VIEW: Pakistan's options in Afghanistan —Shahid Ilyas

It seems that Pakistan's ability to sustain its support to the Afghan insurgents is very limited, and its chances of success almost nil. We have to find ways to safeguard our interests through more acceptable means

"Pakistan denies Afghanistan transit for Indian trucks," says a news report. "India to build Afghanistan's parliament house," says another report. "Pakistan's intelligence agency is directing Taliban attacks on western targets in Afghanistan," says yet another. "New Delhi has already invested $ 1.2 billion in roads, electrical lines and other infrastructure that is expected to hit $ 4 billion," another source states.

These are some of the news coming out of Afghanistan and this is the context in which Pakistan would like to befriend Afghanistan to the detriment of India. What conclusions can we draw from this? What is the logic put forward by Pakistan to convince Afghanistan that it should consider a serious friendship?

Pakistan believes that close friendship between India and Afghanistan is against its national interests. Therefore, the process of Afghan-Indian friendship has to be halted and reversed. Pakistan has two options to achieve its objectives. It could evolve a strategy that aims at forging brotherly relations with the Afghanistan we see today. This will necessitate some sincere help in Afghan stability and reconstruction. Secondly, it will necessitate a change in perceptions with regard to Afghan-Indian relations. This means the recognition of the fact that sovereign states have the right to choose their friends. If Afghanistan and India are interested in mutual friendship and cooperation, they have the sovereign right to do so, and no other actor has the right to sabotage that friendship. And, finally, Pakistan's wish to befriend Afghanistan will necessitate tangible measures on the part of the former that result in the birth of a genuine belief in Afghanistan, the US and India that it has stopped facilitating the ongoing insurgency in Afghanistan.

The second option available to Pakistan is to continue behaving in the way it has been alleged to have in its relations with Afghanistan. Pakistan is seen by Kabul, Washington and Delhi as the biggest hurdle in Afghanistan's peace and reconstruction. It is accused of funnelling support to the Afghan Taliban in their effort to topple the incumbent government in Kabul.

Pakistan's policy towards Afghanistan is determined by its fears about two factors, which are inter-related:

1. A stable Afghanistan, run by a secular government, is most likely to renew its claims over the territories between the Khyber Pass and River Indus, the area that is predominantly inhabited by ethnic Pakhtuns. This region was annexed by Britain during its empire in the subcontinent with the aim of making it a buffer — together with Afghanistan — between itself and the Russian empire. No Afghan government, including the Taliban, has ever recognised this area as constituting a legitimate part of Pakistan.

2. The second is the Indian involvement in Afghanistan, and its alleged support to the Baloch insurgency. Because of Pakistan's track record of fuelling insurgencies in parts of India, including Kashmir, the Pakistani establishment believes that India uses Afghanistan to support the different insurgencies on its soil.

The international community seems determined to make sure that Afghanistan emerges as a relatively stable country, its soil is not used for attacks on the West, and provision of basic services to its population. Towards that end, Afghanistan has made substantial progress. Road infrastructure has been built, schools and universities have been made functional, more than three-quarters of Afghans have access to health facilities, electricity has been provided to most urban centres, new hydroelectric power plants are being built and agriculture has been revived. Moreover, NATO has been working on training the Afghan security forces. According to the Long War Journal, as of December 2008, the Afghan National Army (ANA) stood at approximately 79,000 soldiers, 52,000 of whom were engaged in combat operations. During the spring and summer of 2008, the ANA led 62 percent of operations. According to the same journal, on September 10, 2008, the international community's Joint Coordination and Monitoring Board approved the increase of the ANA from 80,000 to 122,000 soldiers. With an additional 12,000 trainee, transient, hospitalised, and student personnel included, this accounts for a total strength of 134,000. This expansion project is currently underway and is going to be completed by the year 2013.

Apart from increasing the capacity of infrastructure and security forces, the US president has unequivocally stated that he was misunderstood regarding his Afghan strategy and his mention of the 'withdrawal' of US forces in 2011. Clear messages are propping up from US policy making circles, including the White House, State Department and the Pentagon, to the effect that the US did not mean complete withdrawal, rather it meant the beginning of a 'process' of withdrawal. The US government has also made clear that it intends to finish the job in Afghanistan before it contemplates a complete withdrawal. So, the question arises, what if President Obama declares the promised beginning of withdrawal by announcing that, say, 3,000 US troops will return home by the end of 2011 and another 1,200 by the year 2015? Will that not mean that he met his promise regarding the beginning of 'drawing down' of US troops? And make no mistake, this is precisely what the US intends to do. So we do not need to wait in the wings with our Taliban proxies for the US troops to withdraw to move in to establish the 'Islamic Caliphate of Afghanistan'.

And finally, how far are we economically and militarily strong to sustain support for our Taliban proxies in Afghanistan? Unfortunately, the Taliban (Punjabi Taliban included) are hitting the Pakistani state harder than they hit Afghanistan. With the increasing capacities of the Afghan security forces and the sustained support to and presence in Afghanistan of the international forces, the Taliban's capability to operate in Afghanistan is very limited. They are turning inward and are increasingly targeting the Pakistani state and society for its support to the war on terror.

