Monthly Archives: April 2014

Whither rule of law?

Yasmeen Aftab Ali

ArticleYAALegally, the rule of law requires, “the government to exercise its authority under the law. This requirement is sometimes explained with the phrase “no one is above the law.” The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. “It may be specifically defined as, “A legal principle of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a ‘rule’ because in doubtful or unforeseen circumstances is a guide or norm for their decision. The rule of law sometimes called the supremacy of law provides that decisions should be made by the application of known principles or laws, without the intervention of discretion in their application.” (Black’s Law Dictionary Pg 1332: 1891-1991)

Pakistan is facing its greatest challenge in face of growing domestic insecurity. Militancy and terrorism has mushroomed. This in turn is having a negative cascading impact on the economy. The lives of citizens of Pakistan are no longer secure. The culprits are hardly, if ever nabbed. Rule of law is sacrificed at the altar of appeasement, failure to formulate cogent policies or simple inefficiency.  Democratic nations ensure the rule of law. It is the states that hold democracy dear that must implement it. Lip service to democratic norms while ignoring the on ground implementation of rule of law simply cannot continue indefinitely.

In a country where provision of electricity is becoming a luxury; theft of the same has become an accepted practice. Scams by the dozen are unearthed and lost in folds of time. No one knows, in many cases, what became (if at all) of those party to a crime.

If there has to be a rule of law; the laws must be clearly defined and the implementation must be ensured. Having legislation alone is simply not enough. The people at helm of the organizations that determine implementation must not be political appointees. Merit and relevancy to area of work must be ensured.  Rule of Law presupposes the existence of certain requisites, in absence of which a claim to existence of rule of law becomes a sham.

First; laws must be clear and unambiguous. There must be awareness of the existing laws with the masses. Unfortunately, Pakistan has a low literacy rate therefore not many are aware of existing laws and the rights that accrue to them under given situations.  Illiteracy also leads to acts that are in conflict with the laws of the land. For example in 2012, on orders of the Supreme Court, a fact-finding mission was sent to Kohistan. It was alleged that five women were killed on orders of Jirga ‘for the ‘crime’ of singing and dancing at a wedding in the alleged company of men.’ (Published June 7, 2012) An interesting point is raised by SIHRG; a group has an interest in all areas of South Asia, “The Federal Sharia Court in particular effectively creates a parallel Islamic jurisdiction. It has the power to review laws for their compatibility with Islam. It is also a quasi-legislative body: it can pass judgments requiring Parliament to make changes to the law and if Parliament fails to do so within a given period, the FSC’s judgment acquires the force of law.”(Title: Rule of Law in Pakistan)

Second; law must apply to all equally. No one must be seen to be above the law. Not only this does not happen on ground as the very rich and powerful may be awarded leniency which the under-privileged may not; gender bias also exists which makes the  equal application of law a dream. According to a paper by Justice (R) Fakhrunisa Khokhar, “The rule of law must be applied equally to all persons so as to ensure that all individuals enjoy equal rights irrespective of race, color, creed or sex. Justice means equality of all persons in their legal and human rights.”  Article 25 of the Constitution of Pakistan 1973 also safeguards the right;

25        Equality of citizens.

(1)       All citizens are equal before law and are entitled to equal protection of law.

(2)      There shall be no discrimination on the basis of sex.

(3)      Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

Third, the fundamental rights of the citizens of Pakistan must be protected at all cost. Covering many aspects it is composed of 20 Articles from 8 to 28. If they are not and there is lack of justice or delayed justice, the right to profess religion and to manage religious institutions in curtailed, there is no safeguard of property, if there is lack of right to education, if there is discrimination in respect of access to public places so on and so forth there will be hatred between different religions and different sects within a religion leading to unlawful acts like open clashes, murders and kidnappings.  By citizens it is meant every individual holding a Pakistani citizenship. It precludes religious affiliations.

Fourth; there must be accountability at the public service level. All individuals who hold a public chair must be accountable. Here Article 184(3) in which the Supreme exercises suo moto powers in matters of public importance comes into play. One definition of suo moto says, “In law, sua sponte or suo motu describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties.” The word literally means “on its own motion.” If ministers and other highly placed public officials are deemed to be above the law-the law shall become a farce.

Fifth, every citizen must be awarded justice for any grievance swiftly and without exorbitant cost involved. Citizens must know that they have a legal recourse to a grievance. For this it is important that justice must not only be done but also seen to be done. In a leading benchmark case R v Sussex Justices [1924] the famous principle of Jurisprudence was laid down, ‘Not only must Justice be done; it must also be seen to be done.”

