NAB files review petition on SC’s rejection of reopening Hudaibiya case

The National Accountability Bureau (NAB) on Monday filed before the Supreme Court a review petition on the Hudaibiya Paper Mills case.

On Dec 15, a three-judge bench of the apex court had rejected the bureau’s appeal to reopen the Rs1.2 billion Hudaibiya Paper Mills reference, challenging the 2014 order of the Lahore High Court to quash the reference.

The Supreme Court’s detailed order on its decision to reject NAB’s appeal stated that the case had been dismissed as the reference had exceeded its expiry date and that the matter had died its death while it was being dragged through various courts for years.

The 40-page appeal was prepared by NAB’s special prosecutor Imranul Haq.

The NAB has challenged, among other points of the detailed order, paragraph 23 which states that former prime minister Nawaz Sharif and his brother, Chief Minister Shahbaz Sharif, were “subjected to intensive investigation and by those who would be considered inimical to them”.

SC’s detailed order

The apex court’s detailed order on its decision to reject NAB’s appeal to reopen the Hudaibiya reference stated that — contrary to a widely-held belief — neither the Panama Papers case joint investigation team, nor Justice Asif Saeed Khosa had ever issued any explicit directions for the reopening of the Hudaibiya reference.

This had been an important sticking point during the hearing of the petition, with the judges repeatedly telling the prosecutor in the case “not to parrot from the Panamagate verdict” without understanding it.

The reference, which named several defendants — including Nawaz and Shahbaz Sharif — had been filed in 2000 against the accused’s alleged operation of benami overseas accounts in 1990. However, the National Accountability Bureau failed to pursue it rigorously and the case was dismissed by the Lahore High Court in 2011 after being adjourned repeatedly.

The SC’s judgement states that the dismissal of the case was a well-founded decision as the reference had by then gone well beyond its expiry date. And while a high court judge later ordered a fresh probe into the case, the SC said the judge had weak grounds to do so.

“In this case we have come to the painful conclusion that respondents 1 to 9 were denied due process. The legal process was abused by keeping the reference pending indefinitely and unreasonably. The said respondents were denied the right to vindicate themselves. The reference served no purpose but to oppress them. We have also noted with grave concern the lack of commitment and earnestness on part of NAB at the relevant time,” the court noted.

Penned by Justice Qazi Faiz Essa, the detailed judgement also stated that the NAB chairman seems to have done nothing in the last four years to pursue the case. Admonishing the corruption watchdog’s dilly-dallying on the matter, the court stated that the case seems to have been kept pending for an indefinite period, which was “an insult to the legal process.”

The decision further said the Sharif family was deprived of their rights to defend themselves and that the purpose of the reference seems to have been just to pressurise the accused at a moment of the prosecutor’s choosing.

NA’s Fata move raises doubts about govt intentions

PESHAWAR: The much-publicised adoption of the bill proposing extension of jurisdiction of superior courts to the Federally Administered Tribal Areas (Fata) by the National Assembly has raised many eyebrows, with legal experts expressing scepticism about the government’s intentions.

The bill titled “The Supreme Court and High Court (Extension of Jurisdiction to Federally Administered Tribal Areas) Bill 2018” now awaits approval by the Senate and subsequent assent by the president to become an act of parliament.

This future law, however, is not enforceable with immediate effect because contrary to the prevalent practice its implementation will be subject to notification by the federal government, which could be different for different tribal areas.

Amid euphoria over the passage of the bill, legal experts from the tribal areas have pointed out several flaws in the law, observing that it will be up to the federal government to notify the enforcement of the law in the tribal areas.

At the same time, without amending the colonial-era Frontier Crimes Regulation (FCR), 1901, extension of the superior courts’ jurisdiction will create legal complications, as the FCR provides a separate hierarchy of judicial forums contrary to those existing in Khyber Pakhtunkhwa and other provinces.

According to official sources, earlier it was planned that a sunset clause will be included in the bill about abolition of the FCR, but that provision has not been incorporated into the future law.

Experts say without changing FCR extension of superior courts’ jurisdiction to tribal areas will create problems

“It appears to be a fraud with the people of tribal areas. Extending the jurisdiction of superior courts to the tribal areas without setting up matching judicial structure will be a joke with people,” said a former MNA and senior lawyer, Abdul Lateef Afridi.

He pointed out that without extension of the Civil Court Ordinance 1962 to Fata the judicial structure there would remain unchanged.

Presently, under the FCR, the political agents or assistant political agents act as trial court judges or judicial officers and criminal and civil cases are decided by them in the light of jirga findings, he said.

Mr Afridi said that under the FCR an appeal against the judgement of a political agent was made to the authorised commissioner or additional commissioner. The third and final judicial forum under the FCR was that of the three-member Fata Tribunal, which is empowered to hear revision petitions originating from the order of the appellate forum (commissioners).

