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Law reform as if people mattered

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  • Jasbinder Singh
    Law reform as if people mattered Few areas of American life are in more need of reconstruction than our legal system. Yet little ever seems to get done. Public
    Message 1 of 31 , Jan 30, 2004
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      Law reform as if people mattered

      Few areas of American life are in more need of reconstruction than our legal
      system. Yet little ever seems to get done.

      Public dissatisfaction is rampant. Incredibly, in one Zogby poll, less than
      5% of New Yorkers thought the legal liability system was �working well.� But
      the public�s real concerns have been drowned out -- in the media and the law
      schools -- by the ideological grandstanding of the left and right.

      Year after year, prominent liberal groups like the ACLU and People for the
      American Way obsess about the glories of due process, and influential
      conservative groups like the Heritage Foundation and the Manhattan Institute
      obsess about the need for efficiency and �sanity.� God help us if either
      side ever finally wins out!

      Meanwhile, practical issues that affect us all are barely on the media�s
      radar screen.

      For example: our legal system may be second to none -- in theory. But who
      can afford to use it?

      And even if we can afford to use it, what kind of justice does it bring? In
      most non-criminal disputes, both parties are partly at fault (as we�ve all,
      hopefully, learned in our own lives!). But in our civil justice system, you
      typically end up a Big Winner or Big Loser, like in a boxing match.

      And criminal defendants either walk or get punished, but rarely get help.
      (One reason recidivism rates are sky-high.)

      "Housekeeping issues"

      I went to law school, at the tender age of 46, in large part because I felt
      passionately about such issues. But I was in for a rude awakening.

      Especially at the so-called �elite� or �national� law schools (the top six
      or 14 in U.S. News & World Report�s breathlessly followed annual law school
      rankings), you quickly discover that issues of process and practice are
      considered too trivial to spend time with. If you want to be taken
      seriously, you�ve got to concentrate on what�s really important -- cleverly
      disguised political polemics and tortuously written high theory -- �big
      theoretical nondebates,� as Harvard�s radical middle law professor Mary Ann
      Glendon calls them.

      In my first year at New York University School of Law (currently #5 in U.S.
      News), I was taken aside by my very brilliant and accomplished contracts
      professor and told there was something unbecoming about concerning oneself
      with �plumbing issues� like jury reform and middle class access to legal
      services. Later that year, a female student who�d attended famous private
      schools her whole life referred to my concerns disparagingly as
      �housekeeping issues.�

      But I persisted in my wayward ways. In second year, I desperately wanted to
      take a legal counseling course (that�s what lawyers do, right -- counsel
      clients?); but true to form, and unlike Fordham and Cardozo law schools up
      the street, my wonderful law school didn�t see fit to offer any. Our
      electives included such social-status-marker -- whoops, I mean socially
      relevant -- offerings as Shakespeare and the law, feminist legal theory, and
      critical race theory.

      I ended up getting a dean�s permission to take the �Introduction to
      Counseling and Therapy� course in NYU�s Graduate Psychology Department,
      where I was warmly welcomed as some kind of pioneer, being the first law
      student to take a psych course in anyone�s memory.

      Unfortunately, prejudice against �housekeeping issues� is not confined to
      the elite law schools. It is reflected in the way the top newspapers and
      magazines cover the legal profession -- high on politics and courtroom
      drama, low on what most lawyers and clients actually go through.

      Even most of the books that appear to be about legal reform -- such as
      Catherine Crier�s Case Against Lawyers (2002) -- turn out, on closer
      inspection, to consist largely of arguments in favor of shaping the laws,
      themselves, in a more consistently left-wing or right-wing direction.

      But things aren�t always as they seem. If you look below the surface, you�ll
      find that the legal profession is bursting with people and projects that
      give pride of place to �housekeeping issues.�

      To a new breed of lawyer and legal scholar -- to those at the radical middle
      -- issues of legal process and practice are not just important in
      themselves. They�re important because they promise to transcend the �big
      theoretical nondebate� between advocates of due process and advocates of
      efficiency, and focus reform efforts on a new goal: making the legal system
      as humanly friendly as possible.

      Making it accountable, affordable, humane. Making it -- even --
      psychologically beneficial, therapeutic.

      Accountable

      With 50,000 members, HALT: An Organization of Americans for Legal Reform, is
      almost as large as the national trial lawyers� association. But you�ve
      probably never heard of HALT. That�s because its passion is championing such
      relatively �trivial� matters as rules that can make lawyers more accountable
      to clients.

