DAWN - Opinion; 16 April 2005

April 16, 2005

Email

9/11 myopia: making a mockery of justice

By Omar R. Quraishi


IN Pakistan, feudal landlords are sometimes accused by human rights organizations, both within the country and abroad, of running private jails where they incarcerate their farm workers and torture them with impunity. In Afghanistan, local tribal leaders, including former Herat governor, have been accused of running their own fiefdoms complete with private jails and so on.

As part of its annual report on human rights for 2004, the US State Department compiles various country reports and provides them to Congress as required by certain provisions of US law, especially the Foreign Assistance Act of 1961 and the Trade Act of 1974. Under the law, the secretary of state is required to “transmit” to the speaker of the House of Representatives and the Committee on Foreign Relations of the US Senate a report regarding the “status of internationally recognized human rights” in foreign countries.

Let’s take the case of Pakistan. The 14,000 words plus report lists in some detail many cases of human rights violation, including instances of extra-judicial killings, illegal confinement and torture by the police and other law-enforcement agencies in Pakistan. It quotes “allegations from several sources” to say that during the operation against militants in South Waziristan Pakistan security forces committed human rights violations. It takes note of the sectarian and politically-motivated murders that took place in the country during 2004 and also mentions violent crimes committed under the pretext of so-called honour.

The report also notes the discriminatory and adverse fallout of various laws, especially the Hudood ordinances. There is also mention of the Okara farms tussle between the military and local farmers, cases of blasphemy registered during the year, and an assertion that magistrates routinely misread or failed to comply with the law that authorized them to sanction 14-day detention of a person suspected of a crime. The report also has a section on ‘denial to a fair trial’ where it is said that while the judiciary is supposed to be independent of the executive, in reality the former is subject to considerable influence by the latter and that such influence takes place at “all levels” of the judiciary.

Overall, the report presents a scathing (and, by and large, true) critique of the human right situation in Pakistan and of its criminal justice system. However, there is considerable irony when America indulges, even if to satisfy a domestic legal obligation, in passing judgments with respect to human rights on various countries.

Take the issue of secret detention centres run by the CIA in various countries around the world. Though their existence has never been officially acknowledged, various reports in mainstream US newspapers suggest that they do exist and house individuals suspected of being members of Al Qaeda or other terrorist organizations.

The reason for such detention centres being in foreign land is that interrogation methods used against this detainees held there do not have to comply with the US law. Also, and perhaps more importantly, such an arrangement means that detainees held under it are outside the jurisdiction of US courts, which to date have been the only source for any corrective justice to such detainees and which have given rulings against the Bush administration’s decision to deny such prisoners the rights guaranteed to them under the Geneva conventions.

In addition, it will be difficult for investigative journalists or human rights groups to use the Freedom of Information Act to gather information on the plight of such detainees since they are not being held on US soil. Another reason, other than embarrassment for the Bush administration, would be to prevent any complications for the host governments.

Pakistan, according to New York-based Human Rights Watch, is among the countries where such centres are run. One such centre is reportedly located in Kohat in MMA-ruled NWFP and the repercussions in Pakistan of either Washington or Islamabad publicly acknowledging its presence, especially with the MMA guns blazing against the Musharraf government, can well be imagined.

The level of secrecy surrounding the detention centres is such that only four members of Congress, heads of the respective committees of the House of Representatives and the Senate, know their locations. While it is standard practice by a US government agency to keep all the members of a House committee fully informed of its operations and activities, in this case only the committee’s head and its ranking members (usually from the Democratic party) are briefed on the location of the centres.

In fact, the heads of one of the committees recently raised the issue with the US government saying that the level of secrecy was preventing the Congress from carrying out its due responsibility of oversight and monitoring of programmes undertaken by the executive branch of the government.

Given this, it would be fair to assume that the US government and its allies in the so-called war against terror have things to hide. The detention of suspects is clearly illegal under the law of any civilized country — which is why the respective governments would want to deny the existence of any detention centres. This means that the suspects are being held quite literally in a legal vacuum, being transported from one country to another, for interrogation purposes. Since such detentions fall outside the pale of international or any domestic legal provisions, the detainees can be subject to torture or brutality without any rights organization, media outlet or national parliament ever finding out the truth about detention.

