The Tribune, Chandigarh, India

ARTICLE

Dialogue with Pakistan
The opponents must revise their opinion
by Surendra Kumar

The narrative of the opponents of any dialogue with Pakistan runs as follows: Pakistanis hate India; even children are taught hatred against India in madarsas. One can’t find a single Pakistani who doesn’t have an animus against India. Pakistan has been flouting the UN Resolution on Terrorism by aiding, abetting, training and sending across terrorists from its territory. The ISI and the Pakistan Army have been behind terrorist attacks in India, including the one in Mumbai in 2008. Pakistan hasn’t brought the perpetrators of the Mumbai attack to justice though India has given ample proof of their involvement. Pakistan foments violence in Kashmir and pursues terrorism as an instrument of state policy. Then Prime Minister A.B. Vajpayee’s visit to Lahore and the summit with General Musharraf in Agra didn’t result in any peace dividend. It is the army chief and the ISI chief who call the shots in Pakistan, so no useful purpose is served by talking to the civilian government. Pakistan has been opposed to greater cultural and people-to-people contacts with India; it is the hub of international terrorism and is fast sliding into a failed state, etc.

Even if all the above were largely true, so what? How does the suspension of dialogue punish Pakistan? Will it hasten the prosecution and punishment of the perpetrators of the 26/11 crime? Will it lead to dismantling of training facilities and the arrest of known terrorists in Pakistan? Will it facilitate a solution of the Kashmir problem and return of peace and normalcy in the Valley? Will it erode the dominance of the army and the ISI in Pakistan? Will it strengthen the hands of the civilian government in Pakistan and support democracy? Will it strengthen political stability in South Asia? Will it promote good neighbourly relations between India and Pakistan? Will it serve our broad national interests and enhance our international image? An honest answer to all these questions is an emphatic NO! If so, what do we gain by not having a dialogue with Pakistan?

Let us face some inconvenient questions. We can’t change our geographical location or wish away Pakistan. Though saddled with complex internal and external problems, Pakistan is not going to evaporate in thin air. Whether we like it or not, we must learn to live with Pakistan with all its failings; post-Partition baggage of animus and bitterness against India included. We aren’t Pakistan’s largest trading partner or investor or source of defence supplies or financial supporter. In a nutshell, the suspension of dialogue doesn’t hurt it; other countries are not going to follow suit; Pakistan won’t be so isolated as to beg for peace with India!

We have defeated Pakistan four times comprehensively. Has it made us more secure than earlier? The hawks on the Indian side must realise that India is not the US; it can’t go in for a surgical strike like the US attack at Abbotabad which killed Osama bin Laden. We can’t undertake drone attacks and kill selectively India’s most wanted on Pakistani soil. India can’t go on a hot pursuit without risking a full-fledged war with its neighbour. Lastly, no matter how much some lunatic fringe might wish, there is no way India can destroy a nuclear Pakistan even when on the verge of collapse!

Since 1947 every major conflict between India and Pakistan has been followed, sooner or later, by the resumption of dialogue. Even after Kargil and attacks on Akshardham and Parliament, we returned to the table. Mr Vajpayee used to ask what we would discuss with Pakistan: the weather in Lahore! Ironically, it was he who launched the peace offensive by travelling to Lahore in a bus. He invited General Musharraf to Agra though he was perceived by many Indians as the father of the Kargil conflict. So, instead of keeping the dialogue on and off, why not let it continue uninterrupted, ignoring the cycle of ups and downs in relations as advocated by the irrepressible Mani Shankar Aiyar? It found echo in the interviews Pakistan’s new Foreign Minister, Ms Hena Rabbani Khar, gave to the media during her maiden visit to India.

The opponents of this argument will dismiss it disdainfully as utter capitulation to Pakistan! It will encourage Pakistan to inflict 1000 cuts with impunity, they will claim. But is there any other option except dialogue? Have the naysayers ever come up with any plan, short of a dialogue, which will resolve the Kashmir problem, stop terrorist attacks from across the border and result in normal and peaceful relations with Pakistan?

What can we do? Continue and sustain dialogue and convince Pakistan of enormous positive fallout it can reap from peace with India. Make them realise the transformational effect of peace dividend on the one hand and the real possibility of the Frankenstein of terrorist infrastructure created by them boomeranging and eventually destroying them on the other hand. Who knows, one day, they might appreciate the logic and rationale of our overtures! We must forcefully ask the US, China, Russia, Saudi Arabia, Iran, France, Germany and other major investors and trading partners of Pakistan to counsel it to make peace with India for its own survival and prosperity. Why would they do that? We shouldn’t underestimate the attraction of India’s bourgeoning market and huge investment prospects! No, I am not suggesting a third party intervention but mere prudent use of the carrot of our growing economic pie!

