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Posts Tagged ‘Parvez Musharraf’

From the Forgotten Archives: Question Mark for Judiciary, Army & Media

11 Apr


This article was posted on the website of The South Asia Tribune (Issue No 54, August 10-16, 2003). SAT was a web news portal run and edited by Mr Shaheen Sehbai, now Group Editor of the Jang Group, who was at daggers drawn with Musharraf led army at that point in time. So fierce were his writings that he had to flee the country and take refuge in USA. Many suspect, that he did it to get green card for him and family. Once he got the much wanted green cards, threat to his life suddenly ended and he came back during same Musharraf regime and joined ARY TV. 

This strange turn of events aside, Mr. Sehbai ran this web portal for quite some time and shut it down just before returning to Pakistan. South Asia Tribune gave space to many right wing journalists who have been traditionally pro-establishment, pro-army and anti India. The news character SAT displayed on web coincided with first and third variable, i.e., pro-establishment and anti-India, but strangely enough, like all other traditional proponents of army, (e.g., Shirin Mazari, Naseem Zehra, Roedad Khan, Hameed Gul, etc) Mr Sehbai also followed the same course. 

On SAT's masthead, it was claimed that its a web Newspaper for investigative reporting. Probably that was the reason why an extreme right wing reporter Ansar Abbasi was groomed by it and used to be given quite a handsome space. Many former army officers including Mr A. H. Amin, the author of the following post, were also among those who came up with many "investigative" reports in those days, religiously being posted on SAT. The interesting thing was, majority of these "investigative" reports did not mention verifiable source or authentic references / citations. 

Although following story does not tell us anything about basic information like who filed the petition, who're the judges, it carries host of un-verified information about strongest most institution of Pakistan – the Army. Please be reminded, this was 2003 and Musharraf was all there without any potential and overt challenge from civil society, establishment, political sphere, judiciary and army itself. 

My question from Mr Nawaz Sharif and an independence judiciary is, will they call for an inquiry into this? Will the petition (if there's any) be taken up afresh? And if the charges are false, will Mr Sehbai and / or the author be tried for spreading false propaganda against the armed forces? 

People want to know sires, will you please answer?

 

 

 

By A.H. Amin

ISLAMABAD: The Lahore High Court in Pakistan is facing a legal and a practical dilemma: What to do with the petition which charge sheets the Pakistan Armed forces and lists details of massive kickbacks and corruption done by Generals, Air Marshals and Admirals.

The petition has been filed by a lawyer in public interest but its contents are so explosive, the High Court Judges cannot touch it. The LHC, under tremendous pressure of the Army regime, is almost helpless in even admitting or hearing the petition, let alone give a verdict against the Army.

The main charges mentioned in the petition include:

- Air Chief Marshal Abbas Khattak (retired) had received Rs180 million as kickbacks in the purchase of 40 old Mirage fighters

- Air Chief Marshal, Farooq Feroz Khan was suspected of receiving a five per cent commission on the purchase of 40 F-7 planes worth $271 million

- In 1996, the Army bought 1,047 GS-90s jeeps, at a cost of $20,889 per unit. The market value of a jeep then was only $13,000. According to the National Accountability Bureau (NAB), Pakistan’s main accountability organization, some senior Army officers made Rs. 510 million in the deal.

- One hundred and eleven Army men got 400 plots in Bahawalpur and Rahimyar Khan districts at throwaway prices, paying Rs. 47.50 per kanal (1/8th of a acre) as against the actual price of Rs15,000 to Rs20,000 (1US$=Rs. 56). Another 35,000 kanals were distributed among them.

- Six respondents got 400 kanals in the Punjab while former NAB chairman Lt. Gen Mohammad Amjad was allotted a two-kanal plot on the Sarwar Road in Lahore for just Rs. 800,000 – payable in installments over 20 years. The market value of this plot was Rs. 20 million.

- General Pervez Musharraf acquired a commercial plot worth Rs 20 million at DHA in Lahore for just Rs. 100,000, payable in 20 years. "As mentioned in the report of defense services director-general, a loss of Rs 5 billion was incurred due to such allotments."

- The Army awarded a contract for the purchase of 1,000 Hino trucks at $40,000 per unit while the local Gandhara Industries had offered trucks of the same specification for $25,000 a piece. In the purchase of 3,000 Land Rover jeeps in 1995, Army officials allegedly received around Rs. 2 billion as kickbacks.

- The Army management at WAPDA raised the power tariff 13 times during the last three years besides purchasing electric meters at Rs. 1,050 a piece against the open market price of Rs. 456, causing a loss of Rs 1.65 billion to the national exchequer.

- A former military regime sold the Pak-Saudi Fertilizers for Rs. 7 billion and earned a Rs 2 billion commission on the deal.