It seems that Pakistan's ability to sustain its support to the Afghan insurgents is very limited, and its chances of success almost nil. We have to find ways to safeguard our interests through more acceptable means. The best way seems to be for Pakistan to recognise the ground realities in our region and make sincere efforts towards forging friendly relations with Afghanistan. This will entail recognition of the fact that a more stable and prosperous Afghanistan offers an opportunity to Pakistan to pursue its 'Durand Line case' with a more enlightened and progressive government in Kabul. The two countries, through diplomacy, should be in a position to find a solution to the issue that is acceptable to the people and governments of the two countries. A zero-sum game has already harmed the two countries tremendously.

The writer is a member of the Pakhtunkhwa Peace Forum and a freelance columnist hailing from Waziristan. He can be reached at ilyasakbarkhan@gmail.com

Source: http://www.dailytimes.com.pk/default.asp?page=2010\08\14\story_14-8-2010_pg3_4

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Talking is not a bad thing, but when it is done without the participation of those who are the subject of such talks, it will most likely result in a disaster

Pakistan’s political and military top brass will soon be in Washington for a ‘strategic dialogue’ with the US. Obviously, the main item on the agenda will be the prevailing situation in Pakhtunkhwa and Afghanistan. The US will convey its concerns regarding Pakistan’s role in the Taliban insurgency in Afghanistan and the growing grip of terrorists on Pakhtunkhwa and its spread to Lahore, Islamabad and Karachi. Pakistan will appraise its interlocutors about its concerns and ‘national interests’ in Afghanistan. It will mainly focus on airing its fears about the increasing cooperation between India and Afghanistan and will likely request a sustained supply of financial handouts and military equipment that the army so badly feels like having against its perceived enemy, India.

Talking is not a bad thing, but when it is done without the participation of those who are the subject of such talks, it will most likely result in a disaster. The Pakhtun and the turmoil on their lands — supposedly the theme of the dialogue — are reportedly not being represented in the upcoming Pak-US strategic dialogue. The delegation heading for the US does not include either the Pakhtunkhwa Milli Awami Party (PKMAP) led by Mahmud Khan Achakzai or the Awami National Party (ANP) led by Asfandyar Wali. These are the mainstream political parties of Pakhtunkhwa having a deep bearing on the events of their ethnic constituency. These parties represent the most influential and educated class of Pakhtun society. What benefit can a dialogue bring without the participation of the Pakhtun leadership and intelligentsia?

If indeed the purpose of the dialogue is the ongoing terrorism-related turmoil in Pakhtunkhwa, it can only be counterproductive without the participation of the Pakhtuns. Already, the prevailing thinking among them is that they are being ruled like a colony by the Punjab-dominated establishment in Rawalpindi-Islamabad. The Pakhtuns are increasingly complaining that the American opinion of them is formed by the establishment in Islamabad and Rawalpindi. They argue that under a well thought-out strategy, they are being presented to the world as terrorists through the media. The planned strategic dialogue without them will only reinforce their belief in their (perceived or real) exploitation by the bigger province. An added factor now will be that they will consider the US a co-culprit, responsible for their sufferings.

Pakhtun civil society was alarmed last month by Richard Holbrooke’s remarks that “almost every Pakhtun family has someone involved with the [Taliban] movement”. They believe that Holbrooke’s remarks represent the US government’s understanding of the Pakhtuns. A dialogue between the US and Pakistan without any Pakhtun representation will further deepen that belief and suspicion. Among the Pakhtun intelligentsia — and it represents the bulk of Pakhtun public opinion — there is a concern that this kind of moves can only incite a section of the Pakhtun youth to fight against the US and the Pakistani state on the Taliban side.

These concerns can only be addressed if the US assures them — through concrete actions — that it is their friend. These steps could include, among others, appointing someone as its representative to Afghanistan who knows the Taliban issue well. Mr Holbrooke certainly does not know the Taliban well if he thinks that every Pakhtun family has some links with the Taliban, without any consideration for those thousands of Pakhtun families who suffered, and are still suffering, at the hands of militants. If he does not understand the problem, how can he be expected to solve it? Second, the US should make sure that any negotiations that aim at discussing Pakhtunkhwa and its problems must include the genuine representatives of the Pakhtuns. The Pakhtuns are mainly represented by the ANP and the PKMAP. The latter currently has no representatives in parliament because of its boycott of the 2008 elections. However, it is a popular party of the Pakhtuns. Therefore, the leadership of these parties needs to be taken on board if any dialogue has to be successful.

Another move through which the US can assure the Pakhtuns of its friendship can be the disbursement of funds that the US Congress approves for the terrorist-affected areas directly to their representatives (the government of Pakhtunkhwa) in Peshawar. The representative government sitting in Peshawar knows better than anyone else where the funds could best be utilised in order to improve the lives of those who can join the Taliban anytime due to economic hardships.

The writer is a freelance columnist based in Waziristan. He can be reached at ilyasakbarkhan@gmail.com

Listen to the Pashtun By Zubair Torwali

The fact that Pashtuns living on both sides of the Durand Line are bearing the brunt of terrorism and the War on Terror is an obvious truth. As scapegoats for the last three decades, sometimes in the name of a ‘Jihad’ against the communist regime of the former USSR, sometimes in the name of strategic depth against contending neighbors, and now in the name of the so-called war on terror, the voices of the Pashtuns have not been adequately heard.

