Fifth East Asia Summit

The fifth East Asia Summit (EAS), held on 30 October at the Vietnamese capital Hanoi, was chaired by Prime Minister Nguyen Tan Dung and attended by Leaders of ASEAN countries, China, Japan, South Korea, Australia, New Zealand, and India. Also in presence were Russian Foreign Minister and US Secretary of State who represented their respective Presidents as special guests of the chair and participated at the last session of the Summit.

Hanoi Declaration
The Leaders reaffirmed the agreed principles, objectives and modalities of the EAS and adopted the Hanoi Declaration on the Commemoration of the Fifth Anniversary of East Asia Summit, in which they reiterated their commitment for continued efforts to enhance dialogue and cooperation and set out direction and priority of development for the next period.

The Leaders agreed to intensify cooperation in five priority areas, namely education, finance, energy, disaster management and avian flu prevention, while exploring the possibilities of cooperation in some new areas like post-crisis recovery, sustainable development, climate change etc. The Leaders of EAS participating countries expressed support for the ASEAN Leaders' Statement on Human Resources and Skills Development for Economic Recovery and Sustainable Growth, which was adopted at the 17th ASEAN Summit, and affirmed their close coordination with ASEAN toward sustainable economic growth in the region. The EAS countries agreed to conduct further study on the possibility of establishing the East Asia Free Trade Area (EAFTA), in parallel with the Comprehensive Economic Partnership in East Asia (CEPEA) and tasked senior officials to work on the issue and submit concrete recommendations to the Leaders.

Regional and International Issues
The EAS Leaders exchanged views on regional and international issues of mutual interest, including closer coordination and consultation to prepare for the participation and contribution of the ASEAN Chair at the upcoming G20 Summit in Seoul, Korea, the situation on the Korean Peninsula, the global nuclear issue etc.

Recognizing the growing importance of the EAS in promoting dialogue and cooperation in the region, the EAS Leaders committed to further promote dialogue and cooperation on broad strategic political and economic issues for peace, stability and prosperity in East Asia, including dealing with traditional and non-traditional challenges, at the same time, support and assist the peaceful settlement of disputes on the basis of international laws.

The Leaders tasked the Ministers and senior officials to explore ways and means for the improvement of proper mechanism to effectively implement the Leaders' decisions towards an action-oriented EAS process.

The Leaders discussed the expansion of the East Asia Summit and the evolving regional architecture. The EAS Leaders supported ASEAN's view on the formation of a regional architecture, based on the existing regional cooperation processes and ensuring ASEAN centrality. The Leaders welcomed the pro-active participation and constructive contribution of external partners in dealing with emerging challenges facing the region. Taking into account the desire and the potential of contribution by Russia and the United States to this open and inclusive forum, the fifth EAS decided to officially invite Russia and the United States to participate in the EAS from 2011.

Judicial Accountability

The judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts. Independence of judges is best safeguarded by the judges themselves — through institutions and organizations that the law empowers them to set up, to preserve the image of an incorruptible higher judiciary that would command the respect of all right-thinking people.

The reach of India’s highest court is all-pervasive. The Supreme Court sits in final judgment over the decisions not only of the high courts in the states, but also tribunals, (Central and State) functioning throughout India; there are literally hundreds of them. And the law declared by the Supreme Court, including its pronouncements on the validity of enacted law, is binding (under the Constitution) on all other courts and authorities in the country.

There is virtually no area of legislative or executive activity which is beyond the highest court’s scrutiny. Its writ extends to all two million square miles of Indian territory, and more than its now 1.3 billion inhabitants. Empowering itself with the trappings of modern technology, India’s Supreme Court has been performing a stupendous task with considerable distinction.

There is no reason for the judiciary to be perturbed by the Judicial Standards and Accountability Bill 2010, cleared by the Union Cabinet, because the proposed legislation seeks to neither curb its independence nor impose the will of the executive on its functioning. In fact, the draft Bill is in keeping with the growing popular demand for transparency and accountability in public institutions — something that our courts themselves have emphasized on several occasions. The need for a fresh legislation arose after it became clear that the Judges Inquiry Act of 1968 — now lapsed — had failed to adequately address issues related to perceived acts of impropriety committed by judges. Even if such incidents have been more an exception than the rule, the guilty have gone virtually unpunished.

Salient Features of Bill
The Judicial Standards and Accountability Bill, 2010 aims at laying down judicial standards and establishing a mechanism to deal with complaints of 'misbehavior' or 'incapacity' of a judge of the Supreme Court or high court. The approval for the Bill came after it was deferred by the Union Cabinet in March last. It was introduced in Parliament during the 14th Lok Sabha, but lapsed after the House was dissolved. It seeks to lay down judicial standards and establish a mechanism to deal with complaints of misconduct of judges of the Supreme Court and high courts.

