Ishtiaq Ali Mehkri

NOTWITHSTANDING the myriad problems Pakistan faces in the name of war against terrorism and abject poverty, an incoherent justice system adds to the misery.

According to the Law and Justice Commission, there are more than one million cases pending in our courts. Such statistics are quite disturbing, but not unique to Pakistan. It is same with most countries of South Asia, where a mix of the British legacy and post-independence ad-hocism have added to administrative and legal complications. This has adversely impacted the society, and provided an opportunity for unscrupulous elements to sow the seeds of corruption, hatred and chaos.

Pakistan has frequently seen political upheavals. Back-to-back military and civilian governments have failed to build strong national institutions. And judiciary has always been at the beck and call of autocratic forces, leading it to coin the infamous Doctrine of Necessity — entrenching military rulers in power and thereof seek justification for their unconstitutional acts. This overzealous involvement of judiciary in politics has dealt a blow to the dispensation of justice, resulting in a staggering number of civil and criminal cases waiting to be heard. Its fallout, apart from disenchantment, has led to the mushrooming of parallel legal systems such as jirgas and panchayats. Such a phenomenon has almost created a state within the state impression, emboldening individuals and groups who for long have been dictating their terms in the guise of so-called traditions and unfounded conventions. This has come as a devastating blow to the society reeling under prejudice, discrimination and extremism. Moreover, exorbitant costs of litigation and the precious time consumed have forced many of the aggrieved to opt for an out of court settlement, very often landing them in dire straits.

This state of affair comes as a challenge to the rejuvenated judiciary in Pakistan. It has already undertaken measures to resist the executive intervention, and vowed to charter a constitutional course. Moreover, the off and on observations by the Lords of the Supreme Court that their acts and decisions should reinforce the public confidence in the rule of law are encouraging. Pakistan’s current judicial dispensation, it seems, is more than happy to perform the watchdog role to ensure good governance. Its frequent recourse to judicial review and suo motu actions have, in fact, come as a shot in the arm for other state institutions and individuals, who for long had desired for the rule of law to take roots.

The bold stance taken by the Higher Education Commission chairman in calling a spade a spade while dealing with the scrutiny of degrees of sitting parliamentarians is a point in case. Fortunately, this judicial assertiveness has a following of its own in the media and the civil society — not to mention a silent constituency in academia and other walks of life.

Similarly, the Judicial Policy 2009, which states that settlement of cases should come within a maximum of four months timeframe, is a step in the right direction. One hopes the hearing of high-profile cases, such as the few pertaining to the implementation of the verdict against National Reconciliation Ordinance and petitions challenging the 18th constitutional amendment do not derail the real intention of dispensing justice for the common man — for whom recourse to speedy justice is already a rare phenomenon.

Investing in the infrastructure of judiciary and broadening its base to the lower rings of society is vital for strengthening democracy and the rule of law. Pakistan is in a transformative phase of its history wherein infant democratic institutions are struggling to take roots. Its political class is still obsessed with personality cult, which inadvertently leads to decision-making in a despotic manner. This can only be overcome by buoying the concept of rule of law where individuals and institutions are held accountable.

Notwithstanding the prevailing friction between a section of the government and the judiciary, the objective should be to ensure justice — a goal for which this reinstated judiciary, democratic forces and the civil society had struggled against military dictators. There is hardly any room for crisscross between the executive and the judiciary, as it could lead to catastrophic ramifications. As British Prime Minister Winston Churchill had rightly observed ‘the nation can go without food for many days, but without a free press and judiciary not for even a single day’. The obstacle in Pakistan’s path to growth and pluralism is the absence of rule of law. Let the courts dispense justice and the executive implement it — even if it means drinking from a poisoned chalice. —AN

Dr Maleeha Lodhi

THE message from last week’s Kabul conference was unmistakable. It was the desire signalled by virtually all the NATO nations to embark on a path of ‘managed withdrawal’ from Afghanistan.

But the unanswered question is whether an orderly exit can be achieved on the basis of the present faltering strategy. Can the transition of power take place absent a negotiated political settlement?

The conference set 2014 as the target for handing over security responsibilities to the Afghan national army. This was aimed as much at reassuring skeptical and war weary publics in the West about the future of a foundering US-led Afghan mission as to indicate to President Hamid Karzai what the coalition expected of him.

