Saturday, October 24, 2009

Sovereignty and the Kerry Lugar Act

Maryam Sakeenah

The headlines reverberate and a debilitating sense of insecurity grips the nation amid a string of terror attacks and suicide hits that have now spilled over into the entire country. A fortnight ago, the military headquarters in Rawalpindi were attacked in a hostage-taking attempt, killing six military personnel including a brigadier and a lieutenant colonel. While the swift rescue operation was made much of as an enormous ‘success’, the very incident aimed at the heavily fortified military headquarters raises serious concerns. As more similar stories hit the front pages, these concerns are raised the world over and the state’s ability to deal with the immense crisis facing it is called into question. The natural victim of the spiralling crisis is the already fragile economy, and the symptoms of a grave economic crisis are conspicuous. Mohsin Khalid, the Director of Ittehad Steel shares his observation about the prevailing mood: “Law and order problems and insecurity are the primary reason why you see such a level of despair in overall economic, political and social circumstances. I think people are taking their investment abroad. They do not see the security situation improving... It is also a crisis of governance on a scale we haven’t seen before. Consumer and investor confidence has never been lower.”
In this state of abject financial insolvency while faced with the Leviathan monster of militant insurgency, the government seems to be on its knees and, as per tradition, ‘looks West’ for rescue packages and aid dole-outs. Barbara Plett writes, “The government, in an emergency mode, asks the world for a multi billion dollar rescue package to help it pay for imports and restore confidence, trying to reassure Pakistanis.” In October last year, Pakistan managed to receive an ‘emergency bailout’ package from the International Monetary Fund which was seen as a humiliation by the public, coming after allies refused assistance required to prevent an economic crunch. The government indicated, therafter, that ‘it could seek more funding to stave off growing economic pressures.’ National spending and imports, however, have not been cut down, nor does such an expenditure reduction seem to be in the picture, adding to the diminution in public eyes, of an already unpopular national leadership as the masses grapple with the ordeals of rising inflation, food scarcity, energy crisis and rising unemployment.
The situation is appalling for the country’s Western allies for whom Pakistan’s role in the War against Terrorism is instrumental, with success in Afghanistan for the Allied Forces looking more elusive and nebulous by the day. In fact, there has been a gradual trend among Western leadership to pass the buck to Pakistan. Success for the US in Afghanistan, we are told, is closely bound to a stable, peaceful Pakistan, as Richard Holbrooke_ Obama’s front for ‘Change We Need’ in South Asia_ stated: “There is no way that the international effort in Afghanistan can succeed unless Pakistan can get its Western tribal areas under control.” This explains the heightened international interest in doling out aid packages to Pakistan. ‘Friends of Democratic Pakistan’ pledged an aid package of $ 5 billion in Tokyo in April this year. The Atlantic Council, earlier this year, published a bleak survey of the situation in Pakistan to make a strong case for the United States and its allies to ‘work to strengthen democracy, engage the region, condition security assistance and increase development assistance... as there are fewer challenges greater for the Obama administration than Pakistan. Pakistan’s importance to the United States is hard to overestimate.’
Contemporary journalism has avidly responded to TIME and Newsweek magazines’ ‘Terror Central’ and ‘Most Dangerous Place’ and joined in the chorus. ‘The Economist’ explains this overwhelming importance of Pakistan to American strategic interests, as well as the need for urgent attention by the world that prevailing conditions in Pakistan deserve: “Pakistan, the world’s sixth most populous country and second biggest Muslim one, is violent and divided. The Taliban insurgency is spreading in its North West Frontier region fuelled partly by a similar Pashtun uprising against NATO and US troops in Afghanistan. In addition, a regenerated Al Qaeda network, resurgent Taliban and most certainly Osama bin Laden are all inside Pakistan’s borders, and 16 US intelligence agencies agree that Al Qaeda Central, planning from its safe haven in Pakistan’s Federally Administered Tribal Area (FATA), poses the most serious threat to the Homeland. The presence of extremists, the government’s instability and the past role of rogue elements in spreading nuclear technology make the security of Pakistan’s nuclear arsenal a great concern for the United States.”
