Journeys of friendship

UNDER the exceptional circumstances obtaining in South Asia, where a threat of war has been created by India’s concentration of its armed forces on Pakistan’s border, President Musharraf chose to travel to the 11th SAARC Summit at Kathmandu via Beijing. As India had banned overflights by Pakistani aircraft as a part of its adverse reaction to the attack on the Indian Parliament on December 13, which it blamed on Pakistani terrorist organizations, the Pakistani President did not avail the offer by New Delhi of an exception for his flight.

His second visit to China within ten days enabled crucial consultations with Premier Zhu Rongji who held wide-ranging discussions with him over a banquet in Beijing during his stopover en route to Nepal, where he travelled on board a Chinese flight. President Pervez Musharraf’s earlier state visit to China from December 20 to 24 had been planned to be the concluding function of the programme marking the 50th anniversary of the establishment of diplomatic relations between the two countries.

However, in the context of the transformation wrought by the September 11 terrorist attacks on the US, and the subsequent developments in Afghanistan and South Asia, it assumed added importance, specially for Pakistan. While Islamabad’s adherence to the Anti-terrorist Coalition conferred a frontline status on Pakistan once again, Indias resort to threats and intimidation raised the spectre of its adventurism precipitating confrontation and conflict between the two nuclear armed neighbours.

The basic purpose of the earlier visit was to reinforce constructive cooperation and to further revitalize economic links that had received a boost as a result of the visit, earlier in May 2001, by Chinese Premier Zhu Rongji. However, with New Delhi seeking to exploit the anti-terrorist campaign to crush the Kashmiri movement for the rights promised in the UN resolutions, and to implicate Pakistan in terrorist activity, the consultations with the leadership in China assumed significance in the context of Pakistan’s fundamental security concerns.

The results of these two journeys of friendship have confirmed that despite the paradigm change in global and regional realities, the all-weather friendship between Pakistan and China is not only intact, but has acquired added importance bilaterally, as well as in the regional context. The two countries achieved a complete identity of perceptions. The trend started, during the visit of Prime Minister Zhu Rongji, in May last, to strengthen the economic relationship, had been further accentuated during the Pakistan President’s state visit in December last. A few days later, it was the security aspect that was underlined, through reaffirmation of the all-weather friendship, and of China’s unstinted support at a critical time.

In December, when the President of Pakistan had met all the top Chinese leaders for in-depth discussions, a complete convergence of viewpoints had been achieved on major issues, in the context of the transformation of the global scenario after the terrorist attacks on the US on September 11 2001. The most important development of the past three months was the choice by the US of Afghanistan for launching the anti-terrorist drive after the events of September 11.

As both China and Pakistan share borders with this troubled country, and are affected directly by whatever happens there, the situation there figured prominently in their discussions. Using its technological superiority, as well as the reach made possible by the support of Pakistan and several Central Asian Republics, the US had achieved a virtual victory in a relatively short span of time, so that the stage of conflict had given way to that of establishing a political dispensation that could restore peace and stability.

China had joined the war against terrorism, like most of the international community, but was watchful over long-term US goals, and specially the implications of its presence on its western borders along Afghanistan and Central Asia. One has to recall that the Bush administration had abandoned the Clinton policy of developing a strategic partnership with China, and replaced it with one based on a perception of China as a strategic competitor. The US policy on ballistic missile defence(BMD) and specially the inclusion of Taiwan in Theatre Missile Defence (TMD) had drawn an adverse reaction in Beijing. Though President Bush had availed of the APEC Summit in Shanghai in October 2001 to secure Chinese support for the war against terrorism, the differences between them on missile defence had not been resolved. The fact remains that despite the priority accorded to fighting terrorism, the Bush administration has made no secret of its continued commitment to the policy of strategic containment of China that would be pursued side by side with economic engagement. The military presence of the US in Afghanistan and Central Asia cannot but arouse concerns in Beijing about long-term US goals on its western periphery.

It is a measure of the political maturity and deep goodwill of China towards Pakistan that its leadership had welcomed the improvement of relations between Pakistan and the US, following Pakistan’s decision to join the global coalition against terrorism. Despite its own concerns over the potential of a continued US presence on its west, China had been worried about the growing Indo-US nexus, specially as it was accompanied by a distancing between Washington and Islamabad over Pakistan-Taliban relations. China had welcomed the end of Pakistan’s isolation caused by its Taliban policies. Furthermore, cordial Pakistan-US relations are perceived as a counterweight to the developing Indo-US entente.

