Crisis over the 123 Agreement

IN New Delhi, there continues to be talk of a political crisis generated by the Congress party’s leftist allies’ opposition to the Indo-US nuclear deal. The Congress leadership has succeeded in defusing the situation by agreeing to set up a joint committee to examine the issue and by promising that there will be no “operationalising” of the agreement until the committee has submitted its report.

Among the leftist parties there are many who fear the prospect of a mid-term poll — the inevitable consequence of the withdrawal of leftist support for the United Progressive Alliance government.

Meanwhile, however, the Left parties have insisted that not operationalising the agreement means that there will be no substantive negotiations by the Indians with any of the parties concerned until the committee’s report becomes available. This means that the negotiations with the International Atomic Energy Agency on a safeguards agreement, which could have commenced during the mid-September meeting of the IAEA, will now have to be put off.

This delay may well turn out to be crucial. But for the moment let’s focus on what the Indians with American assistance want to get from the IAEA. They want an agreement which, while imposing IAEA safeguards on 14 of India’s existing or planned 22 civil nuclear reactors, will permit India to withdraw these reactors from IAEA safeguards regime in case the supply of fuel to these reactors is disrupted. This will be unprecedented. The IAEA requires that safeguards be enforced in perpetuity on the nuclear facilities and on the fuel used in these facilities.

The Indians will have the Americans in the corner to persuade the IAEA to abandon one of the cardinal principles of the safeguards regime at a time when the IAEA is trying to get all nations to agree to an additional protocol under which even more intrusive inspections would be permitted by member-nations to guard against the diversion of fuel or facilities to non-civilian uses.

The bureaucracy of the IAEA will be strongly opposed because for them it will make the implementation of existing safeguards agreements more difficult and will complicate the task of negotiating new safeguards agreements.

They will be supported by what the Indian press calls the group of “non-proliferation Ayatollahs” who have been in the forefront of the campaign to strengthen the non-proliferation regime. Whether the political weight of the world’s sole superpower or the increasing political clout India itself is acquiring will carry the day remains far from clear. It is clear, however, that the debate will be long and acrimonious and will probably take longer than was initially envisaged.

It is only after this hurdle has been cleared that the Indians can seek an agreement with the 45-nation Nuclear Suppliers Group (NSG) under which these nations — all of them having the potential to supply nuclear equipment or fuel — will have to support unanimously (a consensus or majority decision is not enough) a proposal to exempt India from the acceptance of “full scope safeguards” as a precondition for any cooperation in the nuclear field.

So far the Indians have pledges or at least indications of such support from the Russians, the French, the British, the Australians, the South Africans and perhaps the Japanese.

The Australians are seen as particularly important because they have some of the largest deposits of uranium and will be the source to which India will turn, in addition to the US and Russia, to meet its fuel needs.

The Australian prime minister has been making positive noises but there are many critics in Australia and some of them have pointed out that apart from its obligations as a member of the NSG Australia is also legally bound to insist on “full scope safeguards” as a price for nuclear cooperation under the terms of the Treaty of Raratonga, which the Australians initiated to create a “nuclear weapon free zone” in the South Pacific.

A similar commitment has been made by the South Africans in the Pelindaba Treaty that created a nuclear weapon free zone in Africa. It is more than probable that legal experts will opine that both these nations would have to renegotiate these treaties before they can cast an affirmative vote in the NSG.As for other member-states, the Indians are most apprehensive about how the Chinese will act. The press comment in China has been critical of the 123 Agreement and has termed it an example of the double standards that the Americans are applying. On the official plane, however, the Chinese have maintained a discreet silence and some Chinese analysts have suggested that China will not, despite the clear anti-Chinese motivation of the agreement, lead the charge or be the lone voice against giving India this exemption.

They may suggest, however, that country-specific exemptions need not be limited to India alone. Whether these conjectures on the position that China will take are borne out remains to be seen.

Analysts are also asking themselves whether the 45 nations of the NSG and the IAEA board of governors will go along with a plan sponsored by an American administration that is on its way out and for which support in the American Congress may have become questionable. These fears cannot be easily dismissed.Given the current circumstances it seems that these hurdles will not be cleared — if they are cleared — until the last couple of months of the lame-duck Bush presidency or even until a new Congress has been elected in November 2008. The Senate will then consider ratification of the 123 Agreement. Despite the bipartisan support for a better relationship with India — the nuclear agreement being regarded as the centre-piece — there is also genuine concern for non-proliferation which was reflected in the enabling legislation, the Hyde Act.

The Indian Left has objected to the Hyde Act’s non-binding prescriptions about Indian cooperation in isolating Iran, etc. as evidence of America using the agreement to control or decisively influence Indian policies. But the more important factor for American legislators will be that in promising to help India build a fuel reserve and in helping India negotiate an India-specific safeguards agreement with the IAEA the American negotiators have violated both the letter and the spirit of the Hyde Act.

