Editorials - 02-04-2021

U.S. President Joe Biden faces a new challenge as the demand for not appointing donor ambassadors gains momentum

Imagine this conversation. U.S. Senator: “Good morning, Ambassador designate. I see that you have been nominated as our Ambassador to Sri Lanka. Have you ever been to Colombo?

Ambassador designate: “Yes, Senator. But I am going to Sri Lanka, not to Latin America.”

U.S. Senator: “Colombo happens to be the capital of Sri Lanka. Have you heard of Bandaranayake?

Ambassador designate: No, Senator. But I assure you, as soon as I arrive in Sri Lanka, I shall visit that place.”

Money counts

This conversation may be apocryphal. But given the way the Presidents of the United States appoint ambassadors out of those who have paid big financial contributions to the Democratic party, even more bizarre conversations may take place during the Senate confirmation hearings; the qualification is not knowledge of history or geography, but the weight of the money bags deposited. This is part of the ‘spoils system’, except that, over the years, a price tag has been fixed for ambassadorships. U.S. President Richard M. Nixon had once even suggested that a floor price of $250,000 should be suggested for ambassadorships.

Now that U.S. President Joe Biden is in the process of filling up thousands of high-level posts, and the Senate has begun considering the various names for confirmation, the ambassadorial aspirants, who had paid money to the party, have also begun to assert their claims. Making the right appointments is crucial for Mr. Biden to clean up the mess created by his predecessor, Donald Trump. Mr. Biden has appointed Linda Thomas-Greenfield, a retired career diplomat as Ambassador to the United Nations and she has been confirmed by the Senate, but many heavy contributors are waiting in the wings. Anticipating that Mr. Biden will offer ambassadorial positions to some of his major donors — most of who are not particularly suited for such assignments — a member of the editorial board ofThe New York Times, Michelle Cottle, has made a fervent plea to Mr. Biden, in an article (March 18, 2021, “Stop letting rich people buy ambassadorships”;https://nyti.ms/3wbbdlA)to “jettison the skeezy practice of rewarding big campaign contributors with Ambassadorships”.

Entrenched as a ‘tradition’

This is not the first time that a torch is being shone on this unfair practice. A study, some years ago, by some legal experts had recommended that rich people buying ambassadorships should be stopped. In 1980, a decision was taken that most ambassadors should be career foreign service officers. Still, succeeding Presidents have filled from a minimum of 30% to a maximum of 57% (under Mr. Trump) of the posts with donors. Since such a tradition has been established, Mr. Biden may not be able to stop it either. The crucial question would be on what to do with those who had made donations for diplomatic stardom.

The appointments have solid backing of the U.S. Constitution. Article II provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ambassadors.” (https://bit.ly/3fxBWmE). The President enjoys wide latitude in selecting a nominee and the Senate is comparably free to choose whether to advise and consent. The onus for the quality and integrity of the nominees rests on the President, but the Senate has the right to hold back confirmation of any nominee, including career diplomats.

Complicated process

The path to ambassadorships for donors is not at all smooth. The Senate confirmation is quite a complicated process in which the investigating agencies examine their entire past to see whether they have ever been guilty of any misdemeanour, which disqualifies them for the high appointment. Anything adverse that comes to the notice of the agencies will be conveyed to the nominee concerned. It is then up to him to decide whether to face the charges or quietly withdraw his candidature. There is an example of an Indian-American having been considered as Ambassador to Fiji and some other Pacific island states but who had to withdraw his nomination after the Federal Bureau of Investigation had communicated to him that it would be in his interest to withdraw rather than face an investigation into his past.

There was another example of a donor ambassador, a rich businessman from Buffalo, who had apparently paid a huge sum for the U.S. Presidential campaign. He made no secret of his having been appointed on the strength of his financial contribution. He had his own grievances such as being denied permission by the State Department to bring his own private aircraft to Fiji. When he figured out that he would be accredited to six island states from Fiji and that there were only weekly flights from Fiji to the other capitals, he thought his own plane would be a great asset.

The ambassador spent his own money to refurbish the Embassy residence and to entertain well, with the choicest food and wines flown in from the U.S. He did not bother much about the politics of the South Pacific as he knew that he was there not to pursue a career but to enjoy a well-earned holiday. He went to an island state called Tuvalu, which has a total population of 5,000 to present his credentials. He saw a little store at the airport which sold local handicrafts and asked the owner how much it cost. The bewildered owner asked which item he was looking for. “The whole shop,” he said. The owner said that he would not be able to sell the whole shop as it would take several months to get the stock replenished and there would be no handicrafts shop at the airport.