The December visit, during celebrations of the 50th anniversary of diplomatic relations, was marked by measures to strengthen the traditional time-tested friendship. As President Musharraf stated after his return, there was a complete identity of views between the two neighbours on all regional and international issues. The convergence of perceptions was specially marked on regional issues and the future of Afghanistan. China had lauded Pakistans initiatives to promote a peaceful settlement of the Kashmir dispute.

The special focus on economic and technical cooperation between the two countries during the December visit was evident in a number of ways. The President’s entourage included three cabinet ministers concerned with economic matters, namely the minister of finance, the minister of commerce and the minister of petroleum and natural resources. Seven agreements were signed on economic and technical cooperation, including those concerned with specific projects such as Saindak, Thar coal and transmission lines. The Chinese government increased its financial support in many ways, providing grants for research, and liberalizing credit facilities.

The president had taken with him some thirty prominent businessmen from Pakistan, to facilitate interaction with the increasingly important Chinese private sector. He was impressed by the response of the Chinese side, as 300 leading business managers and entrepreneurs participated in a meeting organized on the last day at Guangzhou, capital of the Guangdong province. This innovative step that led to some immediate results could lead to many more agreements for investment, joint ventures and trade that would raise the level of economic cooperation to new heights. The timing of the launch of this effort was specially propitious, as China’s ambitious plans for the development of the Western region, that is close to the Pakistan-China border, is bound to open up a host of opportunities.

The president announced that special facilities would be provided to the Chinese investors and industrialists who would wish to set up industrial units in Pakistan, including provision of a separate zone for the purpose. He expressed confidence that with the political relationship firmly consolidated during half a century of diplomatic relations, the economic dimension of the relationship would progress at a rapid pace to the mutual benefit of the two sides.

It may be recalled that China has manifested deep concern over the escalating tensions between India and Pakistan, and President Jiang Zemin has been urging restraint, accompanied by endorsement of Pakistan’s call for the settlement of differences through peaceful dialogue. President Bush and UN Secretary General Kofi Annan have also called for such restraint. India’s threatening stance and warlike preparations have raised the spectre of war. The BJP-led government in India is currently being led by hawks who believe that India can take advantage of the post-September 11 scenario to justify military action on the basis of countering ‘terrorism’, in the same way that the US had done in Afghanistan, and Israel in Palestine.

The two visits of President Musharraf to China came at an opportune time and have resulted in a deepening of the all-weather friendship between the two countries. Though the most significant result was the series of steps taken to strengthen economic and technical cooperation, the assurance of China’s continued support to Pakistan’s sovereignty and independence, twice within ten days has been a valuable input at a time India is whipping up war hysteria.

The journeys have served to boost the national morale to withstand arrogance and hegemonic pressures from India. China is a reliable source of sophisticated military equipment for Pakistan. It is also in a position to extend crucial political support as a permanent member of the UN Security Council. This may well become a critical factor in discouraging India from resorting to war in South Asia, and adopting the path of peaceful dialogue.

Vajpayee: sunshine and shadows: LETTER FROM NEW DELHI

PRIME MINISTER Atal Behari Vajpayee’s main strength is his liberal image. His Bhartiya Janata Party is outright communal and most of its leaders are parochial. But he is seen rising above them and reflecting the spirit of pluralism. However, the manner in which he flaunts at times his loyalty to the Sangh parivar does not go down well. Still he is acceptable because he seems far more accommodating than anyone else in his party.

At the meeting of the BJP’s National Executive a few days ago, Vajpayee was the only person who could rebuke the hawks for wanting to go to war against Pakistan. “On our side also people talk irresponsibly,” he admitted publicly. Again, on December 25, Vajpayee’s birthday, he took his party workers at his residence to task when they raised the slogan to undo partition.

Yet the general impression is that Vajpayee is pally with the RSS. Whether it needs him or he needs it, the equation between the two is seldom doubted. He is never seen joining issue with the RSS and puts up with its most provocative statements. RSS chief KS Sudershan urged the government to impose a fortnight-long economic blockade on Bangladesh to stop the “atrocities against Hindus.”

What the fundamentalists did in Bangladesh in the wake of electoral victory by the Bangladesh Nationalist Party (BNP) is deplorable. I was recently in Dhaka and found regret and shame writ large on the faces of Bangladeshis who admitted that the administration had failed to protect the minorities. But the recipe that the RSS chief has suggested means that the entire nation must be punished for the act of some goons. Will he accept a similar action by other countries if and when some fundamentalists kill members of minorities in India? Extremists in Bangladesh are spoiling the atmosphere. They are hell-bent on a confrontation with New Delhi. The RSS chief is only playing into their hands.

