1. Vigilance officers to be transferred every 3 years

This is to ensure transparency: CVC

The Central Vigilance Commission (CVC) has modified the guidelines pertaining to the transfer and posting of officials in the vigilance units of government organisations, restricting their tenure to three years at one place. The tenure may be extended to three more years, albeit at a different place of posting.

The CVC, in its order, said undue long stay of an official in a vigilance department had the potential of developing vested interests, apart from giving rise to unnecessary complaints or allegations.

“In order to emphasis on the importance of the issue and to ensure transparency, objectivity and uniformity in approach, the Commission has decided to modify its earlier guidelines,” it said. Personnel can have two continuous postings in vigilance units at different places of posting, each running to a maximum of three years.

In phases

Personnel who have worked for over three years at one place should be transferred in phases, with priority given to those who have served for the maximum period, the order said.

Those having completed over five years at one place should be shifted on top priority basis, it added.

The Commission said in the first phase, at least 10% of such personnel should be shifted in a sequential order without any exception. In case someone has served at one place for over three years, his tenure at the next place would be curtailed to ensure that the combined tenure was limited to six years.

The first phase of transfer/posting has to be completed by May 31. The exercise of transferring all the personnel in question should be completed by June 30, said the Commission. The order said after transfer from the vigilance unit, there would be a compulsory cooling off period of three years before anyone could be considered again for posting in the unit. A personnel, having completed three years in the vigilance unit of an organisation, could be considered for transfer on deputation basis in the unit of another organisation, subject to the laid down rules.

Central Vigilance Commission (CVC)

Central Vigilance Commission is the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing and reforming their vigilance work.

Vigilance means to ensure clean and prompt administrative action towards achieving efficiency and effectiveness of the employees in particular and the organization in general, as lack of Vigilance leans to waste, losses and economic decline.

The CVC was set up by the Government in February, 1964 on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam. In 2003, the Parliament enacted CVC Act conferring statutory status on the CVC.

The CVC is not controlled by any Ministry/Department. It is an independent body which is only responsible to the Parliament.

Functions

• The CVC receives complaints on corruption or misuse of office and to recommend appropriate action. Following institutions, bodies, or a person can approach to CVC:
  • Central government
  • Lokpal
  • Whistle blowers
    • A whistleblower is a person, who could be an employee of a company, or a government agency, or an outsider (like media, higher government officials, or police) disclosing information to the public or some higher authority about any wrongdoing, which could be in the form of fraud, corruption, etc.
• It is not an investigating agency. The CVC either gets the investigation done through the CBI or through chief vigilance officers (CVO) in government offices.
• It is empowered to inquire into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants.
• Its annual report gives the details of the work done by the commission and points to systemic failures which lead to corruption in government departments.
  • Improvements and preventive measures are also suggested in report.

