The dividing line

RICHARD NIXON’s strength as a tactician was his habit of analysing the pros and cons of any problem confronting him. He would draw a line down the centre of the page of his yellow legal pad (Nixon was a lawyer by profession, and a lawbreaker by inclination). He would then list the advantages and disadvantages on opposite sides and evolve a strategy accordingly.

By using this technique, he was able to surmount the numerous crises that punctuated his political life — as a beleaguered vice-president under Eisenhower, a failed candidate for the governorship of California against Pat Brown, and as a contestant for the presidency against Jack Kennedy.

That he succeeded finally in becoming the 37th president of the United States can be attributed as much to his dogged persistence as to the precision of his analysis.

In the context of current developments in the subcontinent, one wonders whether leaders on either side of the line that divides India and Pakistan have thought of conducting such a diagnostic scrutiny. They would be well advised to do so now, for at whatever level their next round of talks are pitched, imperfect preparation could well lead to another Agra-like abortion, with equally still-born results. It is time for each to approach each other’s concerns dispassionately, coolly, and without the overhang of mutual recriminations and suspicions that have bedevilled Indo-Pakistan contacts since 1947.

India’s yellow pad will predictably be the longer, for it has more to gain and less to lose than Pakistan. That vulnerability is not simply a matter of scale; it is of matter of stature. Ever since the moment of its creation, India has been like some love-lost Abhisarika Nayika in search of its tryst with destiny. Nehru was not only the last Englishman to rule India; he was the latest in a series of insecure imperialists demanding to be taken seriously by the outside world.

In the 17th century, the Mughal emperor Jahangir rejected the gift of a map drawn by the European cartographer, Mercator, because he thought his empire had been shown far smaller than the vastness he knew it to be. In the 20th century, Nehru sought a place for his India (then just another Third World country struggling with economic adolescence) on the global map commensurate with his view of its potential.

Until India’s potential could be demonstrated, though, Nehru needed a springboard. The Bandung Conference of 1955 provided that opportunity. There, he sided with other petulant ex-colonies, especially Egypt and Indonesia, in what was known as the Non-Aligned Movement. But whereas Nasser’s Egypt could symbolize the emerging continent of Africa and Sukarno’s Indonesia the Asian Archipelago, India and China jostled against each other in a bid to represent the mainland of Asia. In their persons, Zhou Enlai and Pandit Nehru shared much in common beyond their ambitions to move their countries closer to the centre-stage of world politics.

Zhou Enlai was the quintessential oriental mandarin, Nehru the urbane westernized Hindu Brahmin. Each nourished a vision for his country higher than the Himalayas that separated them, but even these were not tall enough to prevent the Indo-Chinese conflict of 1962. Significantly, in his moment of need, Nehru appealed not to his non-aligned colleagues but to the superpower he had aligned himself against — the United States.

His daughter Mrs Indira Gandhi, when she became prime minister, never forgave President Nixon and his country for their support to Yahya Khan’s military government during the Indian-sponsored movement for Bangladesh in 1971. She found it difficult to condone the irony of the world’s most prosperous democracy siding against the world’s most populous democracy. In her moment of need, she turned to the USSR. Today, both India and Pakistan — redundant pawns in a discarded cold war game between the Americans and the Soviets — have finally realized that they need to talk to each other, not at each other. As permanent residents of the same subcontinent, they ought never to have admitted any other modus vivendi.

An American ex-diplomat has hinted that Mr Vajpayee’s dramatic offer made in Srinagar may be a covert bid for the Nobel Peace Prize. Those who know Vajpayee better will doubt whether he would like to be included among such dubious US-sponsored Peace Prize winners as Henry Kissinger and Yasser Arafat. He is also too canny to succumb to that most insidious form of temptation — to do the right thing, for the wrong reason.