Pakistan has become a hotbed for sectarianism, militant outfits and extremism in pockets. These pockets are a threat to the peace loving citizens of Pakistan. From Benazir Bhutto to Salman Taseer; the targeting has now spread to anchorpersons.

Dale Carpenter an American legal commentator in Flagrant Conduct: The Story of Lawrence v. Texas says, “If citizens cannot trust that laws will be enforced in an evenhanded and honest fashion, they cannot be said to live under the rule of law. Instead, they live under the rule of men corrupted by the law.”

The writer is a lawyer, academic and political analyst. She has authored a book titled A Comparative Analysis of Media & Media Laws in Pakistan. Her email is: yasmeenali62@gmail.com and tweets at @yasmeen_9

This is a cross post from Pakistan Today of 22nd April 2014

 

 

 

 

Eluding Peace

ArticleYAAPeace is a state desired not only on a personal level but also on national level and in relationships between nations. Yet it continues to elude at all levels. On a very general level it may be defined as, ‘freedom from disturbance; tranquility.’ Yet, how many of us, at an individual level have ‘complete’ peace? Not many, is my bet. Each one of us has those gray areas in our lives that perturb us. Relationships can be marred by various differences.

Then there is the national peace we hanker after, especially in today’s Pakistan. The Merriam-Webster dictionary defines it as, a) ‘a state in which there is no war or fighting b) an agreement to end a war and c) a period of time when there is no war or fighting. In a country fraught with differences that have reached a boiling point, any difference to approach is dealt with extra-judiciously. A country with citizens and those residing within (they may not be citizens), armed with the latest state-of-the-art weapons with little or no accountability, taking law in their hands settle scores. The culprits are either not nabbed or go unpunished. The writ of the state has been negatively affected as a result.  Root causes of lack of peace, leading to terrorism are many like injustice, increasing levels of social gap, economic disparity with the rich accumulating more and more wealth and the poor falling to sustenance level or below, lack of equal opportunities to better one’s social standing, rampant corruption that has seeped into every level of the society, increasing radicalism resulting from politicizing religion etc. Religious conflicts have increased over time, deepening rather than lessening. Unfortunately, since 2001, religious conflicts owing to armed factions has become a huge security threat to the nation; in particular its innocent citizens. A difficult-to-manage border situation with Afghanistan does not help.

Unfortunately, various governments that have come and gone have not really processed through the issues to move towards a logical solution. A short term and long term plan has been consistently missing, marrying a political and social approach towards addressing the issues at base level. If at all, there has been an effort to address an issue, at best it has been at a superficial level. A friend argued this is so because governments have been dismissed repeatedly, take-overs by the Army been a regular feature of Pakistan’s checkered past. I respectfully disagree. Though the fact so stated, cannot be denied, it is also a fact that the civilian governments formed to rule have failed to develop a blueprint to the effect, what to speak of taking the first step towards any implementation that even came close to addressing the issues briefly touched upon.

The challenge that faces the Pakistan government is to reorient the people of Pakistan ideologically. This is a more uphill task than original orientation. It requires more focused, more determined approach towards clearing up of the fog enveloping the society. There is, in many pockets, a genuine confusion. This confusion is often channelized by vested interest groups into acts of hate having a negative cascading effect on the society. Arshi Saleem Hashmi, Senior Research Analyst, Institute of Regional Studies, Islamabad in his research paper published way back in 2009 states, ‘The real clash is not between Islam and the west, as projected, but between the orthodox and the moderates. The key question is how far the new generation will be different from the one lost to orthodoxy and militancy. Pakistan’s inability to control radicalization limits its capacity to engage in a sustained struggle to control extremism and terrorism and revive the pluralist and tolerant spirit of Pakistan’. He just about hit the nail on the head here. He suggests, ‘Pakistan needs to emphasize the synthesis of culture and religion rather than be influenced by “Arabization” to prove its true Islamic credentials’. I could not agree more. In my earlier articles I have always promoted support to all cultures, religions, sects within under the umbrella of Pakistan. Appreciation of the differences that enriches the society.  Former President FW De Klerk to the Rotary Reunion Conference Cape Town, on 04 February 2011 rightly said, “The main threat to peace during the 21st century will come from the inability of states to manage relationships between ethnic, cultural and religious communities.”