History

• The Special Police Establishment (SPE) which was set up in 1941 by the Government of India.
  • The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Department of India during World War II.
  • Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt.
  • The Delhi Special Police Establishment Act was therefore brought into force in 1946.
• After promulgation of the Act, superintendence of SPE was transferred to the Home Department and its functions were enlarged to cover all departments of the Government of India.
  • The jurisdiction of SPE was extended to all the Union territories and the Act provided for its extension to States with the consent of the State Government.
• By 1963, the SPE was authorised to investigate offences under 91 different sections of Indian Penal Code (IPC) and 16 other Central Acts besides offences under the Prevention of Corruption Act 1947.
• A growing need was felt for a Central Police Agency at disposal of the Central Government which could investigate not only cases of bribery and corruption, but also:
  • violation of Central fiscal laws,
  • major frauds relating to Government of India departments,
  • public joint stock companies,
  • passport frauds,
  • crimes on the high seas,
  • crimes on the Airlines,
  • And serious crimes committed by organised gangs and professional criminals.
• On the recommendations of the Santhanam Committee on Prevention of Corruption, Central Bureau of Investigation (CBI) was established by a resolution of the Ministry of Home Affairs on April 1, 1963.
  • Later, it was transferred to the Ministry of Personnel and now it enjoys the status of an attached office.
• In 1964, the Central Vigilance Commission (CVC) was set up by the Government on the recommendations of Santhanam Committee, to advise and guide Central Government agencies in the field of vigilance.
• The Supreme Court in the judgement of Vineet Narain & Others vs. Union of India (1997) gave directions regarding the superior role of CVC.
  • In this case the role of the Central Bureau of Investigation was criticised and the court directed that CVC should be given a supervisory role over CBI.
• The Government promulgated an Ordinance in 1998, conferring statutory status to the CVC and the powers to exercise superintendence over functioning of the Delhi Special Police Establishment (CBI), and also to review the progress of the investigations pertaining to:
  • Alleged offences under the Prevention of Corruption Act, 1988 conducted by them.
• The Commission was given statutory status by the enactment of “The Central Vigilance Commission Act, 2003”.
  • After enactment of CVC Act, 2003, the Commission became a multi-member body consisting of a Central Vigilance Commissioner (Chairperson) and not more than two Vigilance Commissioners (Members), to be appointed by the President.
• The Supreme Court in a Writ Petition filed after the murder of Shri Satyendra Dubey in 2003, a whistle-blower, directed that machinery be put in place for acting on complaints from whistle-blowers till a law is enacted.
  • In pursuance of that direction, the Government of India notified the Public Interest Disclosure and Protection of Informers Resolution (PIDPI), 2004:
    • This Resolution is popularly known as “Whistle Blowers” Resolution and it designated the Central Vigilance Commission as the agency to receive and act on complaints or disclosure on any allegation of corruption or misuse of office from whistle blowers.
    • The Commission has been entrusted with the responsibility of keeping the identity of the complainant secret while lodging a complaint under PIDPI Resolution, in order to provide protection to whistle blowers from victimisation.
  • The Public Interest Disclosure and Protection to Person Making the Disclosures (PIDPPMD) Bill 2010 renamed as “The Whistle Blowers’ Protection Bill, 2011” was enacted by the Central Government in Parliament as “The Whistle Blowers’ Protection Act, 2014”.
• Through subsequent ordinances and legislations the Government has added to the functions and powers of the Commission.
• In 2013, the Parliament enacted the Lokpal and Lokayuktas Act, 2013.
  • This act has amended CVC Act, 2003 whereby the Commission has been empowered to conduct preliminary inquiry and further investigation into complaints referred by the Lokpal.
• On the issue of overlap of jurisdiction between the CVC Act and The Lokpal and Lokayuktas Act, the Commission has communicated its suggestions to the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice during its examination of the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014.

Governance

The Central Vigilance Commission has its own Secretariat, Chief Technical Examiners’ Wing (CTE) and a wing of Commissioners for Departmental Inquiries (CDI). For investigation work, CVC has to depend on two external sources CBI and Chief Vigilance Officers (CVO).

The Central Vigilance Commission

• Multi-member Commission consists of a Central Vigilance Commissioner (Chairperson) and not more than two Vigilance Commissioners (Member).
• The Central Vigilance Commissioner and the Vigilance Commissioners are appointed by the President on the recommendations of a Committee consisting of the Prime Minister (Chairperson), the Minister of Home Affairs (Member) and the Leader of the Opposition in the House of the People (Member).
• The term of office of the Central Vigilance Commissioner and the Vigilance Commissioners is four years from the date on which they enter their office or till they attain the age of 65 years, whichever is earlier.

Secretariat

• The Secretariat consists of a Secretary, four Additional Secretaries, thirty Directors/Deputy Secretaries (including two Officers on Special Duty), four Under Secretaries and office staff.

Chief Technical Examiners’ Organisation (CTEO)

• The Chief Technical Examiner’s Organisation constitutes the technical wing of the Central Vigilance Commission and is manned by two Engineers of the rank of Chief Engineers (designated as Chief Technical Examiners) with supporting engineering staff. The main functions assigned to this organisation are:
  • Technical audit of construction works of Governmental organisations from a vigilance angle; Investigation of specific cases of complaints relating to construction works;
  • Extension of assistance to CBI in their investigations involving technical matters and for evaluation of properties in Delhi;
  • And Tendering of advice/assistance to the Commission and Chief Vigilance Officers in vigilance cases involving technical matters.
• During the year 2017, CTEO undertook intensive examinations of 66 procurement cases, covering 52 organizations. Some of the organizations where intensive examinations were undertaken are:
  • Ministry of Road Transport & Highways (MoRT&H),
  • Central Public Works Department (CPWD),
  • All India Institute of Medical Sciences (AIIMS),
  • Employees’ State Insurance Corporation (ESIC),
  • Central University of Punjab, Airports Authority of India (AAI),
  • North Delhi Municipal Corporation (NDMC),
  • Oil and Natural Gas Corporation (ONGC),
  • Bank of Baroda (BoB)

Commissioners for Departmental Inquiries (CDIs)

• There are fourteen posts of Commissioners for Departmental Inquiries (CDI) in the Commission, 11 in the rank of Director and 03 in the rank of Deputy Secretary.
• The CDIs function as Inquiry Officers to conduct Oral inquiries in departmental proceeding initiated against public servants.