In wishing to make peace with Pakistan, India (Vajpayee represents no on else) has a more long-term objective. Since it cannot live without Pakistan, it cannot waste the next fifty-six years learning how to live with it. It recognizes that for any peace to be durable and enforceable, it would have to include not only the government in Islamabad but also the adventurist para-military agencies that operate beyond the confines of territorial jurisdiction and that regard India-baiting as a sacred mission.

Someone with the clout of the United States will need to underwrite that self-restraint. There is a precedent in Hindu mythology for such a role being undertaken by a powerful third party. According to the Devi-Mahatmya, Chandika Devi found herself in combat against the demon Raktavijya whose droplets of blood coagulated on touching the earth into yet more demons. Kali came to the aid of Chandika Devi by slipping her elongated tongue under the bleeding Raktavijya and lapping up his blood before it reached the ground. The parable is obvious: such demons need to have their lifeblood drained out of them.

India as an affected neighbour cannot wait indefinitely for Pakistan to learn how to govern itself. By offering its own experience, India could provide a parallel model of the advantages of representative government. India has the credentials to do so. After a half century of political evolution, it has a vibrant democracy and has succeeded in moving away from diktats issued from a central Congress High Command in New Delhi to an elected aggregation there of regional parties. Their local dialects and parochial interests may clash during the cacophony of Lok Sabha debates. At their apex, however, they harmonize into one singular voice when it comes to mouthing India’s national interests.

Is Pakistan a failed state? As a state, no; as a failing experiment in self-governance, obviously. Its four unequal provinces behave like argumentative siblings, unable or unwilling to find a workable formula by which they could coexist within a federal structure, without inviting military intervention. India once faced this prospect during the unpopular Emergency imposed by Mrs Gandhi in 1975. General Sam Maneckshaw, her army chief, could have declared martial law and ousted her from the prime ministership. He elected not do so. It was a textbook example of constitutional self-discipline, lost on his Pakistani counterparts.

The most touted advantage (and fear) flowing from any rapprochement between India and Pakistan is widely agreed to be economic. One school of businessmen hopes that the grass for them will be greener on the other side. An opposite view is that Pakistani industry and business have everything to lose and nothing to gain. Since independence, India has developed a sustainable economic prowess fed by trained indigenous manpower and domestic resources.

India’s industrial muscle, its export capability, its self-sufficiency and the resilience of its domestic consumer markets did not blossom in a hothouse of protectionism; they are the outcome of decades of consistent planning with clearly defined objectives, translated into productive performance. India’s peacock plumage is not borrowed.

Once borders are opened between the two countries, Pakistan’s coddled economy could find itself under serious threat. Controlled bilateral trade is not the answer, for so long as governments retain that control, business will remain hostage to diplomacy. An international gas pipeline project whose supply valve lies within the grip of a potential belligerent can never be a truly secure investment, however watertight guarantees may seem.

A consignment of fresh onions held up peremptorily at Wagah border and then left to rot cannot be an encouraging advertisement for cross-border trade, no more than acts of cross-border infiltration can masquerade as invitations to a negotiating table.

The pattern of any future Indo-Pakistan trade is unlikely to be simply bilateral. It will include an elliptical approach by which Indian companies through transnationals will acquire commercial interests in Pakistan. Tata’s plan announced recently to use its UK tea subsidiary Tetley’s to enter Pakistan’s consumer market is a forerunner of such cross-border ownership. As the history of post-war Europe has shown, nationals of one country do not bomb their own factories located in another.

There will always be many in Pakistan who will feel threatened by any improvement in Indo-Pakistan relations, just as there will always be British xenophobes to whom any contact with Europe is akin to contamination. A British prime minister once articulated his government’s policy towards Northern Ireland: it could do one of three things — it could maintain the status quo by doing nothing; it could move backwards, which is hardly a policy; or it could go forward.

Today, the only viable option open to both India and Pakistan is to go forward. However much or little may be achieved, to millions of people on both sides of the dividing line, the risk is worth taking, for the price for success, however small, far outweighs the cost of failure.

