesome crimes against humanity to serve business interests particularly those of the Military Industrial Complex.
Pakistan’s ruling state and political elites applied similar policies to better serve their vested interests. Under this bourgeois rule diplomacy, wars and politics are waged by imperialist and capitalist states only for their hegemony and profits for the moneyed classes. The Chinese and Saudi betrayal of their deepest friend Pakistan at the FAFTA meeting exposes the hard realities of this power politics. Ordinary ‘voters’ have no say in these policy mechanisations of the rich and mighty. The enmities and friendships of capitalist “nations” are actually those of the ruling classes. Loyalties can change suddenly. For the working classes, the fulfilment of their dire needs and human respite in these wretched societies will only come when their class rises up and takes power.
The writer is the editor of Asian Marxist Review and International Secretary of Pakistan Trade Union Defence Campaign. He can be reached at ptudc@hotmail. com
Published in Daily Times, February 26th 2018.

Friday, 23 February 2018

Judicial imperialism? Babar Sattar

Judicial imperialism? Babar Sattar
The constitution is supreme. But the constitution is what the judges say it is. We have had direct military rule. We have seen a troika keeping democracy in check. We have had Article 58(2)(b) used by presidents to sack elected governments on khaki prodding, with the Supreme Court playing the underwriter. Since 2009, we have evolved a jurisprudence that makes the judiciary omnipotent, granting it a veto over all executive and legislative acts. The triumph of unelected institutions over the representative ones is now complete.
Some of us believe Nawaz Sharif is evil incarnate and any means employed to banish him into obscurity are legitimate. This lot cheers on the SC to delve deeper into the political thicket and produce partisan consequences. Then there are those who profess unqualified loyalty to NS. For them too, all is fair in love and war. It doesn’t matter how foul the PML-N’s strategy is, so long as NS gets back in the ring. Caught in the crossfire are those struggling to decipher the principles and norms that are guiding the conduct of institutions in this rudderless polity.
We are in a free-for-all ‘do good’ state of frenzy. After 70 years of existence, we still have no consensus on our foundational organising principles. Scratch the surface and our commitment to democracy or rule of law is inexistent. There is no separation of powers or delineation of roles. Power and responsibility don’t go hand-in-hand. Everyone is interested in everything other than his own job.
We are in the age of judicial rule. It started with the restoration of Iftikhar Chaudhry and his projection as the messiah representing the aspirations of the ‘silent’ majority. (Many of us who lionised former CJ Chaudhry at one point or another are now ashamed of being unable to see the harm that judicial overreach, driven by a populist rhetoric, is doing to the polity). CJ Chaudhry used suo motu to transgress into the domain of the executive in the name of judicial review. Back then, our present CJP was a staunch critic of the unguided exercise of suo motu.
If at all there existed any limits to the reach and scope of Article 184(3), they are now invisible. With some creativity, almost everything can be a matter of public importance related to fundamental rights. We have seen the CJP touring hospitals, inspecting their operations and issuing instructions. Where does he derive the authority to do so? Is it provided in the constitution or a statute or the SC Rules or is it a product of judicial convention? What was once a quintessential executive function has been subsumed in the SC’s on-the-go judicial review powers.
Under Iftikhar Chaudhry, the SC heard challenges to the 18th Amendment. It didn’t like the ability of parliament to have a say in judicial appointments. So for the first time in history, we saw a constitutional amendment sent back to parliament, with instructions to reconsider it in view of the SC’s desires. Parliament cowered and gave the SC most of what it wanted. It retained some ability to block a nomination (with bipartisan support) and ask the judicial commission for a new nominee. When it exercised such authority, the SC set it aside in exercise of its judicial review power.
The story didn’t end there. After the APS attack, the country was aghast and blamed the courts for the lack of convictions and for being soft on terror. This no-confidence motion against the judiciary resulted in the 21st Amendment and the emergence of military courts. Here, it was the military intruding into the judiciary’s domain. The SC swallowed that bitter pill. But while holding that secret trials in military courts are in accord with fundamental rights, it gave itself the power to strike down constitutional amendments. So the debate over parliament’s supremacy must end now.