The mood is echoed in the February 2009 report of the Atlantic Council which called for the US government to urgently mobilize aid to Pakistan, with a clear implication that perhaps international loans and grants are the only way the tottering state can make it through_ a perception rejected by an overwhelming majority of Pakistanis on account of the ‘carrot-and-stick’ tactics the country has too often been subjected to in the past by its Western allies. The report states: “The country faces dire economic and security threats which threaten both the existence of Pakistan as a democratic and stable state, and the region as a whole. Given the tools and finances, Pakistan can turn back from the brink. But for that to happen, it needs help now. Such a reversal demands far greater and more urgent support and assistance from the international community in general and the United States in particular.” Significantly, the Report calls for ‘an early passage of the Kerry-Lugar legislation that authorizes $ 7.5 billion which Pakistan needs to cover critical budget shortfalls.’ Among other things, “expansion of Confidence Building Measures between India and Pakistan” , and ‘redirecting security assistance to Pakistan for both the army and paramilitary forces, in order to improve their capacity for counterinsurgency warfare and fighting militancy...’ have been stated as primary goals of American policy towards the vitally important state.
The Kerry-Lugar legislation brings up an engaging debate over the question of Pakistan’s sovereignty. In the political melee that ensued over the Bill, strong allegations regarding violation of national sovereignty the Bill amounted to, as well as fierce defence against the charge of the violation of sovereignty were articulated by both sides. The Prime Minister Yousuf Raza Gilani triumphantly described it as a ‘big success of the democratic government’, and that he was ready to defend it in the parliament. A provincial minister belonging to the ruling People’s Party was quite vociferously defensive as he called it a ‘historic achievement reflecting the trust of the Friends of Democratic Pakistan in the present government and upgraded the image of the country as a frontline state against terrorism.’
On the other side is the stream of criticism coming from the opposition parties and eminent political analysts, journalists and writers. Public opinion loudly rejects the Bill, and the government is under fire for having accepted the imperious conditionalities for an American grant worth $7.5 billion for five years. The Punjab governor Salman Taseer, passionately defending the notorious Bill, rejects all criticism against it as coming from ‘people who have not read the text of the Bill, or do not understand it.” Proponents of the Bill hail the economic package it promises, which is just what the country needs in order to emerge out of economic crises. The ‘Daily Times’ strikes parallels with the Hyde Act between India and the US which was similarly received in India, but resulted in highly beneficial nuclear co operation between the two countries.
Economic experts, however, think differently. Former Finance Minister Salman Shah stated, “US assistance under the KLB would not benefit Pakistan’s economy at all... Acceptance of the KLB without addressing the concerns of the people as well as the institutions of Pakistan would have negative repercussions for the economy.” Etrit Rizvi, former Commissioner of Securities and Exchange Commission of Pakistan highlights alternatives: “There are a number of alternates to the US assistance being pledged with insulting conditionalities. Cost cutting, plugging leakages out of implementation machinery and promoting exports and investment could help the economy sustain without US support.”
It is pertinent to examine and ascertain how, if at all, the Bill threatens the sovereignty of Pakistan. The ‘Enhanced Partnership with Pakistan Act of 2009’, as it is officially named, acknowledges Pakistan to be the United States’ prime ‘non NATO ally’, adding that despite efforts in the War Against Terror, ‘much more remains to be accomplished’, as ‘Al Qaeda sanctuaries’ continue to operate in ‘FATA, Quetta and Muridke.’ In its objectives, the Act states the following
*obtaining ‘full co operation for nuclear non proliferation’,
* ‘encouraging people to speak against militancy’
* and ‘addressing the threat posed by any person or group that conducts violence in Pakistan or its neighbouring countries.’
In the education sector, the United States aims to
• assist ‘counter radicalization’ through education and training in ‘life skills for youth at risk.’
• The United States aims to assist Pakistan by promoting ‘modern education’ through the ‘development of nationwide modern curricula for public, private and religious schools.’