Integrity Index Development (IID)

• IID reflects the transparent, accountable and efficient governance of public organisations.
• CVC has appointed the Indian Institute of Management Ahmedabad to undertake a research-based approach to create an integrity index that various organizations can use to measure themselves and which will evolve with changing needs.

CVC Investigation by External Agencies

CVC has no investigation wing of its own as it depends on the CBI and the Chief Vigilance Officers (CVO) of central organizations, while CBI has its own investigation wing drawing its powers from Delhi Special Police Establishment Act.

Chief Vigilance Officers (CVO)

• Vigilance administration in Departments/Organisations is headed by the Chief Vigilance Officers (CVO) and the Commission’s activities concerning inquiry or causing inquiry are supported by/carried out through the CVOs.
• Complaints received in the Commission are scrutinised thoroughly and wherever specific and verifiable allegations of vigilance nature are noticed, the complaints are forwarded to the CVO/CBI to conduct inquiry/investigation into the matter and report to the Commission expeditiously.
• CVOs in all Departments/organisations are appointed after prior consultation with the Commission.

Central Bureau of Investigation (CBI)

• CBI works under the overall supervision of CVC in matters related to the Prevention of Corruption Act, 1988.
  • The important role of CBI is prevention of corruption and maintaining integrity in administration.
• The CVC act provides for a security of two year tenure in office for CBI Director.
• The CVC heads the Committee for the selection of the Director of CBI and other officers of the rank of SP and above in the CBI (DSPE-An investigation wing of CBI).

CVC’s Jurisdiction

CVC Act 2003

• Members of All India Service serving in connection with the affairs of the Union and Group A officers of the Central Government
• Officers of the rank of Scale V and above in the Public Sector Banks
• Officers in Grade D and above in Reserve Bank of India, NABARD and SIDBI
• Chief Executives and Executives on the Board and other officers of E-8 and above in Schedule ‘A’ and ‘B’ Public Sector Undertakings
• Chief Executives and Executives on the Board and other officers of E-7 and above in Schedule ‘C’ and ‘D’ Public Sector Undertakings
• Managers and above in General Insurance Companies
• Senior Divisional Managers and above in Life Insurance Corporations
• Officers drawing salary of Rs.8700/- p.m. and above on Central Government D.A. (Dearness Allowance) pattern, as on the date of the notification and as may be revised from time to time in Societies and other Local Authorities.

The Lokpal and Lokayuktas Act, 2013

• The Act has amended some provisions of CVC Act, 2003 whereby the Commission has been empowered to conduct preliminary inquiry into complaints referred by Lokpal in respect of officers and officials of Group ‘B’, ‘C’ & ‘D’, besides:
  
  
  • Group ‘A’ officers, for which a Directorate of Inquiry for making preliminary inquiry is to be set up in the Commission.
• The preliminary inquiry reports in such matters referred by Lokpal in respect of Group A and B officers are required to be sent to the Lokpal by the Commission.
• The Commission is also mandated to cause further investigation (after preliminary enquiry) into such Lokpal references in respect of Group ‘C’ & ‘D’ officials and decide on further course of action against them.

The Whistleblowers Protection Act, 2014

• The Whistleblowers Protection Act, 2014 empowers the Commission as the competent authority:
  • to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure,
  • And to provide adequate safeguards against victimisation of the person making such complaint and for matters connected therewith and incidental thereto.

Limitations of CVC

• CVC is often considered a powerless agency as it is treated as an advisory body only with no power to register criminal case against government officials or direct CBI to initiate inquiries against any officer of the level of Joint Secretary and above.
• Although CVC is “relatively independent” in its functioning, it neither has the resources nor the power to take action on complaints of corruption.

2. Ukraine urges NATO to speed up membership

‘It will be a real signal for Russia’

Ukrainian President Volodymyr Zelensky on Tuesday urged NATO to speed up his country’s membership in the alliance, saying it was the only way to end fighting with pro-Russia separatists.

Mr. Zelensky spoke with NATO Secretary General Jens Stoltenberg after an increase in clashes and Russian military movements on the border raised fears of an escalation of the separatist conflict in eastern Ukraine.

In a tweet after the call, Mr.. Zelensky said it was time for NATO to move forward with Ukraine’s longstanding desire for membership.

He said Kiev was committed to defence reforms requested by the alliance for membership.

“But reforms alone will not stop Russia,” said Mr. Zelensky, whose government has said it hopes to be invited this year to join a NATO Membership Action Plan (MAP). “NATO is the only way to end the war in Donbas. Ukraine’s MAP will be a real signal for Russia.”