The Indian way

India has a more sophisticated system of appointing “political” ambassadors, not for donation to political parties, but as an avenue to recognise and reward talent. Till very recently, career diplomats could not aspire to ambassadorial posts in London, Washington or Moscow as distinguished people from different walks of life were appointed to add weight to the positions. In the early years, Maharajas were appointed to several posts. And later, politicians were sent abroad when they had to be kept away from the country. The Government apparently has the discretion of appointing political ambassadors in up to 30% of the posts. But now, the number of political ambassadors is small, if at all, and the senior posts are open to career diplomats.

India has had some very distinguished and successful political ambassadors, who had access to the Prime Minister back home and to high levels in the host countries. Examples are three political ambassadors in Moscow (Dr. K.S. Shelvankar, D.P. Dhar and I.K. Gujral) and one in Washington (Naresh Chandra); all of them fulfilled certain criteria set by the Government, which included greater acceptability of political ambassadors in major capitals. Senior career diplomats were assigned to these posts as Deputy Chiefs of Mission, often with ambassadorial rank, to do much of the work, leaving the political ambassadors to deal with high policy.

The most celebrated political ambassador was Kushok Bakula Rinpoche, a Buddhist monk from Ladakh, who was appointed to Mongolia. He is credited with reviving Buddhism in Mongolia. The Head of State himself used to pay obeisance to him as the Mongolians followed the same Mahayana Buddhism practised in Ladakh. Even after he completed his diplomatic assignment (January 1990 to October 2000; https://bit.ly/2PK55A4), Kushok Bakula Rinpoche retained strong ties with Mongolia till he died in his eighties.

False notion

In recent years, career ambassadors are occupying those posts which were considered political in nature. But the practice continues in many countries because of the general feeling that long careers in the Foreign Service are not necessary to be effective ambassadors. In other words, diplomacy is not considered a profession for specialists, a notion as ridiculous as appointing a politician as the Surgeon General or a General.

We do not know whether Mr. Biden will heed the advice not to appoint donors as ambassadors. But if he does, there will be many frustrated donors in Washington and one source of political funding will dry up. On the other hand, the credibility of Biden diplomacy will increase and career diplomats will have better prospects.

T.P. Sreenivasan is a former Ambassador of India, who spent 10 years in the U.S. in different diplomatic assignments

Enactment of the Places of Worship Act, 1991 in its current format damages the liberty of belief, faith and worship to all

In his article, “The needless resurrection of a buried issue” (The Hindu, March 29, 2021), Dushyant Dave, senior advocate of eminence, has articulated why he opposes the challenges on constitutional grounds to the Places of Worship Act, 1991, now before the Supreme Court.

We have by way of a public interest litigation (PIL) in the Supreme Court (WP(C) 619 of 2020, which was filed earlier but notice was issued latervideorder of the Supreme Court dated March 26, 2021), challenged Sections 3 and 4 of the Places of Worship Act, 1991 being unconstitutional,void ab initio, and against the Basic Structure of the Constitution of India.

No precedential value

Mr. Dave has relied mainly on the Supreme Court’s observation in the Ram Janmabhoomi Case of November 9, 2019 (M. Siddiq vs. Mahant Suresh Das) with respect to the Places of Worship Act, 1991. However, there was no application of the provisions of the Places of Worship Act, 1991 to the case (Shri Ram Janmabhoomi dispute).

Section 5 of the Places of Worship Act, 1991 clearly states that nothing in the Act shall apply to any suit, appeal or other proceedings relating to the said place or place of worship, i.e. the Ram-Janmabhoomi-Babri Masjid situated in Ayodhya, in the State of Uttar Pradesh. Thereby, the 2019 judgment of the Supreme Court’s (Shri Ram Janmabhoomi dispute (2020 1 SCC 1)) observation(s) with respect to the Places of Worship Act, 1991 lacks any precedential value.

The pith and substance of the Act of 1991 is that it isultra viresthe fundamental rights enshrined in the Constitution since it bars the jurisdiction of the Supreme Court and furthermore nullifies the Fundamental Right(s) guaranteed by the Constitution of India as elucidated in Article 32 of “enforcement of fundamental rights” which cannot be suspended except as otherwise stated in the Constitution.