Then there is peace sought at international level. J. Kirk Boyd; a lawyer and professor at the University of California in his article on peace (excerpted from 2048: Humanity’s Agreement to Live Together; on May 11, 2010) writes, “Religious diversity also lies at the root of some of the ongoing conflicts in the world. Ongoing tensions in India have their roots in the unresolved conflict between Moslems and Hindus in Kashmir and elsewhere in the sub-continent. Differences between Hindus, Moslems and Sikhs in India; and Moslems and Christians in Nigeria and Sudan all create volatile situations that can explode into violence and terrorism at almost any time…. The age of the single culture, single language state is over. Two thirds of the world’s 200 countries have minorities comprising more than 10% of their populations. Cultural and ethnic minorities now comprise more than 900 million people throughout the world – one in seven of the human population… Everywhere populations are becoming more multicultural. Throughout the world people are on the move, legally or illegally, across borders, across continents and across oceans.”

The problem surfaces when one or more nations become more equal than equal. They take over the moral responsibility of making a determination as to who is right and who is wrong. Not stopping at that, they then launch upon a course of action to punish the ‘wrong doer’. This responsibility is left best to the relevant world forums without being subjected to external influences. Sometimes, one or more religious, ethnic groups overshadow others marginalizing space for their freedom. This too leads to chaos.

In a world riddled with conflict, there must be an effort to move towards a harmonious one. Peace however, cannot be imposed by pressure, threats and bullying. This has to be achieved with patience, setting of specific time related goals, addressing issues at grassroots level.  Thor Halvorssen, President of the New York-based Human Rights Foundation and founder and CEO of the Oslo Freedom Forum in his article writes, “Meaningful peace is never based on coercion between nations. It is based on open international communication, and problem-solving through non-violent channels. Such a network can only exist when its individual pieces are free.” (Forbes Magazine 12/09/2011) Nations must stop viewing issues through a narrow prism with self-interest first.  One country cannot be allowed to get away with a wrong as the world criticizes another for the same. He further shares, “If we are to achieve meaningful peace, the foreign policy of free governments and the cultural export of free societies must: help build civil society, establish rule of law, secure individual freedoms, spark economic development, separate religion and government, secure freedom of thought and belief, and expose human rights violations.” Agreed with Thor!

Nations world over must decide; how long will peace elude them?

The writer is a lawyer, academic and political analyst. She has authored a book titled A Comparative Analysis of Media & Media Laws in Pakistan. Her email is: yasmeenali62@gmail.com and tweets at @yasmeen_9

This is a cross post from Pakistan Today published 15 April 2014.

Afghanistan elections and Pakistan

ArticleYAAThe question deals less with which candidate wins the presidential race and more with the legitimacy and acceptance of the election results by the multiethnic population of Afghanistan. The Afghan election system follows that of the French. There are a total of 11 candidates in the run and it is not possible for any one of these aspirants to get more than 50 per cent of total votes. This will mean the two candidates getting the highest votes will be pitted against each other in the second round. The process of declaring an ultimate winner can take a few months if one takes into consideration the disputes erupting as a result of ballot complaints. The second round of two leading contestants will take minimum six weeks from the date of the first, or even more.

The question that is important here is whether or not the Uzbek, Pashtun, Tajik, Hazara, Nuristani, Pamiri, Aimak and others will accept the result or will Afghanistan descend into civil war. The latter is most likely. The apparent stronger candidate Abdullah Abdullah, previously Karzai’s foreign minister, resigned and in 2009 had emerged as a serious contender to the Afghan President post. He garnered enough votes to make it to the second round. However, he does not command Pashtun support in Afghanistan. Hence, any opposing contender of his, assuming there is a second round will walk away with the Pashtun votes for the simple reason that Abdullah will not be acceptable to them.

The Afghan National Security Forces are not strong enough to counter a full blown insurgency. Although in most areas, the local forces are responsible for maintaining law and order, the international forces do patrol to support them in certain areas upon request. Let us not forget a doggedly continuing insurgency continues in the eastern and southern part of Afghanistan as I write.

Afghanistan is going to face shortage of investment, security back-up support, collapse on the front of transportation and reconstruction upon the international forces leaving its land. There will be a dire need to focus on long term sustainable programmes based on strengthening the economy. This can only follow a peaceful transition of power, or at least near peaceful.

Afghanistan will no longer be recipient of heavy international aid to restructure its economy. It needs to develop production sectors, looking for markets to sell their wares inside and outside Afghanistan. But, as Pakistan’s example teaches us, economic stability relies on secure environment. Killings, insurgency and related security instability can effectively make the capital take flight outside the borders.