      For example, HALT wants the current lawyer-run attorney discipline system (a
      laughingstock even among lawyers) to be replaced by one run largely or
      exclusively by nonlawyers.

      �If a jury made up of nonlawyers is good enough to decide a murder case,�
      says HALT Executive Director Jim Turner, �it�s certainly capable of
      determining whether a lawyer has cheated a client.�

      HALT wants to make disciplinary proceedings accessible to the public and the
      press, just like the courts are now.

      And HALT would put an informative �Legal Consumers Bill of Rights� into all
      attorney contracts. For all the lawyer shows we watch on TV, most of us have
      no idea what to do when an attorney has charged excessive fees, neglected
      our case, lied to us, etc. HALT�s Bill of Rights would lay it out loud and
      clear.

      Juries need to be made more accountable too; and in his book The Jury
      (1994), D.C. lawyer and journalist Stephen Adler synthesizes some of the
      best radical middle thinking on the subject.

      To begin with, he�d build a bigger jury pool. Businesspeople, physicians,
      clergy, dentists, nurses, and others shouldn�t be allowed to use their jobs
      as an excuse to avoid jury duty; in fact, everyone who refuses to show up
      for jury duty should be fined some fraction of their income or otherwise
      punished (and not just threatened with the possibility of punishment, as
      most of us are today). That would not only broaden the jury pool immensely,
      it would keep people from feeling like losers just for being on a jury -- an
      unfortunate phenomenon today.

      Adler would improve creature comforts at the courthouse, and reassign every
      last �hostile or condescending clerk.� How can you expect juries to act with
      gravity and grace if you treat jurors like cattle?

      Peremptory challenges (i.e., lawyers� right to eliminate potential jurors
      for any reason) -- now a crucial and extraordinarily contentious feature of
      jury trials -- would be done away with ASAP. It�s the 21st century, time to
      de-legitimize all stereotypes about how people of various ethnic groups,
      backgrounds, temperaments, etc., are likely to think and vote.

      Accountability demands knowledge, and nowhere is that more true than in the
      jury box. �Jurors can�t function effectively if they don�t understand from
      the very start what laws have allegedly been broken, the meaning of key
      terminology,� says Adler. �Yet court procedures dictate that jurors won�t be
      briefed on [such] issues, if at all, until after all the evidence is in.�
      Radical middle legal reformers would have jurors briefed early and often.

      And judges would be required to present their final instructions to juries
      in plain English (a far cry from today!) -- and before the closing
      arguments, so jurors could think clearly about the legal implications of
      those arguments.

      And jurors would be allowed to ask questions of the judge even during the
      trial!

      Eventually jurors might begin thinking of themselves not as hapless cogs in
      a vast impersonal machine, but as trustworthy citizens doing something
      essential for their community.

      Affordable

      Justice is a mirage if you can�t afford it. That�s one reason radical middle
      activists support a larger -- a much larger -- role for small claims courts.

      Filing, preparing, and presenting a small claim costs next to nothing in
      most states. It�s relatively easy; most people can handle it all by
      themselves. And the process is relatively quick: most disputes are heard
      within a month or two, and decisions are handed down either immediately or
      within a few days.

      One of the most effective proponents of small claims courts is Ralph Warner,
      San Francisco attorney and author of the phenomenally successful handbook
      Everybody�s Guide to Small Claims Courts (9th ed., 2003). Like many radical
      middle activists, Mr. Warner wants the role of small claims courts to be
      dramatically expanded in at least three ways:

      1. Raise small claims limits. Today most states impose limits of
      $2,000-$5,000 on the amount you can sue for in small claims court. Both Mr.
      Warner and HALT�s Small Claims Reform Project would raise that to $20,000.

      Most people �can�t afford to hire lawyers to handle disputes much below
      this,� says Mr. Warner. Adds a HALT spokesperson: �Achieving that . . .
      increase would be the most meaningful reform to increase consumer access to
      the small claims courts.�

      2. Adopt flexible remedies. In most states, small claims courts can only
      assess monetary damages. Both Mr. Warner and HALT want remedies to be far
      broader.

      For example, they want judges to be able to issue �cease and desist� orders
      in disputes between neighbors and in contract disputes. Mr. Warner wants
      remedies to be limited only by the imagination of the judge and the parties
      in dispute.