Fears have been mounting of a major escalation of the conflict in eastern Ukraine, where government forces have battled separatists in the mainly Russian-speaking Donbas region since 2014.

Ukraine last week accused Russia of massing thousands of military personnel on its northern and eastern borders as well as on the Crimean peninsula annexed by Moscow in 2014. Kiev’s Western allies have rushed to its defence, with a series of statements warning Russia against taking further action.

Mr. Stoltenberg said on Tuesday he had called Mr. Zelensky “to express serious concern about Russia’s military activities in and around Ukraine and ongoing ceasefire violations”.

North Atlantic Treaty Organization

• North Atlantic Treaty Organization (NATO) is a military alliance established by the North Atlantic Treaty (also called the Washington Treaty) of April 4, 1949, by the United States, Canada, and several Western European nations to provide collective security against the Soviet Union.
• A key provision of the treaty, the so-called Article 5, states that if one member of the alliance is attacked in Europe or North America, it is to be considered an attack on all members. That effectively put Western Europe under the “nuclear umbrella” of the US.
  • NATO has only once invoked Article 5, on September 12, 2001 following the 9/11 attacks on the World Trade Center in the US.
• As of 2019, there are 29 member states, with Montenegro becoming the latest member to join the alliance in 2017.
  • France withdrew from the integrated military command of NATO in 1966 but remained a member of the organization. However, it resumed its position in NATO’s military command in 2009.

3. India has U.S. as ally in fighting climate change, says envoy

Javadekar, John Kerry discuss collaboration and research

India is a “red-hot” investment opportunity because of its “clean energy” shift, said U.S. special envoy, suggesting that having the U.S. as a partner in tackling climate change is a unique advantage.

In his first public address after reaching Delhi for a four-day visit to prepare for U.S. President Joseph Biden’s Climate Change Summit on April 22, Mr. Kerry said the U.S. is committed to bringing emissions to below 1.5 degrees Celsius, and hoped to help India cut emissions as well.

Mr. Kerry met Environment Minister Prakash Javadekar and External Affairs Minister S. Jaishankar on Tuesday, and is expected to meet Prime Minister Narendra Modi, Petroleum Minister Dharmendra Pradhan and Minister of State for Renewable Energy R.K. Singh on Wednesday.

“We discussed a range of issues including climate finance, joint research and collaboration,” wrote Mr. Javadekar in a tweet after meeting Mr. Kerry.

While it is unclear whether he will make any announcements on restoring some of the funding for India that the Trump administration had cancelled, Mr. Kerry is understood to be discussing how to deepen India’s targets for renewable energies.

“India has an advantage that we didn’t have in the U.S. as we were developing…Not just the benefits of decades of scientific and technical advancements. You also have the United States as your friend and partner. And we are here to support you on this path to a sustainable future,” Mr. Kerry said in a videotaped message to the the U.S.-India Strategic Partnership Forum (USISPF) at a virtual conference for South Asian women in the energy industry.

US-India Strategic Partnership Forum

Prime Minister of India delivered the keynote address at the 3^rd Annual Leadership Summit of US-India Strategic Partnership Forum (USISPF).

Key Points

• Established: The USISPF is a non-profit organization established in 2017.
• Objective: Strengthening the USA-India bilateral and strategic partnership.
• Aim: Strengthening economic and commercial ties between the two countries through policy advocacy that will lead to driving economic growth, entrepreneurship, employment-creation, and innovation to create a more inclusive society.
  • Enabling business and governments to collaborate and create meaningful opportunities that can positively change the lives of citizens.
• Theme for 2020: US-India Navigating New Challenges.
• Economic Relations: In 2019, overall USA-India bilateral trade in goods and services reached USD 149 billion.
  • USA energy exports are an important area of growth in the trade relationship.

4. Editorial-1: Reworking net-zero for climate justice

Along with comparable levels of commitments there need to be equally comparable metrics for well-being

Global transformation is affecting the planet. But there is no uniform transformation across the world. Global temperature increased sharply only after 1981 with little contribution from the developing countries as their industrialisation and urbanisation had yet to begin.

In 2015, at the UN General Assembly when the Sustainable Development Agenda 2030 was adopted and at the Paris Conference, Prime Minister Narendra Modi stressed a reframing of climate change to climate justice, arguing that just when countries such as India were becoming major industrial and middle class nations, they should not pay the price for the pollution caused by the West. The Paris Agreement, explicitly recognises that peaking will take longer for such countries and is to be achieved in the context of “sustainable development and efforts to eradicate poverty”.

