Judges as guardians of human rights

THE day this paper reported the proceedings of a workshop in Peshawar in which speakers called on the judiciary to play a proactive role in upholding the rights of individuals, two cases of judicial activism were also brought to light by the media. Two minors who had been arrested by the police and kept in chains at a police lock-up in Hyderabad were released on the intervention of the chief justice of Pakistan. In another case the Supreme Court ordered the government attorney to produce category-wise information on foreign prisoners in Pakistani jail. This will hopefully lead to the release of many foreign prisoners who have completed their sentences but are still languishing in jails. These are not the only cases which have been taken up suo motu by the judges who in recent months have been very active in seeking ito rectify situations where a wrong is being done to a person under the law. Thus, the apex court has taken active interest — in many instances on its own — in vani and swara cases and has ordered the police to protect women from being made victims of these social evils. The courts have been proactive even in matters that may appear to be trivial to some, such as the ban on wedding meals and kite flying.

These decisions of the courts are of vital importance in that they indicate a pattern of governance that is quite worrisome. With the executive branch of the government having virtually abdicated its responsibility of protecting the citizens and it being indifferent to implementing the laws framed by parliament, it is not surprising that the courts are trying to fill the gap. This is not judicial activism in the strictly legal sense because the judges are not trying to give a new interpretation to the existing laws. They are simply being more active in having an existing law implemented. Thus the chief justice’s intervention in getting children in a police lock-up released was not an act which went beyond the purview of the law. It was a case of ensuring the enforcement of a law which is not controversial. This may not have any constitutional significance that the judiciary’s intervention in some highly politicised cases have had. But in terms of providing legal protection to the citizens, the judiciary’s action will be widely appreciated.

However, this proactivism of the judges points to the growing paralysis and corruption in the administration and the law enforcement agencies. The fact that 2,000 juvenile offenders have been locked up in jails in Pakistan when the law requires a child to be imprisoned only in an extreme case shows that the police and the administration are not observing the rules. Similarly, the presence of 229 foreign prisoners in Pakistan’s jail, with many of them having long completed their sentences also does not reflect well on the efficiency and fairness of the administration. If the courts are taking note of such lapses and trying to meet the ends of justice, their efforts are to be applauded. But in the final analysis the various departments of the government should put their act together and improve their functioning and raise their standards of efficiency and integrity. It is not proper to overburden the judiciary with the task of relieving human distress resulting from inefficiency, corruption, excesses and apathy at different levels of the government.

Higher return on deposits

THE president’s suggestion in an address at the State Bank of Pakistan that commercial banks should offer higher rates of return on deposits merits serious consideration because of the benefit it could have for millions of account-holders and depositors in the country. As things stand, those wanting to put their money in a bank end up getting a poor rate of return in real terms. This is because the average rate of return being offered by commercial banks is in the region of three per cent while inflation is in excess of eight per cent. Not only is this unfavourable for the individual saver, from a macroeconomic point of view, too, it is a very low return which serves to discourage savings and hence domestic investment.

It is the job of the State Bank to have a monetary policy and a regulatory mix that create an environment where commercial banks offer rates of return that are not unrealistically low. The fact is that the sharp increase in profits of most commercial banks, many of which were earlier in the public sector, is in large part caused by the wide difference between the interest rates offered to depositors and the returns that the banks themselves earn when they give out loans. The discrepancy is obvious when depositors are offered only three per cent of return, while most banks charge as much as 10 per cent of interest rate from their borrowers. At the same time, many banks have frequently increased their service charges and made it costly for small savers to maintain accounts with them. This includes a minimum balance requirement, charging for withdrawals made via cheque or ATM card above a certain limit and even charging account-holders for their statements. Some time ago, the SBP issued a directive to all banks asking them to offer ‘basic banking accounts’ for the benefit of small savers with no minimum balance requirements but this has been ignored by most banks. Besides, the issue of offering a realistic rate of return has not been addressed. With a tightening of monetary policy to fight resurgent inflation, this should not be all that impossible to achieve.

Missing acting president?