- In 1996, the Pakistan Navy spent Rs. 13 million on installing air-conditioners at the Islamabad Golf Club without any justification.

Apart from this petition some other major scams involving serving or ex members of the military junta are as follows:

- Ex Army chief General Jahangir Karamat took kickbacks of more than US$ 20 Million from Ukrainian tank company for purchase of 300 Ukrainian tanks for Pakistan Army through a middleman named as Colonel Mahmood , a brother tank corps officer of Karamat . Former Prime Minister Nawaz Sharif sent the present chief of the WAPDA Major General Zulfiqar, then serving in ISI, to Ukraine and Azerbaijan to investigate the scam.

- General Zulfiqar compiled a complete report of the transaction and the bribes given. But the Army tried to buy him out by rewarding him with the post of WAPDA Chairman and promoting him to the rank of a three star General. The then Army Chief, General Jahangir Karamat was forced to resign, based on the threat that if he did not, he would be charged for corruption.

- Many road contracts were given to a firm Hasnain Construction company without any public tenders by the recently removed Railways and Communication minister General Qazi. The company, owned by a relative of General Pervez Musharraf’s son, was also awarded the lease of a lucrative real estate in Lahore for construction of a Golf Course under frontmanship of Palm Country Golf Club, Singapore. The relative of General Musharraf admitted publicly that he was working for a commission to use his contacts and influence for the company.

- Prime commercial land developed in Defence Housing Authority Karachi was leased at dirt heap rates to McDonalds operated by Amin Lakhani by the then Corps Commander, Karachi Lt. General Afzal Janjua.

- The Army’s coercive organ NAB struck various under the table deals with various individuals accused of high profile economic crimes in addition to arm twisting NAB defaulters, into joining the present government. These include the present Prime Minister Zafarullah Jamali and at least one fourth of all elected legislators.

Where does the military virtue of a defense outfit stand in these circumstances? Is 2003 not a year fit to publish its obituary? Our military virtue died, trampled below the treacherous wheels of overpriced military trucks and overpriced Chinese aircraft and defective Atlantique planes that crash in our waters because of dubious maintenance.

Yes all this has served one important development purpose. Sons of ex-subedars, ex-clerks and ex-assistant political agents have done well, climbing from relatively simple life styles to grand luxuries propelled by phenomenal assets. All came to clean the Augean stables and all departed richer. The only exception was General Yahya Khan who whatever his drawbacks at least did not have the mind of a petty shop keeper.

Clausewitz, the great philosopher of war described “Military Virtue” of an Army as the corporate spirit which forms the bond between bravery, enthusiasm and espirit de corps. Clausewitz further defined military virtue as a quality which drives an Army in a similar way as genius makes a military commander illustrious.

Military virtue in words of Clausewitz could be generated in two ways, i.e. by a succession of military campaigns and victories or by military training activity carried to the highest pitch. The more a general demanded of his troops in terms of dedicated military activity in peace, the surer he would be that his demands in war would be properly answered. In short military virtue is the fuel that is supposed to drive an Army in war.

With the above premise in mind and keeping in view our present history it can be safely concluded that military virtue of thePakistan Army as an institution witnessed erosion from 1958 once the party started that made sons of Risaldar majors and Assistant Political Agents progress into industrial tycoons. It was a joy ride. Men who had one green suit to wear, in the words of General Tajammul, became the tycoons of Pakistan. It was the beginning of prosperity for few and the beginning of the end of military virtue of a previously Spartan and clean military machine.

The second military junta of Pakistan was led by the only Army chief not from humble background and this ensured that the Pakistan Army was kept away from cheap consumerism and avaricious lust for real estate.

The second great dinner party started in 1979 when thanks to Soviet invasion of Afghanistan a heaven-sent opportunity arrived in shape of US military aid for the third military junta of Pakistan. Stingers were flown in by the big daddy for the obedient son and these were sold in the open market by silent soldiers. Thus new business empires were created. The Zia junta as a whole did roaring business and the result is that at least four major tycoons of Pakistan today including present commerce minister have direct links with the Zia junta.

Where does building 90 acres of a welfare colony known as Creek City with the cheapest shack for Rs. 6 million fit in? Did the military junta begin the occupation for such sublime purposes in 1958 or 1999? Where does developing 62 acres of land in prime commercial real estate in Islamabad fit in? Is this the business of a Navy that was miserably shut up in a mouse hole in Karachi Port in 1971 War? True that kickback may have been taken, but at least Admiral Mansur bought a good submarine for the Navy. But for whose welfare is the Navy undertaking a project 1500 kilometers from the nearest sea?

What began as an idealistic journey ends with the shady deals around creeks in Karachi which the Navy failed to defend in 1971 and a military junta which wants to rule this country for eternity.