The bill’s Section 1(2) says: “It shall come into force on such date or dates in such Federally Administered Tribal Areas or part thereof, as the federal government may, by notification in the official gazette, determine from time to time.”

“This provision clearly shows that despite enactment of this law the inhabitants of Fata will be depending on the whims of the federal government for its enforcement,” said Ijaz Mohmand, the central president of the Fata Lawyers Forum.

He said the future law empowered the authorities to enforce it in some parts of the tribal areas, or the whole of it, and that the government could take years to issue the relevant notification for its enforcement.

While under Article 1 of the Constitution the Fata and Pata (the Provincially Administered Tribal Areas) are part of Pakistan, through Articles 246 and 247 these areas have been assigned different statuses. Normal laws of the land are not applicable there unless the president extends the same to Fata through separate notification, and the governor of the province extends them to Pata after taking approval from the president.

Mr Afridi, who is also a former president of the Peshawar High Court Bar Association, said that many people had expected the tribal areas to be turned into a provincial territory instead of a federal one.

He said that once the law became an act of parliament he would challenge the black law of FCR in the Peshawar High Court (PHC).

Advocate Mohmand shared similar views and said the PHC would exercise its jurisdiction in Fata under Article 199 of the Constitution and inhabitants of Fata would move the superior courts on the touchstone of the fundamental rights as enshrined in the Constitution.

“We have been struggling for bringing prime changes in the Constitution and other laws related to Fata, but in the present bill other laws and the Constitution have been ignored altogether,” he said and added that the existing judicial set-up would remain the same, including trial courts and appellate forum.

Mr Afridi pointed out that just like Fata, the superior courts initially did not have jurisdiction over Pata. However, through the Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973, which was published in the official gazette on Feb 9, 1973, the jurisdiction of SC and PHC was extended to Pata, including Chitral, Dir, Swat, Malakand Protected Area and Kalat.

He pointed out that the said act was enforced in Pata with immediate effect, whereas the federal government had to issue a separate notification or notifications for enforcement of the future law.

He said that it would be strange if to certain tribal areas the jurisdiction of the superior courts was extended but to others it was not.

Pakistan can’t be forced to compromise on national interests: US historian

WASHINGTON: Pakistan cannot be bludgeoned into taking steps it believes dangerous to its security, even if it means losing the US aid, argues a new book on Pakistan-US relations.

The book — The Leverage Paradox: Pakistan and the United States — by Robert Hathaway, a prominent US scholar of South Asian affairs, traces the history of bilateral relations from the early 1950s to the Trump era, concluding that both nations benefited from this relationship.

“There is little in the historical record to support the contention that Pakistan can be bludgeoned into taking steps it believes dangerous to its security. To the contrary, repeated US attempts to condition its aid to Pakistani behaviour failed to induce the better behaviour Washington had hoped for,” Mr Hathaway writes.

He demonstrates how efforts to coerce Pakistan merely reinforced Islamabad’s belief that its “putative friend sought only to advance a US agenda at odds with Pakistan’s security”.

The book argues that Pakistan has always viewed the benefits that flow from American favour as “prizes worth working to acquire, but not at any price”.

Book traces history of Islamabad-Washington ties from early 1950s to Trump era

Washington’s inability to recognise this reality, “repeatedly led US decision-makers to overestimate the leverage their power gave them,” the author warns.

Rejecting the argument that Pakistan has been a passive victim or target of American initiatives, Mr Hathaway argues that Islamabad has been “a full partner in a diplomatic two-step” that has reflected Pakistan’s as well as American policy goals. “Generally, Pakistan played its hand well to blunt the force of American power,” he adds.

The book shows how in dealing with the Americans over the decades, Pakistan has held three hugely valuable assets: it occupied strategic geography, possessed considerable strength in its own right and was able to capitalise on the needs of the stronger to further its own ends.

Trump and Pakistan

While reviewing US-Pakistan relations under the Trump administration, the book shows US President Donald Trump’s faith in the utility of American strategy that has impacted US-Pakistan ties.

The book includes several quotes from Mr Trump’s statements on Pakistan — from 2012 to 2017 — and leads the readers to his Aug 21 speech in which he unveiled a new American strategy for Afghanistan.

“We have been paying Pakistan billions and billions of dollars at the same time they are housing the very terrorists that we are fighting. But that will have to change, and that will change immediately,” Mr Trump declared in that speech.

The author says that this speech was unsettling for Pakistanis who felt that the US intended to change its approach toward Pakistan.

The author says that while the statement was specific to Afghanistan, Pakistanis feared that the president’s words could apply to their own country as well.