Equally importantly, the agreement states that if it is terminated — the Americans will be required under their law to terminate the agreement if the Indians carry out a nuclear explosion — such termination will not come into effect for a year. The Hyde Act and the discussions relating to its passage seem clearly to indicate that the legislators want cooperation to end immediately if India carries out a nuclear explosion.

Will the Congress accept these violations of its intent? Will it do so at the request of an unpopular and departing administration? The Indian lobby in Washington has played a major role in facilitating the agreement. Many legislators will need their support in the coming elections and this may be decisive in the Senate consideration of the agreement. There is, therefore, no definitive answer that can be provided at this time.

What should Pakistan be doing? It has pointed out already that the agreement is discriminatory and has demanded that the exemptions to be granted to India should also be granted to Pakistan because it too has to cope with an acute energy shortage. This is the tack it should continue to take particularly in the NSG.

Mounting any other sort of campaign, emphasising for instance the importance of maintaining the non-proliferation regime, will only risk inviting further comment on our past spotty record on controlling the export of nuclear technology and material and on the questions frequently raised about the safety of nuclear materials in Pakistan.

Article that keeps returning

ARTICLE 58-2(b) of the Constitution is being much talked about these days. The article states that the president may dissolve the National Assembly in his discretion if in his opinion “a situation has arisen in which the government of the federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.”

The article thus empowers the president to dismiss the National Assembly along with the prime minister and his cabinet. This makes Article 58-2(b) arguably the most controversial provision of the Constitution. Before we discuss arguments for and against this article, let us have a brief look at its history.

Article 58-2(b) was incorporated into the 1973 Constitution vide the Eighth Amendment in 1985. In its original form, the 1973 Constitution had established a strong parliamentary form of government with the prime minister as the real head of the executive. The president was a mere figurehead and was not empowered to dismiss the prime minister or the National Assembly.

In 1977, General Ziaul Haq upset the applecart of democracy, suspended the Constitution and clamped countrywide martial law. In 1985, the dictator held partyless elections. However, his basic condition for lifting martial law and reviving the Constitution was that the parliament enact a constitutional amendment that would not only legitimise the changes he had made in the Constitution but also confer upon him the power to sack the National Assembly and the prime minister.

Article 58-2(b) and other provisions of the Eighth Amendment were thus the price the country has had to pay for an end to martial law. Between 1985 and 1997, when Article 58-2(b) was repealed, it was invoked on four occasions to dismiss the National Assembly and the prime minister. The article was reintroduced into the Constitution in 2003 vide the Seventeenth Amendment, again at the behest of a military ruler.

The debate on Article 58-2(b) centres round the question of whether or not the president should be empowered to dismiss parliament and the prime minister.

It is thus a debate on the president-prime minister power equation. The basic argument in support of Article 58-2(b) is that there has to be a democratic and constitutional way of removing a corrupt, inefficient or autocratic government still commanding a majority in parliament.

In the absence of such a mechanism, the only alternative is an extra-constitutional step. It is argued that in 1977 and 1999, army intervention could have been avoided had on each occasion the president been empowered to sack the prime minister. Article 58-2(b) is thus, according to its apologists, an effective bulwark against an extra-constitutional step.

However, this defence of Article 58 (2b) is not convincing. To aver that the article is a bulwark against extra-constitutional steps reflects a lack of understanding of military intervention in politics. We have Article 6 in the Constitution, which declares the subversion or abrogation of the Constitution an act of high treason. Article 6 was part of the Constitution at the time of the military coups in both 1977 and 1999. But that did not deter the generals from subverting the Constitution. If today, the powers that be decide to clamp martial law, can any constitutional provision stand in their way?

The fact of the matter is that constitutional provisions, though exceedingly important, are not in themselves an effective bulwark against martial laws. The only effective bulwark against extra-constitutional steps are strong and stable democratic institutions.

Article 58-2(b) is open to a lot of criticism. In the first place, it makes the office of the president very powerful. The president, who is not responsible to the National Assembly, can sack it along with the cabinet whenever he deems it necessary. The president may not actually dissolve the National Assembly, but the very threat to do so is enough for him to bring the prime minister and his cabinet to heel.

It may be pointed out that the queen in Britain and the president in India are also empowered to dismiss the lower house of their respective parliaments — the House of Commons in England and the Lok Sabha in India. Yet parliamentary traditions are so well-established in both these countries that the discretionary power to dismiss the prime minister is not exercised.

In fact, in India such power has never been exercised. In England, parliamentary conventions require the monarch to always act on the advice of the prime minister or his cabinet. A similar situation exists in India.

Pakistan’s case is different. The fact that during 1985-1996, Article 58-2(b) was invoked on four occasions shows how frequently the president has used his discretionary powers.