And in this messy situation, the subservient Lahore High Court has been asked to sit on judgment with the sprawling mountains of charges, some even admitted publicly by the Army. God help the poor Mr. Justices of the superior court.

The writer is a retired Pakistan Army Officer and a Defence Analyst who has written a number of books on defence and security matters.

 

 
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Posted in Looking Back

 

2nd Instalment of Truth – NRO Actually!

21 Mar

nro3This is in continuation of my earlier post on NRO, posted on November 7, 2009. We were trying to learn about this Ordinance clause by clause. So far we have examined Section II and saw that a major amendment in Criminal Procedures Code could well be used to control the damage (if any), if the federal and provincial governments want. We’ll now move on to next sections.

Section III of the Ordinance adds up a new subsection to section 39 of the Representation of People Act (RPA) of 1976. The RPA has been amended many times after its promulgation in 1976. The latest amendment came in 2008. The said Section 39 of the RPA deals with the consolidation of election results. It previously had six subsections. The seventh subsection thus added involved immediate providence of the election results by the returning officer, to the contesting candidates and their election agents who are present during the consolidation process. It is provided that the returning officer will provide them the copy of the result of the count sent to the Election Commission. It must be noted here that all political parties agree that this amendment to the RPA 1976 is beneficial for the electoral process and its free, fair and transparent holding.

Sections IV and V of NRO can be read clubbed together for better comprehension. Both of these sections provide that no member of the Parliament or of Provincial Assemblies could be arrested in a NAB related case unless recommended by Special Parliamentary Committee on Ethics. These sections also provide that such Committees on Ethics will be constituted in Senate and in National / Provincial Assemblies, having equal representation of opposition and ruling party members. The members of these Ethic Committees will be appointed by the Speaker(s) National / Provincial Assemblies / Chairman Senate as recommended by the Leader(s) of House(s) and Leader(s) of the Opposition. There will be 8 members in each of these committees and a chairperson.

Moreover, both of these sections actually make amendment to already existing National Accountability Ordinance of 1999. Under Section 31-C of the NAO, the officers of banks and financial institutions who might be charged for appropriation and right off/ waiver of loans etc, under NAB, were given protection. These two sections of NRO (Section 4 and 5) actually extend this protection to the elected representatives of people.

The protection given to the bank officers under NAO 1999 provides for the NAB to not arrest any such accused unless a formal approval is given by the Governor State Bank of Pakistan. Similarly, if some officers / other persons associated with NAB investigations are accused of hampering such proceedings, s/he will not be charged with out the sanction of a Committee headed by NAB Chairperson.

In the presence of such a protection for the bank / government officers that already existed in the form of NAO 1999, the temporary protection given to the elected representatives of people doesn’t seem a big deal. Further, this protection seems to be given to curtail political victimization of the opposition members by any sitting government. This provision, negotiated by PPP with the then military ruler, seems to be in accordance with Charter of Democracy agreed between PPP and PML-N according to which, no political victimization will be done against each other. It seems that CoD was being formally institutionalized when this very clause was being negotiated.

It must be mentioned here, that a special meeting of Parliamentary Committee on law and Justice was convened on October 31, 2009 under the Chairpersonship of Begum Nasim Akhtar Chaudhry who is member of National Assembly from ruling PPP. The said Committee comprises 16 members including the Chairperson, 4 members from PML-N, one from MQM, 3 from PML-Q. That makes one chairperson, 7 members from PPP while total 8 members from other parties. This Committee discussed the Ordinance clause be clause and approved with simple majority.

Strangely enough, all major parties i.e., PPP, PML-N and PML-Q unanimously agreed to scrap these two sections of NRO. Should we think that all the parties agree to carry on with political victimization of each other?

Section VI of NRO provides for a new sub-section in Section 31 (A) of National Accountability Ordinance 1999. This new section says that any judgement of the court passed in the absence of the accused, would be void and should not be complied with. This Section was specifically added for the benefit of Mian Nawaz Sharif and Mohtarma Benazir Bhutto – two main leaders of major political parties who were thrown out of the political arena in Pakistan. This clause also seems to be an outcome of Charter of Democracy. In the absence of PML-N from the entire discussions of NRO with the General, PPP and MQM negotiated this clause, to the clear benefit of Mian Nawaz Sharif and Mohtarma. This is the section which made it possible for Mian Nawaz Sharif to stage a comeback.

Section VII , the last of NRO, provides for the withdrawal of all the cases against the holders of public offices, which were initiated by the Federal Government prior to October 12, 1999. These cases will only include the pending cases, and not the cases in which decisions have been finalized, or plea bargain has been settled by NAB. This also does not include cases related to cooperative societies and financial & investment companies, no matter if they are initiated prior to October 12, 1999.

Under this Section, protection is also provided to the NAB members & functionaries, federal, provincial and local governments and their functionaries against persecutions, on account of withdrawal of such cases.