Terrorism’s terrible toll

THE optimism about Pakistan’s economic future reflected in the article that appeared in this space last week was based on two assumptions. One, Pakistan will find a solution to its latest constitutional crisis which has, for the moment, stalled all legislative activity in the National Assembly. The government headed by General Pervez Musharraf that did so much to restore economic health to the country in the 1999-2002 period gave way to a power sharing system that is still in its infancy.

Will this infant learn to walk, and as it begins to walk, will it continue to move in the direction set by the regime dominated by the military? This remains an open question but by stretching out the period of uncertainty, politicians will cause a loss in the momentum built up during the previous three years. That would be unfortunate. If politics stalls the economy once again — as it has done on so many occasions before — Pakistan and its large population will continue to suffer.

The second assumption behind last week’s optimism was the availability of a supportive external environment. There were several positive developments to note in this area. These included the thawing of relations with India, a process that is continuing. It also encompassed the beginning of a working arrangement with Afghanistan, and continuing American interest in Pakistan. But there is another side to this external environment which needs to be explored at some length and that relates to the persistence of terrorism sponsored by mostly Arab groups scattered in various parts of the Middle East. How would terrorism in the Arab world affect Pakistan’s economy? It has already taken a heavy toll. What can we expect if its incidence does not abate?

By terrorism’s terrible toll I don’t mean only the lives of innocent people that are taken by acts of terror, several of which were committed in early May and several more are said being planned for the future. On May 17, British Air suspended all flights to Kenya, fearful that terrorists may attack its airliners, repeating the failed attempt in November made on an El-Al plane near Mombasa. Three days later, on May 20, the United States closed its embassy in Riyadh, fearing that an attack could be launched on the country’s political and economic assets in that country. Britain, Germany and Italy followed the American example

My concern today goes beyond the human toll and is about the enormous economic cost the Muslim world will bear if this campaign against the established world order — not just the order in the western world but also the order that encompasses the relations of the Muslim world with those in North America and Europe — continues unabated. I don’t believe the significance of the campaign the terrorist groups have launched has been fully grasped by the policy-makers in the world of Islam. There is need to study the developing situation with considerable care and develop a strategy to deal with it.

The terrorists are clearly pursuing three related goals. One, to hurt the West — particularly the West’s economic interests — in order to make the point that America and Europe will have to take cognizance of the ambitious aims these groups are pursuing. Unless the terrorists’ aspirations are somehow accommodated — which should not happen in any circumstance — they will continue to direct their ire at the West’s economic dominance. Two, the terrorists want to detach the world of Islam from the West, at least to loosen its links with the more economically developed countries in the world. Once these two aims have been achieved, the third goal can be pursued with ease: to take back Muslim society to where the terrorists think it should be — to an environment reminiscent of the early days of Islam. Why would people be prepared to sacrifice their lives, as hundreds of suicide bombers have already done, to reach this third goal?

This is an important question and it must be carefully answered. There can be no doubt that many parts of the world of Islam have lost their way. A deep divide has developed in most of the Muslim world between those who govern and those who are governed. The political and economic systems in many countries in this part of the world are dominated by narrow elites who have aligned themselves with the West. With the support of the West, the elite groups have devised political and economic systems that have enriched them while large segments of the population have been sent to the margins of the economic and political society. This is particularly true of the Arab countries of the Muslim world and less so of the parts of the Islamic world to which Pakistan belongs.

But Pakistan being a Muslim country cannot detach itself from the Arab world and the dynamics that are in play in those countries. Most of the acts of terrorism aimed at foreigners living and working in Pakistan were carried out by the Arabs, deeply imbued with the sets of beliefs they were pursuing with extraordinary ruthlessness. The anger of these groups will increase as the Arab governing elites refuse to sever the ties they have built with America and Europe.