Secondly, the article in question begets political confusion and uncertainty. It is like the sword of Damocles hanging over the head of parliament and the government. God knows when in the perception of the president a situation can arise where the federal government is not being carried on as per constitutional provisions. The government has to work in an uncertain environment which impairs its performance. Thirdly, the premature dismissal of parliament begets political instability which has repercussions of its own.

Finally, Article 58-2(b) may become a dangerous instrument in the hands of an ambitious president, who uses it to bully and blackmail the government and parliamentarians. Our chequered political history is replete with such instances.

The Seventeenth Amendment while resurrecting Article 58-2(b) added Clause 3 to it. The new clause makes it mandatory for the president to refer the dismissal of the National Assembly to the Supreme Court, whose decision about the validity of the dismissal is final. Apologists for Article 58-2(b) maintain that the clause serves as a check against the arbitrary dismissal of the National Assembly.

But is it so? In the past as well, the superior courts had the power to review the dismissal of the National Assembly. However, of the four assemblies which were dismissed only one was restored by the apex court despite the fact that in each case the dismissal was more or less on the same grounds. And even when the National Assembly was restored, the political process could not go on smoothly. This shows that the addition of Clause 3 has not made any difference to Article 58-2(b).

hussainhzaidi@yahoo.com

Preserving our culture By Hafizur Rahman

I AM tempted to propound my views on culture in this column because it is one of my favourite subjects. As an old observer I find that for long periods Pakistan has had no minister for culture though a full-fledged ministry of culture has always been there.

The fact is that successive prime ministers have held the view that the ministry had to be headed by a man of culture and such a person was not easy to find. Prime Minister Shaukat Aziz solved the problem by giving the portfolio to a man who has never had anything to do with culture. The gamble paid off and the gentleman has been doing his job well.

Poor culture! In Pakistan it has gone through testing times and trials. For eight years General Ziaul Haq couldn’t decide what to do with it except to rename the Pakistan National Council of the Arts as Idara Saqafat-e-Pakistan. Other governments too had remained worried over the matter except that of ZAB in whose time all the existing cultural bodies were born. Of these, only the State Film Authority is no more, having been disbanded in anger by Zia when Jamil Dehlavi (director of the recent film Jinnah) ran away to London with the rush prints of the controversial Blood of Hussain sponsored by it.

All the incumbent regimes have talked about having a cultural policy, as if this was a must like an import-export policy or a policy on privatisation. Why? I suppose because they couldn’t fit it into their political thinking. Culture is there as an integral part of our psyche. It dictates our way of life and is present in our bones – both dead and alive.

And what can a cultural policy say? That we recognise this and reject that as culture? A few months before the dismissal of the last PPP regime a comprehensive and flamboyant cultural policy was announced. What revolution did it bring about when it was launched? And who will frame the cultural policy of the present government? Probably some members of the ruling party with impeccable religious credentials aided by a couple of section officers whose draft will begin with the dictionary meaning of the word “culture”.

Our cultural heritage is partly based on our beliefs and partly on what has been left for us by the Mughals and other Muslim kings and dynasties, as also by the ancient people who bequeathed us Moenjo Daro and Gandhara. They patronised and helped to create culture unconsciously and that is now our most valued legacy. None of them sat down to frame cultural policies. And yet they left behind something of which we can justly be proud and which is lauded by the whole civilised world.

Actually I sympathise with anyone who takes it upon himself to define which aspects of culture are to be promoted and which shall not be allowed to be practised in the Islamic Republic. As a Muslim born and bred in the subcontinent I know that we are almost schizophrenic in our attitude towards art, music and dance. All the time both practitioners and spectators are asking themselves, “Are we not committing a sin?” And yet the Muslims of so many other countries, Turkey and Bangladesh for example, suffer no such trauma.

Many of us have made a compromise with ourselves so far as the arts are concerned. And this has given rise to the biggest incidence of hypocrisy ever witnessed anywhere. We love to listen to music but we don’t want our children to learn music. We’ll walk miles to watch a live performance by a female dancer but punish our daughters if they show the slightest inclination to take up dancing as a hobby. We may continue to believe that drawing the human body is an irreligious act in some way but go on enjoying nude paintings and sculpture aesthetically.

Even religious leaders compromise through a masterpiece of self-delusion. Qawwali is all right because it is devotional music but a love song is not. Even classical music is termed as useless frivolity. Painting the human figure is a taboo but you can take as many colour photographs of maulvis as you like because a photograph is an aksi tasveer and not a drawing. Folk dancing can be tolerated if the men and women dancers are segregated, but any other form is obscenity.