It is very clear that all parties including PML-Q (including its Patriot members e.g., its Parliamentary Leader Faisal Saleh Hayat among many others), MQM, some members of PML-N and PPP are the beneficiaries of this section. It is also ironic that PML-N who is the biggest critic of this Ordinance, took active part in the Law & Justice Committee deliberations on NRO until Section 6. As soon as discussion started on Section 7, they staged a walk out. It may probably be due to the reason that the said section benefits only the mid level leaders of PML-N, and not the main leadership.

We’ll continue our discussion on NRO in the next instalment of truth, let’s assimilate this much first!


 

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Posted in Writings

 

Our Beloved Economic-Growth-Guy Moves on!

05 Mar

shortcutAnd the life moves on! But for some it moves on and on upwards no matter whatever happens to those they had ruled. When our self righteous media and civil society shrieks against the corruption committed over a decade ago followed by a decade of imprisonment by the accused, our eyes are closely shut for people who have recently looted us of our money and future, usurped power from the people with gun power and stuffed their personal kitty to bursting level.

Yes this is about the secular (still Taliban-grower) former president who came to power as a result of his bloodless coup in 1999, and who is enjoying his life in the expanse of his posh bungalow in London and touring glamorous capitals of the world for lecturing youth on democracy and war against terrorism.No one in our media, civil society and opposition parties is too sure about what to do with him and his glaring corruption. Our media jehadis do not have enough resources to dig out evidences of corruption against him. But yes, their “reliable sources” are always there to grant them (with out expecting anything in lieu) all documentary evidences on the corruption cases which have been confessed to be fraudulent even by those who registered them.

But here comes the scoop. Our master mind of Steel Mill case that won our chief adjudicator the inconvenience of March 9 in 2007, none other than our beloved economic-growth superman, Mr. Shaukat Aziz, has been recently hired by the Nigerian government. He, along with Malaysian economic giant, Mahatir Mohammad, have been engaged by the Nigerians to advice them economic boost strategies. Both of them have been, obviously, hired on very “reasonably cheap” price tags.

These days, if you ask our economic-growth-man, how’s Nigerian economy doing? You would hear an excited, “Its doing much better now”!

Maxim of one of our childhood bedtime stories used to be something, which can now be conveniently changed to, Price never hath a fall! Let’s carry on with our NRO bashing. After all, its very important to save our country from corruption, which will come to an end if NRO is bashed up and present government resigns. Yes sure!

 
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Posted in Readings

 

Why Punjab needs democracy?

14 Jan

 

Sometimes it is important to look back and see where we had been a while ago, where we wanted to go a while ago and where we were wrong? Baaghi starts this series of "Pakistan Diaries" in an attempt to do the same. Following is an Op-Ed column from the Dawn archives of 2007. Have a look on how were the apprehensions despite the hang over of a "successful movement by the people". 
 
(Dawn encounter, Oct 20, 2007)
By Abdul Khalique Junejo
 
PAKISTAN is undergoing a change, without any doubt, unprecedented in its 60 year existence. A change that is substantial, visible and irreversible. This change is affecting, and will continue to affect, the patterns of politics, the working and behaviour of the state and the overall development and conduct of Pakistani society. Symptoms of the change can be seen in the hard-earned freedom of press, new-found independence of judiciary and above all rejuvenated masses and their rekindled passion for politics and their enhanced awareness of and interest in state affairs.
 
Many would look for the causes of this change in the role of some individuals and credit different persons for this –– Nawaz Sharif, Pervez Musharaf or Iftikhar Muhammad Choudhry. Without denying the importance of the role of personalities in impacting the shape of things, the forces behind this profound change have also undergone a change in the recent past.
 
The past political movements didn’t bring about any significant change in the state apparatus or society as a whole because they were neither aimed at doing so, nor were they able to do so due to the composition and character of the people at the helm. All the earlier movements, barring one, were initiated and led by feudals and/or mullahs who are both intrinsically anti-progress and anti-change.
 
The anti-Ayub movement was an exception. The most important party in the lead of this movement was the Awami League, a well-organised political party, having its power base in East Bengal and dominated by middle class. Owing to its class character, it was bound to succeed in securing; dissolution of One Unit, one man-one vote and, above all, Pakistan’s only free and fair elections of 1970. Though the results of these elections, giving clear majority to Awami League, were not accepted by the rulers belonging to West Pakistan in the guise of military-mullah-feudal troika, but the resulting effects this ‘mass movement’ was bound to leave were beyond their control. If the people’s mandate had been allowed to prevail, the character of Pakistani state would have changed for ever in favour of democratic forces and for the overall good of society of the whole Pakistan. The troika’s refusal to accept the vote result resulted, however, in the independence of the people of East Bengal. The remaining ‘New Pakistan’ was handed over to the second major party (the PPP) which was heavily dominated by feudals and the opposition mainly comprised religious parties. Both felt quite satisfied with the status-quo.The PNA movement of 1977 against Z.A. Bhutto was dominated by one component of the troika; the mullah, while the MRD struggle of 1980s was led by another; the feudals. With due respect to the people who sacrificed or lost their lives, both these efforts were aimed at not changing the system but becoming active partners/collaborators. And the movements (rather their leaders) achieved what was desired; the moulvis became ministers in Zia-led martial law government and PPP of Benazir Bhutto cut a deal with the army to become junior partner. It may be said that there was only a change of face at the front. The system remained unchallenged and the organs of state representing this system remained unaffected and rather became stronger.