• A ‘better understanding of the United States’ shall be promoted among the youth through various scholarship, student exchange and other programs ‘administered by the United States State Department.’
The Act pledges massive and multi faceted security assistance for the ‘ongoing counterinsurgency’ to ‘prevent Pakistani territory from being used as a base for terrorist attacks in Pakistan or elsewhere,’ as well as to ‘help in the action against extremist and terrorist targets.’
Subsequent sections (203-205, 301-202) of the Act add certain conditions that need to be fulfilled in order for the aid to continue. These sections also include monitoring and accountability mechanisms to ensure the grants consisting of ‘American taxpayers money’ are utilized effectively in the interests of the United States. According to these provisions, the aid would continue on the condition that
• the ‘Government of Pakistan continue to co operate with the United States in efforts to dismantle supplier networks relating to the acquisition of nuclear weapons and materials, providing information or direct access to Pakistani nationals associated with such networks.’
The government ought to demonstrate commitment
• ‘in matters such as ceasing support within Pakistani military and intelligence to terrorist groups, especially any group that has conducted attacks against the United States and Coalition Forces in Afghanistan, or the territory or people of neighbouring countries’, and
• ‘preventing Al Qaeda, Jaish e Muhammad, Lashkar e Taiba from operating, carrying out cross border attacks into neighbouring countries, dismantling terrorist camps in FATA, Quetta and Muridke, taking action when provided with intelligence about high level targets.’
Strategy reports are to be submitted regularly, regarding fulfilment of these conditions, including a
• ‘description of steps taken to ensure assistance under this act is not awarded to individuals and entities affiliated with terrorist organizations.’
The Comprehensive Regional Strategy Reports will have an evaluation of efforts undertaken by the Government of Pakistan to:
‘a) disrupt, dismantle and defeat Al Qaeda, Taliban and other extremist and terrorist groups in FATA and other regions,
b) eliminate safe havens for such forces,
c) close down terrorist camps of Lashkar e Taiba and Jaish e Muhammad,
d) cease all support for extremist and terrorist groups,
e) prevent attacks into neighbouring countries,
f) increase oversight over curriculum in madrassahs with direct links to Taliban or other extremist and terrorist groups.’
These reports should also consist of
• ‘a detailed description of Pakistan’s efforts to prevent the proliferation of nuclear-related material and expertise; an assessment of whether assistance provided to Pakistan has directly or indirectly aided the expansion of Pakistan’s nuclear program, whether by diversion of United States’ assistance or reallocation of Pakistan’s financial resources that would otherwise be spent for programs and activities unrelated to its nuclear program.’
• ‘an assessment of the extent to which the Government of Pakistan exercises effective civilian control of the military, and a description of the extent to which civilian executive leaders and the parliament exercise oversight and approval of military budgets, chain of command, process of promotion of senior military leaders, civilian involvement in strategic guidance and planning, and military involvement in civil administration.’
In an independent referendum conducted by the Jamat i Islami_ an opposition party with considerable following, 98% of the participants rejected the Kerry-Lugar Act as a violation of the country’s sovereignty. Questions and concerns regarding the issue abound in the media. Eminent journalist Shaheen Sehbai dismisses the Act in a scathing satirical conclusion: “The language is different, but in essence the US’s demands are the same_ give us Abdul Qadeer Khan, do not finger India, forget about Kashmir, close Lashkar e Taiba and Jaish e Muhammad, and co operate in the War on Terror on our terms.” Sehbai’s perception is shared by the overwhelming majority of his countrymen who consider the Act to be an infringement upon national sovereignty.
Interestingly, over the highly sensitive issue of the drone attacks by American UAV planes in Pakistan’s tribal areas, President Zardari had declared to the international community with rare boldness, “We will not tolerate the violation of our sovereignty and territorial integrity by any power in the name of combating terrorism.” The statement made front-page news all over the rather ‘taken-aback’ international media, with MSNBC stating, ‘In Pakistan, Sovereignty Outweighs Terror Fight.’ With the government’s warm welcome of a highly unpopular American legislation, all speculation regarding the supremacy of national sovereignty has been overturned, heightening the levels of unpopularity of the sitting government.