This importance of Article 32 can be understood by the words of the Chairman of the Constitution Drafting Committee, B.R. Ambedkar who asserted,inter alia, that Article 32 is the very soul of the Constitution and the most important Article in the Constitution.

Under Article 32 of the Constitution of India, the Supreme Court has the power to issue writs appropriate for enforcement of all the Fundamental rights conferred by Part III of the Constitution.

The top court, on various instances, ruled that in view of the constitutional scheme and the jurisdiction conferred on the Supreme Court under Article 32 and on the High Courts under Article 226 of the Constitution that “the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights”.

The Act of 1991, is appropriately called an Act of colourable legislation. As the Courts have held, “you cannot do indirectly which you are prohibited from doing directly”.

A weakening

The Preamble in the Constitution gives prominent importance to liberty of belief, faith and worship to all citizens, and the same is sought to be weakened and effectively nullified or severely damaged by the enactment of the Act of 1991 in its current format.

The concepts of faith, belief and worship are the foundations of Articles 25 and 26 of the Constitution of India. Therefore, prohibiting citizens from approaching appropriate courts with respect to suit or any other proceedings to handover the land of any temple of certain essential significance (such as being the birthplace of Lord Rama in Ayodhya and Lord Krishna in Mathura or Lord Shiva sending his fiery Jyotirlinga in the Gyanvapi premises of Varanasi), is arbitrary, unreasonable andmala fidein the context of the fundamental rights to pray and perform religious practice as guaranteed by Articles 25 and 26 of the Constitution of India. The intent of the Act of 1991 under Section 5, i.e. exception extended to the “Ram-Janmbhoomi matter” identifies the need and importance of resolution of such a controversy and settling long on-going disputes before the courts. But such an exception should be made for other two matters of dispute stated above.

Other disputes

The exclusion of the Mathura and Varanasi disputes as being additional exceptions from the Act of 1991 is wholly unacceptable and against what is given by the people of India to the makers of the Constitution, enshrined in the Preamble, which is part of the Basic Structure of the Constitution.

Those who rely on the Act of 1991 to avoid the settlement of the dispute in Varanasi Mathura have failed to anticipate the legal principles enunciated in the judgment of the top court (inIsmail Faruqui vs. Union of India(1994 6 SCC 360)), on the religious significance of mosques and temples. Even in countries like Saudia Arabia, only Mecca and Medina have the immutable religious protection from demolition. And only authorised demolition is permitted.

Section 4 (1) of the Act declaring that religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day, is no longer good law after this Court’s judgment in ((1994) 6 SCC 360) which held that a mosque is not an essential part of the practice of the religion of Islam andnamaz(prayer) by Muslims can be offered anywhere, even in the openmaidan, on the road, railway platforms or airports.

Ultimately, students of law are also students of history and we must not lose sight of the past. We must learn from it. But we accept one sentiment of Mr. Dave — that we cannot open the flood gates of rebuilding all 40,000 temples which were demolished onfirmansof the Mughal emperors.

Yet, where by faith Hindus believe there was a forcible demolition of an irreplaceable non-shiftable temple, it has to be rebuilt. There are only two more such temples in the list of 40,000 — the Gyanvapi Kashi Vishwanath Temple in Varanasi and the Krishna Janmabhoomi Temple in Mathura.

Hence, by the doctrine ofcasus omissus, the Supreme Court can in an appropriate case before it order that the number of exceptions in Section 5 of the Places of Worship Act, 1991, be three as an alternative solution. The Supreme Court under Article 142 of the Constitution can pass any order to carry out for doing complete justice being in the public interest, while upholding the Constitution of India.