This alignment of interests between the ruling Arab elites and the governments in the West was forged for essentially three reasons: the elite’s economic interests, the West’s need for Arab oil, and America’s commitment to provide security to the state of Israel. A word of explanation is needed to put in their proper context these three motives. The vast amount of wealth garnered by the elites in the Arab world can be put to productive use only with the help of the West’s financial institutions — its banks, investment companies and capital markets.

Even after Dubai and Bahrain have developed vibrant financial markets, the Arabs cannot go on their own. These two financial centres are closely tied to the centres of western finance — New York, London and Frankfurt in particular. The terrorist groups understand this and they would like to cut these close links so that the wealth of the Arab states becomes available to them to pursue their own “Islamic” objectives.

The Arabs sit on top of one-third of the known global oil reserves. Their cooperation is required by the West, in particular by America, to keep the Middle Eastern oil flowing to its factories, homes and automobiles. By cutting the flow of this precious commodity from the Arab lands to the West would hurt both — the industrial underpinning of the Western economies and the lifestyles of the west’s citizenry as well as the Arab elites. America and Europe understand this and is one of the reasons why Washington has simultaneously pursued a number of goals — regime change in Iraq, a country that has the second largest reserves of oil in the world; penetration into Central Asia; and, finally, close relations with Russia, another country with large resources of oil and gas.

And, finally, the states of the Arab world by remaining friendly with the West would create the zone of security so desperately needed by Israel. The political space Israel and its supporters wish to create will help achieve the intentions of the Jewish state’s far right. The Palestinian population will be ultimately pushed out of the West Bank and forced into Jordan. This strategy, according to one analyst, “evokes basic questions of the meaning of the Jewish state. It makes explicit what some believers of many creeds — though not the Bush administration — say is the real subtext of the war on terrorism: that is the battle between Judeo-Christian and Islamic values, beliefs and territorial ambitions.”

If this line is pursued, this would certainly provide an additional reason for suicide bombers to undertake further acts of terrorism. But here, I want to focus on the other aspect of terrorism — the attacks on the targets in the Muslim world. The Palestinian problem has a different dynamic. Its discussion will take us away from the main thrust of the argument I wish to develop.

Getting back to the recent acts of terrorism, the terrible news is that the groups supporting them seem to be succeeding in moving towards the second of the three goals identified above, of creating permanent fissures between the West and the world of Islam. If their march towards this goal is not halted, the setback to the Islamic world may well be calamitous.

It is clear that the May attacks — one in Riyadh, Saudi Arabia, and the other in Casablanca, Morocco — signal a profound change in strategy the terrorists are pursuing. The attacks on the United States on September 11, 2001 were clearly intended to hurt America in areas in which it was dominant. Al Qaeda chose the World Trade Centre in New York and the Pentagon in Washington to hit at the economic and military symbols of America’s power. It was a naive belief on the part of the terrorists that such attacks — even if they were spectacularly successful, as they were — would humble America. That, of course, did not happen and America launched the war on international terrorism.

First came the destruction of the Taliban regime in Afghanistan and then the change of the regime in Iraq. In between, the West has taken a number of significant steps to strengthen homeland security. The Americans in particular have gone far in this area. Not only have they created a Department of Homeland Security following a governmental reorganization of the magnitude that had not happened since the Second World War. They have, at the same time, put on their statute books laws that have begun to seriously encroach upon civil liberties, an area hitherto protected by the American citizens with a great deal of zeal.

The Americans have also taken a number of initiatives that are aimed directly at the citizens of the Muslim world. These include the fingerprinting and questioning of young men from two dozen Muslim countries and the reluctance to grant visas and admissions to educational institutions to people from the Muslim world. The American legal system firmly anchored in the principle of non-discrimination will, in time, purge these assaults on civil liberties and the singling out of one particular community for special — and unfavourable — treatment. Until that time the Muslims, both living in the United States and those who want to have some dealings with the country, will have to come to terms with these changes in attitude.