By indulging in such aberrations, the US government seems to be using the same tactics of detention and torture which it accuses other countries of practising. In fact, the policy of outright denial of a case involving a high-profile alleged terrorist, of using a thick veil of secrecy by withholding all information related to such cases, is exactly what many Third World police forces use only too readily.

What is perhaps even more startling is that requests by members of Congress who are also members of the intelligence committees to be provided exact information on these detention centres have not had any positive effect on the Bush administration. Denial of such requests fits in well with the arrogant style of working and exclusionary policymaking that has become the hallmark of the White House under George W. Bush.

The administration wants to be judge, jury and executioner all at the same time. It seems to have already prejudged the guilt of these detainees and has also decided that there is no need at all of providing them any legal aid. It is afraid that if identified or housed in American jails, US courts will come to the rescue of these detainees in that they will at least be provided access to lawyers and granted their right to a fair trial.

And so it all boils down to the belief of the US government, borne out of a post-9/11 culture of fear and paranoia, that if the law has to be bent (or discarded in this particular case) to enable it to indefinitely detain and eventually convict the suspects, then it is a policy well worth adopting. But how is it any different from a kangaroo court, with the defendant already convicted and punished, and the outcome known in advance?

For some reason, guided probably by extreme myopia and lack of scruples, Mr Bush and his advisers cannot see the damage such policies inflict on the image of their country not only in the eyes of the rest of the world but even among those Americans who have a conscience. Besides, such tactics are hardly the way towards building friendly and good relations with the Muslim world since in almost all cases the secretly-held detainees happen to be Muslims.

If the US government insists on publishing annual reports critical of other countries where mention is made of all their inhuman practices such as keeping citizens in illegal detention, then it should also have the moral courage to look inward and evaluate the implications of some of its policies, especially those formulated and enacted post-9/11. The hypocrisy in not doing so is a bit too much to stomach.

Email: omarq@cyber.net.pk

Political landscaping

IN A STUNNINGLY sudden change of political heart last week, 13 Republican lawmakers in Annapolis, the US, simultaneously dropped their opposition to a significant parkland preservation measure and joined the ranks of Democrats seeking new protection of the landscape.

The GOP mass conversion was more political than divine; it just happened to coincide with a sudden decision by Gov. Robert L. Ehrlich Jr. The governor dropped his opposition to a constitutional amendment pushed by Democrats concerned about attempts at quick-and-quiet sellouts of parkland to business interests.

Until last week, Mr. Ehrlich had fought the amendment, citing his “serious concerns” about any bill that would limit gubernatorial power. Republican lawmakers had consistently opposed the proposal, and GOP senators had voted in a bloc to try to defeat it in committee. Now the measure, which the Senate approved unanimously appears well on its way to the November 2006 ballot.

— The Washington Post

Sino-US rivalry & South Asia

By Afzaal Mahmood


CHINESE Premier Wen Jiabao’s four-nation South Asian visit — Pakistan, Bangladesh, Sri Lanka and India — was significant for two reasons. It was the first visit by a top Chinese leader after the generational change of guard in Beijing. Secondly, it showed the importance South Asia had come to acquire in the escalating Sino-US strategic competition.

Though both the United States and China have played down their differences, some recent developments have a tale to tell. Under heavy US pressure, the European Union has postponed the lifting of embargo on arms exports to China until next year at least.

A few weeks ago, China’s National People’s Congress passed a law authorizing the use of “non-peaceful means” to prevent moves towards Taiwanese independence. The anti-secession law has raised the risk of confrontation between China and the US because neither is accustomed to blinking when its authority is challenged.

Another alarming development is that China-Japan relations have hit rock bottom. In December, Japan for the first time listed China as a potential threat in revised defence guidelines. It recently described the issue of Taiwan as a major regional security problem., infuriating China which sees it as a domestic issue. Each side has demanded the other to halt oil and gas exploration projects in disputed areas of east China. Yukio Okamoto, special assistant to the Japanese prime minister, in a speech in New Delhi, recently spoke of Indo-Japanese cooperation to restrain a powerful China that wishes to alter the status quo to right perceived historical wrongs.

Veteran Singapore leader, Lee Kuan Yew, sees a 40 per cent probability of war between China and Taiwan at some point over the next 10 years. President George W. Bush has made it clear that the US will be willing to go to war with China, if need be, to protect the independence of Taiwan. Washington views China as a clear and emerging threat to the dominant power status of the US and that it must be contained by diplomacy, by trade or even by armed conflict.