The Bill proposes that a judge can be warned, taken off work, censured or admonished, depending upon the misconduct. It seeks to lay down judicial standards and establish a mechanism to deal with complaints of misconduct of the Supreme Court and high courts judges It also proposes to make provision for declaration of assets and liabilities by judges.

The Bill also proposes to make provisions for declaration of assets and liabilities of judges. At present, there is no legal provision for dealing with complaints filed by the public against the judges of the Supreme Court and the high courts.

At present, there is no legal provision for dealing with complaints filed by the public against the judges of the Supreme Court and the high courts. Also, the judiciary has adopted resolutions for declaration of assets by judges and 'restatement of values of judicial life'. However, there is no law that requires judges of the Supreme Court and the high courts to declare their assets and liabilities and also there is no statutory sanction for judicial standards.

The Bill had been approved with an amendment. It provided for a five-member oversight committee, headed by a former Chief Justice of India (CJI) and having Attorney General as a member, which would look into complaints of misconduct by judges.

New Mechanism
The amendment brought forward was for the setting up of the National Judicial Oversight Committee that would also include a sitting judge of the Supreme Court, the Chief Justice of a high court to be appointed by the CJI and an eminent personality. Complaints received by the oversight committee would be referred to a scrutiny committee. The scrutiny committee would have a time limit of three months to get to the oversight committee with its report after which the case would be referred to the President for action.

The new Bill envisages a mechanism for enquiring into complaints against the judges of the Supreme Court and High Courts and lays down judicial standards. In that sense, it empowers the citizens to punish judges for corruption and misconduct. Of course, as a safeguard against frivolous complaints, a scrutiny committee will examine the petition and then forward it, within three months, to the judicial oversight committee for action if a prima facie case is made out. A former Chief Justice of India will head the five-member panel. The process of impeachment will start once this committee comes up with adverse findings.

Bad Phase of Judiciary
The higher judiciary is passing through a bad phase. Its image has been eroded following allegations of corruption against Chief Justice P.D. Dinakaran of the Sikkim High Court, Justice Nirmal Yadav of the Uttarakhand High Court and Justice Soumitra Sen of the Calcutta High Court.

The Supreme Court collegium’s current policy of transferring judges who are under a cloud is flawed because if Justice Nirmal Yadav, for example, is unfit to serve the Punjab and Haryana High Court, she doesn’t become a perfect judge to serve the Uttarakhand High Court at Nainital. Clearly, the Manmohan Singh government has greater stakes on the new legislation because its commitment to cleansing up the higher judiciary is now on test.

Public Interest Litigation
One outstanding failing in our system of judicial governance is that although mandated by law, costs hardly ever follow the event. The fear of costs is what the courts must instil into the dilatory and speculative litigant including, I would plead on the litigant who undertakes a PIL (Public Interest Litigation). Projects and programs devised by popularly elected governments are held up for years in the high courts (and in the Supreme Court) at the instance of persons who have no direct interest, but on some suspicion of corruption or the like — and when at the end of a tortuous judicial process such PILs are ultimately dismissed, the loss in economic terms to the community at large is never compensated. In India there is hardly any court decision where costs are made to follow the event.

Then, take the problem of vacancies of judges in the superior judiciary — they keep piling up. An action plan to prevent this is not one which requires a high degree of sophistication or planning. It requires only some elementary co-ordination between the Justice Ministry and chief justices: of high courts and of the Supreme Court. We all know that judges in high courts retire at 62 and in the Supreme Court at 65. So there need be no unfilled positions: dates of birth are recorded, and anticipated vacancies can always be filled in time; if there is the will to do so.

Need of the Hour
There may be some merit in the counter-argument that the earlier Judges Inquiry Act of 1968 failed not because of lacunae in the law but the failure of the executive to ensure the impeachment of errant judges. Either the parliamentarians failed to muster the requisite number of signatories to an appeal for impeachment or, when they did succeed, the treasury benches stalled the effort in Parliament. But that is precisely why a new law is needed to ensure misconduct does not go unpunished. Since the other solution -- a complete overhaul of the system of impeachment -- is an elaborate affair that will take time, why should anyone object if at least immediate concerns of ensuring accountability and transparency by the judiciary are met?

