THANKS to the majority enjoyed by the Republicans in the US Congress, the Bush administration has been able to enact legislation that has promoted its neo-conservative agenda. After 9/11, the Bush administration was able to take advantage of the “fear factor” to push through laws that would have been simply unthinkable at any other time. Some of these are so radical that they have seriously compromised the rights and freedoms that American citizens had come to regard as unalterable.

The Patriot Act is reminiscent of the kind of laws that are associated only with authoritarian regimes. Strong voices of dissent from human rights advocates and civil libertarians have been dismissed as irrelevant, even detrimental, to the overarching strategy of prosecuting the war on terror. This has greatly encouraged the neo-conservatives to redouble their efforts to galvanise both votes and campaign funds for Bush and his clique in order to increase their strength in the federal and state legislatures and then ensure the enactment of even more radical laws.

Believing in the rightness of its cause, the Bush administration has promoted its agenda with passion and conviction, even if it has amounted to contempt for the views of others and disdain for the restraining nature of statutes and laws. This is amply seen in the case of the Guantanamo Bay prison camp where hundreds of those suspected to have been involved in Al Qaeda operations have been incarcerated, with little hope of fair trial. This tiny piece of land belongs to Cuba, but the US has refused to hand it back because of a long-expired treaty provision dating back to 1903, that permitted the US to establish a naval station on the island.

Neither domestic criticism nor international protests have had any impact on the administration to soften its determination to keep these suspects locked up, even if their guilt has yet to be proved (only a handful of the prisoners have been formally charged). But as has happened occasionally in the past, the wisdom of America’s founding fathers, who fought vigorously to insist on a genuine and meaningful separation of powers while framing the US Constitution, has come to the rescue of those who believe in the supremacy of the law.

In a historic judgment delivered on June 27, the US supreme court ruled five to three to strike down the military tribunal system set up to try Guantanamo prisoners. In the case brought against the US government by Salim Ahmad Hamdan, a former driver of Osama bin Laden and currently a Guantanamo inmate, the court determined that the US could not proceed with the case, because it violated US military rules and the Geneva Conventions relating to treatment of prisoners of war. The court also ruled that Congress had not authorised the military commissions and that Bush’s orders creating the tribunals exceeded the limits placed on the president’s power to convene military courts. It was of the view that the military commissions would not allow Guantanamo prisoners to have access to all the evidence the government could use against them. In addition, the court held that the tribunals failed to ensure one of the most fundamental rights under US military rules: the right of a defendant to be present during all proceedings.

It would be recalled that during his first term in office President Bush had spent considerable political capital in trying to bypass Congress in the pursuit of his claim that the US was engaged in a “different kind of war” that needed new laws and legal instruments. But this contention was rejected by the court in its ruling when it threw out the administration’s plan to put the Guantanamo detainees on trial before military commissions, affirming that the commissions were unauthorised in law and also violated international law.

This ruling, while truly remarkable in its wisdom and courage, is, however, not the first setback for the administration on this issue. Two years ago, the court ruled that the Guantanamo Bay prison was not beyond the reach of US courts and that those held there also enjoyed some minimal rights. Then last year, the Senate dealt the administration a major blow when it voted overwhelmingly 90 to nine, over Vice President Dick Cheney’s strong objections, to ban the “cruel, inhuman and degrading” treatment of prisoners. That decision had forced the administration to reach an accord with its critics, including Senator John McCain, to agree on the new rules of interrogation.

This latest decision by the supreme court is a strong rebuke to an administration that is widely perceived as having embarked on a course of action that would inflict grievous damage on, if not destroy, the very basis of the constitution, i.e. the separation of powers.

What was even more humiliating for the administration was the fact that the victory was won by unknown lawyers, provided by the state to defend Hamdan, against some of the sharpest legal minds that the administration had employed. Of course, the decision will not result in the release of the prisoners; nevertheless it has forced the administration to look for new ways to prosecute the alleged militants.

Not surprisingly, the judgment was immediately hailed by a wide range of political figures, social scientists, members of the legal community and human rights activists. The executive director of the American Civil Liberties Union (ACLU) called it “a decision that moves us one step closer to stopping the abuse of power that has become the hallmark of this White House.” A prominent American politician praised the court’s ruling as “a great triumph for the rule of law”. The Bush administration’s reaction betrayed surprise and confusion.