Mr Hathaway notes that soon after the unveiling of the new Afghan policy, US Vice President Mike Pence wrote a piece in USA Today, declaring that the US has put Pakistan “on notice”.

The author shows how Pakistanis found two other aspects of the new Trump policy especially alarming. One was the absence of any serious discussion of a negotiated end to the war in Afghanistan. “Other than a token reference to a political settlement, Mr Trump was virtually silent on what appeared to Pakistanis the only way for Afghanistan to move beyond perpetual turmoil,” he notes.

“Even worse from Pakistan’s perspective, Mr Trump spoke of further developing the US-India ‘strategic partnership’,” he adds, noting that one component of this was for India to assume a larger role in Afghanistan, especially in the areas of economic assistance and development.

Mr Hathaway points out that “keeping Indian influence in Afghanistan to a bare minimum had been one of the touchstones of Pakistani strategy since signing up with the Americans in the days after 9/11” and Mr Trump’s new policy, it appeared, “could not have struck Pakistan’s vital interests more directly”.

He notes how Islamabad lost no time in pushing back, reminding Americans that they “should not make Pakistan a scapegoat for their failure in Afghanistan”.

Commenting on the limitations of the US pressure on Pakistan, the book uses a quote from a Pakistani commentator, Nadia Naviwala, who argues that “a few hundred million dollars is not much of a stick,” especially when compared with Pakistan-China relationship, which is now worth about $110 billion.

Mr Hathaway also advises the Trump administration not to overestimate the value of its favour or the attraction of its carrots.

The author argues that a country attempting leverage must minimise its dependence upon the target country, mark its priorities and also keep itself abreast of internal developments in the target country.

He also advises the Trump administration to: “Negotiate from a position of strength, and don’t take military force off the table. Do not be afraid to walk away from negotiations; the other party probably needs a bargain more than you do”.

Pakistan’s flawed forensic investigation in rape cases is the weak link in the justice system

Observing the low rates of reported rapes in Pakistan, a recent Dawneditorial rightly points towards the gross “inadequacies of investigators and prosecutors…” as a key contributor to this issue.

The role of medical examiners holds immense importance in investigations for rape, since their report can often make or break the case.

Despite this, the investigational techniques utilised by our medicolegal system tend to rely upon crude, insensitive, and often brutal methods.

Newsreels of crime scenes being mobbed by curious onlookers, rescue volunteers, and reporters, the place being hosed down and precious evidence washed away or trampled on, is nothing new to us.

Our methods are unprofessional, to say the least, in sharp contrast to the meticulous, and methodical approaches being adopted by investigators that impress us on TV shows like CSI Miami.

Advancements in forensic investigations have come a long way but have yet to reach our shores.

Lack of career opportunities

The domain of the medical examiner unfortunately does not present a very rosy picture either. Medical forensic is an orphan specialisation in this country with the brightest minds choosing more lucrative fields.

The forensic departments in medical colleges exist due to requirements laid down by the Pakistan Medical and Dental Council, the governing body for undergraduate medical education in Pakistan.

While the subject is taught in all medical colleges as a compulsory course, it is treated by students as no more than a necessary irritant to be endured, rather than a discipline to be learnt and understood, since very few people want to make a career out of it.

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This is not surprising since the only employment that forensic specialists get in Pakistan are in understaffed, under budgeted police surgeon offices in casualty departments of government hospitals.

The medicolegal officers are the underpaid, unrespected and entirely unacknowledged foot soldiers of our medicolegal system that is known more for its failings rather than its accomplishments.

The necessary close linkage with the law enforcement system also exposes this cadre to corruption that is rife in our police force.

Hence we have very few people in this field, out of whom many are there due to a lack of alternatives rather than out of choice.

This dismal state of affairs translates into limited progress in the field, the result of which is the suffering endured by the hapless victims seeking justice.

Systemic backwardness

A prime example of this was highlighted by a recent Dawn articlelamenting the use of the archaic and useless two-finger test used to establish ‘consent’ in a sexual assault case.

This legal requirement for a two-finger test to determine the veracity of the complaint of a rape victim resides within the dusty archives of law books, as a relic of the medieval precedence on which British law of that time was often structured, and is not in practice in any modern legal system across the world.

Same topicIt’s time Pakistan banned the two-finger test for decoding consent in rape trials

Yet, the legal and judicial system of this country seeks the results of this humiliating and unnecessary examination, to be conducted on a victim who summons enough courage to seek justice from a system not renowned for its sensitivity.

Not only is this test regarded as scientifically invalid, it does nothing but to doubly curse the woman.

After getting brutally violated once by the perpetrator of the crime, her recourse for justice lies in submitting to what amounts to nothing less than the most dehumanising and humiliating invasion of a woman’s privacy.