The controversial Act has caused angry debate in provincial assemblies as well as the national parliament, with the Opposition staging boycotts to protest the acceptance of the Act. The Nation reports on October 14, ‘National Assembly Discussion on Kerry Lugar Bill Sabotaged by Abusive Exchange among Treasury and Opposition Members.’
In a tottering democracy, while public opinion and opposition parties’ stance can be sidelined, things get serious when the military leadership refuses sanction. The Daily Times reports in its editorial of October 8, 2009 that the Pakistan army was ‘greatly angered by the degrading language in the Bill about Pakistan’s military and security agencies’, and that this concern was communicated to the government.
The national outrage over what is seen to be the government’s ‘sheepish’ acceptance of the terms is understandable considering the history of Pak-U.S relations which demonstrate wooing by the U.S in critical times, of successive Pakistan governments, followed by America’s convenient abandonment of its South Asian partner with the change of context. The conditionality of combating terrorism, writes Nasim Zehra, ‘goes into intrusive details of what Pakistan should be doing,’ and this raises eyebrows, understandably. Clauses referring to enhanced co operation with India have been viewed suspiciously regarding India’s hawkish rhetoric and unwillingness to resume dialogue. Zehra continues, “The Bill pampers the India position on terrorism, and hence encourages India to continue with its rejection of bilateral attempts at dialogue.”
In the eye of the storm, the government attempted to salvage its waning popularity by producing a Joint Statement by Foreign Minister Quraishi and Senator John Kerry which, at best, tries to assuage the irate national sentiment. The government has made much of the ‘changes’ it claims to have had the Americans concede to, which ‘dilute’ controversial conditions that were seen to be going against Pakistan’s interest. However, these ‘changes’ have been dismissed as ‘cosmetic’ and practically ‘ineffectual’ by independent critics. The October 14 meeting between the two diplomats concluded with a joint press briefing which announced that an ‘explanatory note’ was to be attached with the Bill, which ‘dilutes the requirement that needs Pakistan to interrogate any Pakistani national involved in nuclear proliferation and to allow U.S officials access to such a person.’ Another clause in the Bill relating to the Secretary of State’s report about the extent to which civilian institutions exercised control over the military was similarly ‘made ineffective’ by the explanatory note. The remaining requirements, the note adds, shall be ‘waived if the determination is made by the Secretary of State in the interest of US national security that this was necessary to continue military assistance to Pakistan.’ While it is noteworthy that none of the controversial clauses was altogether scrapped, but that they were ‘explained away’ through the added note, the Joint Statement termed it a significant ‘achievement.’ The note states in an effort to allay widespread fears, ‘there is no intent to, and nothing in this act in any way suggests that there should be any US role in micromanaging internal Pakistan affairs, including the promotion of Pakistani military officials or the internal operations of the Pakistani military.’ Foreign Minister Quraishi concluded on a triumphant note, ‘This document today is I think a historic document, a step forward in our relationship’, while senator Kerry added decisively, ‘There is nothing in this bill that impinges on Pakistani sovereignty_ period.’
There was none of the fanfare in responses back home. Analyst Nasim Zehra terms Pakistan’s rather muted objection to some of the clauses to be ‘a late awakening’ considering that the contents of the Bill had been in circulation for over a year, with the Pakistan government never having voiced any serious concern through all that time. Referring to the explanatory note added later on, Zehra terms the changes inconsequential as, after all, the US President can ‘waive conditions’, but only ‘in US interests.’”
Whatever optimism there might have been, is belied and dashed to the ground with the tightening of conditionalities by the United States of late. The Nation reports, “US to set new curbs on Pakistan military aid”, elaborating that “the US Congress is all set to approve tougher new restrictions on military aid to Pakistan... The fresh limits include efforts to track where US military hardware sent to Pakistan ends up, as well as a warning that US aid to Pakistan must not upset the balance of power in the region_ a reference to India.”