After all, it took more than one hundred years after the American north won the Civil War by defeating the southern confederacy for black Americans to secure near equality with the country’s white citizens. The day of American full accommodation of the citizens of the Muslim world will get postponed for as long as terrorists continue to operate on the world stage. In other words, the Muslim community has already paid a very heavy price for the acts of terrorism committed by some of their co-religionists against the targets in America.

A question of system

POLITICALLY, we have been caught in a strange vicious cycle. During the so-called democratic rule, the party in power rules ruthlessly and bulldozes every perceived hurdle in its way towards the absolutism. On the other hand the parties out of power work on a single point agenda — to get rid of the government.

This kind of politicking sets the stage for ‘the man on horseback’ — the ultimate power broker in our polity. The ‘safety valve’ invented by General Zia to place a check on prime minister while keeping the military away brings the parliamentary system to stalemate. How can we get out of the vicious cycle and break this stalemate? Before answering this question we need to identify what is wrong with our political system?

No one denies the need to keep democracy on track and remain politically stable at the same time. However, we have to recognize that our present system suffers structural imbalances.

With the extra-parliamentary ‘checks and balances’ like 58-2(B) or the NSC, the prime minister remains no more the real head of government. Such devices make the president too powerful to fit in the parliamentary system. Paradoxically, the prime minister modelled on the parliamentary system becomes dictatorial as well. Our parliamentary system offers no structural checks from within. Thus, the imbalance is inherent in the parliamentary framework. The checks without are extra-parliamentary and the checks within are non-existent.

The original 1973 Constitution had visualized the Westminster democracy. In fact, the British parliamentary system has some built-in checks: strong democratic traditions, a two-party system with well-disciplined organizations, legitimate role of ‘Her Majesty’s loyal opposition’, an organized public opinion, and a free press. All these institutions are working in a pluralistic societal context. We have none of these processes.

Our parliamentary system functions in a very different political environment. In the context of feudal and authoritarian political culture, the absence of any democratically evolved checks on the authority of prime minister, transforms democracy into just an elective dictatorship. The parliamentary periods of 1973-77 under Z.A. Bhutto’s rule and of 1997-99 under Nawaz Sharif’s rule are the cases in point.

During the intermediate period of 1985-97, the Eighth Amendment device had been introduced and frequently used — only to further complicate the problem. It actually tilted the balance of power in favour of the president to the extent of making it a quasi-presidential system.

Thus, it made the parliamentary system unworkable in another way. The president became an active player in politics. The supremacy of the parliament and the concept of ‘collective responsibility’ of the cabinet were drastically damaged. As Prime Minister was no more a real and sole boss of his or her ministers, the parliament became hostage to the whims and wishes of a single person. Every president empowered by 58-2(b) used this ultimate weapon. The political system remained stalemated.

The Thirteenth Amendment took away the power of the president to dissolve assemblies. Unfortunately, it proved a change for the worse, as the prime minister reverted to the authoritarian tradition of 1973-77. With a rubberstamp parliament (thanks to the Fourteenth Amendment), toothless presidency, negligible opposition, and subservient army, the prime minister did run the state like his private estate.

No formal or informal institution within the constitutional legal framework existed to stop him. His insatiable hunger for power prompted him to commit political suicide. Though the compulsions of international political and economic environment had been serving as a check on direct army intervention, yet the ‘overplay’ invited the army takeover of October 1999.

So we were back to square one, with the same tricky questions: how to make the parliamentary system workable with some reasonable check on the authority of the PM?

The very nature of the parliamentary system does not allow supra-parliamentary checks on the authority of the PM and his/her cabinet. However, such a system in our political environment opens the opportunity for abuse of power and democracy becomes a farce. Our troubled political history substantiates this point of view. As noted above, we adopted the British model without the prerequisites, which serve as democratic check on any possible misuse of power by the chief executive — PM. The British have a pluralistic society with a majority having reasonable access to education and economic opportunities, which enables them to exercise their right to make political choices.