Dr. Subramanian Swamy is a Member of Parliament and former Union Minister for Law and Justice. Satya Sabharwal is an advocate practising before the Supreme Court and High Courts

U-turn on the drastic cut in small savings rates deferred the impact, but revealed the intent

India’s small savings instruments witnessed unprecedented overnight volatility in rates this week. On Wednesday evening, the Budget division in the Department of Economic Affairs revised downwards the interest rates payable on small savings instruments for the April-June 2021 quarter, by 40 basis points (0.4%) to 110 basis points (1.1%). The return on the most popular PPF scheme was pegged at 6.4%, the lowest level in 46 years. The government had refrained from tweaking these rates for the last three quarters after effecting a similarly sharp cut in Q1 of 2020-21, when the PPF interest was pruned from 7.9% to 7.1%. However, by early Thursday, the rate cuts had disappeared and thestatus quoreinstated, following a tweet by Finance Minister Nirmala Sitharaman. The only explanation: ‘Orders issued by oversight shall be withdrawn.’ It is not clear whose ‘oversight’ led to the rates being cut. In the process, the intent has been revealed even if the impact is deferred. Surely, Wednesday’s order, approved by the competent authority, was not based on random numbers keyed in and notified inadvertently amidst a flurry of last-minute economy-related government notifications on the last day of the financial year.

It is difficult to believe that the oversight is on the bureaucracy’s part, for it simply executed the stated policy decision to link small savings rates to the interest paid on government securities of a comparable tenure every quarter. So one must deduce the oversight is on the political executive’s part on the timing and implications of executing the required decision as per the extant policy. The clinching factor — the five Assembly polls. The government, that has brazened it out on Opposition jibes about rising unemployment, high inflation along with soaring fuel prices, could ill afford to yield a fresh talking point — the squeezing of the middle class and senior citizens, even as they brace up for the fresh tax on provident fund incomes. This rollback is not the first instance of post-haste policy ad hocism, but it may make the government’s Rs. 12.05-lakh crore borrowing plan for the year harder as the central bank has been complaining of high small savings rates as a deterrent to lower interest rates. Another instance is the mysterious practice of oil companies freezing pump prices during electoral campaigns, even though oil prices are deregulated. The PM, as part of his ‘One Nation, One Election’ pitch, has often said that the virtually perennial poll season hits development. On the same note, if governments need permission to announce initiatives while the model code of conduct is in force, any deviation or reversal from routine administrative decisions should also attract the Election Commission’s scrutiny.

China is keener on tightening its grip on Hong Kong than on widening democratic space

Hong Kong, China’s Special Administrative Region (SAR), has served as the mainland’s most important gateway to the world for the past 24 years. Since its handover from British rule in 1997, the SAR has defied expectations that it would lose its unique identity. Unlike the mainland, the unique “one country, two systems” model guaranteed a high degree of autonomy and freedoms, including a free press, the right to protest, and a rambunctious political scene with a noisy pro-democracy opposition. Perhaps, most importantly, for the hundreds of multinationals, it also enjoyed an independent judiciary, a stark contrast from the Communist Party-controlled courts across the border. This week, Beijing dealt a blow to many of those unique freedoms. On March 30, the Standing Committee of China’s National People’s Congress (NPC), approved sweeping changes to Hong Kong’s electoral system that will reduce significantly the share of directly elected representatives in the SAR’s Legislative Council (LegCo). President Xi Jinping signed orders to promulgate amended annexes to Hong Kong’s Basic Law, the constitution that has governed the SAR and ensured its autonomy, marking the biggest change since 1997.

While previously 35 of LegCo’s 70 members were directly elected, that number has now been reduced to 20, even as the size of the legislature has been expanded to 90. The remaining 70 will be nominated from broadly pro-establishment groups, thereby ensuring a majority for the pro-Beijing camp in perpetuity. The most controversial change is the establishment of a Candidate Eligibility Review Committee to decide the eligibility of candidates and deem whether they are “patriotic” enough. Its verdicts cannot be challenged in the courts, the only standing independent institution. Beijing has justified the changes to ensure “patriots” were administering Hong Kong and as a response to the 2019 protest movement, which was silenced by last year’s stringent national security law. The protesters had demanded universal suffrage, promised in the 1997 handover. That the protest movement had wide backing was clear in the 2019 district council elections, after which the pro-democracy camp ended up with 90% of the seats. That will now count for little, as the amendments no longer give district councillors a place either in LegCo or in the Election Committee. With the new change and the national security law in place, Beijing’s grip on Hong Kong is tighter than ever. While Beijing may succeed in assuaging the business community’s concerns with the continued attraction of the mainland’s market, it remains no closer to winning the hearts and minds of Hongkongers. By reducing the space for democratic representation, Beijing appears to have given up efforts to do so, at least for now. That the changes are being framed by China as a historic political victory does little to change the perception.