In this game the major players never bother about the actual people of the region. What has happened in the region, and what is happening now, is the result of the conflicting of agendas between the major players involved. In this mess, the neighbors of the Pashtun region – between the Oxus and the Indus – are as responsible as the big powers. Pakistan, India, Saudi Arabia, Iran, China, Russia and the USA all have their own plans for the region at the cost of the destruction and genocide of the Pashtuns. Specifically, these states have designs which are irreconcilable with each other. Pakistan has always wanted a dependent regime in Kabul, one which would have no connection with India. Iran and Saudi Arabia have colliding agendas in the region, mainly based on sectarian grounds. Similarly China and the USA have their designs as well. But the most regretful and astonishing aspect of this game is that these players have never regarded the Pashtun people of the region as human beings. On the contrary, they have tried to make these people mere scapegoats. The realization of this crucial game is now greatly felt by the Pashtun intelligentsia on either side of the Durand Line.

For the last two months this writer has been engaged in an online discussion with many of the Pashtun intelligentsia. The discussion covers topics from politics to the phenomenon of global jihad. In this article some of the main concerns are given.

First, the Pashtun see the famous policy of ‘strategic depth’ as a deep grave for the Pashtun people. They are not reluctant about expressing their conviction that the Punjabidominated establishment of Pakistan has made the Pashtun people scapegoats for the ‘survival’ of Pakistan. They contend that what is happening in the region after the withdrawal of the Soviet forces from Afghanistan in the late eighties has its roots in this “strategic depth policy”; and in this Pakistan has been helped by the Wahabi state of Saudi Arabia. To further this policy, they first produced the Mujahideen who were used against the Soviet Union. When this failed to achieve anything, the Taliban were installed in Afghanistan, who brought the peace of the graveyard into Afghanistan through the use of brute force against those who did not support themedieval version of Islam they wished to impose. Initially, the United States was happy with what was going on in Afghanistan, After 9/11, things took a serious turn. After the USA’s direct intervention in Afghanistan, the strategic depth policy dragged the war to the eastern side of the Durand Line and into the settled areas of the Pashtun population.

Second, the Pashtun intelligentsia sounds off on its grievances against the mainstream media, particularly in Pakistan. In spite of the brutality that the Taliban has inflicted upon women, children, the general public and the security forces, elements in the media still remain who support the militants and their version of jihad.

Besides that the media provide more space to pro-strategic depth and anti-Pashtun eleelements. People who spout the waging of jihad on neighbouring states are given extra space on the electronic media, whereas those who talk sense, keeping ground realities in view, are labeled as being treacherous or unpatriotic. Further, the media has continued to harp on issues for which it seems they are paid by some hidden forces. For example the media hype against the corruption of a single individual who happens to be the president of Pakistan. Thus the media ignores the core issues of security and Pashtun genocide.

No section of the media raise voices of protest against the banning of coverage during the South Waziristan operation. The talkshows, which mainly mould the opinions of viewers, do not give due space to the Pashtun scholars and leaders. Instead they often invite ‘analysts’ who do not even know the geography of the Federally Administered Tribal Areas (FATA) and the North West Frontier Province (NWFP). Thus the Pashtun intelligentsia has started to think this selective and exclusive approach in the mainstream media is a threat to the national integrity of Pakistan, thus ringing memories of the exclusion of Bengalis before the partition of Pakistan.

Thirdly, the drone attacks on the Al-Qaeda and Taliban hideouts of the in the Pakistani territory of FATA are seen by the Pashtuns not as an infringement of sovereignty but as a precise weapon which has to this date killed some of the top leaders of Al-Qaeda and Taliban. This hype in the name of sovereignty is an effort by the pro-Taliban segments of the media who want to protect them as strategic assets.

Fourth, the Pashtun intelligentsia is very sensitive about their identity issue. They think the North West Frontier Province should be given a specific name. They would like the province to be named Pukhtunkhwa, but a number of them also see Afghaniya as an applicable alternative.

These concerns and grievances are not baseless, since the Pashtun are the direct victims of terrorism and counter-terrorism. The Pakistani designers of foreign policy, the media and civil society need to listen to the Pashtun, as should the international community as well.

The writer is a freelance analyst and social activist based in Swat, Pakistan, and coordinates the Center for Educationand Development there. Email: ztorwali@gmail.com

The worst democracy is always better than the finest dictatorship: by: Zubair Torwali

Dear friends,

I would say that democracy has suffered long in this country. It must now be given a chance. The crooks in the infamous establishment never want it to flourish in Pakistan. Here I would again repeat the common saying that the worst democracy is always better than the finest dictatorship. Today I see those people who are now out of parliament-mainly due to their own whims-are at loggerheads with the democratic government. The president, certainly not from angels, has been made the main excuse to topple the democratic government. We cannot say that this democratic government is above ills. But it must be given the time to show its credibility. Only the people of Pakistan are sovereign, and they must be let hold their elected government accountable. The military and its proxies have no right to rush to stab the government.