Moreover, they have evolved democratic traditions and institutions both formal and informal based on the broader socio-economic and cultural patterns of the society. On the other hand, ours is a predominantly a feudal culture with an well-entrenched system of patronage. Poorly fed and educated masses do not make a good stuff for the smooth running of a sophisticated and complex parliamentary system of government.

In the context of centuries-old authoritarian traditions, we have yet to develop the essential self-sustaining institutions like organized political parties, a free press, mature public opinion and well organized opposition party — working as a shadow government. These are the invisible limits on the authority of the PM in the British system. Without these brakes on PM, he/she is certain to become an autocrat. This is what we have experienced in the past. Why do we consider parliamentary system more democratic despite its failure in both forms: pure parliamentary version under ZAB and NS, and quasi-parliamentary under the Eighth Amendment?

One thing must be clear that no form of government in itself is more or less democratic. It is just a matter of suitability, structures and forms should/could be adopted according to ethos of a given society. Our political history tells us that diffusion of authority in the person of PM or an extra-parliamentary check does not work due to different reasons. We need separation of power and a system of checks and balances to keep democracy on track and to minimize the chances of abuse of authority. This looks an almost impossible task within a parliamentary framework.

As in a parliamentary polity, legislative and executive power is essentially combined and in the case of UK, even the highest court of appeal is a part of Parliament. However, for them the system is working due to their peculiar political, historic and cultural conditions while we have neither such environment nor institutions, as discussed earlier. Therefore, we should not keep insisting on the presumed sanctity of parliamentary system of government. We must have an open, pragmatic and rational debate to devise a viable democratic structure with reasonable limits on authority. The presidential system may be one such system.

As Wasim Akram calls it a day

WEEK after week, I have written about the war in Iraq and before that the war in Afghanistan and about terrorism and the violence and the deceits, about a world spinning out of control. One needs a holiday from this gloom and gore.

Unfortunately, there is not much cheer to be had on the domestic front and the political scene, as usual, is full of sound and fury, in an impasse, at the moment, over the LFO. Either way, that is to say, whichever way it will be resolved, Karachi will continue to have massive power-failures. There has always been a disconnect between the needs of the ruling elite and the basic wants of the people.

On a different context, Walter Lippman, the patron-saint of political journalism had called these ordinary folk ‘a bewildered herd’. I prefer to call them “statistics”. Their relevance is in the making up of numbers. I want to change course this week and count my blessings instead, write about Wasim Akram who has announced his retirement from international cricket. I am presuming that he will hold fast to his decision and not be persuaded to take it back, as sportsmen sometimes do, to their own personal grief and the embarrassment of their devoted fans.

If I can lay any claims to celebrity, it is as a cricket person. I have never disowned this though I have considered it one-dimensional. Cricket has been my passion and my earliest memories have been about cricket, whether it has been my brothers playing it in the back-garden or about being taken by my father to the Feroze Shah Kotla ground in Delhi to watch the MCC play against the Delhi and District team play when I was six-years old. I have in all the long years watched the very best cricketers and high on that list would be Wasim Akram.

There is the mind’s eye of every cricket devotee a magical moment that defines his or her relationship to the game, that becomes central to his or her treasure-chest of cricket memories. Because I have watched so much cricket the competition is intense but when all is said and done, my magical moment will have to be a Wasim Akram moment.

It is the final of the World Cup in Melbourne in 1992. Over 80,000 people are at the ground and the match is poised at a knife’s edge. I am in the radio commentary box in the media centre, having done my stint or waiting to do it. Allan Lamb and Neil Fairbrother are putting together a threatening partnership. I have been talking to Clive Lloyd and he states the obvious: this partnership can take away the game from Pakistan. Imran Khan turns to Wasim Akram and he hands him the ball. No words are spoken. Imran pats him on the back. The moment of truth of the 1992 World Cup has arrived. Wasim runs into bowl and in two successive deliveries removes Allan Lamb and the new batsman Chris Lewis. The match is over and only a formality remains, a mopping up job and Pakistan are world champions. Cricket is a team game and all players are equal. But some are more equal than others. Wasim Akram was such a player, always more equal than others.

