Selected Articles from Various News Paper: Civil Services Mentor Magazine - July 2016

Selected Articles from Various Newspapers & Journals

A new strongman in the Philippines

During his election campaign, Rodrigo Duterte of the Philippines was often compared to Donald Trump. Like the Republican Party’s presumptive candidate, Mr. Duterte ran a divisive, anti-establishment campaign built around a strongman image. His contempt for law, threats to “shut down Congress” and pledge to send the army and the police to kill criminals had all revived memories of Ferdinand Marcos’s brutal dictatorship, brought to an end by a “revolution” in 1986. Mr. Duterte’s victory in the presidential elections by a clear margin, has thrown the future of the Philippines into uncertainty. The country’s political elite are partly responsible for the triumph of his brand of politics. Though outgoing President Benigno Aquino is hailed as a champion of economic reforms, the high growth barely trickled down to the poor. Despite the economy clocking an average annual growth rate of 6.3 per cent between 2010 and 2015, the percentage of Filipinos living below the national poverty line in 2015 stood at 26.3, almost the same as in 2009. Infrastructure is poor and corruption is persistent. The revolution that brought the Marcos era to an end has, over the years, ossified into oligarchic rule, with a few political dynasties pulling the strings. Mr. Duterte, known for his crackdown on crime in Davao as the city’s Mayor, presented himself as an alternative to the oligarchs in Manila. His populism and showmanship helped rally the electorate to his side.

The race to the presidency from the office of a city Mayor was indeed tough. But ruling a country of 100 million people that faces enormous challenges is going to be harder. Mr. Duterte lacks experience in national politics and support among the legislators. If he turns dictatorial, as Marcos did, he risks a mass rebellion. Those who voted him to power could easily turn against him. If Mr. Duterte is serious about implementing reforms to spread growth beyond Manila, he will require the help of the very legislators he antagonised during the campaign. He should tread cautiously because the established parties that control Congress can make his job more difficult. Two of Mr. Aquino’s immediate predecessors faced impeachment charges — one had to resign and the other was jailed after her term was over. Geopolitically, Mr. Duterte’s election comes at a crucial moment. The Philippines and China are in a stand-off over claims in the South China Sea. Mr. Duterte’s brash comments on other countries, including regional allies, seem to point to a lack of diplomatic equanimity needed to grapple with complex geopolitical issues. These challenges and weaknesses don’t guarantee his failure as President. But he would do better if he toned down the rhetoric, adopted a more conciliatory approach in order to buy peace with political rivals, and pursued an inclusive, growth-centric approach.

The power to certify

Recently, the Aadhaar Bill and the Finance Bill were passed as Money Bills, though they may not have met the strict criteria laid out in the Constitution. This meant that the Rajya Sabha had only a recommendatory role while discussing these Bills. Article 110(1) of the Constitution states that a bill can be termed as a Money Bill if it contains “only” six types of provisions or anything incidental to these. Broadly speaking, these include taxation, government receipts and expenditure, government borrowings, and guarantees. The government has argued that the primary objective of the Aadhaar Bill was to create a system for providing subsidies, and as the provisions relate to government expenditure the Bill can be termed as a Money Bill. The counterargument is that the Aadhaar Bill has several other provisions, including permitting use of the system for other purposes, so it does not meet the requirement of having “only” the six provisions. A writ petition has been filed in the Supreme Court challenging this categorisation.

The Finance Bill too had provisions other than those related to taxation. It amended the Reserve Bank of India Act to enable the creation of a monetary policy committee. It also amended the Foreign Contribution Regulation Act (with retrospective effect) to change the definition of foreign company. Article 110(3) states: “If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.” In addition, Article 122 prohibits courts from inquiring into proceedings of Parliament and examining their validity. Given these two Articles, can the Supreme Court examine whether the certificate of the Speaker was correctly given?

Therefore, the question is: If the Supreme Court cannot examine whether the Speaker gave the certificate correctly, what prevents a misuse of this provision to prevent scrutiny by the Rajya Sabha? To illustrate with an extreme example, if a Bill to amend the Indian Penal Code is certified as a Money Bill, is that decision final and not open to judicial scrutiny? There are several prior cases in which the Supreme Court has examined the decision of the Speaker or the legislature. One set of cases pertains to the anti-defection law as laid down in the Tenth Schedule to the Constitution. Paragraph 6(1) states: “If a question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.” Paragraph 6(2) says that all proceedings in relation to such question shall be deemed to be proceedings within the meaning of Articles 122 or 212. Note the similarity to the wording used in Article 110(3).

The Supreme Court examined the constitutional validity of this paragraph in Kihoto Hollohan v. Zachillhu (1992). It said: “That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen, is valid. But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.” It went on to say that the protection of Articles 122 and 212 was only to protect the validity of proceedings from mere irregularity of procedure. The Court also struck down paragraph 7 (which barred judicial review) stating that it did not meet the requirements of Article 368(2), which requires ratification of half of all State legislatures for any changes made to provisions related to the higher judiciary.