 
This time the situation is different. In the last quarter of the past century some changes of basic nature took place in the international arena as well as within Pakistani society which includes the information revolution and an emerging and asserting middle class. Changes in the socio-economic conditions gave birth to new forces that have, in turn, taken ahead the progress of society. That is what we are witnessing in Pakistan.
 
During the last eight years, most of the political parties—particularly those calling themselves ‘federal parties’—having vested interest in the prevalent dispensation cooperate with, even desire to be co-opted by, the incumbent regime. Amongst them, the PML-N has been less eager, reasons of which we shall examine later. The vacuum thus created was filled by the lawyer community.
 
The issue of Chief Justice Iftikhar Muhammad Chaudhri was a symptom rather than the cause of the change brewing in society and immediately became the rallying point. Civil society groups like teachers, doctors, trade unions, NGOs and journalists joined the movement which met an exemplary success. The political parties who ought to be agents of change failed, before and during this movement, to mobilize the masses. The reason is simple: people have started realising that these political parties dominated mostly by feudals and clerics only serve the status-quo.
 
Another factor distinguishing the earlier movements from the current one is the role of Punjab and its capital Lahore. Punjab is considered as the ‘power base’ of Pakistani state and the city of Lahore as its heart. During the last 60 years, it was always the establishment (Civil and Military bureaucracy) vs. the ‘others’ –– Bengalis, Balochs, Sindhis or Pakhtuns. Punjab stood firmly with the backing of the establishment, so much so that Punjab and establishment became synonymous. The nationalists always alleged that the government of Pakistan was there to serve the interests of Punjab in the name of ‘national interest’.
 
This time it is different. The movement of 2007 marks the beginning of a change in the roles of different actors, corresponding to the change in ground realities. Punjab, by virtue of its domination of the state, has acquired abundance of wealth and has reached a certain stage of development where it needs democracy.
 
Democracy can grow with the growth of capitalism. In 17th and 18th centuries, Europe, by virtue of its domination of the rest of the world, was able to collect, by any means, a huge amount of resources and wealth which paved the way for the development of capitalism and emergence of bourgeoisie /middle class. And the democracy was a natural corollary.
 
There is no gainsaying the fact that during 60 years of Pakistan’s life, it is Punjab alone that has progressed at a rate much faster than other provinces. In the last 30 years, it has taken big leaps to create new ground realities which gave birth to a sizable bourgeoisie/middle class. This class now desires more rapid progress and dreams to rub shoulders with its counterparts in the developing countries. To achieve this, it needs an open society, free trade with healthy competition, even licensing and other government facilities and a free media not only within the country but in neighbouring countries also.

To have all this, it needs democracy, though limited in some senses. On the other hand, the military has, over the time, developed its own vested interest in trade, industry and financial institutions so aptly described as ‘Mil-Bus’ by Aisha Siddiqua. To maintain its monopolist status, the military needs to sustain its domination of the state and prolong its sway over society. Hence, the current clash between the ruling military and the emerging bourgeoisie/middle class of Punjab. Since the PML-N is primarily a Punjab-based party and mainly represents this rising class, therefore its role in the current movement is a little bit different from the parties of feudals and clerics (as mentioned earlier) and since Lahore is the ‘heart’ of Punjab, so this time it is the ‘epicentre’.

 
One must keep two things in mind. First, the ongoing struggle and the class leading it are in the early stage of their existence. It will take some before they mature and, in the meantime, may suffer set-backs as was evidenced during Nawaz Sharif’s high-profile return. Second, since Pakistan is a multi-national country with different nationalities having different history, culture and development stage of their societies.
 
So, here the struggle for democracy would be long and complex. Even, there is a view that national question is the biggest and foremost question of democracy.

 
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Posted in Readings

 

NRO Actually! (1st Instalment of Truth)

07 Nov

NRO collage aBefore I write something about my own personal take on NRO and its legitimacy, I would like to analyze what it actually is and what it is about. While we hear a lot about in the media (generally biased against one party or the other), it is all the more necessary to look into what this word NRO means, what document it is and what it means to the politics in Pakistan. Since the writing could take many pages, and I’m doing it in detail clause by clause, I think we should make it easier for the reader to grasp the information in easiest possible way.