      3. Increase accessibility. Hold weekend and evening court sessions! Provide
      better self-help information -- door-to-door leafleting, brochures in plain
      English, websites. Think about putting a full-time �small claims advisor� in
      a storefront or the courthouse.

      Unlike some activists, radical middle activists don�t just focus on the
      poorest among us. That�s why they�re also strong supporters of the bete
      noire of the legal profession, �multi-disciplinary practice� --
      professionals from fields like law, accounting, psychology, and business
      coming together in new kinds of organizations to serve common clients.

      Multi-disciplinary practice might save clients money. It might increase
      efficiency and the knowledge pool manyfold. But much of the legal profession
      (including, crucially, the ABA) hates and fears it.

      For many lawyers, the idea of sharing fees with other professionals -- and
      giving up some degree of control to them -- is intolerable, the beginning of
      The End.

      For more holistic attorneys, though, the chance to practice in tandem with
      other professionals is a chance to be as humanly helpful as possible.

      Lawyers need to worry less about self-preservation and more about relevance,
      says Hanan Isaacs, one of New Jersey�s most accomplished attorneys and
      mediators. What lawyers do best is �identify and establish rules of conduct
      and enforce them. To integrate these functions with other professional
      crafts is both efficient and essential. . . .

      �I believe the biggest impediment to fully integrated multi-dimensional
      practice is . . . failure of nerve. In the age of the genome project, surely
      we can create an appropriate regulatory structure for recombinant
      professional groups.�

      Another way to make our legal system more affordable -- and more benign --
      is to make it more predictable.

      To that end, one of our first radical middle lobbying groups, Common Good:
      Reforming America�s Lawsuit Culture, was launched in 2002. Advisors include
      George McGovern and Newt Gingrich, not to mention at least four thinkers
      cited in past issues of this newsletter!

      �Fear of litigation has undermined our freedom to make sensible decisions,�
      says attorney Philip Howard, founder and chair of the group (and author of
      The Collapse of the Common Good, 2001).

      �Doctors, teachers, ministers, even little league coaches, find their daily
      decisions hampered by legal fear. . . . Doctors and teachers no longer feel
      free to act on their reasonable judgment, eroding healthcare and undermining
      order in the classroom. . . .

      �Common Good is calling upon judges and legislatures to . . . draw the line
      on who can sue for what. . . . Society needs red lights and green lights. .
      . .

      �Law should make us feel comfortable doing what�s reasonable and nervous
      doing what�s wrong. Today Americans are nervous doing almost anything.�

      Humane

      Making the legal system more accountable and affordable will help make it
      more humane. But radical middle thinkers and activists are also pursuing
      that goal more directly, in part by promoting three alternatives to the
      traditional legal process -- mediation, �collaborative law,� and global law.

      When I was working for a business litigation firm in Rockefeller Center, I�d
      often walk home at night haunted by the feeling that nearly every one of our
      multi-million-dollar clients would have been better off in mediation. One
      client had been battling his �enemies� (mostly relatives) in court for 13
      years; it was the very centerpiece of his existence. I felt our clients
      needed to be put in settings where they�d be encouraged (or even forced!) to
      face their opponents in a direct and psychologically mature way.

      As it turns out, thousands of legal practitioners were feeling the same. By
      1998 they�d managed to push through Congress the Alternative Dispute
      Resolution Act, which not only requires all 94 U.S. district courts to
      devise and implement their own ADR programs. It allows district courts to
      force parties to go to (non-binding) mediation before proceeding to trial.

      The far right laughed; the far left howled (Ralph Nader has long been
      convinced that ADR is a plot on the part of The System to deny us our day in
      court). Many traditional judges and turf-protecting attorneys are up in
      arms.

      But a recent appeals court ruling makes it look like the law will stay. And
      in districts that aren�t overweeningly prejudiced against ADR, the law is a
      huge success. Even in litigation-lovin� D.C., 30-35% of the cases referred
      to the mediation panel are settled there.

      Meanwhile, mediators across the U.S. are scrambling to keep up with the
      demand for their services. Judicial Arbitration and Mediation Services, now
      the U.S.�s largest private ADR service (and my first legal employer), has
      developed nine approaches to mediation ranging from the highly structured to
      the neo-New Age -- an approach for every type of human being! Training
      centers for mediators range from the Harvard-associated Center for Mediation
      in Law to the International Online Training Program on Intractable Conflict.