The judiciary of the 21st century needs to set an example in exemplary self-discipline: discipline in its approach to legal, and more often, political-cum-legal, problems that fall in its lap. There is also need for greater transparency in the lifestyle of the justices, and an abiding tolerance of public criticism. Litigants no longer accept judge’s decisions as they used to in the past. The mystique of the judiciary -- the 'awesome Majesty of the Law' as it used to be called -- is no longer a sufficient protection. The job has become harder. Judges are seen less as the impersonal agents of a system and regarded more as human beings responsible for the failure of the losing party; the attacks have shifted from the ball to the player! Hence the need for ethics -- and some guidelines from the top, which 'the top' too must scrupulously observe!In a country like India, and in times like these, it is not enough for the judiciary to be independent of the executive and of all other external influences.

The Judges, because of the high office they hold and the plenitude of powers they exercise, must be seen to have qualities of excellence -- of mind and of heart. Above all they must be men and women of courage. Nobility and courage in the highest court begets nobility and courage all down the line.

US-Pakistan Strategic Dialogue

The latest round of the US-Pakistan Strategic Dialogue confirmed the two countries' 'dedication to cultivating a strategic, comprehensive and long-term partnership,' according to a joint statement released at the conclusion of the three-day gathering. US Secretary of State Hillary Clinton and Pakistan Foreign Minister Makhdoom Shah Mahmood Qureshi, accompanied by high-level delegations, held the third ministerial-level meeting of the dialogue, following meetings in March and July.

The dialogue was preceded by sectoral-track engagement on agriculture, communications and public diplomacy, defense, energy, finance and economic cooperation, health, law enforcement and counter-terrorism, water and women's empowerment. Qureshi conveyed the gratitude of Pakistan to the United States for humanitarian assistance given in the wake of the Pakistan floods, and for mobilizing international assistance for relief, recovery, and reconstruction. Clinton 'commended the tenacity of the Pakistani people as they recover from the catastrophic flooding,' and pledged constant US support as relief efforts transition into the long-term recovery phase.

Wide Range of Issues
Sectoral meetings covered a range of subjects 'with a clear focus on socioeconomic development and the establishment of a mutually beneficial partnership.

The United States committed to redouble its efforts to seek US congressional enactment of legislation to create Reconstruction Opportunity Zones and for the establishment of an Enterprise Fund. Both sides sought to work closely and collaboratively with the international donor community and international financial institutions to extend economic assistance to Pakistan.

The United States commended the 'steadfast resolve' of Pakistan to defeat terrorists. Pakistan expressed appreciation for the Secretarys announcement to seek US. Congressional authorization for a Multi-Year Security Assistance Commitment, a five-year pledge by the United States.

Both sides said that 'a democratic, progressive and prosperous Pakistan was in the interest of the United States, the region and the world.' The officials 'renewed their resolve to promoting peace, stability and transparency throughout the region and to eliminate the threats posed by terrorism and extremism.

During the Pakistani delegations visit to the White House, President Barack Obama announced his plans to visit Pakistan in 2011 and welcomed President Asif Ali Zardari to Washington. The next round of the Strategic Dialogue is planned to be held in 2011, and the sectoral working groups plan to meet prior to the next ministerial-level meeting.

Pakistan is an important player in the ongoing global effort for countering terrorism in the Afghan-Pakistan region, which has implications for Pakistan's security, and regional and global politics. It opted for this strategy in September 2001, signifying the abandonment of its policy of supporting the Taliban movement and its government in Kabul.

While sharing the goals and the general direction of countering terrorism with the US, Pakistan has demonstrated autonomy on the issues that the army and the Inter-Services Intelligence (ISI) view as integral to Pakistan's internal political imperatives and external security with reference to Afghanistan and India.

The Pakistan-US Strategic Dialogue has more to do with discord than accord. It is more about distrust than trust. Way back in 2006, President George Walker Bush spent a few hours in Pakistan and spoke for an 'enduring' relationship between the two countries. This time we are told by Washington bigwigs that Americans will not walk away. They will continue to be good friends.

Positive indications given by Bush, however, have not yielded the desired results. Little headway has been made insofar as trade and investments are concerned. It is puzzling and, indeed, disappointing to find the US deliberately ignoring these vitals interests of a close ally. In addition to this, the promise to set up Reconstruction Opportunity Zones in the tribal areas has also not been fulfilled.

A major initiative, after the lapse of many years, has been the passing of the Kerry-Lugar Bill (KLB). But its conditions and the peculiar manner of its implementation have taken the sheen off an otherwise fairly attractive gesture. A clarification that part of the Friends of Democratic Pakistan funding and Flood Relief assistance will come from the KLB commitments has further affected the positive impression earlier created. The delay in disbursement of the coalition support installments too has downgraded the quality of relationship between the two countries.

