THE Kerry-Lugar bill and the Berman bill are now in the process of being merged. Not many stakeholders in Pakistan have examined or minutely gone through the 58-page Berman and approximately 17-page Kerry-Lugar bill to assess its impact on military aid to Pakistan.

In this article I intend to focus on two issues; first, whether the bills stretch their legal scope unnecessarily to include military assistance; second, whether they give undue space to political statements.

In addition to regulating civilian aid, the bills intend to bring into their fold the already agreed to or ongoing military assistance and make it subject to conditions such as specific certification by the secretary of state. This means that assessing the performance of the civilian leadership under the aid programme will be a basis on which clearance shall be given for the grant of military aid. Is that acceptable to Pakistani stakeholders? Is the leadership in full knowledge of the implications of the fine print? If so, then fine; the matter ends here. If not, then the implications need to be examined.

Ongoing military assistance to Pakistan is being given through existing US laws such as the Foreign Assistance Act 1961 and the Arms Export Control Act 1976. Under the present bills, the annual amount of $1.5bn is to be spent on the people of Pakistan and not for military purposes. Not many will disagree with this approach of giving aid for the people's welfare. In fact, given past allegations of the diversion of funds, the US government will, rightly so, put in checks to ensure that these funds are not diverted for military purposes.

Looking at it from a legal point of view only, the attaching of more conditions to military aid is some what ultra vires and extraneous to the scope of the law that is otherwise devoted to civilian aid. It is certainly understandable that the US would desire a verifiable guarantee that civilian aid should not be diverted to fulfill military purposes.

However, why should the proposed US law regulate the subject matter (military aid) that it is neither granting nor regulating? Military aid is being provided by the US to Pakistan under a separate set of laws. Those laws have in-built safeguards. Licensing regimes are in place, export permissions are required from the State Department etc. Several states including Poland, Hungary, the Philippines and Jordan along with Pakistan buy military hardware from the US government complying with all regulatory conditions. If new conditions are added in the final Kerry-Lugar bill on military aid to Pakistan, it shall be discriminatory and Pakistan shall be singled out vis-à-vis several other states routinely receiving military aid and supplies from the US.

Once the bills are finalised, they will introduce additional legal obstructions to obtaining military assistance under other US laws. Given Pakistan's significance as a US ally, Pakistan should be given prompt access to upgraded military hardware for use in its present counter-insurgency operation.

Under the circumstances, retaining a distinction between 'military aid regulatory law' and 'civilian aid regulatory law' may be desirable. Both need to operate independently of each other. Otherwise, the non-fulfillment of conditions on the civilian side may inadvertently end up obstructing military supplies to Pakistan. Politically, it can become a tool to put pressure on Pakistan any time in the future.

The other important legal issue is that both bills are aid-specific and provide conditions for disbursements and enlist heads under which the aid shall be spend. This is really the true scope and purpose of these bills. However, instead of confining the text to the core objectives, the bills devote unnecessary space to enlisting issues that are legally extraneous to the scope of the bill itself — for example, providing a long list of terrorist incidents in Pakistan, like the Marriott bombing, the names of terrorists arrested such as Khalid Sheikh Mohammad etc. Certainly, these are facts. But are they relevant to the bill?

In both the Kerry-Lugar and Berman bills, detailed elaborations of considerations and reasons for the bill are provided under several headings. All this could have been explained in a few lines of the preamble. Both bills contain more political statements than legal formulations under various headings such as 'findings', 'declaration of principles', 'purposes of assistance', 'statement of policy', 'sense of Congress' etc.

The approved legal approach is that such clauses in a draft bill must be brief and stay legalistic in outlook. This is the advice given to US lawmakers by the Legislative Drafting Manual prepared by the legislative branch of the US Congress. The present drafts of both the Kerry-Lugar and Berman bills are inconsistent with this advice and need to be shortened drastically so that the focus of legislation remains primarily on aid for the people of Pakistan. Those congressmen who are still interested in providing a detailed background of events in Pakistan can do so in introductory speeches that are part of the Congress record.

In conclusion it can be stated that both the Kerry-Lugar and Berman bills when merged should result in a brief, clear and legalistic instrument that radiates optimism and goodwill and that stays focused on aid for the welfare of the people of Pakistan.

The writer is an advocate of the Supreme Court of Pakistan and president of the Research Society of International Law.

ahmersoofi@hotmail.com