This balance is now being upset for a common target and timetable, with non-governmental organisations (mostly foreign funded) in support and negotiators (mostly public servants) opposing the pressure. India will meet its Paris Agreement target for 2030, its per-capita emissions are a third of the global average, and it will in future remain within its share of ecological space. The pressure arises from the way the agenda has been set.

Treaty’s inequity

First, inequity is built into the Climate Treaty. Annual emissions make India the fourth largest emitter, even though climate is impacted by cumulative emissions, with India contributing a mere 3% compared with 26% for the United States and 13% for China. According to the United Nations, while the richest 1% of the global population emits more than two times the emissions of the bottom 50%, India has just half its population in the middle class and per capita emissions are an eighth of those in the U.S. and less than a third of those of China.

Second, the diplomatic history of climate negotiations shows that longer term goals without the strategy to achieve them, as in the case of finance and technology transfer, solve a political problem and not the problem itself. The focus on physical quantities, emissions of carbon dioxide and increase in global temperature, measures impacts on nature whereas solutions require an analysis of drivers, trends and patterns of resource use. The current framework considers symptoms, emissions of carbon dioxide, and was forced onto developing countries to keep the discussion away from the causes of the problem , the earlier excessive use of energy for high levels of well-being.

Third, models on which global policy recommendations for developing countries are based consider achieving ‘reasonable’ not ‘comparable’ levels of well-being to show that early capping of energy use will not affect their growth ignoring costs on the poor. The different means to achieve the goals are not on the agenda because the rising prosperity of the world’s poor does not endanger the planet and the challenge is to change wasteful behaviour in the West.

Role of infrastructure

The vaguely worded ‘net zero’ emissions, balancing emissions and removals, could be disastrous for development latecomers like India because the current frame fails to recognise that more than half the global cumulative emissions arose from infrastructure, essential for urban well-being.

First, infrastructure has a defining role in human well-being both because of the services it provides outside the market and the way it shapes demand distinct from manufacturing (production) and lifestyles (consumption), which alone are captured in model projections.

Second, the global trend is that in an urbanised world, two thirds of emissions arise from the demand of the middle class for infrastructure, mobility, buildings and diet. There is no substitute to cement, steel and construction material, and worldwide they will need half the available carbon space before comparable levels are reached around 2050, while developed countries use most of the rest. For developed countries, peaking of emissions came some 20 years after infrastructure saturation levels were reached and net-zero emissions are being considered some two decades even later to take advantage of aging populations and technology.

Third, because of its young population and late development, much of the future emissions in India will come from infrastructure, buildings and industry, and we cannot shift the trajectory much to reach comparable levels of well-being with major economies. For example, China’s emissions increased three times in the period 2000-2015, driven largely by infrastructure.

New framework

A global goal-shaping national strategy requires a new understanding. India must highlight unique national circumstances with respect to the food, energy and transportation systems that have to change. For example, consumption of meat contributes to a third of global emissions. Indians eat just 4 kg a year compared with around 68 kg per person for the European Union and twice that in the U.S. where a third of the food is wasted by households. Transport emissions account for a quarter of global emissions, are the fastest growing emissions worldwide and have surpassed emissions from generation of electricity in the U.S., but are not on the global agenda.

Coal use

Coal accounts for a quarter of global energy use, powered colonialism, and rising Asia uses three-quarters of it as coal drives industry and supports the renewable energy push into cities. India with abundant reserves and per-capita electricity use that is a tenth that of the U.S. is under pressure to stop using coal, even though the U.S. currently uses more coal. India wants to eliminate the use of oil instead with renewable energy and hydrogen as a fuel for electrification, whose acceleration requires international cooperation around technology development and transfer.

In the Paris Agreement, ‘climate justice’ was relegated to the preamble as a political, not policy, statement. It needs to be fleshed out with a set of ‘big ideas’. The first is a reframing of the global concern in terms of sustainable development for countries with per capita emissions below the global average, in line with the Paris Agreement. Second, the verifiable measure should be well-being within ecological limits. Third, international cooperation should centre on sharing technology of electric vehicles and hydrogen as a fuel, as they are the most effective response to climate change.