I would apologize from my lawyer friends for not writing this piece in a way they are used to read legislations in. And it is mainly because this piece is intended to serve lay people instead of technical professionals in the field of law. I would try my best to refrain from the legal jargon as far as it is possible. Even then, if there’s something beyond the understanding of a common person (me included), I would request the reader to kindly bring it in the comments so that we could collectively try to understand it. For the purpose of making the continuity easy, I’m calling these pieces “Instalments of Truth”, and this is the first instalment!

I often hear and read comments by lay-persons, saying that NRO was “signed” by Mohtarma Benazir Bhutto. Now, here’s where the folly lies! NRO is an abbreviated form of National Reconciliation Ordinance 2007, which is a piece of legislation. Legislation, as we all know, is a forte of the parliament in a parliamentary democracy like Pakistan. Pakistan, like many other nation satates, follows West Minster style of parliamentary system (UK, India, Australia, Canada to name few of the parliaments that follow West Minster). There is a corresponding system of government, commonly called Jeffersonian Parliaments, commonly called Presidential form of government (mainly USA). In a West Minster style parliamentary system like the one followed by Pakistan, President is the ceremonial head of the state, who has limited role in legislation.

According to the powers conferred upon the president, by the Constitution of Pakistan 1973, the President can issue an Ordinance as a piece of legislation when the Parliament is not sitting. Exercising the same power, General (now retired) Pervaiz Musharraf issued an ordinance called National Reconciliation Ordinance 2007, commonly known as NRO. Since it was an Ordinance, it was signed by the President of Pakistan, not by any political party sitting outside the government at that point in time. It is however, debatable, how this ordinance came into being. Without getting into the details of its origin for the time being, we’d go to what it says. The readers can refer to the original text of the NRO wherever s/he deems necessary, which I’ve already put on one of my blogs under the link: http://marvi-sirmed.blogspot.com/2009/10/national-reconciliation-ordinance-2007.html

The Ordinance has seven distinct Sections. Section I deals with the title of the Ordinance as is the usual practice of drafting a legislation.

Section II deals with an amendment in the Criminal Procedures Code (CrPC), which has been there since 1898. This Section of NRO amends section 494 of the CrPC, which empowered only the Prosecutor Generals to withdraw pending Criminal cases. After the amendment introduced by NRO, the Boards at Federal and Provincial Levels could be constituted to review the cases pending from 1st January 1986 to 12 October 1999.  These Boards will see if the accused persons in these cases have been falsely involved in these cases on politically motivated reasons. In this case, the Review Boards thus created, can recommend withdrawal of cases to the respected governments.

These Review Boards would be of two types: Provincial and Federal. The Provincial Boards will be chaired by respectable retired Judges of High Courts and will comprise Advocate General / Prosecutor General and the Provincial Law Secretaries. The Federal Board will be chaired by a retired judge of the Supreme Court and will have Attorney General and Federal Law Secretary as its member, while both of these Boards would be appointed by federal and provincial governments as the case may be.

It is noteworthy here that NRO does not bind the federal and provincial governments to act upon the recommendations of the Review Boards. So, if any of the government doesn’t want to withdraw any of the cases, there’s no binding on them to comply with the Boards’ recommendations. In other words, the status of the Boards is recommendatory, not obligatory. It should also be noted here that this particular clause was included on the insistence of MQM, who was part of discussions made on such legislation. The dates mentioned in this section provide cover to the criminal cases made on MQM during the period from 1986 to 1999.

 
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Posted in Writings

 