Why the RSS chief alone, even Human Resource Development Minister Murli Manohar Joshi is a sacred cow to Vajpayee. The latest from Joshi is that the historians, against whom he has started his jihad, are more dangerous than the terrorists who attacked parliament. But Vajpayee has not said a word against him.

Is it because Joshi is close to the RSS or is it because Vajpayee does not want to add to the number of opponents he already has in the party? Vajpayee should have realized by now that there are too many leaders wanting to stick a knife on his back. They are quiet because they know that they cannot stay in power if they pull him down. Vajpayee can strengthen himself only by being more liberal. His credibility in the neighbouring Muslim-majority countries, Pakistan and Bangladesh, is high. It would go higher if he were to speak out against all elements which are trying to saffronize the Indian society. Vajpayee is still considered a force against the rising tide of Hindu chauvinism. Last week, when people in Bangladesh feared war between India and Pakistan they expressed confidence in Vajpayee’s sagacity to me. They were confident that he would not allow things to go out of hand.

I find a proof of that in Vajpayee’s article appearing on New Year’s day. He underlines the same message of peace and understanding as his musings from Kumarakom, Kerala, did last year. His appeal to Pakistan — not to get “bogged down in the issues and debates of yesterday” — requires a response. People in Pakistan should note his reiteration that “in our search for a lasting solution to the Kashmir problem, both in its external and internal dimensions, we shall not traverse solely on the beaten track of the past.”

How I wish Vajpayee had applied his advice — to rise above the debates of yesterday — to issues relating to India. But his government has promulgated the same Prevention of Terrorism Ordinance (POTO) which evoked countrywide protest and criticism. The National Human Rights Commission said that such a measure was unnecessary. Parliament was divided. The government was so sure of being defeated in the Rajya Sabha that it did not introduce the measure in either House.

It is sad that the president of India has signed the ordinance without even asking any question. People pin a lot of hopes on him. He should have at least returned it to the government for reconsideration. Even legally, the re- promulgation of the ordinance is questionable. The Supreme Court has come down heavily on the state governments which have reissued ordinances after the assembly has ended.

Under the Constitution, an ordinance lapses after six weeks if the parliament or an assembly does not endorse it. The Vajpayee government has done the same thing which a Laloo Yadav government in Bihar would do. The former cheated the parliament, the latter the assembly. That is the only difference.

In his article, Vajpayee has said that India will “not advance any partisan agenda at the expense of others but to protect and promote mankind’s most cherished universal ideals.” Indeed, they are very laudable thoughts. They should apply to domestic situations as well. Tolerance is a worldwide belief. It is applicable against even the hiss of hatred against minorities. Everything should be done to build their faith. But the Sangh parivar, to which Vajpayee belongs, is already igniting the fuse of hatred, which will destroy the nation. A campaign is building up for erecting a temple at the site where the Babri masjid was demolished nine years ago. How can this partisan agenda go with a pluralistic society — the ethos of India?

The prime minister is quite right in saying that either the court should settle the Babri masjid problem or the two communities — Hindus and Muslims — should be involved in some kind of give-and-take. As far as the court is concerned, there is not even a semblance of effort to speed up the proceedings on the part of the policy-makers and the parties concerned. Eminent Muslim opinion, however, does not seem to be in favour of building the mosque even if the court gives a decree against the Hindu claimants. Regarding the settlement between the two communities, I believe some effort is being made. But it is too little and too slow.

The jingoism of the Vishwa Hindu Parishad (VHP) and the Bajrang Dal stands in the way of a quick settlement though the government has given an assurance to parliament that the temple will not be allowed to come up unless there is a settlement. But there were firmer assurances in the past and they did not prevent the demolition of the Babri masjid.

True, after the demolition of the masjid the demand for destroying the mosques adjacent to Mathura and Varanasi temples has receded. But the agitation can always be revived if the matter is not put out of the way. There has been a suggestion for some years to amend the Constitution to guarantee that no religious place existing as on August 15, 1947 — the day India was partitioned — would be altered in any way. At least such a provision in the Constitution should have been included after the demolition of the Babri masjid. Even now it should be done unilaterally to restore confidence.