I have watched almost the entire career of Wasim Akram. In other countries there would have been a statue of him or he would have been declared a national treasure. But we do things differently in this country. There is a certain intolerance about too much success. Envy is too commonplace to explain why we trash those who have been our greatest assets once they have fallen from grace. The Quaid-I-Azam was lucky that he died so soon after Pakistan came into being. Liaquat was assassinated and in that respect he can be termed lucky.

All others were hounded out, remembered only for the evil they did, their good works interred with their bones. This is even more true of our sports. Had Imran not won the World Cup and had he not retired immediately after that, his place in Pakistan’s cricket history would not have been a special one. Jehangir Khan has been the greatest squash player in the history of the game. PIA actually named its squash complex after him. The same PIA later unceremoniously sacked him as it did Zaheer Abbas, another cricket legend.

Pakistan is not rated too highly as a sports nation and in the Olympics, for instance, we have trailed far behind even countries whose population is less than the city of Karachi. Yet, at one time, we were world champions at cricket, hockey and squash in the same year. Considering that there is no infrastructure, as such, this was a considerable achievement.

There are no playing fields, the streets and alleys have produced many a test cricketer, there are more astro-turf pitches in Amsterdam that there in Pakistan and there was no squash courts of international standards until PIA built its complex. Yet at that time, there were nine Pakistanis in the top ten squash rankings. This must surely tell us of the great talent there is. How many Wasim Akrams and Shahbaz Srs. and Jehangir Khans have we wasted because there has been no support system?

There was a certain graciousness in Wasim Akram’s retirement announcement. There was no hurt and no resentment. Wasim would sometimes come and see me and seek my advice. He didn’t about his retirement. Had he done so, I would have told him that he should have announced his retirement before he went to South Africa for the World Cup, letting the world know in advance that he was going to hang up his boots after the tournament. He might have been spared some aggravation about his place in the Pakistan team. The decision was the right one, the timing was poor.

Wasim Akram played his cricket at a higher level than others. That is why he is respected as an all-time great. There has never been another Bradman. I doubt if the cricket world will see another Wasim Akram. I salute him.

Immigration folly

WHEN the Supreme Court recently upheld a federal law requiring the detention of aliens convicted of certain types of crimes while the government pursues their deportations, it let stand a stupid and needlessly harsh statute.

Passed as part of Congress’ noxious immigration reform act in 1996, the law deprives government of the discretion to distinguish between dangerous criminals and those who may have reformed, between those likely to flee and those who will show up for their hearings. It thereby compels the incarceration of large numbers of people in a fashion both cruel and costly.

The Constitution, however, does not forbid Congress to make dumb or mean policy choices. And whether, as the court’s five-member conservative majority ruled, Congress’ broad powers over immigration matters give it the authority to order that nearly all criminal aliens be locked up pending deportation is a harder question.

Chief Justice William H. Rehnquist, writing for the court, made clear that the decision applies only to people who have conceded their deportability — in other words, aliens who acknowledge that criminal convictions render them legally removable yet who seek permission to stay in this country anyway.

Congress passed the law because a large number of criminal aliens weren’t showing up for their hearings, and many were committing new crimes as well. The court said in effect that the legislature could dispense with individualized bail hearings for such a group.

This view has a certain logic: Why should a criminal alien who admits he is ripe for deportation have a constitutional right to consideration of bail? Is it really a violation of due process rights for Congress to insist (however foolishly) that he either leave the country — which he can do at any time voluntarily — or be locked up while he fights his case?

—The Washington Post