DESPITE coming under criticism for taking large entourages when the president and prime minister travel abroad, it has failed to make an impact as apparent from the National Assembly discussions on Monday when the matter was brought up by a ruling party MNA who questioned why a 42-member delegation accompanied the prime minister to the United States. This is not the first time the issue of heavy expenditure on foreign travels was under discussion. There was much hue and cry when parliamentarians’ salaries, perks and privileges were expanded and when the prime minister increased his cabinet size to the largest ever in the country but these protests fell on deaf ears. The government’s apathy to such questions became all the more apparent on Tuesday when it was pointed out in the house that the country was without an acting president for several hours when President Musharraf travelled to the UAE to watch a cricket match. At times like this, the chairman of the Senate takes over as acting president but in this case he too was travelling abroad. This meant that the speaker of the National Assembly should have stepped in. The opposition was correct in wanting to debate what it termed a violation of the Constitution.

No doubt, heads of state and government are required to travel abroad but there can be no justification for taking along large entourages. It reflects poorly on a country which only six months ago suffered a massive natural disaster where common people are struggling to make ends meet. That there was a period of confusion regarding the status of the presidency reflects a disregard for rules and procedures which must be strictly adhered to.

The future of nuclear non-proliferation

THE objective of nuclear non-proliferation, which essentially means non-diversion of nuclear material to military uses, is enshrined in the Nuclear Non-Proliferation Treaty (NPT), which is now adhered to by 188 countries. However, it has not yet achieved its target of universal adherence and there are three notable non-signatories of the treaty — Israel, India and Pakistan.

Meanwhile, a new problem has arisen in recent years, when signatory countries began threatening to opt out of the treaty, which is possible under Article 10 of its provisions. Thus, North Korea (DPRK) gave notice of withdrawal from the NPT in 1993, deferred it for some years in view of a bilateral agreed framework agreement signed with the US in 1994, but finally withdrew from the NPT in January 2003. It also announced in 2004 that it possessed nuclear weapons.

Then there is the case of Iran, which is under verification by the International Atomic Energy Agency (IAEA) and has recently been reported to the Security Council by the Agency for non-compliance with its safeguards commitments. Iranian leaders have now threatened to withdraw from the NPT if Iran is denied its statutory right to have its own nuclear fuel cycle, whereby it can process natural uranium to enriched uranium.

A former IAEA official has recently written: “The crisis over Iran’s non-compliance with its nuclear non-proliferation obligations leads many officials and observers to conclude that the non-proliferation regime is doomed to failure”. He further adds that according to some “(the idea of) treaty based non-proliferation was always a fool’s errand, and the folly is finally being exposed”.

To top it all, there is the fear that if DPRK and Iran can get away with non-compliance of quitting the NPT. Lesser nuclear aspirant states, scared by the apparent erosion of non-proliferation may move to free themselves of the constraints of the NPT, and thus bring about the collapse of the entire non-proliferation regime.

In the first place, it is necessary to recall the circumstances under which the NPT was conceived and drafted. It all began with the creation of an atomic bomb which was the result of a panic reaction by emigre scientists from Europe who fled to the US in the wake of Hitler’s assumption of power.

However, as soon as the bomb became a reality, the Manhattan project scientists put on record their grave apprehensions about taking such a terrible step, and their fear of a nuclear arms race in the future.

As the genie was out of the bottle, they proposed an international agreement to account for all uranium and check the conversion of natural uranium into fissile material. While a number of countries acquired nuclear weapons capability Such an agreement continued to elude the international community. Many years later the Non-Proliferation Treaty (NPT) was eventually concluded (in 1968) and it came into effect in 1970. But the treaty, as it materialised, was inherently flawed as it excluded five countries from its non-proliferation purview, and thus created a kind of discrimination that doomed its universal application from the moment it came into effect.

Instead of establishing universal nuclear disarmament, which was the desire of the worried scientists, it instituted a system in which it gave the power of the genie to some, and sought to put it back into the bottle for others.

Over time, while most non-nuclear countries adhered to the NPT, a few did not, and in fact went on to develop nuclear weapons capabilities outside the NPT regime, to which they did not subscribe and did not sign it. These countries are Israel, India and Pakistan. While some countries have also gone back on weapons programme obligations such sa South Africa, and perhaps Brazil and Argentina, a new set of countries, which, unlike the first three, are signatories to the NPT. They are now presumed to be moving towards developing nuclear weapons their own. These are North Korea and Iran. There are fears that there may be several others which may aspire for a weapons programme if DPRK and Iran can get away with it. This has created a global nuclear imbroglio.

Then there is the added danger that from the dismantling of the erstwhile Soviet Union and loose controls over the Russian nuclear establishment as well as the illicit trade in nuclear technology and material that has been uncovered, such destructive capability may fall in the hands of rogue elements, like terrorists, national dissident groups and militant extremists of all kinds.