Pakistan was the first country to be visited by Premier Wen Jiabao. This was the first official visit by a top Chinese leader since May 2001 when Premier Zhu Rongji came to Pakistan and committed Chinese financial and technical support to large projects including the construction of Gwadar port. Premier Wen Jiabao’s visit was marked by the signing of 22 agreements for specific cooperation in various sectors ranging from agriculture, information technology to energy and education, and involving an investment of $350 million.

However, the most important event during Premier Wen Jiabao’s visit was the signing of the Treaty of Friendship, Cooperation and Good Neighbourly relations between Pakistan and China which seeks to take care of Pakistan’s perennial sense of insecurity. But for some inexplicable reason, beyond the comprehension of ordinary mortals, the people of Pakistan have been kept in the dark about the text of the treaty. The Chinese side has, however, published extracts from the treaty in the People’s Daily.

According to Premier Wen Jiabao, the treaty marks “a new stage” in Pakistan-China friendship. China has always supported the territorial integrity, sovereignty and independence of Pakistan. The treaty seeks to institutionalize the Chinese backing. A clause in the Treaty stipulates that neither party will join “any alliance or bloc which infringes upon the sovereignty, security and territorial integrity of the other side.”

It will be a mistake of immense magnitude if our policymakers continue to believe that, compared to Pakistan, China attaches less importance, weight or value to its friendship with India. If there were any doubts in this regard they should have disappeared after the productive and successful four-day visit of India by Premier Wen Jiabao who said the visit produced “rich results”.

The pronouncements of the Chinese premier on important policy issues as well as on the outcome of his talks with Indian leaders clearly show that India is a very important element in China’s calculation. “We are going to put in place,” said the Chinese premier in New Delhi, “a bridge of friendship linking our two countries.” Even far more significant were his observations to a group of senior Indian journalists: “The 21st century could belong to Asia if India and China developed relations and worked together.”

After detailed discussions between the Chinese premier and his Indian counterpart, the two sides reached agreement on a number of issues. On the vexed boundary question, India and China agreed on a set of guiding principles to help them resolve the issue in a “pro-active” manner through “equal and friendly consultations and proceeding from the overall interest of bilateral relations.” They also agreed that differences on the boundary question should not be allowed to affect the overall development of bilateral relations.

The Chinese premier made it clear that Sikkim was no longer a problem in Sino-Indian bilateral relations. Consequently, the new map of China did not show Sikkim as part of China. Beijing recognized the Sikkim state as part of the republic of India. But what must have pleased New Delhi most was the statement from China that it would be happy to see India as a permanent member of the Security Council. Justifying the decision, Premier Wen Jiabao said that his country “understands” India to be a “major developing country that plays a positive role in regional and international affairs.....and (is) ready to see a greater role of India in the international arena, the UN included”.

From the Chinese point of view, the most significant achievement of the visit was the acceptance by India of China’s offer for strategic partnership. Consequently, New Delhi and Beijing have agreed to establish “an India-China strategic and cooperative partnership for peace and prosperity.” The two sides also agreed to declare 2006 as the “year of India-China friendship.”

India now enjoys the unique distinction of being the “strategic partner” of both the US and China. If economics drives politics, the growing economic ties between India and China at least partially explain the breakthrough in their political relations. From $2.9 billion in 2000, the level of bilateral trade has jumped to more than $13 billion, bringing the target of $25 billion by 2010 within reach. If the present trend continues, it may put China ahead of the United States as India’s largest trading partner.

No doubt, China and India have made determined efforts to remove irritants from their relations. Realpolitik and pragmatism have played an important role in bringing about a marked improvement in their bilateral ties. Their decision to join hands as strategic partners is a development of great significance with far reaching implications, particularly for the South Asian region. Whether the two Asian giants can maintain the current tempo of strategic and cooperative partnership will largely depend on how far they succeed in harmonizing their geo-strategic interests.

After joining hands with India as strategic partner, the US now wants to build up New Delhi as a major world power in the 21st century. The objective is to encircle China and prevent the emergence of a hostile rival whose military rise, economic clout and self-confidence in Asian affairs make the world’s biggest communist country a real threat in the eyes of the Bush administration.