5. Editorial-2: Fits and starts

India, Pakistan must be clear on scope of their nascent engagement if ties are to improve

After a month of moves and messages that indicated a détente, events last week appear to have slammed the brakes on the India-Pakistan dialogue process. The moves began with a ceasefire announcement at the LoC in February, followed by Indus water talks, sporting visas and other measures, including official speeches by Pakistan’s top leadership pushing for regional rapprochement, and salutary messages exchanged between Prime Ministers Narendra Modi and Imran Khan. Despite the growing bonhomie, however, External Affairs Minister S. Jaishankar and Pakistan’s Foreign Minister Shah Mahmood Qureshi decided not to meet or even exchange greetings at a conference in Dushanbe last week. And then days later, Mr. Qureshi led a charge of Cabinet Ministers who opposed a move by Pakistan’s Economic Coordination Committee to reopen imports of Indian cotton and sugar, arguing that it would violate Pakistan’s commitments on Kashmir. Subsequently, Mr. Khan announced he was dropping the import proposal he had made in his capacity as Commerce Minister, and that ties with India would not be normalised unless the Modi government revoked its steps of August 2019, on Jammu and Kashmir and Article 370. New Delhi, which has chosen not to comment on the events of the past month, and has not denied reports that claimed India-Pakistan moves were part of a back-channel dialogue facilitated by other countries, has also made no comment on Mr. Khan’s U-turn.

While such swings have been common in the India-Pakistan engagement, the present scenario poses questions. If talks are indeed under way behind the scenes, it is unclear why Pakistan’s import decision was not better coordinated before being publicly announced. The move followed a speech by Pakistan’s Gen. Bajwa where he stressed the need for geo-economics, trade and connectivity to be prioritised for regional prosperity. So, if it is not the all-powerful Army Chief or the ‘Pakistani establishment’ that is playing the “spoiler”, the Khan government must identify who it is. It is significant that New Delhi has chosen not to press its advantage over the embarrassing confusion in Pakistan’s stand, or react to its unworkable demand on Article 370, which has drawn India’s sharp comments in the past. This might indicate that the dialogue that has reportedly been on for months has been paused and much will depend on whether any other outlooked steps, including the restoration of High Commissioners in each other’s capitals and LoC trade that was suspended for security reasons in 2019, or commitments from Pakistan on cross-border terrorism, are announced next. If the nascent re-engagement is to have any chance, there must be also more clarity on what the two governments have decided to embark upon and hope to achieve from it.

6. Editorial-3: Mayhem in Myanmar

India, China and countries in ASEAN should pressure the junta to restore democracy

The violence of March 27, Myanmar’s Armed Forces’ Day, in which over 100 protesters were killed, has sent shockwaves. India, which initially expressed its “deep concern” and called for the “rule of law” and “the democratic process” to be upheld, had stopped short of directly condemning the junta’s violence. It had also sent a representative to attend Saturday’s celebrations. But on the day India’s defence attaché, along with the representatives of seven other countries, including China, Pakistan and Russia, was attending a massive military parade in Naypyidaw, the junta was gunning down its people. The violence and the prolonged crisis seem to have triggered a stronger response from several capitals, including New Delhi. On April 2, India, which has cultivated deep ties with Myanmar’s civilian and military leaderships, condemned “any use of violence” and called for “restoration of democracy”. There is growing international appeal for ending the bloodshed, but the junta seems unperturbed. Even after the March 27 killings, protests and regime violence continue. According to independent agencies, the junta has killed over 570 civilians, including 46 children, since the February 1 coup.

When the regime resorted to violence, it may have calculated that swift repression would extinguish the fire for freedoms, like in 1988 and 2007. But there is a fundamental difference this time. If in the past the protests erupted against the continuing military rule, in February, the military usurped power from an elected government after a decade of partial democracy. Those who enjoyed at least limited freedoms, first under the transition government and then under Aung San Suu Kyi, have built a stronger resistance to the junta this time. Street protests are not the only challenge the Generals are facing. The banking system is on the brink of collapse with most staff on strike. Cash is scarce and prices of essential goods are rocketing. Industrial workers are also on strike, bringing the pandemic-battered economy to its knees. The Generals’ efforts to bring bank and government employees and port and industrial workers back to work have been unsuccessful so far. Worse still, armed insurgent groups have thrown their weight behind the protesters, triggering fears of a wider civil conflict. The Generals are unlikely to give up power on their own. They should be nudged to end the violence and make concessions. Initially, India and China, both vying for influence in Myanmar, were ambivalent in condemning the junta’s violence because they did not want to antagonise the Generals. But an unstable Myanmar is not in the interest of any country. India, China and other countries in ASEAN should heap pressure on the junta and work towards restoring democracy in Myanmar, which is the only way forward.

7. Editorial-4: The start of a more authoritarian era

The new electoral procedures herald the end of democracy in a Hong Kong that was never truly democratic

Why should anyone care that the Chinese government recently made drastic changes to the already undemocratic way in which Hong Kong’s Chief Executive and members of its legislature are chosen? As scholars of protest patterns and repressive actions, we feel these changes represent a devastating development. Changes in rules related to voting, vetting candidates, and apportioning legislative seats in a city that was never fully democratic could seem less alarming than more dramatic actions to curtail liberties in Hong Kong. But they are arguably just as threatening to the region’s political future.

