The currently raging debate on the Enhanced Partnership with Pakistan Act of 2009 - originally the Kerry-Lugar Bill, (herein after called the Act) has been generating more heat than light. Emotions still remain highly charged and objectivity has become a casualty in the process. An attempt has been made below to undertake a dispassionate study of this law from the legal and developmental perspectives to de-emotionalise the discourse and clarify the relevant issues.
A few points merit to be noted at the outset. Firstly: this legislation is not a bilateral agreement between the USA and Pakistan and therefore its approval, as such, does not fall within the competence of any organ of Pakistani state. Nor is it a binding on us in any way. Secondly Pakistan, of course, can refuse to accept any assistance under it (no one can force it down our throats).
Thirdly, foreign assistance is rarely extended by any donor (with the exception of some small European countries), without some sort of conditions. Pakistan has been consistently receiving aid from, among others, the USA, and living with such conditions in the past. Fourthly the Act essentially lays down a framework for Non-Security (ie Economic) assistance to Pakistan over a period of five years, though the title II of the Act relates to Security Assistance to Pakistan (without specifying its quantum).
This part of the Act (ie Title II) has spawned the current controversy by virtue of the content of these provisions, and the language used in the Act. However, according to a majority of experts, no condition in the strict sense of the word has been imposed on Pakistan. Conditions have been really imposed on the USA Administration by this law and are expected to be complied with by it. Finally some provisions of the Act undoubtedly contain patently offensive, highly insensitive and clearly intrusive language, an example of the American hubris.
Essence of the Explanatory Statement (ES):
The essence of the ES can be summarised as follows:
Purpose: To facilitate an accurate interpretation of the text and to ensure faithful implementation of its provisions in accordance with the intentions of the legislation.
Core intent: To demonstrate the American people's long-term commitment to the people of Pakistan.
Conditions: No conditions have been imposed on the Government of Pakistan. The only requirements are accountability measures placed on the United States executive branch to ensure that the aid directly benefits the Pakistani people.
-- This Act fully recognises and respects the independence of Pakistan as a sovereign nation. Its purpose is not to dictate the national policy or impinge on the sovereignty of Pakistan in any way. Any interpretation of this 'Act' that suggests that the United States does not fully recognise and respect the sovereignty of Pakistan would be directly contrary to Congressional intent.
A. LEGAL ISSUES In the legal context the following issues are germane to the matter:
i) Whether the joint explanatory statement (ES) by the Congressional sponsors of the Act possesses any legal force?
ii) If the answer to (i) above is in the negative, whether the explanation will still have any practical effect.
LEGAL FORCE OF EXPLANATORY STATEMENT: The supporters of the Act in the USA and Pakistan have claimed that the explanatory statement has a legal force. Senator John Kerry, one of the sponsors of the bill, stated as recently as October 19, 2009 that "The clarification filed as a part of the official bill [ES] has a force of law.
It clarifies completely and is absolutely crystal clear that it will not impact on the sovereignty of Pakistan whatsoever." In the same vein high functionaries of the Government of Pakistan have been consistently taking the position that the explanatory statement had become a part of the US law. This standpoint does not represent the correct legal position.
The correct and universally accepted view is that no supplementary or explanatory statement about a piece of legislation can acquire a legal status unless it is approved after duly undergoing the prescribed processes and receives the assent of the Head of the State. Admittedly, in this case, the explanatory statement has not gone through this process. Therefore, it cannot be deemed to be invested with the force of a law, even if every legislator in the Congress becomes its signatory.
QUESTION OF PRACTICAL EFFECT: The second issue is whether the ES will have any practical effect? Though the answer to the question of legal validity of ES is in negative, it does not follow that the explanation is of no practical effect. In real life, operations of laws are influenced and moulded by a constellation of factors. There is a well-known concept of "Law in Books" and "Law in Action".
Hence, the sense of the sponsors articulated by them, despite its non-legal, non binding character, can in practice, prove decisive. Particularly, this would be true of legislation relating to foreign relations where the legislature is not supposed to micromanage the process of implementation. In such cases, the executive branch is in the driving seat.
Administrative interpretation of statutes is an integral component of governance in the American system. Public administrators, as a matter of fact, are active participants in governance, especially in respect of foreign affairs. The ES, in this case, is somewhat similar to the legislative history of any law, which is often used as a factor in determining legislative intent. Needless to emphasise, "the words and phrases of a statute must be interpreted contextually, in a manner which harmonises with the other provisions of the statute and which gives effect to the reasons and purpose of the statute."
The ES by clarifying the context gives to the executive branch a clear guidance in interpreting the Act. The upshot is that the word of any law is not etched in stone, its meaning changes with changing circumstances and its operational parameters in particular will have to be dynamically perceived.
The explanation given by the sponsors of the legislation has the effect of elaborating, diluting and nullifying in practice the original/initial provisions of the law. This authoritative interpretation (set out in ES), which is contemporaneous with the original articulation of the legislative intent, in the Act gives the explanation an added element of operational and functional potency.
B. DEVELOPMENTAL ISSUES Following are the developmental issues relevant in the context of the Act.
i) Whether the foreign aid serves any useful purpose?
ii) Whether in a cost-benefit calculus the so-called conditions in the Act outweigh the developmental benefit of assistance.
The foreign assistance (coming from any source), despite its limited financial contribution to the overall developmental efforts, plays a vital role in the economy. No doubt anti-aid rhetoric has a grain of truth that Pakistan should become self-reliant and cast aside aid dependency. However, to do so in the first place, we should become economically strong.
Unless this is done we will be denying ourselves the badly needed assistance in the transitional period, which can help us to achieve this pre-requisite for coming out of clutches of the aid. During illness one does not throw away medicine in order to achieve recovery. The medicines are critical for regaining sound health. Economic assistance, particularly in cases of countries like Pakistan, helps to fill up both the saving and foreign exchange gap.
Foreign aid is increasingly accepted as a catalyst for change, and it can help to create conditions in which poor people are able to raise their incomes and to live longer, healthier, and more productive lives. In Pakistan, it is true that foreign aid has not been fully able to achieve this objective.
The principal reasons for failure are: weak institutions, poor governance and inappropriate policies. No amount of aid can prove a substitute for these vital factors. We should in Pakistan focus on these deficiencies rather than lamenting the conditions of aid. Of course, sincere efforts should be made to cut down our expenditure, but geo-political realities really do not permit us to effect a fundamental alteration in the fiscal profile, at least in the short or medium time horizon.
COST BENEFIT CALCULUS: One can do without aid from USA, but as things are, we have to find someone else to fill up this gap. There is no doubt, whatsoever, that the grant assistance to be provided in the Act is qualitatively better than the Standby assistance or the PRGF assistance from the IMF/World Bank. Extremely stringent conditions are attached to aid from IFIs. More importantly, aid from USA is a grant.
This assistance is likely to have a positive impact on our development, because the US aid is focused on building infrastructures and institutions in the social sector, such as education and health. It is almost conventional wisdom that developing nations must empower and invest in poor people, so they can participate in growth.
Hence aid intended to be provided in the Act to equip poor people with the tools necessary to contribute to growth, such as education and health, and by giving them access to infrastructure, must be especially welcomed. One commendable step taken in the Act is to improve implementation of aid-financed projects by qualitatively improving accountability. Taking all the factors into account the benefits of the Act outweigh its costs. It should give us some comfort that Senator Kerry ( in Islamabad on the October 19th, 2009 stated
"The way forward is to resolve all concerns and a process to this effect can be initiated to deal with residual concerns within a few weeks." The Government of Pakistan should try to work with the sponsors of the Act for removal of the major sources of our grievances.
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