Amidst many ills, the present democracy has performed far better than the previous 'dubious' government of the dictator. Take the example of the war against militancy. During the era of Musharraf hundreds of soldiers would be "kidnapped' or made 'hostages' by scores of Taliban in FATA. Then there were deals with them. In Swat the FM Mullah was deliberately left to haunt and hunt the people for a couple of years. The former phases of the military operation in Swat were like war games. This procrastination, rather covert support to the militants, forced the local people lose their trust in the state of Pakistan. This was the real cause of the people fear to raise against the militants. This game was going on in the valley. The dictator did not harness the militants for two reasons: the then NWFP government was helping the dictator clandestinely; and secondly the dictator was not willing to reign the militants in order to expose him indespensible to the West. Between these two mill stones of the dictator's policy the people were grinded. On the one hand Musharraf was 'apparently' fighting the militancy but on the other he was grooming them.

Now take the example of the democratic government. It has in its credit a number of achievements: for the first time a spurious operation was launched against the militants in Swat. Credit of this must be given to the ANP government of the province and the PPP government in the center. So far the February 2009 deal with the militants is concerned it was not by the government. It was done by the military establishment with the sole purpose of providing some safe haven to the endangered militancy in FATA. This was done. Many ANP leaders will not deny that they were then helpless before the military. I have many a talks shows on record where the provincial government has then shown their helplessness, though iimplicitly. The ANP government has tried to build pressure on the military. The ANP leader Asfandiyar was not in the US for a recreation tour. He was there to build the pressure on the powerful Trojan Horse (military establishment) to act decisively. Then came the SWA operation, though still doubtful to be successful yet a good start. Another great achievement, though many will deny, of the democratic government is the Kerry Lugar bill (now Act). The Act was not a product of a few days or weeks. The PPP is well aware that they cannot reign the military establishment until they do so by the very lords of it-the US. They negotiated the issue with the US and finally came with the bill which has the conditions of bringing the military under the civilian command in practice, too. A big chunk of the aid is for the development of institutions and development of the social sector. The military reacted on the bill and came up with its version of reservations. Nowhere in the world the military has a say in the political decision. It is Pakistan where the military can even make its concerns public by issuing statements to the media. The military in Pakistan has always tried to step into the shoes of the civilian government. It was also an achievement of the democratic government that it did not approve the NRO from the parliament. Think of a dictator what it would have done with the NRO. This monster was the product of a military dictatorship.

Now the establishment is hell bent to dethrone the democratic government with the help of media and judiciary. The number of the NRO beneficiaries is 8041. Among them only 34 are politicians, and yet all the shit is thrown upon them in the media; and even among them one person is most targeted-the president. What about the rest? There might have been some generals. But where have they fled. I am not a partisan political worker. But this is what I see. We have no choice other than to make our democratic institutions strong enough to lead the country further. Now we can see the establishment seems to have hired a number of politicians who are shot loose to malign the democratic government. This government needs to complete its tenure, whatever the case be.

Now a few sentences about the name: if the majority of the democratic government has decided to have Pushtookhaw/Pukhtunkhwa as the name for the province I should have no objection. And let me hope that the ethno-senstized government will give proper sapce for the preservation, promotion and recognition to the less indentified communities and their culture so as to enable me to confidently advocate their(the government) case. But as I told earlier that we, who call themselves enlightened civil society, should keep a check and balance on the government in order to enhance its performance so that we may not wheel in the vicious circle, rather to move forward. Otherwise the military establishment and its proxies will have their chance to drag us back into the stone age.

Thank you for bearing with me so long....

Zubair Torwali

analysis: Tormenting of the tribes —Farhat Taj

analysis: Tormenting of the tribes —Farhat Taj

The state interfered with the culture of FATA when alien jihadis from all over the world, armed with sophisticated weapons and money, were brought to the area. It was the state — not the FATA tribes — that raised armed militias and imposed them on FATA

This is in response to Rafia Zakaria’s article ‘The trouble with tribes’ (Daily Times, November 28, 2009). The writer compared the tribes of the Philippines and the Federally Administered Tribal Areas (FATA). I have no knowledge about the Philippines’ tribes, therefore, I would not write about them. I would challenge the fabricated notions that the writer attributed to the people of FATA.

It is not true that the state of Pakistan has had limited control over FATA. Being a resident of Pakhtunkhwa, including FATA, I have observed firsthand that the state had a good control over the area. I have seen people called out in the middle of the night by the state authorities because they hosted someone unwanted by the state. I have also seen that collective punishments were handed out to the entire families, even tribes, for the crimes of one person of the family/tribe. On the other hand, smugglers and criminals from all over Pakistan continue to live in peace in the area with covert or overt support of the state authorities. In short, no one could enter FATA if the state did not wish for his/her arrival in the area. This controlled and fabricated ‘weak’ state authority over FATA was by design by which the world and the wider Pakistani society were made to believe that FATA tribes are fiercely autonomous and hate integration in a modern state structure. This is because the area was made a strategic space by the state to be used against Afghanistan. Jihadis from all over the world were legally brought to the area and based there for onwards assaults in Afghanistan. The tribes of FATA were never even asked whether they wished for so many foreigners on their soil.