The Supreme Court has examined its powers of review under Articles 122 and 212 in the Raja Ram Pal case in 2007. This case pertained to the expulsion of some members of Parliament after they were found to have taken cash to ask questions in Parliament. The Court said: “The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from mere irregularity thus cannot be held protected from judicial scrutiny by Article 122(1)”. This principle was later applied in Amarinder Singh v. Spl. Committee , Punjab Vidhan Sabha , in 2010. In that case, the Supreme Court set aside the expulsion of Capt. Amarinder Singh from the Punjab Vidhan Sabha. The point to note is that the court has set limits to the privilege of the legislature under Article 122, and overturned its resolution to expel a member.

The fee for NSG membership

China’s announcement that it intends to oppose India’s membership of the Nuclear Suppliers Group unless it agrees to sign the Non-Proliferation Treaty (NPT) comes just a month ahead of the NSG’s annual plenary session. For the past year, India had made admission to the 48-member NSG a focus of its international outreach, though membership has been a goal since the India-U.S. civil nuclear agreement was signed in 2008. Several major countries including the U.S., Russia, Germany, the U.K. and Australia have openly backed the bid, despite the fact that India is not a signatory to the NPT, widely considered to be a key criterion for NSG membership. In 2015, India reached out to many other NSG members, including those such as Ireland and Sweden that are members of the pro-disarmament group, the New Agenda Coalition, and have traditionally been opposed to its admission. The visit to New Delhi of NSG Chairperson Rafael Grossi in October 2015, when he spoke of taking the request forward, was seen to be a positive sign in this effort. Thus the disappointment after the signal from Beijing last week. Clearly, China’s stand is a combination of its fraught relations with India as well as its desire that its “all-weather friend” Pakistan not be disadvantaged in the process. While this ignores Pakistan’s well-known proliferation record, it also points to failure on the part of Indian diplomats tasked with convincing China that admitting India to the NSG is the logical thing to do.

However, this is not the end of the road for India’s NSG ambitions. Indeed, it is a signal that more persuasive diplomacy is needed to bring around naysayers such as China from blocking New Delhi’s bid, much as was done to bring China on board to get India the NSG waiver in 2008. For this, the government must begin an internal debate to appraise its own position on the NSG membership, and to figure out how far it is willing to go to secure it. It will, first, have to reckon with the possibility that NSG members could object to an “India-specific” ruling, and that other non-NPT countries, including Pakistan and Israel, may also benefit from any flexibility that is shown in India’s case. Second, there is a possibility that India could receive a “second class” membership, and not be considered a “nuclear weapons state” by the NSG. The third, and most important, point is that membership of the NSG, a body set up specifically in response to India’s nuclear test in 1974, will eventually require India to curtail its nuclear weapons programme. U.S. President Barack Obama’s comments, made after the Nuclear Security Summit, that the nuclear arsenals of India and Pakistan are taking them in the “wrong direction”, underscore this. If India aims to be part of the elite NSG club, it must have a realistic idea of what the fee for full membership is, added to the diplomatic outreach required to win support from China. A full and transparent cost-benefit analysis is crucial.

The ghosts of Sykes-Picot

West Asia lies in tatters. Parts of the border between Iraq and Syria have been virtually erased by the Islamic State. Syria itself is divided among multiple groups. Iraq’s government has no control over at least a fourth of its territory. Iraqi Kurdistan, an autonomous region, has demanded freedom from Baghdad. The Syrian Kurdistan region is being run by the Kurds themselves for the first time in several decades. The regional map is fractured in many more ways. What triggered this crisis? Part of the blame lies with a century-old agreement between Britain and France that is viewed as the source of the modern map of West Asia. When the British and French signed the Sykes-Picot pact a century ago — on May 16, 1916 — to divide the huge land mass of the Ottoman Empire between themselves, their primary concern was to retain their colonial interests. In the process, the map prepared by diplomats Mark Sykes and François Georges-Picot ignored local identities, leaving several ethnic and social contradictions unaddressed. Even when actual boundaries were identified after the First World War, the focus was on colonial and regional interests, not on the political preferences of the people. Against this background, it may not be a coincidence that over the years the most powerful political ideologies that emerged from the region directly or indirectly challenged the Sykes-Picot system. Both Nasserism and Ba’athism sought to transcend the territorial nationalist boundaries. Egypt and Syria even went ahead to declare a United Arab Republic, an experiment that collapsed after the 1961 coup in Damascus. And now, even Abu Bakr al-Baghdadi, the leader of the IS, calls for an end to the “Sykes-Picot conspiracy”.

The modern map of the region may not bear any great resemblance to the original lines drawn by Sykes and Picot. What matters more now than the actual Sykes-Picot map is the legacy of the agreement: foreign interventions. From the colonial carve-up to the Iraq war or the fight against the IS, foreign involvement in the region continues, and often exacerbates the crises rather than solving them. Equally problematic has been the failure of West Asia’s leaders to live up to the challenges of their respective states. Over the years, they resisted reform and ran largely oppressive systems rooted in social conservatism and patronage. They showed no interest in tackling the problems the Sykes-Picot pact failed to address, such as the Kurdish question. Their authoritarianism simply sharpened the social contradictions in their states, while intra-regional rivalries made peace elusive. The rise of the IS is a result of these external and internal problems. If the Iraq war unleashed sectarian and jihadist demons, they found a battlefield in Syria where President Bashar al-Assad’s dictatorship triggered a civil war, which was in turn worsened by his regional rivals. Both the interventionists from abroad and the warring dictators at home should rethink their approaches. Else, the ghosts of Sykes-Picot will continue to haunt West Asia.

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