      Some radical middle attorneys are trying to improve on mediation with the
      concept of �collaborative� law, a product of the friendly and pragmatic
      Midwest c. 1990. Even no-nonsense HALT has begun pushing collaborative law.

      �Mediation is easy to avoid and, when tensions get high, it can always be
      abandoned,� says a spokesperson at the Collaborative Law Center in
      Cincinnati, Ohio. �What is needed is an antidote to the �fight or flight�
      instinct. . . .

      �Collaborative lawyers and their clients approach each other [with a desire
      to negotiate and] a written commitment not to sue or even threaten to sue. .
      . . If one party changes its mind and chooses to initiate court action, the
      collaborative lawyers all must withdraw from the case and the clients will
      have to start over with new, litigation lawyers.

      �[This] guarantees that all participating counsel will be totally and
      exclusively motivated to make the process succeed!�

      One of the most extraordinary attempts to render legal practice more humane
      is getting even less play from the media than collaborative law -- despite
      the fact that certain Supreme Court justices support it.

      Until recently, few lawyers or judges paid attention to the laws of other
      nations. Even left-leaning legal practitioners were basically isolationist
      -- and many still are. As Harvard Law School�s Frank Michelman recently put
      it, we�re still trying to articulate common values within nations. Why go
      looking for them across nations?

      But the left is on the wane, and a new breed of legal practitioner is on the
      rise; and few things excite them more than the sharing of legal perspectives
      across borders. What better way to bring us all together -- into one global
      community -- than by mutual give and take among all the world�s legal
      systems?

      �Constitutional law scholars and judges almost everywhere [now] are relying
      increasingly on cases and other materials from many jurisdictions,� says
      Prof. Norman Dorsen, editor of NYU Law School�s I-CON, the first
      international journal of constitutional law.

      And Prof. Dorsen isn�t just talking about cases from other nations� courts.
      For example, Justice Anthony Kennedy�s majority opinion in the landmark 2003
      gay rights case, Lawrence v. Texas, cited a gay rights opinion by the
      European Court of Human Rights.

      In an important and basically unreported-on speech to the American Society
      of International Law in the spring of 2003, Justice Stephen Breyer
      eloquently endorsed this borrowing and synthesizing: �[W]hat could be more
      exciting for an academic, practitioner, or judge, than the global legal
      enterprise that is now upon us?�

      But it is Justice Sandra Day O�Connor who -- quoted by Breyer -- caught the
      exact spirit of the emerging global legal enterprise when she said, �We
      often have a lot to learn from other jurisdictions.�

      American legal practitioners have a lot to learn? From courts in places like
      Europe, Africa, Asia?

      A new millennium is indeed at hand.

      Therapeutic

      The humane perspective of the radical middle is being applied to criminal
      law through the quietly burgeoning, barely 10-year-old phenomenon of
      �problem-solving courts� -- drug courts, neighborhood courts, family
      treatment courts, homeless courts, youth courts, and the like.

      �Instead of adversarial sparring,� says a spokesperson for the New
      York-based Center for Court Innovation (a pioneer in this field),
      �prosecutors and defendants in some problem-solving courts work together to
      encourage defendants to succeed in drug [or other] treatment.

      �Instead of embracing the tradition of judicial isolation, judges in
      problem-solving courts become actively involved [both by counseling and
      dialoguing with defendants and by participating outside the courthouse],
      meeting with residents and brokering relationships with local service
      providers.

      �Perhaps most important, citizens are welcomed into the process,
      participating in advisory boards, organizing community service projects, and
      meeting face to face with offenders.�

      Probably the best-known problem-solving court is the Midtown Community
      Court, near Times Square in Manhattan. That�s an area �teeming with
      quality-of-life crime,� says Center for Court Innovation founder John
      Feinblatt. �The Court seeks to honor the idea of community by making justice
      restorative and accountable to neighborhood stakeholders.

      �Offenders are sentenced to pay back the community through work projects
      such as caring for street trees, removing graffiti, cleaning subway
      stations. . . . At the same time, whenever possible, the Court uses its
      legal leverage [-- do what we say or or do time in jail --] to link
      offenders to drug treatment, health care, education, job training, and other
      on-site social services to help them address their problems.�

      The political left is upset that in problem-solving courts, rigid procedural
      protections and zealous advocacy often give way to other and more
      therapeutic objectives. Mr. Feinblatt doesn�t deny it. He does say that we
      need to consider �what types of protections need to be built in . . . to
      guard against the possibility of arbitrary decision-making.�

      His ultimate goal isn�t to preserve the adversarial criminal court system,
      but to bring a humane, problem-solving focus to the work of all criminal
      courts.