Ms Zakaria wrote, “In both cases, local tribes command militias or local armies of hundreds and sometimes thousands of people. The result has been an empowerment of local tribes and warlords leaving the local population completely helpless at their hands.” If the writer had a slight idea of the Pakhtun tribal culture, she would never have used the following words about the FATA tribes.

In FATA there is a centuries old tradition of jirga to maintain social order in the area, besides settlement of other issues. The jirga used to make or break armed lashkar of hundreds, even thousands of tribesmen, if necessary, for maintenance of order in the tribal society. The tradition survived because according to the scheme of things in the strategic depth, the FATA tribes were to be kept out of the integration in the legal structure of Pakistan. The institution of jirga used to peacefully resolve disputes between and within the tribes. The jirga would order the formation of an armed lashkar of the local villagers or tribesmen if a dispute could not be resolved peacefully. The jirga would order the dismemberment of the lashkar after a jirga decision had been enforced and the members of the lashkar would simply go home. Thus making and breaking of armed lashkars have been part of the culture of the FATA tribes and they never became a security problem for the local tribal people or wider society in Pakistan like the Taliban gangs now. Actually in FATA a strong institution of jirga is the permanent feature, not a lashkar. An armed lashkar is made by the jirga, if and when necessary. The tribes used to resolve most of the disputes peacefully. Rarely occasions for the formation of armed lashkars came about. Lashkars, whenever made, were fully under the control of the tribal jirga. Most importantly, these lashkars were made for local objectives within specific areas, often village or villages, within FATA. These lashkars never had a global, regional or even a national agenda. This is exactly what the Taliban embodies: a global jihadi agenda that they want to impose on the unwilling population in FATA and beyond.

The state interfered with the culture of FATA when alien jihadis from all over the world, armed with sophisticated weapons and money, were brought to the area. It was the state — not the FATA tribes — that raised armed militias and imposed them on FATA. These jihadi gangs had never been in control of the local tribes or their jirgas. This weakened the institution of the jirga but still it managed to control order in the tribal society. When the war erupted in Afghanistan after 9/11, al Qaeda terrorists ran into FATA, especially Waziristan, with the full blessing of the state and against the wishes of most people of Waziristan. When the tribal elders of Waziristan resisted their presence on their soil, the terrorists began to eliminate the entire tribal leadership through targeted killing. Over 600 tribal elders, teachers, doctors, government servants, both in service and retired, have been killed only in Waziristan with state collusion according the families of the assassinated people.

Today, the people of Waziristan, for example, inform that even terrorists from Waziristan are in minority in their own land. The majority, they say, is made by the Punjabi Taliban, the foreign terrorists and Pakhtuns from other areas. The same is the view of the people in other tribal areas in FATA. Thus the armed militias that the writer is referring to were never made by the local tribes, but by the state. The tribes never permanently had armed militias. They do not have any permanent armed militias even today. It is also pertinent to mention that international gangs of jihadis now occupying FATA have banned the institution of jirga and the tribal elders have been killed all over FATA.

Like people all over Pakistan, the people of FATA also have grievances against the state. But they never took up weapons against the state due to this and they are not doing so even now. The overwhelming majority of the local tribesmen do not back the international armed jihadi groups in FATA. The groups are occupying FATA and the people of FATA are sick and tired of them. The tribesmen of FATA who have joined those groups are seen as criminals by the vast majority of tribesmen and women and they want the state to kill them all along with the Punjabis and foreign terrorists — the Arabs, Uzbeks, Afghans, Africans and European, both ethnic and Muslim immigrants.

Any society in the world could have criminals. Why is it so difficult to understand that FATA tribes may also have their criminals? Since the institution of jirga has been weakened, it is now the responsibility of the Pakistan Army to kill those criminals.

I would request that writers refrain from justifying or explaining the crimes of the jihadi gangs in terms of grievances of the FATA tribes, because this is just not the expression of grievances of the tribesmen and women. Such pieces of writings are a source of torment to the suffering people of FATA because they mislead the world about the people of the area and thus contribute to the human tragedy in the area. Let’s request the state to crush the jihadis in line with the wishes of the people of FATA and give up the notion of strategic depth for good; the mad pursuit of which has brought death and destruction to FATA and beyond.

The writer is a research fellow at the Centre for Interdisciplinary Gender Research, University of Oslo and a member of Aryana Institute for Regional Research and Advocacy. She can be reached at bergen34@yahoo.com

Source: http://www.dailytimes.com.pk/default.asp?page=2009\12\26\story_26-12-2009_pg3_5

Undignified ‘Lordships’ at war against ‘People’s Will’ – Guest post by Ahmad Nadeem Gehla

The deterioration of judicial institutions which began with notorious judgment of Justice Munir touched its bottom when superior judiciary convicted ZA Bhutto – the elected Prime Minister of the country to death on directions of a dictator. One of the judges who signed the verdict has confessed that it was a ‘judicial murder’ and the case has since become a permanent source of shame and humiliation for the superior judiciary which turns in to embracement when cited before a court. The ‘puppets of establishment’ seated in court rooms, only loyal to rulers set new precedents of immorality and injustice with every passing day – as such, the justice has remained as an alien concept. In Pakistan, the dignity associated with being ‘Lordship’ suffered heavily when religious right wing judges handpicked by Military Dictator Zia-ul-Haq turned superior judiciary – the guardian of constitutional guarantees of people in to ‘slaughter house’ of justice. Superior judiciary became a tool for oppression in hands of a hypocrite dictator behind the veil of religion to victimize the journalists, left wing political workers, civil society activists and even progressive and liberal lawyers.