The generation of Pakistanis that saw Partition is long gone. But the generation that saw the break-up of Pakistan and the birth of Bangladesh, and India’s role as a midwife is 40-year-old or so. Many of this generation can’t forget and forgive India for the loss of East Pakistan; wounds haven’t healed, not yet!

Yes, the Army and the ISI control the levers of power in Pakistan. But both are, post-Abbotabad, on the defensive. Uncle Sam has been vocally criticising the ISI. The uprising in Tunisia, Egypt, Yemen, Syria and Libya might have demonstrated to the military top brass in Pakistan the power of people, unarmed, non-violent but passionately and fearlessly demanding their rights.

I don’t believe that young Pakistanis — aged 15-25 years — watching international TV programmes and surfing Internet remain unimpressed by the accolades heaped on India and the economic transformation underway, notwithstanding the fact that millions of people are still below poverty line. These Internet savvy people might be harbouring similar aspirations and dreaming dreams as the youth in India to experience the fruits of progress and prosperity. Even if 10 million, as estimated, young Face-book/Twitter users in Pakistan could be engaged in a frank dialogue with their Indian counterparts on social networking sites, asking questions which they can’t raise publicly and sharing thoughts and ideas unburdened by memories of Partition, they could become a potential constituency for the promotion of peace. Such Pakistanis would realise that there can’t be progress and prosperity in their country unless there is peace with India.

The Pakistan Supreme Court reportedly quotes from Indian court judgements. Indian films and film stars, music, fashion, cricket, writers, academics and the media are soft power resources which can over a period minimise the trust deficit and goad the decision makers on the two sides to take a plunge and transform the decades of enmity into neighbourly peace. Corporate sectors in both countries can benefit enormously from the normalisation of relations, so they have been advocating greater trade and economic interaction.

While exploring the prospects of peace in every possible way, we must not lower our guards: sharpen intelligence gathering, promote multi-agency coordination, acquire most sophisticated equipment, identify sleeper cells of terrorists and nip terrorist attacks in the bud. We must maintain a degree of nuclear and military superiority over Pakistan to discourage it from precipitating any crisis on the border.

After the bomb blast in front of the Delhi High Court and stone-walling of prosecution of the perpetrators of the Mumbai carnage, very few Indians dare propose peace overtures to Pakistan. They are instantly denounced as unpatriotic! But won’t giving up peace efforts mean playing in the hands of terrorists? Many sane Indians might concede, at least in private, that the majority of Pakistanis wish peaceful relations with India. As the late Palestinian leader, Yasser Arafat, used to say, we must pursue the peace of the brave. Are we ready?n

The writer is a former Secretary, Ministry of External Affaris, and the Dean, Foreign Service Institute, New Delhi.

MIDDLE

What a rise my countrymen!
by Rajbir Deswal

FRIENDS, I have come to praise Swami and Sunny, not to lampoon them. They are honourable man and woman, respectively. Though the Swami is out of the House but he dubbed the redoubtable parliamentarians as being not a shade better than the members of the celibate-spiritualist’s new-found family of Big Boss. They, too, are honourable men.

The Swami had chosen to be among the chosen few. The chosen few are sure honourable men. Dolly, Shakti, Khalee, Veena are all honourable men and women. The Swami dons saffron and Sunny almost nothing. All men in saffron are honourable men. All women donning nothing, too, are honourable women.

The Swami once gave the impression that his worth was no less than an Anna. After all, Anna is also an honourable man.

I have come to bury bossism, not to endorse it. But suppose if I myself were to be in Big Boss’s family. Wait a minute! Let me rejoice at the thought of it. Let my soul come back to me. The Swami, too, must have fantasised. Sunny made no bones about it and declared that she couldn’t believe she was in India. But I am also no less an honourable man.

So here I go, sharing with you what I would have if I were to be there in that sanctum-sanatorium. Even that is a sacred Man-sion . House is a name given to a place where ugly brawls keep taking place. Isn’t it, the Swami?

Okay then! I wouldn’t laugh but grin, showing my smart denture less on things not laughable and more on silly mishaps. If someone cracked a joke, I would ask it to be repeated. And then not laugh at all. And change the topic to ‘save the environment’.

I would talk less sense and more profundity and would look for reactions. If someone really understood me, I would rubbish it and give my own explanation of my concept, shouting and howling.

All my expressions should betray what has been there in my mind. Total hypocrisy at play, I must declare. I should keep throwing tantrums but at times look serene to convey that I had variety in me. I should be careful not to be emotional. I must rejoice at the very ouster, and not shedding of a tear, to look normal. My expressionless face should confuse the cameras.