The Octagon of Governance

10 Sep

Published on March 4, 2007


Amid various international country ranking reports where Pakistan is fast approaching the victory stand of corruption, terrorism, lack of accountability, transparency and rule of law despite being a front line state in war against terror, one is inclined to see the larger canvas of overall governance in the country.
The term governance is being increasingly used in the latest development literature, among development professionals and political analysts all over the world. The gospel of governance, in simple terms, is the way where certain decisions are taken (or not taken) and implemented (or not implemented) to manage a society’s political, economic and social affairs. The onus of all the evils of a society is conveniently put on bad governance. Major donors and international financial institutions are basing their loaning and aid strategies in developing countries on the demand from the respective governments for a broader reform agenda ensuring good governance. In the presence of these “chaperons” for good governance, one can still see all the elements that contribute to the worst form of governance in the entire developing generally and in Pakistan particularly.
It becomes imperative to have a closer look at the term and its components in order to discern Pakistan’s performance on this pitch. Good governance, as the Governance Matters Report 2005 of our financial Vatican – the World Bank – warns us, has eight important elements: accountability, transparency, participation, responsiveness, effectiveness & efficiency, inclusiveness, stability and last but not least, rule of law. A steady performance and progress on these eight indicators would make the octagon of governance look balanced and poised.
Accountability – a self explanatory but largely misunderstood and abused term in Pakistan’s context – is a measure of the degree to which people are able to participate in selecting their government, have freedoms of expression and association alongside a free media. The need of making public officials and people’s representatives answerable for government behavior to the entity from which they derive authority can not be overemphasized. In countries with established democratic ethos and strong egalitarian roots, the accountability is ensured by audit covenants at one level and broadly elected legislatures and narrowly conceived committees etc at another. In Pakistan a simulation of democracy is doing the trick. Pakistan’s percentile rank (0 to 100) for accountability in governance among world’s largest populated twenty countries was 12.6 in 2005. Pakistan was fourth country from bottom, while China and Vietnam stood at the base of accountability pyramid. In South Asia, Pakistan was ranked second last among eight countries in 2005. The least accountable governance was carried by Afghanistan.
Transparency, correlated to accountability explains the accessibility of general public to information and government rules, regulations, procedures and decisions. The difficulty with ensuring transparency is that public access to information might very easily be restricted by the same authority that is responsible for providing that information. So, it is crucial to give the freedom of information a legal and legislative cover. Pakistan, having a scarcely envisioned Freedom of Information Act (which never saw itself explored by the parliamentarians on the floor of the House), is not displaying a pleasing picture on this front. With a country average of 16.1, Pakistan stands at the third least transparent country in its governance practices, rules, regulations etc. among South Asian countries closely beating Bangladesh and Afghanistan with country averages of 15.2 and 10.3 respectively. Maldives secures its place as the most transparent country with very tight regulatory framework among eight South Asian countries having a country average for transparency at 66.2 in 2005.
As far as government effectiveness is concerned, it’s a bit tricky to comprehend the concept and its relevance to good governance. As per definition accepted by most international governance assessment institutions, it measures the quality of civil and public service and degree to which both these services are independent from political pressures. It also gauges the quality of policy formulation and process of its implementation along with credibility of government’s commitment to such policies. Pakistan stands at fifth position among eight South Asian countries having a country average for effectiveness of 34 as opposed to Bhutan at number one with 64.6, India at number three with country average of 51.7, Nepal at number seven with 14.3 and Afghanistan at number eight with country average of 9.1. It demonstrates a devious kaleidoscope of political activity related to government effectiveness. Countries like Bhutan and Maldives may show higher averages of government effectiveness on account of being governed by autocracy and / or oligarchy, which leaves little space for non-state actors to dissent government’s actions. Countries with stronger democratic values may show a mid level average like that of India where government’s effectiveness indicators may confront a potent civil society interference. Countries like Nepal for example may show a major diversion and stay at the bottom as far as effectiveness stats are concerned, in the presence of a strong people’s opposition to autocracy. That explains Pakistan’s comparatively higher average compared to other indicators!
Rule of law, an important cornerstone of governance in any country is the measure of the level of social agents’ confidence in and abiding by the rules of society in particular, the value of writ enforcement, the police, the judiciary and the likelihood of crime and violence (we may use the word terrorism complying with emerging international linguistics). Pakistan ranks sixth among eight South Asian countries with a country average at 24.2 compared with Bhutan at number one with 64.7, Maldives at number two at 60, India at number three with an average of 56.4, Sri Lanka at number four with 54.1, Nepal at number five with 25.1, Bangladesh with 19.8 and Afghanistan with 1.4 at numbers seven and eight respectively. A country with greater value for democracy and people’s voices may display foreign and domestic policies with greater mass acceptance. A factor that minimizes people’s concerns resultantly less violent attitudes, more people-friendly policies, greater political and social freedom and social safety nets. All contributing to a just and equitable society thus leading to rule of law.
Conceptually and rationally, all these elements of governance support and reinforce each other. Accountability is related to citizens participation in decision making processes, which in turn is linked to transparency, information openness, government responsiveness to people’s needs and concerns, government efficiency and predictable decision making of autonomous government agencies. Similarly, the transparency and accessibility can not be ensured with out legal frameworks to balance people’s right to information against governments’ right to confidentiality along side a wide institutional acceptance to accountability. Finally, a democratic system facilitates governments to take informed decisions, incorporate people’s interests and voices in policy formulation, a free media to act as autonomous watchdog that props predictable outcome of governance. It, therefore, appears to be an unmistakable reality that the flag of good governance can only be unfurled under the bright sunlight of democratic system. The octagon has to be perfectly figured if soft image of Pakistan is to be popularized!

 
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Two Courts, Why Not?