There are unmistakable indications that South Asia is unwittingly getting involved in the escalating US-China strategic competition. Pakistan is a non-Nato ally of the US and its front-line collaborator in the war against terror. Recently, it signed a Treaty of Friendship and Cooperation with China with whom it has had a time-tested and comprehensive relationship. Has Islamabad given sufficient thought to the implications of a divided South Asia and getting involved in the emerging US- China rivalry? Will it be able to maintain neutrality and equi-distance from Washington and Beijing? Have policymakers taken into consideration the very damaging consequences which will inevitably follow if South Asia gets sucked in US-China strategic competition? These are questions that need careful deliberation.

The writer is a former ambassador.

Protecting the press — and the public

By Mike Pence and Richard G. Lugar


FREEDOM of speech and the press are two of the most important rights Americans possess under their constitution. They form the bedrock of their democracy by creating a free flow of information to the public.

Unfortunately, these rights are under attack. Nearly a dozen reporters were given or threatened with jail sentences last year for refusing to reveal confidential sources. Compelling reporters to testify, and in particular to reveal the identity of their confidential sources, hurts the public interest. Many whistle-blowers will refuse to come forward, and reporters will be unable to provide our constituents with information they have a right to.

That’s why we, Americans, have introduced the Free Flow of Information Act, or Media Shield Law, with the bipartisan co-sponsorship of Sen. Chris Dodd and Rep. Rick Boucher. This bill would set national standards for subpoenas issued to reporters by an entity or employee of the federal government. It strikes a reasonable balance between the public’s right to know and the fair administration of justice.

Congress has a history of protecting this right, which is essential to democracy. Last year it enacted legislation that directed the State Department to promote international initiatives to cultivate free, fair, legally protected and sustainable media in developing countries. The National Endowment for Democracy has embraced this effort and is proceeding with implementation.

While we focus on democracy abroad, we cannot let those freedoms erode at home. The Constitution states that freedom of the press shall not be infringed. A cornerstone of our society is the open market for information that the media share with the public. If the media are hampered from gathering the facts in the first place, they risk becoming little more than conduits for government press releases.

Our bill works to solve this problem by setting national standards that must be met before federal officials may issue a subpoena to a member of the news media in any federal criminal or civil case. In the case of a confidential source, the bill provides that a reporter cannot be compelled to reveal the source. In the case of other information, it sets out certain tests that civil litigants or prosecutors must meet before they can force a journalist to turn over information.

Prosecutors must show, for instance, that they have tried unsuccessfully to get the information in other ways and that the information would be crucial to “an issue of substantial importance” in the case. If they were seeking confidential information in a criminal case, they would have to show that a crime had been committed and that the information being sought was essential to the investigation.

These protections are enough to ensure that a whistle-blower’s identity would be protected when he or she comes forward with information about corporate or government misdeeds, but they would still allow the courts and other federal agencies to do their jobs.

It is important to note what the bill does not do. It doesn’t give reporters a license to break the law in the name of gathering news. It doesn’t give them the right to interfere with police and prosecutors who are trying to prevent crimes. It leaves laws on classified information unchanged. It simply gives journalists certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment, much as, in the public interest, we allow psychiatrists, clergy and social workers to maintain confidences.

It is important to note that this bill is not a radical step. Thirty-one states, including Indiana, plus the District of Columbia, already have their own “shield laws.” — Dawn/Washington Post Service

Mike Pence is a Republican representative from Indiana, and Richard G. Lugar is a Republican senator from that state.

No halfway stop for Musharraf

By Kuldip Nayar


WHEN Chaudhry Shujaat Hussain, the Muslim League chief, was in New Delhi recently he said that Muslims in India had the option to migrate to Pakistan when the subcontinent was partitioned but today they were citizens of India and should be loyal to the country.

I do not know how a mature person like him came to infer after visiting the Jamia Masjid in Delhi for two hours that Muslims on this side were keen to go to the other side. He was raking up the past with which he was not familiar.

He was even factually wrong while recalling history. One, it was not up to the Muslims in India to go to Pakistan. The transfer of population was not part of the agreement reached between the leaders of the then Muslim League and the Congress. Two, it was a different Pakistan in the mind of its founder Mohammad Ali Jinnah. He wanted it to be a secular polity, not mixing religion with politics. He died an unhappy man because during his lifetime he saw the country being mutilated and deformed in the name of Islam.

Both he and Mahatma Gandhi tried their best for the people to stay back in the newly-formed states but fanatics pushed them out, killing roughly one million people in the orgy that followed partition. Where was the question of Muslims or, for that matter, Hindus and Sikhs leaving if they had not been forced to do so?