Even realising being rude in my conduct with others, I would try to be still worse. I would make faces at my detractors when they did not look towards me while my jogging would continue with thumping in my training shoes. I would keep in mind my opponents while chopping vegetables. I should not miss out on making sentences having unparliamentary expressions — Big Boss would take care to ‘beep’ them.

I don’t know if they serve drinks there, but I would make sure that I looked inebriated to be excused for my ‘civilised’ behavior if at all I indulged in realising little that it was a reality show. I would look more anglicised and less ‘desi’, for once I have chosen that style, there should be no looking back.

Lastly, I would not mind what was fair and what was foul even if I had to take a lesson or two in the art of choosing a platform more profitable than Ahem, Ahem…! That round-round building in the Capital — saying it in a roundabout manner! Right, Swami?

OPED DEFENCE

streamlining military judicial system
The role and responsibility of the Judge Advocate General’s Department, the forces’ legal wing, has increased manifold over the years, while manpower remains deficient. The judiciary has also recommended cutting down certain cumbersome and time consuming procedures to expedite court martial trials. This has mandated restructuring the department and strengthening its officer cadre and support staff
Col M S Jaswal (Retd)

The Army, Navy and Air Force each have a dedicated legal structure called the Judge Advocate General’s (JAG) Department to assist in the implementation of the Army Act, the Navy Act and the Air Force Act. The JAG is the chief legal adviser to the respective service chief and renders legal advice on a wide range of aspects including discipline, vigilance, service conditions and judicial matters involving service personnel. An officer of the department designated as the Judge Advocate (JA) forms an integral part of general court martial proceedings, helping the court to conduct proceedings in a fair and judicious manner, summing up the entire evidence and giving opinion on the legal aspects of the case. The JAG advises the respective chiefs on post-confirmation petitions and other statutory representations on points of law and facts raised by the petitioners. JAsG are also responsible for imparting legal training in the services. They are the “Nodal Legal Agency” for single point contact with the institutionalised judicial system, liaising with the Attorney General, Solicitor General, Ministry of Law and Justice, Law Commission, International Committee of the Red Cross, National Human Rights Commission and the Bar Council of India apart from the higher judiciary.

Judicial Intervention

The Delhi High Court, in the case of Nahar Singh Vs Union of India, had expressed serious concern at the manner of handling of court cases relating to the Army on behalf of Union of India pending in the Court. The High Court observed, “After going through the entire statement in the affidavit and problem being faced by the JAG Department, we are of the considered opinion that a study should be taken up by the Ministry of Defence for upgrading the JAG Department in order to enable them to be more effective in the Court as also in all other forums. The activities and the responsibilities of JAG must have increased manifold through the years and, therefore, we are of the considered opinion that steps should be taken to consider as to why the said Department should not be upgraded like any other effective Branch.

Accordingly, a committee under the chairmanship of a joint secretary in the MoD was constituted to evaluate the mechanism for dealing with court cases and pinpoint deficiencies. It observed that apart from handling disciplinary cases, the role and responsibility of the department has expanded considerably. It now include family and matrimonial laws, human rights and international humanitarian law, contracts and commercial laws, cyber laws, right to information and many more. Further, the complexity of the cases has also undergone a sea change. The matters concerning economic offences, involvement of senior officers in fraud cases, gender justice and complicated legal issues have thrust greater responsibility on JAG officers.

The major recommendations of the committee include —

n Provisioning of additional JAG officers in the three services to extend availability of legal cover to lower formation / station levels.

n JAG Department officers to be designated as Government Law Officers, which would allow them to appear before courts to effectively defend cases filed against the Union of India.

n Induction of law graduates in the JAG Department be regulated by grant of permanent regular commission while continuing with existing modes of short service (male and woman entry) and inter-arm service transfer to ensure longer utilisation of legal manpower.

n JAG to have technical and functional control over legal cells which would provide requisite monitoring and accountability.

n Unification of the codes of the three services and an integrated JAG structure headed by a lieutenant general or equivalent with corresponding upgradation/ strengthening at the levels below.

Acknowledging the committee’s report, the Delhi High Court observed, “The respondents are seriously considering the question of the improvement in the working of the JAG Branch and related matters. We do not, in that view, consider it necessary to monitor the progress made by the respondents in the said direction any further. All that we need say is that, if the respondents have realised on an evaluation of the current procedures and practices that the working of the JAG Branch requires a fresh look and certain steps taken to make it more efficient and effective, it would do well to introduce proper measures in that direction as early as possible...”