Whenever establishment overthrew the elected government in violation of constitution, these judges came forward to validate the unconstitutional actions and Mullah’s declared dictators as ‘holly warriors’. The notorious ‘Mullah-Military-Judges Alliance’ has been an effective weapon against the ‘will of the people’ – to oust the elected governments. The government of Benazir Bhutto was terminated twice by powerful intelligence agencies and military establishment while judiciary validated these acts under the notorious ‘doctrine of necessity’. Establishment which wanted to oust the liberal forces from politics started a campaign to malign the name of Benazir Bhutto, her husband Asif Ali Zardari and workers of her Pakistan People’s Party. False cases were registered against her and her family and same judiciary which killed her father also convicted her on directions of then Prime Minister Nawaz Sharaif. When the tapes of conservations between then head of notorious ‘National Accountability Bureau’ of Nawaz Sharif and the Judges of superior courts who convicted her became public, the three judges had to resign.

In 2001, Pervez Musharaf took over the power in a military coup, throwing an elected Prime Minister in prison. These ‘judicial brigade’ of military establishment not only provided the coup a ‘judicial cover’ but also granted dictator the power to single handedly amends the constitution. Once loyal to Nawaz Sharif, the same judiciary convicted him for life imprisonment and confiscated his property to prove their loyalty with the new master. However, these ‘custodian of constitution’ does not reacted when the dictator unconstitutionally pardon and exiled the convicted Nawaz Sharif and his family to Saudi Arabia on interference of head of a ‘friendly state’. Benazir Bhutto was not allowed to enter the country and her husband remained in prison for eleven long years in false cases which Nawaz Sharif and former Chairman of NAB Saifur Rehman, both have admitted to be registered on pressure of establishment. In 2007, Pervez Musharaf agreed to issue ‘National Reconciliation Ordinance’ to withdraw all politically motivated cases against leadership of political parties to facilitate their return to country. This is a recognized practice when any state has returned to democracy from dictatorship; withdrawal of the politically motivated cases is always the first step.

When Pervez Musharaf fired and detained the judges of superior courts, the Lawyer’s community reacted strongly on action of dictator but was never able to gather more than few thousand people. Soon civil society, media and political parties joined the protests. Pakistan People’s Party which always has been a victim of judiciary lost lives of more than 200 workers during protests and countless including present Prime Minister went to prison. Despite all pressure and protests they were unable to get a single judge released from detention or restored. As elected government took over the power, Prime Minister’s first order was for release of these detained judges, who kept him in prison for five years to please the dictator. When Asif Ali Zardari ousted Pervez Musharaf from presidential palace and got unanimously elected President, establishment decided to put a check on him in form of a right wing supported hostile Chief Justice who was angry for not getting restored.

The establishment started feeling uncomfortable when US offered $11 billion aid package for social development and conditioned military assistance with strengthening of democratic institutions and elimination of extremists. Supreme court of Pakistan took up the National reconciliation Ordinance for ‘judicial review’ to undermine the democratic government. Dr. Ayisha Sidddaqa, a scholar and civil society activist who was one of the most vocal supporters for restoration of judiciary declared the decision as, “But if a question is asked about whether the decision signifies the strengthening of the democratic process and civilian institutions, the answer must be in the negative. Since the perception regarding the decision is that it strengthens the armed forces and their ability to manipulate political stakeholders, it is not possible to see a major shift in the balance of power. The decision does coincide with the growing anger of the security establishment against the civilian government for becoming ‘too big for its boots.’ Given the friction between Islamabad and GHQ over the Kerry-Lugar law and other issues, the military is certainly coincidentally, if nothing else, a prime beneficiary of the Supreme Court decision. A humiliated president has lesser possibilities with which to tackle a rival institution”.

This has to be remembered that the law expired months earlier and Supreme Court has no power to give an ordinance a new life and send to parliament, only president can do so. Secondly the NRO law was purely a political arrangement and judiciary around the world avoids interfering in to political decisions. The exception taken in case of Richard Nixon for judicial review of political decisions where ‘demands for a fair trial and criminal justice outweighed the political question doctrine’ as ruled by a US Federal Court in is clearly missing in present exercise as President Zardari was available for trial under detention for over a decade without getting justice. Questions are also being raised as to why the Supreme Court ignored to pass orders against those who negotiated and issued the NRO law at the first place, present Army Chief being the chief negotiator as then head of ISI. This is also being argued that while President Zardari spent eleven years in prison as under trial accused being main target of proceedings, why no actions has been ordered against the judges of superior courts who failed to conclude his cases in such a long time on political pressure. Surprisingly, the allegations of misuse of office by Chief Justice himself to secure a government posting for his son has not been sent to NAB for investigation.