The Afghan ground will be fertile for Taliban with the international forces out of the picture. Russia, Iran and India will support the anti-Taliban forces;India’s investment in Afghanistan is a whooping US $2 billion in development aid and has a huge stake there. In 2011 both countries had signed an agreement to the effect that India will train and equip the Afghan Security Forces. Afghanistan’s importance for India is further emphasized by Rupakjyoti Borah and Panditdeendayal in their article. “Afghanistan is important for India’s energy security. Afghanistan is India’s gateway to energy-rich Central Asia – the US$7.6 billion Turkmenistan-Afghanistan-Pakistan-India pipeline is scheduled to start bringing natural gas from Turkmenistan to India by 2017… India has a big economic stake in Afghanistan. It owns the mining rights to three of the four blocks of the Hajigak iron ore deposits, west of the capital city of Kabul, and has funded the construction of the 218 kilometer Zaranj-Delaram road in Afghanistan, which gives landlocked Afghanistan access to the sea via Iran. India uses the Iranian port of Chabahar to ferry supplies to Afghanistan because Pakistan refuses to give India access overland to Afghanistan.” (Published August 6, 2013)

Iran on the other hand is using media in Afghanistan with an aim to gain stronger influence. “Nearly a third of Afghanistan’s media is backed by Iran, either financially or through providing content, Afghan officials and media groups say. Iran spends $100 million a year in Afghanistan, much of it on the media, civil society projects and religious schools, says Daud Moradian, a former foreign ministry advisor who now teaches at the American University in Kabul.” (Reuters, May 24, 2012)

On the Russian front, Karzai offered unequivocal support to Russia in it annexation of Crimea. Russia is viewed as a natural ally to Afghanistan in the changing geopolitical scenario. Russia has not forgotten Pakistan’s role in supporting USA vis-à-vis Russia in the 1980s. China has supported Pakistan principally, whereas Russia has done the same for India. A tricky situation by any given standard.

Pakistan is in a noose. On the one hand it needs to deal with militant outfits on its soil. There are no two ways to go about it. On the other hand, in the evolving situation next door, with a next to impossible border to manage between the two countries, there is a strong chance of the Afghan soil being used to organize attacks within Pakistan by the militants rather than the other way round. A report by Stratfor states, “Pakistan has hoped a negotiated settlement between the United States and the Afghan Taliban ending the insurgency in Afghanistan would eventually help Islamabad deal with militants on Pakistani side of the border.” (April 15, 2013)

One interesting point the report raises is, “If the Afghan Taliban are not part of a broad-based coalition government in Kabul, Pakistan will face serious difficulties in getting a handle on its own Taliban rebels. This explains why Pakistan has been pushing for a balance of power between the Taliban and anti-Taliban forces.” However, with Taliban not having participated in the 2014 elections, such participation is not possible. Being a militant group and being a politically organized party are two different things altogether.

So what does Pakistan do? It has landed itself in a situation where they are damned if they do and damned if they don’t. There is no perceived ally with which Pakistan can associate itself or rely upon to counter this situation. Allying itself with Saudi Arabia in this volatile situation may well lead to more complications for obvious reasons. The argument between the ‘good’ and the ‘bad’ Taliban will not hold. Let us be clear that the standing between Pakistan and Taliban (earlier called the Mujahideen) is a different and difficult one than when created to counter Russian influence in Afghanistan. Policy making in Pakistan is divided owing to a mix of extreme right, right, moderate and left legislators.

Author Mike Malloy rightly said, “Afghanistan – where empires go to die.”

One sincerely hopes it does not drag down Pakistan with it.

CROSS POST: http://www.pakistantoday.com.pk/2014/04/07/comment/afghanistan-elections-and-pakistan/

Roadmap of talks with Taliban

Militant outfits must shun terrorism for good

ArticleYAAHere it is: the first talk between the newly formed committee of the government and the Tehrik-e-Taliban Pakistan took place a few days ago. The government’s team was headed by Secretary Ports and Shipping Habibullah Khan Khattak. The three members of Tehrik-e-Taliban Pakistan were headed by Maulana Samiul Haq. Some members of TTP Shura were also in attendance. According to a local newspaper report the venue was the house of one Mohammad Jamil, a retired Levies subedar in Bilandkhel area.

The same report states the talks revolved around two points; first, extending the ceasefire between the government and Tehrik-e-Taliban Pakistan and second, release of detainees who may technically be deemed as ‘non-combatants’. All this leaving aside, for the time being the ethical question as to whether or not talks should be held with those who have committed crimes against the state.

Let us examine the situation at hand and where it can go from here.

First, the government must have a blueprint of its own objectives and advantages to be extracted from the talks. There is a difference between walking into negotiations with no point-by-point objectives, going with the tide so to speak and going in with clear cut objectives. In the former scenario, the situation is fluid and the government committee may end up appeasing the militants rather than gaining much in return and in the latter situation the government can contain terrorism.