And this is done at the hands of a medical practitioner, a messiah whose hands are supposed to heal.

Resource constraints

The Dawn editorial rightly applauds the Peshawar High Court’s decision to make it mandatory to include DNA evidence in rape investigations.

Whereas DNA forensic has been an established field across the world for years, enabling accurate linking of cells found at the site of the crime to the person they belong to, this technology has been introduced in Pakistan primarily to deal with cases of terrorism and has been very useful in identifying both victims and perpetrators.

Public sector hospitals can access these specialised labs to investigate rape investigations. However, the presence of a facility does not mean it will be used optimally.

Even though specimen collection using rape kits is no rocket science, and any trained person can do so, the lack of availability of trained staff often results in the loss of the window of opportunity to collect appropriate samples.

Due to the social taboo associated with rape and the psychological trauma, the victims may understandably present themselves to the investigation officer late.

Once this narrow window of opportunity is lost, there will be no second chance at collecting appropriate DNA samples.

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Even if the samples are collected and preserved within the designated time frame, lack of appropriate transportation to the labs presents another challenge.

The samples sitting on the dashboard of a van on a hot summer afternoon, while the driver stops for lunch and namaz on the way from Karachi to Hyderabad, where the DNA lab is located for the province of Sindh, is not the recommended way to handle these delicate specimens.

Another challenge is the costs involved in the examination. While the service lies within the public sector domain, there is a cost attached to every procedure.

The lack of budgetary allocations precludes free availability of this investigation.

While the test ought to be provided for free to the victims, the cost which typically amounts to Rs20,000 is generally passed on to the victims’ families.

This may serve as a further deterrent for low income families who may still want to seek justice but find themselves in a bind because of their economic situation.

With so little faith in the legal system, many may understandably choose to forgo this added expense.

Failing education system

Perhaps even worse than ignorance and poor training is apathy of those who matter: the medical practitioners.

While our medical system may train our students in the modern methods of medical care, there is hardly any attempt to inculcate within them the values of empathy, compassion and caring, all part of the largely ignored multidimensional field of bioethics.

Our students are not trained in communication skills, which form an essential part of a physicians’ work, particularly for a medicolegal officer who deals with highly sensitive cases including rape and attempted suicide, to mention a few.

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Most of our medical colleges either entirely ignore teaching bioethics, and even when it is included in the curriculum, according to a study conducted by one of the authors, the students believed that there was a disconnect between what was being taught and what they experienced in real life.

Another study has also previously indicated that a vast majority of the medical students expressed concern that instead of strengthening their moral values during medical schooling, the realities of the work environment may actually lead to erosion of their preexisting values.

In such a situation, easy availability and accessibility of advanced investigational techniques may not be enough.

Dealing with rape victims requires compassionate practitioners, equipped not only with advanced forensic knowledge and skills, and access to technology, but also armed with appropriate bioethics training with a focus on enhancing professionalism and communication skills.

A humane and ethical professional will make the best use of whatever technology is available and will provide the victim with the best chance at justice.

Nawaz, Maryam appear before accountability court in Islamabad

Former prime minister Nawaz Sharif and his daughter, Maryam Nawaz, appeared before an accountability court in Islamabad on Wednesday as a hearing into three corruption references filed against the Sharifs by the National Accountability Bureau (NAB) went underway.

Strict security arrangments were made in the areas surrounding the accountability court ahead of the former premier’s appearance there. Maryam’s husband, retired Captain Muhammad Safdar also appeared before the court today.

During today’s hearing, the prosecution presented two more witnesses before accountability judge Mohammad Bashir.

While recording his testimony in the court, Tasneem Khan, an officer at Inland Revenue, presented the income and wealth tax records of Nawaz and his children.

Speaking to the media after the hearing, Nawaz said that the judiciary had favoured Pakistan Tehreek-i-Insaf (PTI) Chairman Imran Khan by giving him a clean chit in the disqualification case against him.

The former premier, who was disqualified by the Supreme Court on July 28, asked why Khan had made use of an amnesty scheme if he was innocent. Nawaz maintained that Khan had confessed to his crimes, yet the court had found him to be sadiq and ameen.

“I was disqualified for a having an iqama. They have not been able to prove any crime against me yet,” Nawaz added.

NAB references

A five-member bench of the Supreme Court on July 28 had directed NAB to file references against Nawaz and his children in six weeks in the accountability court and directed the trial court to decide the references within six months.

The Supreme Court also assigned Justice Ijazul Ahsan a supervisory role to monitor the progress of the accountability court proceedings.

The former premier and his sons, Hassan and Hussain, have been named in all three NAB references, while Maryam and husband Safdar have been named only in the Avenfield reference.