Major American newspapers projected the decision as one of the most significant since the Second World War because it sought to define presidential war powers in terms of the issue of war prisoners. It challenged the two basic principles on which the Bush administration had based its strategy for dealing with terror suspects in its custody: the president’s power to create military tribunals for trying the detainees and his decision that the Geneva Conventions for war prisoners did not apply to terror suspects.

The court rejected the government’s position on both counts. In its most significant passage, Justice Stevens declared that the conflict with Al Qaeda was covered by Article 3 of the Geneva Conventions, which requires detainees to be judged by “a regularly constituted court operating all the judicial guarantees which are recognised as indispensable to people.” The supreme court’s decision not only repudiates the Bush administration’s aggressive legal strategy to expand executive authority, but also forces it to rewrite the rules on how it prosecutes alleged terrorists. The president has said that he would work with Congress on crafting new laws that would be in keeping with the supreme court’s judgment. But the truth is that he has spent much of his time in office trying to avoid doing exactly that. Instead, he has positioned himself as the commander-in-chief leading his troops in a battle that is raging all the time, all over the globe. In this manner, he has tried to claim maximum latitude to do exactly what he wants.

Similarly, the administration has insisted on warrantless surveillance of targets within the US and the wholesale monitoring of financial transactions. More disturbingly, many of the actions taken by the Bush administration were not even brought before congressional committees. On other occasions, the administration has sought to give its own peculiar interpretation to a law passed by Congress, so that it could undertake the kind of activities that it favoured. The current attorney-general has been in the forefront of the exercise to deny Congress its constitutional responsibilities.

The supreme court’s decision is all the more welcome to human rights activists because the Bush administration has sought to transform the very complexion and orientation of the American judiciary by nominating those with a proven track record of upholding the most conservative views. It proves the point that the Bush administration has failed to recognise that the respect and esteem the United States enjoys is based on its record and reputation as a rule-based society, not on its military prowess. In that sense, the court’s judgment is a “huge victory for fundamental American values”. Hopefully, this will encourage the administration to place its entire war on terror strategy within the bounds of legality.

Available evidence is, however, not encouraging. After all, many senior members of this administration had co-authored the seminal policy paper known as “The Project for the New American Century”. Not only did this paper call for America to establish a new worldwide empire, it even appeared to express the hope for some “catastrophic and catalysing event like a new Pearl Harbour that would let the leaders turn America into a military and militarist country.” No wonder the famous historian and political scientist Arthur Schlesinger was constrained to lament: “Never in American history has the republic been so unpopular abroad, so mistrusted, feared, even hated.”

Now as regards our own country. While we are still light years away from adhering to the rule of law, as a major ally of the US in the war on terror, Pakistan, too, will hopefully draw lessons from the US supreme court’s decision. Incidentally, on the day of the US judgment, Britain’s high court also ruled that the provision of the control orders in Britain’s anti-terror laws was illegal and breached the human rights of suspects.

Let us hope, even if the hope is a forlorn one, that Pakistan’s political leadership will recognise that rendering parliament irrelevant and ignoring the decisions of the courts of law do not serve the interests of the government nor do the country any good.

The trend of mysterious disappearances and kidnappings of Pakistani citizens in the course of the war on terror is most disturbing. In election to the UN Human Rights Council, Pakistan gave a written pledge to ratify “core human rights treaties” and to set up an independent national human rights institution with “powers to investigate human rights violations in all aspects.” Let this be done expeditiously to renew our faith in the institutions of the state.

The writer is a former ambassador.

NO community has suffered so much in a relatively short span of time as the Sikhs. Name the atrocity, they have undergone it. The community members are courageous enough to bear their sufferings willingly as part of their faith.

Indeed, theirs is a long saga of confrontation and sacrifice. Yet it has got entangled with other things. The community is still in the throes of division and dictation, feudalism and fundamentalism. An event at the Golden Temple at Amritsar, Harminder Sahib, the Sikhs’ Vatican, recently showed how the community was in the midst of unrest and turmoil.

I was present at the huge gathering at the Manji Sahib Hall in the temple complex. The Shiromani Gurdawara Prabandhak Committee (SGPC) was observing the 400th anniversary of the setting up of the Akal Takht, the highest Sikh temporal seat. I had been invited, along with Vijay Pratap, a human rights activist, to receive from Akali Dal president Prakash Singh Badal an award for having fought against the emergency (1975-77) and for going to jail in the process.