The SC has interpreted the directive in Article 239(5) – “no amendment of the constitution shall be called in question in any court on any ground whatsoever” – to mean that the SC has a veto over amendments and will decide which are kosher and which aren’t. Once the SC arrogates to itself the power to second-guess the desirability of constitutional amendments in the name of interpretation, the lesser function of exercising veto over ordinary legislation for being in conflict with the constitutional text (or spirit) remains hardly comment-worthy.
Beyond legislation, parliament is vested with the authority to elect the PM. It was previously understood that the constitution mandates the Election Commission to determine the qualification/disqualification of a member of parliament before an election and of the speaker/chairman of the Senate post-election. Panama changed that. The SC held that disqualification under the law was different from disqualification under the constitution and the SC, in exercise of its 184(3) powers, could disqualify a member without trial after forming a tentative view that he was liable to be disqualified under articles 62 and 63.
This interpretation of the constitution has given the SC the ability to determine who is qualified to head the executive. So, for example, the SC just decided not to entertain a petition challenging the LNG contract in exercise of its 184(3) powers. If it had chosen to hear the matter, reaching the conclusion that the contract had not been awarded in a transparent manner and forming the subsequent tentative view that PM Abbasi can’t be regarded as ‘sadiq and ameen’ would be within the realm of possibilities. Crudely put, PMs now serve at SC’s pleasure.
When a PM can be chucked out without trial in exercise of the SC’s discretionary 184(3) jurisdiction, the ouster of heads of statutory organisations for being appointed in breach of due process or for lacking requisite is a routine affair.
So, theoretically, we have a system where citizens elect representatives and delegate to them the authority to legislate and run the state (on behalf of citizens), with judges vested with the authority to check the illegal actions of such representatives without second-guessing the policy choices they make. In practice, judges have interpreted the constitution to mean that they have the power to veto the choices parliament makes – including legislative choices – and the power determine who is fit to be PM, and also the power to second-guess the choices the executive makes in appointing people during its term that it finds appropriate for executive jobs. Of course, no one can justify nepotism in appointments. But the problem of regulating discretion in making appointments is underlined by the equally thorny questions surrounding judicial appointments.
Since 2009, we’ve seen an SC (with brief periods of exception) that has produced jurisprudence that isn’t always guided by precedent; curtailed the scope of fundamental rights; used contempt powers to silence critics; and produced legal uncertainty instead of exercising its adjudicatory function such that the law speaks with one discernible voice.
Let’s consider the short order in Election Act case. Eleven judges in the Benazir Bhutto case (PLD 1988 SC 416) reiterated the ruling in the Abdul Wali Khan case that the right to form a political party “guaranteed under Article 17(2) is subject only to reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan. It excludes all other constraints. This restrictive clause is exhaustive and has to be strictly construed”. But the SC, in the name of interpretation, has just rewritten Article 17(2) along with Section 203 of the Election Act.
While summarising the rules of statutory interpretation, the CJP held in ‘Imrana Tiwana’ (2015 SCMR 1739) that, “there is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the constitution and no way can be found in reconciling the two”. It also stated that “the court will not declare a statute unconstitutional on the ground that it violates the spirit of the constitution unless it also violates the letter of the constitution”. But in the Election Act case, Article 2A’s spirit and amorphous notions of morality have overturned the express text of the constitution and the act.
In his dissenting judgment in the 21st Amendment case (PLD 2015 SC 401), the CJP was emphatic when he said that it is not the SC’s business to make decisions on parliament’s behalf that the latter opted not to make. In the Election Act case, parliament deliberately removed a disqualification introduced by Musharraf in relation to a party head. But when opposition parties lost in parliament and brought the matter to court, the three-member bench headed by the CJP inscribed articles 62 and 63 disqualifications into the law, thereby extending judicial control over the internal working of political parties.
Our democracy might not have been tamed as yet, but it sure is controlled.
The writer is a lawyer based in Islamabad.
The News 24 Feb. 18