Shortly after the Joint Statement discussed above, the United States made it clear that conditions, indeed, were very much attached to the aid package. Seeking to allay India’s concerns on the $7.5 billion dollars assistance to Pakistan, the United States said the law has ‘conditions attached.’ US Under Secretary of State William Burns stated, “In the case for development in Pakistan, we are very much focussed in ensuring that the money is used for the purpose it is intended and there are measures built in to ensure that takes place.” Ironically, adds The Nation, these remarks made in New Delhi came the same day when the Pakistani Foreign Minister, addressing the Parliament, maintained there were ‘no conditions attached to the Kerry-Lugar Bill’, and that ‘the Bill fully respected the sovereignty of the country.’”
...Which brings us back to the question of sovereignty. What really is sovereignty? It can be explained as the supreme independent authority over a territory which includes the elements of territorial integrity and inviolability, exclusivity of jurisdiction and supremacy of the State. Wikipedia Online Encyclopedia defines sovereignty as ‘the power to rule and make law based on a political fact.’ The concept in its modern form as ‘non-interference in the internal matters of a sovereign state’ originated with the Treaty of Westphalia in 1648. However, it has been interpreted in different ways by various political schools of thought. It is important, however, to distinguish between ‘de facto’ and ‘de jure’ sovereignty. While in its ‘de jure’ aspect it implies the legal right to exercise power, ‘de facto’ sovereignty is its actual exercise. Both need to be present in order for a state to be truly sovereign.
While ‘internal’ sovereignty refers to the state’s power and authority to decide and execute affairs within the state, ‘external sovereignty’ means the independence to conduct its international dealings and make decisions independently, irrespective of external pressure from other states_ allied or hostile.
A number of liberal philosophers have emphasized the popular element in sovereignty_ that is, sovereignty resides in the people. Rousseau was an ardent supporter of this, as well as John Locke whose concept of ‘social contract’ implied submission to a sovereign authority in exchange for that authority being compelled to work for a common good. However, both Locke and Rousseau believed sovereignty resides in people collectively (that is, the majority’s will is sovereign), while Republicans and Libertarians differ, believing sovereignty resides in people as individuals (regardless of numerical majority or minority). Islam accords sovereignty to Divine law which has absolute supremacy in legislation, while popular will is instrumental in decision-making in matters left to the representatives of the state and its people. In other words, there are two levels of sovereignty: absolute sovereignty belongs to God, and temporal sovereignty to the subjects of the state, while the rulers_ bound by law and accountability to God and the people_ act as intermediaries. Imperialists, on the other hand, have always considered the most powerful agent to be invested with absolute sovereignty_ that is, states that hold the ability to impose their will by force or threat over the populace or over another state with a weaker political and military will. This has been the basis and the legitimization for colonialism and imperialist conquest_ and, in the modern world, neo-imperialist domination and control.
The evolution of sovereignty in Pakistan has not been a smooth curve. The country’s external sovereignty has too often been put at stake by governments keen to foment alliances with powerful states for acquiring security, international approval and finally, legitimacy for their unpopular rule. Sovereignty, therefore, has always been in crisis whenever dictators at home have tried to cosy up with the United States, leading to unnecessary interference and intervention with promises of ‘aid.’
This ongoing crisis of sovereignty became critically intense when Pakistan, following the September 11 attacks, allowed the United States to conduct military operations in Afghanistan from Pakistani territory and dramatically increased the influence of the United States over national policy making, against the popular will. According to Ajay Behera writing for The Hindu, “Such developments have led to a dilemma regarding a clash between Pakistan’s national security policies and its very sovereignty. This development, however, is entirely self-generated,” as a result of critical foreign policy choices made by the Musharraf regime after 9/11.
Musharraf, flaunting his ‘moderate’ and ‘progressive’ credentials, wanted a pretext to break free from the country’s ties with the Taliban regime, and , at home, with Islamic groups hitherto supported and sustained by the military and intelligence. 9/11 provided Musharraf with the pretext to achieve this by force and with support from the country’s Western allies and its secular-liberal elite. However, while this was to be done in order to restore sovereignty ‘for the supreme national interest’, in actuality it undermined the internal sovereignty of the state. Pakistan’s engagement in the US-led War on Terror and its operation in Waziristan leading to civilian damage was widely opposed and decried for being done under ‘diktat’ from the United States.