Listening to the people

One way to appreciate the significance of the changes is to consider the long-standing tradition of ‘democracy with Chinese characteristics’. The concept is expressed as a pair of characters that are commonly rendered in English as ‘democracy’ but stand for more than just electoral campaigns, voting, and other aspects of institutionalised politics. In Cantonese, the characters are pronounced manzyu and on their own they mean ‘people’ and ‘rule’. Manzyu can suggest a system in which those who zyu (rule) listen to and provide for the man (people). Crucial to such responsive governance are mechanisms of accountability, which include more than simply voicing opposition though elections. Rulers can be responsive in different ways, such as listening to protest slogans, reading petitions, and engaging in dialogue with representatives of social groups.

Under a hybrid regime that combines elements of liberal and illiberal institutions, Hong Kong citizens have forced one Chief Executive to step down before his term had ended and another one to decide against running for ‘re-selection’ in 2017. Popular protests have also compelled local officials — who were in part trying to show that they were willing to listen to the man and stay in power — to withdraw proposals in 2003 and 2012 when it became clear how disliked their plans were. In 2003, Beijing wanted the Hong Kong government to pass a law on national security and sedition. The proposal was withdrawn after protests. The same thing happened in 2012 when students led a struggle against the introduction of mainland-style patriotic education into local schools.

With Beijing’s new electoral rules, and the quashing of protest and other forms of opposition since last summer, it is less likely that a future Hong Kong Chief Executive will face the threat of removal by popular opposition. The zyu can now rule without much worry about how the man will respond. There is less political space now for the creation of movements like those of 2003 and 2012. Many of the leaders of those movements, as well as key participants in the big protest surges of 2014 and 2019, are now incarcerated or in exile.

A sketch of past electoral practices shows how the latest rules fit into the larger story of the manzyu phenomenon in Hong Kong. Deciding who occupies the top spot in the government has always been more a process of selection than election. Colonial Governors were appointed by the British Parliament without anyone in Hong Kong having a say. Since the 1997 Handover that made Hong Kong a Special Administrative Region of China, Chief Executives have been voted into office by an Election Committee comprising 1,200 members, nearly all of them pre-approved by Beijing. The list of candidates similarly needed Beijing’s approval.

Under Hong Kong’s 1990 Basic Law (the closest thing the city has to a Constitution), the Chief Executive enjoys broad powers, but the legislature (Legislative Council, or Legco) holds a key check on executive power through a provision that forces a Chief Executive to step down under certain conditions: generally, when he or she cannot muster sufficient legislative support on budgetary or “other important bills”. While this contingency was always remote since it entailed snap elections and a new Legco’s continued opposition to a bill, the recent electoral changes now virtually rule out such a scenario. There were always blocks of Legco seats that were effectively controlled by the pro-Beijing establishment. Now there are significantly more.

New rules

The new arrangement shrinks the number of directly elected seats in Legco from 35 (half of the current 70) to 20, or less than one-quarter of the 90 seats in the expanded legislature. The other 70 seats will be split between 30 representatives elected from professions and occupations, and an astonishing 40 ‘representatives’ will be chosen by the same Election Committee — now with 1,500 members — that selects the Chief Executive. And just to be on the safe side, anyone who files to run for the legislature must be pre-screened by the Hong Kong government to ensure they possess sufficient ‘patriotic’ credentials. Non-patriots (e.g., critics of Beijing) need not apply. Even Hong Kong’s courts — once bastions in protections of political speech — are unlikely to help, since there is no recourse to appeal to them when one’s candidate application is denied on patriotism grounds. Being able to remove the Chief Executive was not the only manzyu feature of the old Legco; having a shot at close to half the seats also meant that opposition forces could temporarily block unpopular measures, which gave organisers time to ramp up street actions.

It has always been clear that the Chinese Communist Party (CCP) would be able to prevent anyone it didn’t feel it could work with from becoming Hong Kong’s Chief Executive. But the new rules have changed the ‘card game’ from one in which the deck was stacked against pro-democracy forces to one in which ‘the house’ will always win — not just after a few draws from the deck but from the opening hand. Beijing has also made moves to make activities relating to Legco politics similarly stripped of the play of chance.