Since taking over power President Zardari has ordered action against Taliban militants making right wing Taliban apologists and spy agencies unhappy, who considers Taliban as an ‘asset’. Right wing religious parties like Jamat Islamami and PTI of Imran Khan, who both openly support Taliban militants, are celebrating the ‘historic judgment’. Qazi Hussein Ahmad, the head of pro Taliban JI has announced to ‘implement’ the order of Supreme Court through street power. Asima Jahangir, the United Nation’s Special Reporter on Human Rights, Chairperson of Human rights Commission of Pakistan and the most prominent supporter of restoration of judiciary, while commenting on judgment of SC declared it , “Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people”. While Supreme Court has ignored the doctrine of ‘past and closed transaction’ in deciding NRO, the same has not been applied to unconstitutional acts of mighty generals and judges of Superior Judiciary themselves. Also, the judgment delivered by the full strength of Supreme Court has closed all doors for appeal from aggrieved parties; most of them were condemned without a chance of being heard.

The case filed by former Air marshal Asghar Khan with proofs of misuse of public funds by ‘mighty generals’ to form notorious right wing political alliance IJI against PPP is pending without decision before same Supreme Court for past eighteen years. The legal experts are terming the judgment as ‘targeted justice’ on behest of right wing Mullah’s and military establishment. The confrontation started by pro-establishment and Taliban sympathizers backed judiciary is meant to pave way for rouge generals to overthrow the democratic government. The military establishment will then be able to manipulate the action against extremists, providing safe heavens to ‘Good Taliban’ to be used as an asset for purpose of notorious ‘strategic depth’ in Afghanistan. They would once again be able to direct national resources to develop ‘Defense Housing Societies’ and ‘Judges Colonies’, rather than providing education, healthcare and clean water facilities of 160 million deprived. We have to remember that in 1998, the richest four Generals in world were from Pakistan, who profited from ‘jihad enterprise’ of ‘mullah-military-judges’ trio on cost of democracy and civil liberties. A former ISI official has challenged the presidential immunity and his eligibility as not being ‘righteous’ under Article 62, 63 of Constitution. They judiciary is set to determine his ‘righteousness’ in defiance of ‘people’s will’, as the fact that President has been elected with a two third majority.

Judiciary is clearly playing the role of ‘hired assassin’ for establishment to paralyze the government in defiance of constitutional boundaries. The right wing Mullah’s, who are never able to get hold of power through popular vote are eying the ‘power sharing’ with military establishment and thus will able to implement ‘divine laws’. Their partner judiciary has already signaled to ‘judge’ all politicians under Articles 62, 63 of constitution, inserted by a dictator which requires the parliamentarians to be ‘righteous’. This is the time for liberal and democratic political parties in parliament to act and strike down the controversial Articles 62, 63 of Constitution inserted by a dictator along with other discriminatory provisions and make judges answerable before parliament. In democracy it is only ‘people’ who judge their representatives through the ballot and parliament should have the power to scrutinize the appointment and conduct of judges, amendment in constitution is need of time to prevent judicial coups against democratic governments. This is the time for civil society, liberal, democratic and progressive forces to join hand to save democratic process. If ‘Mullah-Military-Judges alliance’ is able to derail democracy, in name of ‘targeted accountability’ and ‘righteousness’ by ousting the liberal politicians, the Pakistan of future might be little different from Afghanistan of today. The situation is also a wakeup call for international community to support the democratic process in Pakistan, before greedy ‘mullah-military-judges alliance’ turns it in to another Somalia or Afghanistan.

VIEW: Political decisions and the judiciary —Ahmad Nadeem Gehla

"Superior courts around the world avoid interfering in political matters despite having jurisdiction over such issues under the ‘political question doctrine’. The purpose of this self-imposed restriction is to distinguish the role of the judiciary from those of the legislature and the executive."

A study of the transformation from military dictatorship to democracy around the world would reveal that there are two possible ways. Either it is achieved through a popular revolution or by negotiations between political forces and dictators. The former invariably demolishes the entire system and mostly involves bloodshed putting a new system in place while the latter allows the change to happen within the prevailing system based upon certain negotiated terms. These terms might not necessarily meet international laws and judicial norms, as it is always a middle path. The return of democracy in Pakistan after a long period of military dictatorship is a unique example of such ‘negotiated change’. The terms reached with the help of international power brokers and guarantors ensured withdrawal of politically motivated cases, return of the exiled leadership and shedding of the uniform by Pervez Musharraf in return for re-election. After the assassination of Benazir Bhutto, the international and domestic pressure became so immense that Pervez Musharraf not only had to accept the condition of fair elections but also had to negotiate for an exit in return for protection from prosecution for his unconstitutional actions. A civilian dictator might not get such a deal.

Another option available to the political forces at that time was to overthrow dictatorship by a popular revolution. Let us not forget that the world community would not allow a nuclear-armed nation to reach the point of a bloody revolution, especially when there are more chances of falling into a civil war hijacked by religious extremists than overthrowing a dictator. Without a negotiated change, howsoever popular a movement might be, it is not possible to remove a military-backed dictator without bloodshed. We have witnessed the return of Mian Nawaz Sharif from exile, who came back in violation of a deal reached on the guarantees of our ‘friends’ in the Middle East and was sent back on the next flight. Despite the promises of a million people’s reception by right wing parties, not a dozen were able to break the security arrangements and show up at the airport to receive their leader.