The prime minister should initiate a constitutional amendment on these lines on the very first day of the budget session. The VHP, the Bajrang Dal and other members of the Sangh parivar should also submit affidavits on behalf of their organizations to reaffirm the constitutional amendment when effected. This may mollify the Muslims.

No anthrax answers

NEARLY three months into the anthrax investigation, questions still outpace the answers. Public health officials have been forced to revise their opinions about who was at risk and how far contamination might have spread.

As the year wound to a close, the Centers for Disease Control was offering vaccines or additional antibiotics to postal workers, Hill staff and workers in the Florida building where anthrax claimed its first victim, but without a firm recommendation on whether to take them.

The response has been equally inconclusive. On the Hill, where the Capitol physician had been discussing the possibility of vaccination, about four dozen people were inoculated. Only a few postal workers have asked for the vaccine.

The New York Times reported that the government spent a lot of early effort unsuccessfully trying to find a link between Iraq and the anthrax attacks — now White House spokesman Ari Fleischer says the powder seems likely of domestic origin. The FBI’s profile of a possible suspect hasn’t led to any arrest so far; likewise, its publication of copies of the letters. Scientists still are analyzing the contents of the last letter found — the one addressed to Sen. Patrick Leahy, D-Vt. — but if a telling clue has been produced, the public doesn’t know about it.

The urgency of the investigation is undiminished even if the probe has faded from the headlines. —The Washington Post

Seniority issue in the judges case

THE elevation of two senior judges of Lahore High Court to Supreme Court along with Justice F.M. Khokhar by a prospective notification has sparked a controversy all over the country.

The Chief Justice of Pakistan who has to lay off the robes of this office on January 6 considered it appropriate to pre-empt appointment, against his own vacancy and another occurring on January 9 by superannuation of Justice Muhammad Arif, and has appointed three judges with effect from January 10 as judges of the Supreme Court.

Leaders of the bar have criticized this action on the basis of the judgment of March 20, 1996 in what is commonly known as the “Judges Case.”

While it is true that the judgment in the judges Case lays down a minimum criterion for a gradual build-up and strengthening of the independence of judiciary, and freeing it from administrative stronghold, it is time to take a fresh look at this judgment and the legal environment it has created after it has been around for nearly six years.

One can start with the implementation of the judgment immediately after March 20 by Chief Justice Sajjad Ali Shah, who had himself headed the bench. The record shows that in the second week of April, 1999, while the issue of the appointment of the chief justices of Lahore and Sindh high courts was still inconclusive, pursuant to the judgment of March 20, Justice Sajjad Ali Shah was called by President Farooq Leghari to Aiwan-i-Sadr.

Without a pre-set agenda, he embarked upon the consultative process and obtained the “consent of the chief justice” in complete deviation and open disregard of the Mach 20 judgment for the appointment of Justice Raja Afrasiab Khan from Lahore and Justice Bashir Jahangir from Peshawar as well as Mukhtar Ahmad Junejo from Sindh High court for appointment as judges of the Supreme Court. These judges did not qualify the test of seniority for their elevation to the Supreme Court.

A unique situation had emerged when the chief executive who had appointed Justice Sajjad Ali Shah as chief justice in violation of the principles of seniority, had estranged himself from him for certain expression of “independence or judicial activism.” President Leghari gave refuge to the beleaguered chief justice and Justice Sajjad Ali Shah had to sacrifice the principles enunciated in the judgment at the altar of “a supporting presidency.”

It is, however, indisputable that the judgment in the Judges Case did not improve in any remarkable manner, the quality of the incumbent judges in sharp contrast with those picked up by the political government. In fact, the political government succeeded in doing almost the same thing through the permanent chief justice, much conveniently and comfortably than it was getting it done by the ad hoc chief justices.

It is a matter of record that one of the bones of contention between the Chief Justice of Pakistan and the government of Mian Nawaz Sharif was the issue of retention of a particular judge as the chief justice of the Lahore High Court because the chief executive of the largest province was feeling difficulty in running the province without a particular chief justice. Most of the appointments made after March 20, 1999, were based on a compromise formula for accommodating the nominees of various consultees, including those of the political governments.

Although the judgment in its overall framework does provide a mechanism which, by strict adherence, could strengthen the institution and provide a framework for the independence of judiciary, practically it contributed towards the establishment of an almost pervasive say in the person of the chief justice rather than the institution as a whole. The Chief Justice of Pakistan can virtually dictate a serving provincial chief justice to either accept his elevation or quit the job should he disagree although it would be in violation of Article 209.