10 Sep

Published on: May 19, 2008

As the judicial imbroglio thickens the air between two coalition partners, the speculative analyses and predictions keep creeping through the op-ed columns and current affairs talk shows on umpteen TV channels in Pakistan. Whatever the analysts say, however serenity and reason PPP leadership tries to bring to the negotiating table, the fact remains that it’s not the dearth of solutions that is leading to uncertainty in reinstatement of judges, its lack of political commitment to do so. The solutions that have came up so far range from an executive order to a constitutional amendment or the act of Parliament. Considering the significant moves on the part of political movers and shakers, it is becoming all the more necessary to reach an upshot as soon as possible. The more time is spent on proving that every proposed way out has more cons than pros, the easier it would be for the anti democratic forces to draw the conclusion that no solution is possible for this political riddle.
The recent proposal, which was instantly denied by the Prime Minister, was that of establishment of two supreme courts. The idea perceptibly seems to be mala fide and an attempt to appease the lawyer / civil society pressure and placate a presidency that is shamelessly being lactated by the world powers. But at the same time, it deserves a serious thinking and analysis. The two Supreme Courts would mean a judicial system that allows the power of constitutional review to concentrate within a single judicial body. This proposal has a history of being in force in various countries of Western Europe alongside new democracies of Eastern Europe; and has displayed a widely accepted version of constitutional protection and control.
The presence of Constitutional courts gives rise to the anomalies of overlapping jurisdiction of Federal Constitutional Court and the supreme civil court, their absence critically contradicts with the principles of sovereignty of parliament and judicial review especially in democracies like Pakistan and India whose constitution remains a major source of this paradox. In India, where no Constitutional Court exists, the constitution has successfully fought back to be the supreme law of the land; in Pakistan, it still is a political instrument that every regime uses to consolidate its power. This fundamental difference in political cultures of both the countries makes them incomparable as far as judicial system is concerned. The emerging democracies in the European world, on the other hand, might offer an attractive judicial package to be replicated here in the backdrop of fierce battle between the state and the judiciary in Pakistan over last one year – a case much similar to postwar Germany when Bundesverfassungsgericht (Federal Constitutional Court) was established.
The German Constitutional Court had to encounter five branches of specialized courts already well established in the pre-Natzi tradition of German judiciary. The specialized courts had to overcome the failure of their immediate past, whereas, the Constitutional Court was offered a considerable chance of success by the climate of postwar reform. If in Pakistan, the existing Supreme Court takes on the jurisdiction of civil, criminal and administrative cases and a new Federal Constitutional Court is established with the mandate of constitutional interpretation, it is expected to correspond well with the democratic tradition of separation of power and centrality of constitution.
It should, however, be kept in mind that developing a commonly accepted model of cohabitation at the supreme judicial level will be extremely difficult and would require stronger political commitment from parliament, the existing Supreme Court as well as from other power players. The answer to fundamental question of distribution of judicial power between the two courts would largely depend on the intent of establishment of such bi-faceted judicial system that divorces American system of diffused judicial review. If the sole objective is to keep one single individual from heading the apex constitutional court, and limiting his power to civil and criminal suits, the new system may lack vision and design to sustain and might not produce popularly desired results.
The apprehensions of some experts, as reported in media over last few days, about the establishment of Constitutional Court in Pakistan weigh much lesser compared to the positives of it. If established on the following lines, the system can, by design, respond to most of the apprehensions:
1. The Federal Constitutional Court (FCC) should be structurally independent with respect to the Executive Branch and to the Supreme Court
2. The FCC should be mandated to develop the concept of direct applicability of the Constitution (including its guarantees of fundamental rights) and to impose that concept on other segments of the judicial branch.
3. Procedures of the constitutional complaints should be such designed that they should extend the applicability of complaints to all the situation involving conflicts with fundamental rights of individual liberty
4. The FCC, while preserving the last word in the wake of a controversy, should not claim a monopoly over application of the Constitution but, rather, should act as a coordinator of that process.
5. The FCC should be vested with the competence to review ordinary statutes and other legal regulations as well as to annul them in case of unconstitutionality or nonconformity with any international instrument to which Pakistan is a party. Such decisions of the FCC should be universally binding i.e., also binding on all other courts, including Supreme Court.
6. Each court (Higher and Supreme) while resolving an individual case should consider whether the statutory provisions based on which the judgment will be give, are in conformity of the constitution or not. In case of a doubt expressed by the complainant or the judge herself about the constitutionality of such provision, the judge should refer that issue to the FCC as a legal question. The decision of FCC should be binding on the other courts to be applied to the case(s).
7. The FCC’s composition should be such that all the provinces and other federating units are equally represented.
While smoothening public opinion on any set of judicial solutions, we need to keep in mind that present crisis has a hidden opportunity – the opportunity of making our judicial system more relevant to a parliamentary democracy and constitutionalism. Change is sometimes uneasy, but it surely bears the fruit of development. And the key to change is . . . let go of fear!

 
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