Beyond elections, the new rules also matter because they fit into a broader assault on values and processes that have long set Hong Kong apart from cities on the mainland. It has been a political setting in which expressions of dissenting views had a clear place, both during the quickly liberalising final years of colonial rule and from the Handover until last year. These views could be voiced at most points not only in electoral politics or marches but also in annual political rituals and satire that flagged differences from the mainland. Now, though, marches that were once considered legal are routinely banned. The popular television show, Headliner, which aired comic sketches that mocked the policies of the colonial Governor before, and of the Chief Executive after 1997, has been pulled from the air waves. Student organisations are under pressure to curtail criticisms of the CCP and the Hong Kong government. Students are not permitted to put up critical placards on campus bulletin boards called ‘Manzyu Walls’. All of these herald the arrival of a more authoritarian and less responsive era, in which the man of Hong Kong will continue to find ways to voice resistance but will have to do so in subtler ways. And in which there is less distance or contrast than ever between the zyu in Hong Kong and the far more powerful rulers in Beijing.

8. Editorial-5: Redefining combatants

Cyberattacks point to the need to rethink what constitutes a force and what a justified response can be

A report in The New York Times on the October 2020 breakdown of the Mumbai power distribution system points a finger at Chinese cyber hackers. While the truth may remain hidden, the discussion points to a macro issue. When, and under what conditions, would a non-kinetic strike, say a cyberattack, be considered an attack on the state? And under international rules of self-defence, what response would be considered legal? Would only a cyber counter-attack be justifiable or a kinetic response also be acceptable? Would a pre-emptive strike be kosher? These and other questions are knocking at our door, even as the definition of combat and combatants undergoes fast mutation.

Changing definitions

The universally accepted Lieber Code of 1863 defines a combatant. It says, “So soon as a man is armed by a sovereign and takes the soldier’s oath of fidelity, he is a belligerent…”; all others are non-combatants. An organised group of “belligerents” constitutes a regular armed force of a state. The 1899 Hague Convention brings in further clarity of what constitutes a regular force. First, the force should be commanded by a person responsible for his subordinates. Second, it must have a distinctive emblem recognisable at a distance. Third, it must carry arms openly. And last, it must conduct operations in accordance with laws and customs of war.

Those who conducted the (yet unproven) Mumbai ‘cyberattack’ or the 2007 attack on Estonia’s banking system did not meet any of the four conditions of being called combatants, but still wreaked havoc. A combatant, thus, needs to be redefined due to three reasons. First, a cyber ‘army’ need not be uniformed and may consist of civilians. After the cyberattack on Estonia, the government set up a voluntary Cyber Defence Unit whose members devote their free time towards rehearsing actions in case of a cyberattack. A rogue nation could well turn these non-uniformed people into cyber ‘warriors’. Second, cyber ‘warriors’ do not carry arms openly. Their arms are malicious software which is invisible. And finally, the source of the attack could be a lone software nerd who does not have a leader and is up to dirty tricks for money, blackmail or simply some fun. None of these meet the requirements of The Hague Convention but the actions of these non-combatants fall squarely in the realm of national security.

This raises two very basic inquiries that need deliberation. First, would the nation employing civilians in computer network attacks not be in violation of the laws of war? And second, if these people are considered as combatants, would the target country have the right to respond in self-defence? A response would be reactive, after the attacker has conducted his operation; hence, as a right of self-defence, would an act of pre-emption (through kinetic means and/or through cyber) be in order? This argument may appear far-fetched now but needs to be examined as India seems to have a new view on the concept of the right to self-defence.

View of the right to self-defence

In a February 24, 2021 UN Arria Formula meeting on ‘Upholding the collective security system of the UN Charter’, the Indian statement says, “…a State would be compelled to undertake a pre-emptive strike when it is confronted by an imminent armed attack from a non-state actor operating in a third state.” It adds that “this state of affairs exonerates the affected state from the duty to respect, vis-a-vis the aggressor, the general obligation to refrain from the use of force.” In a perceptive analysis of the statement, in Opinio Juris, Srinivas Burra, an Assistant Professor, opines that in a clear departure from established practices, “India… expressly contextualises its position on the question of the right of self-defence against the acts of non-state actors in international law.” Though used with reference to an “armed attack”, the implications of the statement, when viewed vis-à-vis cyberattacks done by faceless persons who are non-combatants as per international law, open up an avenue that requires careful examination; cyberattacks may not kill directly but the downstream effects can cause great destruction.

International actions against hackers have been generally limited to sanctioning of foreign nationals by target nations. In 2014, for the first time, a nation (the U.S.) initiated criminal actions against foreign nationals (five Chinese operatives of Unit 61398 of the People’s Liberation Army) for computer hacking and economic espionage. The question is, how long before this escalates to covert and/or overt kinetic retaliation. India seems to have made its intentions clear at the UN meet, but this is a game that two can play; if not regulated globally, it could lead to a wild-west situation, which the international community should best avoid by resolute action.