The carefully choreographed conference attended by representatives of about seventy countries announced hopeful deadlines and ambitious pledges. But this did not mask the uncertainty about Afghanistan’s future which was heightened rather than diminished because key questions were left unanswered.

One indication of this was the fact that the 2014 deadline was understood differently by NATO leaders. Was this a conditions-based deadline contingent on progress made by that year or a time limit? Tactical divergences were reported among coalition members on how accelerated or phased the troop drawdown should be.

A reference to the transition on a province-by-province basis that could begin at the end of this year was apparently removed from the conference’s final communiqué at the insistence of the new NATO commander in Afghanistan General David Petraeus who wants more time to subdue the insurgency. European nations had wanted the reference so that the provinces could be announced at a summit in Lisbon in November. The conference did little to allay regional and international concerns about whether by 2014 the Afghan national army and police will be capable enough to take charge of security duties. Serious problems continue to plague efforts to build a professional and representative army. However even if in the next four years Afghan security forces can miraculously be built up to act independently of Western forces it will take more than this to ensure an orderly endgame.

A viable exit strategy can only be assured by a negotiated political solution that ends a war that has now entered its tenth year. This turns on talks with the Taliban, which President Karzai has sought by announcing his ‘reconciliation’ plan. But while Washington has backed the re-integration process—to wean away low-level Taliban foot soldiers—it is still not ready for talks with the key elements of the insurgency despite its declared support for Afghan-led reconciliation efforts.

While Washington struggles to evolve its position on a ‘reconciliation’ process it remains intent on pursuing a strategy of military escalation in southern Afghanistan. Dictated by its military commanders the planned action seeks to establish battlefield ascendancy in order to strengthen the hand for talks later with the insurgents.

The appointment of General Petraeus as allied commander in Afghanistan has further reaffirmed this approach. Petraeus’ views are more hard line than those of his predecessor. He is firmly opposed to ‘reconciliation’ before military gains are made by ramping up the campaign in the Taliban’s heartland. This is aimed at creating the so-called “conditions” to force the Taliban into talks and enable negotiations from “a position of strength”.

Preparations are underway to pursue what is a tactical goal despite the widespread recognition that military action will not be a game changer. The political pressure to show “results” to shore up crumbling political support for the war effort seems in part to be behind an approach that is counting on a last-shot military operation to produce an outcome that can serve as the basis for a ‘dignified withdrawal’.

Meanwhile there is endless discussion about what shape talks with the insurgents can take. Questions of modalities will be debated ad nauseum. But until the US shows readiness to abandon the path of military escalation and opt for a political settlement the Afghan endgame can turn into a messy affair holding out the prospect of chaos.

It may be that President Obama wants to put off taking such a decision until after crucial mid-term Congressional elections in No vember. The entire House of Representatives is up for election and a third of the Senate. Given the present anti-incumbency mood among voters at a time of economic pessimism the Democratic Party risks losing control of the House even if it manages to retain the Senate. —KT

The war in Afghanistan is not an issue in the upcoming election which is expected to be dominated by the economy and the rising jobless numbers. As President Obama is on the defensive on these issues he may want to avoid another issue that the Republicans could exploit to attack him for being “too compromising” towards America’s enemies. Moving towards negotiating with the Taliban now rather than later would therefore magnify the political risk for him. Dialogue with the insurgents may be easier for the Administration to sell to the American public once the military option has been exhausted. The review of Afghan strategy that President Obama has announced for December may then offer the opportunity to shift gear. Other than these political factors there may be another consideration for the US: how to avoid the impression of defeat when switching course from a military to a political strategy of accommodation with the Taliban. Persisting with a failed policy hardly addresses this dilemma. Nor does this in any way assure a tidy exit of Western forces from Afghanistan.

The sooner efforts to negotiate a political settlement get underway the better the chances of an organised withdrawal. Such a settlement will not be easy. If reconciliation is to succeed it will have to overcome the opposition to such a plan from among Afghanistan’s non-Pashtuns. Such a settlement will also need to elicit the backing of the neighbouring powers and their agreement to guarantee it. The time to start on this process is now, not after elusive battlefield success. KT