The basic problem for any dialogue between the US and Pakistan is that the two countries remain as strategically far apart as they perhaps ever have been. A relationship of necessity based on fear of the other can never be the starting point for a true and meaningful partnership. Consider that beyond non-proliferation and counter-terrorism -- both 'negative' reasons to cooperate -- there is little that can be seen as long-term areas of cooperation in the strategic dialogue. Nevertheless, dialogue is always good. At least now the US and Pakistan have a regular forum to meet and discuss issues at a high level -- if nothing else, they may begin to understand each other's security concerns better.

$2 Billion Package for Islamabad
The new military aid plan or 'security assistance', as the US mandarins call it) was yet to be formally unveiled, but US media accounts suggest it is a done deal: That it would be a $2 billion package spread over five years, over and above the $7.5 billion non-military aid plan approved last year. The new security pact would have three parts: the sale of the US military equipment to Pakistan, a program to allow Pakistani military officers to study at American war colleges and counterinsurgency assistance to Pakistani troops.

Between 2001 and 2009, Pakistan had collected about $9 billion in US military assistance, in terms of aid and reimbursement for its operations in aid of the American-led war effort in Afghanistan. Another $3.6 billion funded economic and diplomatic initiatives. 'But US officials and journalists' accounts have raised concerns that such funds are not being used as intended, and not just because of the typical concerns about corruption,' a Newsweek investigative account said last year. 'Will any amount of money produce results?,' it posed, noting: 'A big part of that answer lies in determining how much bang the United States has gotten for its buck so far -- whether or not some of the money was siphoned off along the way to fund Army generals' new houses or the Taliban elements.'

That may have been about one kind of misuse, but the other misuse by diverting the money for beefing up Pakistan's military might against India has been confirmed by the Pentagon itself. Documents revealed last year how Pakistan had brazenly used billions of dollars meant to fight the war on terror for buying an array of conventional weaponry to develop its offensive capability against India.

Pakistan also used a large portion of funds provided under FMF (Foreign Military Financing) to purchase up to 60 mid-life update kits for F-16 A/B combat aircraft valued at $891 million. Of this, it paid $477 million from the FMF funds given by the United States.

Pakistan's Offerings
Pakistan agreed to the seven US demands but in reality, some of these demands were not fully complied with. For example, the US was not given 'blanket over flight and landing rights'. Instead Pakistan provided a corridor for US aircraft to fly over Pakistani territory on the way to Afghanistan. Similarly, Pakistan did not give unlimited use of its naval ports, air bases and strategic locations on the Pakistan-Afghanistan border.

Other facilities extended to the US included flyover and landing rights to American aircraft, support facilities, as well as transit of goods and personnel through Pakistan, the sharing of information between the intelligence agencies of the two countries and permission to the US Federal Bureau of Investigation (FBI) to function in Pakistan in collaboration with its Pakistani counterparts.

Pakistan gave two airports -- Shamsi in Balochistan and Jacobabad in Sind -- for logistical, communication and emergency support to counter-terrorism operations in Afghanistan. Though the US was not authorized to use these air bases for launching air raids into Afghanistan, the US military authorities did not always honor this commitment. A third airport, Pasni, was made available to them temporarily. Shamsi is said to be still in American use in 2010.

Obama's Janus-Headed Policy Toward Pakistan
Is it intended to be a sop to Pakistan in lieu of being overlooked for a US presidential visit that takes Barack Obama to its neighbor and arch-rival, India? The fact that Washington chose to convene a third round of US-Pakistan Strategic Dialogue less than a fortnight before Obama's India visit in November 2010 and pledge a hefty $2 billion military aid package may be nothing short of a balancing act.

For all the talk of de-hyphenation of America's policy approach toward India and Pakistan, it may still be a zero-sum game that Washington plays in the subcontinent, no matter the delinking of the Presidential visit to the two countries. The stratagem in the US corridors of power may also be aimed at keeping Islamabad in check, just in case Obama decides to unveil some goodies while in New Delhi, such as endorsing or signaling support for India's bid for a permanent seat in UN Security Council and/or easing high-tech export controls. For that very reason, India, also, may mute for the time being its concerns over the substantial military aid to Islamabad.

Whatever the American calculations, Indian worries are set to mount, given the likelihood of Pakistan again diverting much of the new aid to bolster its military machine against India instead of using it to combat terrorism. Defence Minister AK Antony apparently had an inkling of what was coming, so he made it a major talking point when he visited Washington last month and held parleys with three of the big guns of the Obama administration -- Secretary of State Hillary Clinton, Defence Secretary Robert Gates and National Security Adviser James Jones. But Antony's expression of concern appears to have fallen by the wayside.