Unable to fight the powerful military establishment that has far more guns and tanks at its disposal, negotiating with it was the only option available to Benazir Bhutto. The much debated and controversial National Reconciliation Ordinance (NRO) promulgated by Musharraf paved the way for the return of Benazir Bhutto and later for Mian Nawaz Sharif. The cases withdrawn against Benazir Bhutto and her husband Asif Ali Zardari under the NRO were registered during the regime of Nawaz Sharif and remained unproved during the lengthy trial and detention of Asif Ali Zardai for eleven years. Both Mian Nawaz Sharif and Saifur Rehman, the former head of the National Accountability Bureau (NAB), have repeatedly confessed that these cases were false and were created on the behest of the establishment, which wanted to malign the name of Benazir Bhutto and her family.

This fact alone leaves no space for the political leadership to avoid its responsibility of revoking these politically motivated cases through parliamentary legislation. Mr Sharif and the MQM should have taken a bolder stand in parliament. However, the political leadership is trying to avoid its responsibility just to please the establishment, thus pushing the matter of the NRO to the superior judiciary to decide. Superior courts around the world avoid interfering in political matters despite having jurisdiction over such issues under the ‘political question doctrine’. The purpose of this self-imposed restriction is to distinguish the role of the judiciary from those of the legislature and the executive. Political questions include the ratification of constitutional amendments, conduct of foreign policy and administrative actions of governments. However, there is no rigid rule and a court might choose to go ahead in case the ‘demands for a fair trial and criminal justice outweighed the political question doctrine’ as ruled by a US Federal Court in the case of President Richard Nixon.

The exception set in the Nixon case is widely referred to and abused to neutralise political rivals in dictatorships and developing democracies where the establishments use the superior judiciary as a tool to further their own agendas. The superior judiciary in Pakistan has been a victim of this power game by dictators and the political leadership at the cost of its integrity and reputation. The judiciary has lost a lot in terms of legitimacy of its decisions while playing the power game — from the death sentence of ZA Bhutto being the worst and unrecoverable stigma on its face to providing a cover to the unconstitutional takeover of Pervez Musharraf. The same superior judiciary in office today miserably failed to dispense justice to Asif Ali Zardari for years and convicted Nawaz Sharif under the establishment’s pressure. With the restoration of the Chief Justice and sacked judges through a popular movement, the judiciary has won its independence but its impartiality is still to be tested. Should the judiciary once again be dragged to deliver political decisions while the political leadership lacks the courage to take a bold stand on its publically confessed mistakes of the past?

It might not be out of context to mention that the first prime minister of Pakistan from Sindh was assassinated in Punjab and those in the establishment involved in the cover up of his murder were blessed with huge estates. ZA Bhutto, the second prime minister from the same province, was killed due to a judicial verdict. The third and fourth prime ministers Muhammad Khan Junejo and Benazir Bhutto respectively, were unconstitutionally sacked and could not get justice from the judiciary. Once again the superior judiciary is being dragged into the power game to remove President Zardari from the office for which he has been elected with an overwhelming majority from four provincial Assemblies, the National Assembly and the Senate. The plan to extract a political decision on technical grounds to remove an elected president is not going to strengthen the institution of the judiciary or democracy.

Apart from the outcome of a political circus to be staged in the superior judiciary, those advising President Zardari to face the judiciary have to realise the fact that he was in continuous imprisonment for eleven years. His detention is longer than the period of life imprisonment in Pakistan. Even if convicted in cases against him, the sentence would have been lesser than imprisonment already undergone by Mr Zardari. According to the judgments of the Supreme Court under Section 497 of the CRPC, any person who is under detention for more than two years and whose trial is not concluded would become entitled to bail. The Supreme Court did not extend the very same relief of bail to President Zardari for eleven long years. Under the criminal laws of Pakistan, if the prosecution fails to bring sufficient evidence against the accused for a reasonably long period of time, the accused has a right to request the court to drop the charges. Mr Zardari’s applications before the superior courts for that relief also failed to earn him justice. The president’s ‘advisors’ should have reservations about him getting justice this time around when most of the judges are the same ones who were unable to dispense justice to him in the past.

Even after the restoration of the judiciary, the leaders of the lawyer’s movement are raising several questions about its performance. While Mr Sharif and Altaf Hussain have advised President Zardari to face the courts, both leaders are reluctant to welcome the decision of Roedad Khan’s petition for ISI’s money politics and a judicial enquiry into the May 12 massacre respectively. There is a prescribed process for removal of an elected president in the Constitution. If the political leadership thinks that Mr Zardari is either ineligible or unfit for the job, it should resort to the constitutional remedy through an impeachment motion. Once again, dragging the judiciary into the power game would be an unpleasant and undesired burden for an institution that still has to go through the test of impartiality and establish its lost credibility. While all other institutions have deteriorated to their core during long dictatorships, the only hope left for the people is the institution of the judiciary, restored after a long and tough struggle. If the political leadership once again falls into the establishment’s trap to extract political decisions from the courts, the scars on national unity and institutional integrity might be deeper than we could afford as a nation.

Source: http://www.dailytimes.com.pk/print.asp?page=2009\11\26\story_26-11-2009_pg3_5