So, what will a cultural policy say about these matters? Take films. It is not only the censor code that asphyxiated film-making but also the unwritten censorship of the people. Some time ago, the film “Inteha”, duly passed by the censors, was banned because of some adverse comments by ignorant people, but was allowed to be exhibited the very next day by the High Court. Which shows that the courts are more sensible than the ministry of culture.

The government has its own reasons for acting as a damper on the production of purposeful or artistic movies for it cannot tolerate any depiction of any current, topical and really serious social or political problem or the showing of any government agency in bad light or true light, or making fun of any of the sacred cows in which our society abounds. But the people can be most intolerant and unforgiving as censors.If a film casts reflection on a group or a creed or a profession in its portrayal of a character belonging to it the whole community comes down on the poor producer. Show a doctor or a lawyer indulging in any unethical activity and you will see the Pakistan Medical Association and the Bar Associations going on strike. And we talk of sending entries to world film festivals where even Iran wins a prize sometimes. We just don’t count.

What we need is a tolerant atmosphere in which the various manifestations of culture can be practised without let or hindrance, inhibited only by the demands of decency and good morals. On its part the government should take steps to create among the people a love for things cultural. In former colonial possessions national governments create culture where there is none in order to give their people a sense of identity.

So I say to the Government, “Honour your writers and artists and performers, not just by giving them an award or two but by making them feel that the state is proud of them. Give substantial life pensions to those who have devoted their lives to art in any form. Encourage and reward the young and send them out into the world to learn how culture plays a role in society in civilized countries.”

And if the government thinks I am talking nonsense, let it send its representatives abroad to see how self-respecting nations go about this business. This is the best cultural policy and there’s no need to write it down or for a minister to announce it in a press conference.

The amoral society

MODERN life, dominated by science and technology, has created its own antithesis. There is a growing realisation that what was believed to be a linear path of progress may eventually run into a blind alley. Amid the cacophony of material comfort and prosperity, one can hear many voices about the corrosive impact of science and technology on life.

On a philosophical level, the ability of empirical knowledge to penetrate the ultimate reality of things has been questioned and the primacy of the human mind and imagination asserted as the true source of knowledge.

Science and technology have demystified nature by reducing it to atoms moving in a void. Nature is no longer viewed as a source of sublimity and mystery, a symbol of idyllic beauty and charm but a resource meant for unrelenting exploitation and spoliation.

This has disharmonised the inherent balance of nature and created insurmountable ecological problems. Having sold our souls in the manner of Faust to gain control over the forces of nature, we are now in an unenviable situation where our very control of the environment is turning into its strangulation.

Science has thrown overboard the values and beliefs which swayed the human mind for centuries. This has led to the erosion of spiritual and moral values. Devoid of the most cherished certainties of life, we are left groping in doubt and confusion. Faced with moral dilemmas, contemporary generations have been compared to “ignorant armies clashing by night on a darkening plain”, wistfully reminiscent of an age when “the sea of faith was full”. The vacuum of moral values, together with mounting violence, injustice and exploitation, have disenchanted sensitive minds and alienated them from the rhythms of purposeful existence.

Modern society, in a desperate pursuit of material ends, has lost spiritual values and a sense of purpose. The frantic pursuit of materialism has created an amoral society. The institution of the family, which not only embodies human feelings of love, filial devotion and parental care but also serves as the sheet anchor of social stability, has eroded and given way to perverse forms of sexual behaviour, child abuse and neglect of the elderly.

A modern scholar distinguishes between culture and civilisation, the former being the creative phase of intellectual development and the latter being the declining stage of material comfort. He is of the view that the modern world, particularly in the West, has already passed through the growing stage of culture and entered upon its declining phase.

The application of scientific rationalism to the realities of human behaviour has also given rise to a deterministic view of life. Determinism denotes that all events are an inevitable outcome of antecedent conditions and human beings, in acts of apparent choice, are actually determined by heredity and environment.

This philosophy subjects man to external forces which may be the laws of the physical world, as Newton showed; or adaptation to the natural environment as a principle of the evolution of species, as Darwin proved; or changes in the mode of production as a determinant of human history, as Marx demonstrated; or the vast zone of unconscious out of which human actions spring, as Freud maintained. This way of thinking has spawned a feeling of despair and futility of human existence.

Piecemeal knowledge of reality based exclusively on science, the depletion of the natural environment, the erosion of moral and spiritual values, the onslaught of materialism and nationalism, the mad stampede for power projection in the face of desperate hunger and disease faced by millions of people around the globe, these are some of the sordid aspects of an amoral society that stands on the brink.

Despite the ringing rhetoric of human rights and civil liberties, the contemporary world is a witness to brutal power struggles, wreaking death and destruction on millions of people. Modern science and technology have vested man with immense power, both for good and bad. Unless we harness ourselves to moral and human values, and commit our energies to constructive purposes, we may well be sitting on a powder keg, running the risk of being engulfed by our own clever devices.