Shujaat Hussain’s advice to the Indian Muslims to be loyal to their country was the unkindest cut. He only gave vent to the feelings of the BJP-RSS parivar that have built their following among the Hindus on the anti-Muslim plank. Their propaganda was that the Muslims were not loyal to India and Shujaat Hussain dittoed it. In any case, who was he to assess their loyalty? The Advanis and Modis were enough to make their life a nightmare.

Worse than Shujaat Hussain’s comment was the observation by Mushahid Hussain, his deputy, on return to Pakistan: Muslims in India were afraid to say even salaam. I thought he would have been impressed by the open society that India is. People-to-people contact has made thousands of Pakistanis realize that whatever India’s limitations, lack of democracy is not one of them. In fact, they have often questioned: Why couldn’t Pakistan have the same democratic structure as India has?

The few Pakistani Kashmiris who crossed into our side of Kashmir through the bus were struck by the openness in the Valley. They were amazed to find the Indian side much more developed than theirs. They found the Valley afflicted with many problems, including human rights violations, but it was not a dictatorial place. Even Islam here took the shape of Sufism, the mystical system, the Kashmiriyat which was pluralistic in content.

If the Shujaat Hussains and Mushahid Hussains were to accept the concept of secularism, the problem of Kashmir or, for that matter, Pakistan would not be so intractable. They should realize the Valley could not go to Pakistan just because it was a Muslim-majority area. The two-nation theory was history. Jinnah wanted to separate religion from politics. President General Pervez Musharraf stopped halfway when he did not apply Jinnah’s logic to the Valley.

Musharraf was right when he said that India and Pakistan should talk on Kashmir. But he was wrong when he brought religion to the fore to claim Kashmir. In fact, Islamabad did a great disservice to the Kashmiris’ indigenous struggle when it tried to Islamize it in the name of “moral and diplomatic” support. Camps for training the militants were still in Azad Kashmir and they went beyond the diplomatic support.

Still I have not been able to make out why relations between India and Pakistan should be hostage to Kashmir. The problem may take time to solve. Should the rapprochement between the two countries be on hold till then? If it were to be delinked from Kashmir, a solution would be easier to find. This is one reason why a tripartite meeting will create confusion. True, the Kashmiris should be associated with the talks but not at a time when New Delhi and Islamabad have not yet started discussions on Kashmir officially.

The two have many other problems to sort out. The differences over the Baglihar dam should awaken us to those. The Indus Waters Treaty may have to be reviewed. Perhaps, the two should jointly supervize the distribution of all the six rivers — Sindh, Jhelum, Chenab, Ravi, Beas and Sutlej. But Kashmir has come to occupy so much space that there is very little for anything else.

The typical example is the visit of 10 former Pakistani envoys to New Delhi earlier this month. They met some 30 Indian ex-ambassadors. Having been India’s high commissioner to Britain, I fulfilled the conditions to be at the meeting. I must admit the former Pakistani envoys did not impress me because they were obsessed with Kashmir. Everything depended on its solution. So they said. Our side too was pedestrian, only countering the points the other side made. I wondered how for decades the foreign offices on both sides had done nothing except negating each other’s stand.

Here were brilliant minds who had helped their country formulate foreign policy and implement its ramifications but how limited they were in their vision (our foreign minister is a retired ambassador). Even after retirement, they continued to stick to sterile policies and that might well be the reason why the two had not been able to demolish the wall of hate and mistrust they had raised.

I proposed at the meeting to ‘freeze’ Kashmir till we had established good relations. In support, I quoted late prime minister Zulfikar Ali Bhutto’s observation during an interview with me that it should not be incumbent on our generations to solve all the problems. The Pakistani envoys did not agree with me. Nor did they suggest anything concrete. In fact, I was worried about their inference that people-to-people contact had lost momentum.

I feel that the potential of people-to-people contact has not been exhausted. Contact has just begun and it is confined to a few cities. Thousands of people from both sides should meet at different levels and in different parts of the two countries. Mistrust still rules both sides. Both of us are proud to be sovereign and it should stay that way. But borders should be soft and crossing it should be like going from one street to another. The Shujaats and Mushahids should be working towards that instead of delineating the identity of Muslims on this or that side.

The writer is a leading columnist based in New Delhi.