This is what happened in the case of the governor, Amirul Mulk Mengal, who was dislodged from his office on the pretext of his elevation to the Supreme Court on the principle of seniority. Chief Justice Mengal had personal difficulties in accepting the assignment and was, therefore, notified as retired. The consultative processes which has to be consensus-oriented and should represent the views of the judicial institution headed by the chief justice was turned into a personal prerogative of the chief justice to the exclusion of the other members of the institution.

Wide criticism on the current elevations has been triggered off for two main reasons allowing the chief justice, Justice Falak Sher to continue in his position while ignoring Justice Mian Nazir Akhtar for appointment as the chief justice or offering him elevation and secondly, and mainly, for picking up a judge at serial No. 13 for elevation to the Supreme Court which, of course, cannot be countenanced or endorsed. The transparency in exercise of institutional powers raises questions which need a satisfactory answer for the continued confidence of the public at large in the institution of judiciary.

In Malik Asad’s case, 10 judges of the Supreme Court decided to throw out their chief justice (Sajjad Ali Shah) four years after his appointment on the ground that violation of the principle of seniority frustrates those who are left behind and makes them unhappy as judges. The appointment of Justice Ramday and Justice Abbasi, prima facie, proceeds on merit but the appointments have been plunged into controversy by the joining of a junior judge appearing at serial No 13 which has given rise to sharp public and in-house reaction.

The March 20 judgment had reinforced the constitutional position for the appointment of judges as well as the proper conventions which need to be practised. The judgment brought to an end. i) Appointment of ad hoc judges in the Supreme Court without first exhausting the sanctioned strength; ii) It prohibited appointment of acting chief justices. iii) It declared that acting Chief Justices were not proper consultees for the appointment of judges; iv) It also mandated that appointments had to be consensus-oriented and that all vacancies accruing in the superior courts had to be filled in within 30 days.

Except for the appointment of a permanent chief justice, no other declaration made by the Supreme Court has been strictly adhered to in any degree. Vacancies remain unfilled much beyond 30 days, and for months together. Appointments made are not consensus-oriented, and by adhering to the consultative process strictly. They are based on a compromise sharing formula between the various consultees by accommodating their respective nominees.

The independence of a judge can only be structurally secured by providing adequate safeguards against arbitrary removal or supersession of a judge and providing adequate guarantees which may protect him in the exercise of his independent judicial powers. It is time for the Supreme court to have a fresh look at the Judges Case and improve upon the weaknesses that have been noticed during the past six years in the implementation of the judgment by taking stock of various events of great judicial significance.

The writer is a senior advocate, Supreme Court of Pakistan.

How inept the FBI is

WHEN FBI agents arrested Robert Philip Hanssen in February, he revealed, among other secrets, that he aided enemies including, perhaps, Osama bin Laden.

The most important thing Hanssen revealed, however, is just how inept America’s leading federal law enforcement agency has become, and how urgent its need for a radical makeover.

In a new book, “The Bureau and the Mole,” Pulitzer Prize-winning journalist David A. Vise reports that Hanssen gave the Kremlin the United States’ plan for carrying on government functions during nuclear war as well as access to an online intelligence system-information that Moscow’s agents may have passed on to Bin Laden.

Vise also charges that Hanssen left a voluminous Internet trail of sexual fantasies about himself and his wife under his own name and that his own brother-in-law, a fellow FBI agent, had warned his superiors in the Chicago bureau that he suspected Hanssen of spying. The agency, Vise writes, “could have halted Hanssen’s damaging disclosures in 1990 by carrying out a standard probe involving physical and electronic surveillance.”

The intervening decade was not the FBI’s best. The Richard Jewell-Olympic bombing investigation, the Wen Ho Lee espionage case and the agency’s failure to turn over documents in the Timothy McVeigh case have caused public confidence in the bureau to plummet.

The attacks on Sept. 11 threw a withering spotlight on the bureau, and at last meaningful change appears to be in the works. To begin with, Atty. Gen. John Ashcroft has ordered his deputy, Larry Thompson, to do a “comprehensive review” of the FBI, and Judge William H. Webster, a former director of the bureau and the CIA, heads a commission examining internal security.

In addition, Ashcroft has given the Justice Department’s inspector general expanded powers to investigate allegations of bureau irregularities — an important reform since, until now, the FBI had been responsible for policing itself. —Los Angeles Times