The War on Terror came home, but was seen as America’s war imported to the country by a sell-out pro-Western regime. Regular drone attacks by American spy planes resulting in huge collateral damage reinforced the image of the US as “an ally with a predatory footprint on sovereignty... The US-operated drone has become a powerful symbol of US violation of Pakistan’s territorial integrity.” A backlash from the fiercely independent tribal areas began, engulfing the entire country, with suicide attacks and targetted hits on security and law enforcement agencies. In the midst of it all, a clumsy, failing government seemed utterly helpless to stem the tide, at best ‘looking Westwards’ for assistance in doing the West’s ‘dirty job’. Pakistan was at war with itself, its very sovereignty and national integrity at stake. It must be added, however, as Ajay Behera wrote in 2002, that the situation is inherently paradoxical, as ‘Pakistan has been forced into this situation by the Americans, yet it depends on their support to overcome it... While Pakistan tries to restore its internal sovereignty from the militants, it is gradually losing its external sovereignty to the United States... And, as the state is perceived to be losing its external sovereignty to the US, anti-US and anti-ruling class feelings are bound to grow. Pakistan’s self-generated dilemma will persist.’
The United States needs a rethink on policy vis a vis Pakistan, disassociating it from its strategy in the occupied state of Afghanistan. If the United States truly wants a stable Pakistan, as it has claimed too often, it needs to look for options that respect the sovereignty of the country and take into account public unease against alliance with ‘a partner that makes a target out of another partner.’ Carrot and stick tactics do not work, and the massive public disapproval of US aid through the Kerry-Lugar bill should send that message to Washington. Washington’s policies have invariably centred around sitting regimes, the military and the intelligence, which is one reason that explains public disquiet over alliance with the United States. With all the frills and flounces of a ‘change’ in policy towards Pakistan, none seems to be on the horizons any time soon: “For now, the broad dynamic of seeking a partnership on strategic goals with reference to terrorism remains the same as under Bush. It remains driven by military tactics and the diplomatic management of negative outcomes... the Pentagon still remains the font of policy planning as well as execution.” The war in Pakistan, however, is not winnable by military might_ just as it never was winnable in Vietnam, or Iraq, or in Afghanistan.
There are lessons, on the other hand, for policy makers in Pakistan. To rescue diminishing sovereignty, the ‘democratic’ representatives of the people must realize that true sovereignty, (in its temporal aspect), in any democratic state, resides in the people, and that public sentiment must be taken seriously. The spontaneous outpouring of public anger over the government’s role in the War on Terror expressed during the visit of Interior Minister Rehman Malik to the International Islamic University after a terrorist attack should be a wake-up call. Pakistani leaders need to see how the Kerry-Lugar Bill is in fact a litmus-test for the state’s representatives to salvage its threatened sovereignty. They need to rise to the occasion and reject the unpopular Bill with a single voice to “prove their worth as people who are capable of promoting and protecting the interests and dignity of the citizens of the country. Otherwise, whether democracy or dictatorship, Pakistan’s parliament is merely a rubber-stamp which follows the will of a handful of individuals who exercise their authority overlooking constitutionally defined institutional mechanisms.”
To surmount the challenge to sovereignty, we need to redefine it and see for ourselves where it truly lies. Does it, as Washington’s neo-imperialists would have it, lie with the most powerful in might and main in the global arena, legitimizing military adventurousness and aggrandizement? Or does it, as our own ideological guides would tell us, lie in honouring and living by the ideological premise that defines us, and in empowering the people to whom the nation belongs? It is in reaching our answers through the signposts all along history’s boulevard that hope for winning back true sovereignty lies. We have arrived at the crossroads, where the ‘two roads diverge in the wood’, and the fatal choice confronts us. It is to be Now or Never.