In a recent judgment in the case of Maj SS Chillar Vs UOI, the principal bench of the Armed Forces Tribunal observed, “Before parting with the case, we would like to observe that in conduct of court martial proceedings, some elementary mistakes are committed. Neither the JA, who advises the court martial has, at any time, experience of conducting a sessions trial, as a result of which he could not properly advise the court martial authorities, nor are the prosecutors properly trained to conduct such criminal trials.” Stating that for such matters a properly trained prosecutor is required, the Tribunal said, “This is highlighted in this case that such elementary mistakes were committed in conduct of the criminal prosecution. Therefore, the authorities should appoint proper prosecutors for conducting such criminal cases in court martial proceedings, likewise, a trained presiding officer, who knows how to conduct a criminal trial or a JA who had an experience of conducting criminal trials. We have seen number of court martial cases which have come before this Tribunal and we find that most of the elementary mistakes were committed in conduct of the criminal trials.”

The Tribunal held that in its experience trials by court martial relating to offences like murder or other penal code offences or offences under the other Acts are not properly conducted like a regular criminal trial. The result is that they will turn into acquittal.

“The authorities have to undertake an overall review of conducting court martial trials pertaining to offences under penal code or other civil offences by a competent prosecutor, who has experience of trial. The presiding officer should also be a trained person, who has seen the trials conducted by a sessions Court, so that they can appreciate the difference between the two and regulate the court martial proceedings as if they are conducting a criminal trial. Presiding officers, prosecutors and the JA should be sent for training in a criminal court, where trials are conducted. The matter requires serious consideration of overhauling of the procedure,” the Tribunal ruled.

The tribunal also observed that before trial by a court martial commences, three-tier proceedings —, a preliminary inquiry, then charge stage and thirdly, the summary of evidence is undertaken, which is cumbersome, time consuming and totally unwarranted. Once the investigation is done, then, the case should be immediately taken before the Court. Holding that the pre-trial proceedings create more confusion waste time, the Tribunal ruled that this exercise should be shortened and expedited.

Impact of the Armed Forces Tribunal

The Tribunal has Appellate as well as Original jurisdiction to hear appeals arising out of court martial verdicts and applications on service matters, respectively. This has increased the work load of JAG officers exponentially. About 10,000 cases pending in various High Courts and lower Courts relating service matters have been and are being transferred to the respective AFT Benches.

Independent legal cells would be required to be established at a much larger scale for defence and monitoring of the cases pending before the AFTs where the disposal rate is much higher since the respective benches are exclusively hearing service matters. At the Tribunal’s regional bench in Chandigarh, on an average 50 to 75 cases are listed every day. Giving progress of each and every case to all concerned at the end of the day consumes additional 4 to 6 hours after the Court rises for the day. Thereafter the legal cell officers have to read through and prepare for cases listed for the next day. The present arrangement is highly inadequate to cope up with the work load. It is pertinent to mention that since expeditious dispensation of justice is expected before the AFT, there is an exponential increase in the number of cases against the Armed Forces, especially on issues relating to pension, disability pension, family pension and pay and allowances. It is, therefore, essential that adequate number of qualified and experienced officers are positioned to deal with such cases appropriately.

The strength of JAG Department in the Army in 1980 was about 105 officers and the present authorised strength is just 120 officers. Thus there has virtually been no increase for the last 31 years. On the other hand the entire organisation has been restructured with substantial increase by way of raising new units/formations. Even the AV Singh Committee did not examine restructuring of the JAG Department since the matter was already being examined by the MoD.

The Way Ahead

A need is thus envisaged to take immediate steps and undertake the following:-

n Restructure the JAG Department. In doing so, take away the pre-trial advisory role of the Department and allocate it to the Discipline and Vigilance Wing of the Adjutant General’s Branch having law qualified officers, thereby leaving only the trial and post-trial functions with the JAG Department. This would indicate compliance of the cardinal principle of justice that, “Justice must not only be done but must also seem to be done” ;

n Depute JAG Department officers to various institutes that train civilian law officers.

n The cumbersome three-tier proceedings in the form of court of inquiry, hearing of charge and recording summary of evidence before commencement of trial need to be cut down. Once inquiry is completed, the case should be immediately taken before the competent authority, who on finding prima facie charges, may convene a court martial.

n Set up Armed Forces Tribunal Legal Cells with highly experienced, efficient and motivated law officers with sufficient permanent civilian administrative support staff in the form of shorthand writers, clerks and munshis, sufficient independent transport, modern office equipment and electronic gadgets etc. Till such time the department is short of qualified law officers, the possibility of employing retired law qualified officers who are registered as advocates on a contractual basis may be explored. These officers can also be tasked to represent Union of India where government Counsels are not available for a particular case.

The writer is a retired JAG Department officer