The emerging matrix of global nuclear capabilities has become a complex conundrum where no order can be established. In the first place, the discriminatory character of the nuclear non-proliferation regime established by the NPT is not acceptable to some countries. As we noted, the DPRK has broken and may persuade Iran to do likewise. Global insecurity can lead various other NPT signatories also to weaken the regime.

Second, nuclear technology has become so common and is even available through illicit networks and recalcitrant scientists in Russia and former Soviet Republics, that it is sought to be acquired by aspirants of national power in many smaller and less important countries.

Finally, the NPT itself is in trouble, as was seen in the NPT Review conference in New York in 2005. It is interesting that it took the conference nearly two weeks (where this writer was present) even agree on an agenda, and at the end of it, no consensus could be achieved on any substantive point.

The difficulty of enforcement of the NPT provisions is not new. Like any international treaty it depends, for its observance, on the commitment and resolve of its members. This factor is variable, and many countries have been found to be lax in their adherence to its non-proliferation principle. Long aware of this, responsible NPT countries have established, over the years, global enforcement groups or committees like the Nuclear Suppliers Group and the Zangger Committee.

These bodies try to ensure denial of supply of nuclear technology or material to non-NPT countries, or even those countries suspected of violating its provisions. Given the state of proliferation that seems to prevail, their success or effectiveness is far from satisfactory.

The core problem that the enforcement of non-proliferation is faced with is the weakness of the dual use index. Everything from basic nuts and bolts to centrifuge components can theoretically be considered to be applicable to nuclear technology. Obviously, nuts and bolts and many other items cannot, however, be proscribed. A line has to be drawn as to which dual use items are most likely to be used for making a bomb, and their supply to target countries prohibited. This is not easy to do, and is, therefore, the constant dilemma of the Nuclear Suppliers’ Group, which keeps revising its long dual-use list.

The Zangger Committee was created to address this problem more effectively. Unlike the NSG, it maintains a trigger list of sensitive items which are sure to be used for nuclear weapons production. However, the Zangger list is also not entirely appropriate. It contains a whole lot of meters and measuring instruments, triggers and switches which lend themselves to other more innocent uses.

The question thus begs itself whether the NPT with its discriminatory approach, its weak adherence and its poor enforcement can stop nuclear non-proliferation and clear the nuclear imbroglio. More important, can the imperfect NPT regime hold? If not, it can theoretically either be strengthened or made more flexible. Given the back-lustre record of NPT, it is interesting that both these efforts are in evidence. On the strengthening front, some new initiatives have been taken by the IAEA, the enforcement arm of the NPT, to bring it about.

It has recently created an Advisory Committee of the Board of Governors for finding ways and means of strengthening the safeguards mechanism. The director-general of the IAEA has also proposed some kind of international control of the nuclear fuel cycle. Secondly, the Security Council has adopted a Counter-Proliferation Initiative (CPI) and the G-8 countries have launched a Proliferation Security Initiative (PSI), which will help restrict the unauthorised traffic of nuclear technology or material.

The important question is whether these steps will work. On the other hand, there are signs that the NPT is being sought to be made more flexible, as will happen if the US-India nuclear agreement goes into effect. Essentially it will make the NPT more inclusive, by bringing India into the fold, and perhaps later Israel and Pakistan, through similar bilateral arrangements that the US can arrive at. Some months before the Indo-US nuclear deal was signed late last year, the IAEA Director General had argued strongly, in public fora and the IAEA Board of Governors meetings, that unless Israel, India and Pakistan were brought into the non-proliferation regime it will remain ineffective.

However, both the strengthening efforts and the US initiative for a kind of restricted flexibility (since American officials have ruled out similar deals for the other non-signatories of the NPT) are still far from realisation.

In the meantime, the NPT remains in limbo, its future uncertain and universal non-proliferation as elusive as it ever was. Of course, universal non-proliferation is only possible if there is complete and general disarmament, which is unlikely as long as the nuclear weapons states keep their nuclear arsenals intact, which takes us back to square one, the point where the Manhattan project scientists began from. The genie is out of the bottle, and some want to keep it out and utilise its services, while denying it to all others. That unfortunately will not happen. The future of non-proliferation, might, therefore, well be doomed.

The writer is a former ambassador.