The award ceremony went off peacefully in the presence of thousands of people. It was declared at that time that some more people would be given awards and also the opportunity to address the gathering. Listed among the people were the supporters of Simranjit Singh Mann, Badal’s inveterate opponent and an advocate of militancy.

It appeared that Mann’s men became impatient and did not want to wait for their turn. A few among them rushed to the stage and roughed up SGPC chief Avtar Singh Makkar and tried to capture the podium. Swords were drawn and turbans went flying as people from both sides clashed. Mann’s supporters pushed forward while SGPC leaders pleaded with them to go to a separate stage if they insisted on having things their own way. The clash scared the congregation and people began to disperse. No amount of persuasion could bring them back. The Guru Granth Sahib, the Sikh holy book, was removed from the hall and the visibly disturbed Badal was taken to a safe place in the temple complex.

The sacrilegious act that took place in the ‘presence’ of the Guru Granth Sahib left a bad impression on me. I feel that the Sikh community is its own enemy: Groups within groups quarrel amongst themselves to get a place of vantage in the religious hierarchy or in gurdwaras which give them the limelight and funds. They have to go through a process of election. There are laws in Punjab, Haryana and Delhi to elect from the Sikh electoral collage a set of people who administer the gurdwaras in their respective states. The problem arises when those ousted do not accept the majority verdict and indulge in such activities which hamper the management from doing its work. What is required is discipline.

In fact, it is commendable how the community, only 1,600 years old, has bravely faced the challenges to their tradition, turbaned and bewhiskered as its members are. In numbers, they are only six million but they have made their presence felt wherever they have gone. They are spread all over the world. But their homeland is India. Punjab, where most of them live, has experienced many agitations because only through the state’s division and re-division could they get a majority. With the influx of labour from Bihar and elsewhere, the Punjabi-speaking population is nearly losing its majority. This may create problems in the future.

Coming back to the Manji Sahib hall incident, it has been condemned all over, particularly by Sikh organisations. Several people rang me up from Canada and the UK because the proceedings were televised live. However, this is not the first incident of its kind. Nor will it be the last. The Sikh community has to ponder over the incident because it disturbed a religious function held to commemorate the establishment of the Akal Takht. Obviously, those who did it had politics on their mind. State elections are only six months away. The Congress which is in power is collecting all forces and using all tactics to stall the opponents, the Akali Dal, from winning.

I wonder if the incident is the beginning of Giani Zail Singh-type politics. Then the Congress found the extremist Bhindranwale and lionised him to fight against the Akalis. Things went out of control and the result was disastrous. The army attacked the Golden Temple where Bhindranwale had tried to build a state within a state, and Sikh guards assassinated Prime Minister Indira Gandhi.

This led to another fiendish kind of retaliation: the killing of innocent Sikhs in broad daylight, 3,000 in Delhi alone. What is called the Sikh problem was further aggravated. The elevation of Manmohan Singh as prime minister has solved it to a large extent and that Mrs Indira Gandhi’s daughter-in-law, Sonia Gandhi, brought this about has made all the difference.

But the notion of mixing miri and piri, religion with politics, is the real bane. When Guru Hargobind Sahib rationalised the joining of politics with religion, his purpose was to instil the sentiments of social service among his followers. He wanted the Sikhs to pay attention to the lowest in the land. No doubt, the Sikhs are far ahead in this field compared to other communities. Still, their contribution is not in proportion to the wealth at their command. Why can’t the community channel the money productively so as to absorb thousands of unemployed Sikhs who are prone to drugs? One cause of the previous militancy in Punjab was the unemployment of Sikh youth.

The Sikh community still dreams about what India’s first prime minister, Jawaharlal Nehru, had said: the Sikhs would have a place of their own where they would enjoy the ‘glow’. Every agitation begins and ends at that. The much-decried Anandpur Sahib resolution is a watered down version of Article 370 which gives a special status to Jammu and Kashmir.

The Sikhs, by and large, have come to accept provincial autonomy like the rest of the Indians. But the problem with the Sikh community is that it tends to mix religion with politics. It is not opposed to secularism but it overemphasises the religious identity. Guru Nanak Dev, the founder of Sikh religion, preached pluralism and put together the sayings of Hindu, Muslim and other saints in the Guru Granth Sahib. It is pluralism the Sikhs should be pursuing and upholding, not religious jingoism. When they get carried away by passions, as was seen at the Manji Sahib hall, they exhibit a trait which only impairs the community’s image.

The writer is a leading columnist based at New Delhi.