Terrorism by the non-state actors has impacted the society causing great loss to lives having a cascading negative effect on the economy of the country. Pakistan must focus on developing its economy, on restoring sustained power at both domestic and industrial levels among myriad other issues – including terrorism. The causes that provide a fertile breeding ground to terrorism can no longer be brushed under the carpet and must be dealt with a firm hand.

Second, the government committee must bring in a broader picture into the talks if any agreement has to sustain over a period of time. Releasing prisoners and extending ceasefire though can be a start, a beginning at best, but nothing more. This too must be agreed to and acted upon only if certain understanding on broader issues is reached first. Should this not happen, once these short term steps are taken, Pakistan may well be back to square one.

The government must aim first towards a permanent end to terrorism by the militant outfits. Now, if some outfits support the peace talks and adhere to refrain from terrorist activities while others continue with the terrorist activities it not only sabotages the process but also raises the question on the authority the Tehrik-e-Taliban Pakistan committee members’ exercises over other splinter organizations. What must be clearly laid out is that if TTP committee has entered into talks with the government they must squarely accept the responsibility for any deviants and must deal with them with a very strong hand themselves while providing conclusive proof that it was so done, in order to build up a confidence level with the government.

 

Of course, the possibility that peace talks are being used by TTP to gain time till the regional geopolitics is clearer cannot be ignored. In which case, you just need to trash this piece!

 

Can the TTP commit on a permanent basis that these militants will never use the weapons against Pakistan and her innocent people who have been the victims of hate? Can the government convince the militants to lay down their arms? Who then will ‘hold’ these arms? Will they be turned in? Will they be retained by TTP leader(s)? These questions are of paramount importance in practical terms. These also define the long term thought process of the TTP.

Will the government in these talks be looking at complete outfits’ numbers in different areas and developing a programme to induct them into the mainstream? If not, what are these members supposed to do even if a ceasefire on some permanent basis is achieved? What is their future – a standby army, too tempting for vested interests not to use it at some point in time?

The government must also determine in its objective plan, what exactly it plans to give away in exchange for peace on a permanent basis. If the TTP and its affiliates want an agreement to secure peace inside and outside Pakistan, they will demand their pound of flesh. What exactly is that pound of flesh? Can the government afford to deliver? If it can deliver, what guarantee will the government ask for, so that the promise will be kept? This is a loaded question however you may look at it.

Of course, the possibility that peace talks are being used by TTP to gain time till the regional geopolitics is clearer cannot be ignored. In which case you just need to trash this piece!

Coming to the two points discussed in the maiden meeting, the TTP members’ committee has demanded that the government is allegedly holding 400 members of theirs as captive while refusing to release sons of both (former) PM Gilani and (late) governor SalmanTaseer. The government needs to put together a complete list of all (if any) abducted and put it on the table, not just two.

In a more recent development, Chaudhry Nisar has chaired Taliban and government committee meeting. Chief of Jamiat Ulema-e-Islam-Sami (JUI-S) and head of the Taliban negotiation committee, Maulana Samiul Haq is quoted by a local newspaper, “the agenda for the next round of direct talks with the Taliban will be worked out after the government makes its stance public… The Interior Minister has sought some time,” he told the mediamen.”

In any negotiation, there are minimum two parties involved. Each must give some and take some. No negotiation of any nature can be one-sided. Definition of negotiation is, “to deal or bargain with another or others, as in the preparation of a treaty or contract or in preliminaries to a business deal.” In any given treaty, contract or bargain, it is unreasonable to expect that interests of one party should be completely ignored at the expense of the other party.

Ram Dassa, known spiritual person of USA, said about negotiations, “We’re fascinated by the words – but where we meet is in the silence behind them.”

Tailpiece:

“Investigations into the March 3 Islamabad Judicial Complex attack that killed ten people and the March 21 twin bombings in Peshawar that killed 20 people have concluded that these assaults were ordered by the TTP top brass which were then planned and executed by four Taliban commanders – Qari Mansoor and Mufti Hasan from the Mohmand Agency, Hafiz Daulat from the Orakzai Agency and Abdullah from the Khyber Agency. According to well-informed sources in security agencies, those investigating the three terrorist attacks (claimed by the little known Ahrarul Hind) have been able to collect credible evidence which shows that these assaults had been ordered by none other than the fugitive TTP ameer Mullah Fazlullah in a bid to further erode the authority of the government especially at a time when it was holding talks with the Taliban.” (Published March 28, 2014)

This is a cross post from: http://www.pakistantoday.com.pk/2014/03/31/comment/roadmap-of-talks-with-taliban/