      Restorative justice

      You may have noticed that Mr. Feinblatt referred to �restorative� justice.
      That was not vague rhetoric. To radical middle practitioners in the criminal
      justice system, restorative justice is the humane alternative to raw
      vengeance and milky forgiveness.

      In their anthology Restorative Justice and Civil Society (2001), Heather
      Strang and John Braithwaite provide an exceptionally thoughtful definition.
      For them, restorative justice is both a process that brings together many of
      the stakeholders affected by a crime, and a value that states that healing
      the victim -- and ultimately even the victimizer -- is the most important
      consideration. (Which doesn�t mean that the victimizer shouldn�t undergo
      appropriate punishment!)

      Prison Fellowship International (PFI) has been monitoring many attempts at
      restorative justice. According to one PFI spokesperson, once an offender
      pleads guilty and volunteers to participate, two types of encounters have
      proved scary -- perilous -- but often psychologically satisfying and
      effective for all concerned:

      -- Victim-offender mediation �provides an interested victim the opportunity
      to meet his offender in a safe and structured setting, engaging in a
      discussion of the crime with the assistance of a trained mediator.� Goals
      include providing victim and offender �the opportunity to develop a plan
      that addresses the harm.� The plan is then presented to the sentencing
      judge.

      -- Family group conferencing �brings together the victim, offender, and
      family, friends, and key supporters of both in deciding how to address the
      aftermath of the crime.� If a mutually agreeable plan can be hammered out,
      it goes to the judge.

      Like many advocates of restorative justice, PFI�s spokesperson sharply
      distinguishes it from traditional criminal justice: �It views criminal acts
      more comprehensively -- . . . it recognizes that offenders harm . . .
      communities and even themselves. [And] rather than measuring how much
      punishment is inflicted, it measures how many harms are repaired or
      prevented.�

      A new jurisprudence?

      Liberals and conservatives alike are desperately trying to hang onto a
      jurisprudence that makes a fetish out of the formal, adversary process AND
      has the practical effect of disrespecting, intimidating, or impoverishing
      the vast majority of citizens passing through that process, whether as
      jurors, plaintiffs, or defendants.

      New Jersey attorney Hanan Isaacs, cited above, is right: the American legal
      community is suffering from a massive failure of nerve. And behind that
      failure is a lack of legal and political imagination.

      Meanwhile, right under everybody�s noses, all the underappreciated
      developments described in this article are contributing to a whole new
      theory of jurisprudence, which some trial court judges, sociologists, and
      legal scholars have begun calling �therapeutic jurisprudence.�

      �Therapeutic jurisprudence is the study of the role of the law as a
      therapeutic agent,� says University of Arizona law professor David Wexler,
      who�s probably done more than any other individual to develop the concept
      (as co-editor of Practicing Therapeutic Jurisprudence, 2000, and similar
      books, and co-founder of the International Network on Therapeutic
      Jurisprudence).

      �Therapeutic jurisprudence . . . focuses on the law�s impact on emotional
      life and on psychological well-being,� Wexler says. �These are areas that
      have not received very much attention in the law until now. . . .

      �Basically, therapeutic jurisprudence is a perspective that regards law as a
      social force that produces behaviors and consequences. Sometimes these [are]
      therapeutic; other times [not]. Therapeutic jurisprudence wants us to be
      aware of this and wants us to see whether the law can be made or applied in
      a more therapeutic way so long as other values, such as justice and due
      process, can be fully respected.�

      For those of us at the radical middle, the �majesty of the law� is not its
      impersonality or finality or intellectual grandeur. It is its awesome
      capacity to help us run a humane U.S. (and global) household.

      http://www.radicalmiddle.com/x_law_reform.htm
    • Arfan Abedin
      As i see it The US and South Asia Ikram Sehgal writes from Karachi US positive vibes about India is nothing new, it has been in existence since 1947 but the
      Message 31 of 31 , Jan 31, 2004
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        As i see it
        The US and South Asia
        Ikram Sehgal writes from Karachi

        US' positive vibes about India is nothing new, it has been in existence
        since 1947 but the relationship has had its ups and downs, particularly
        during the period India was an ardent anti-US champion as leader of the
        "non-aligned" countries basically an anti-West pro-Soviet Russian bloc. The
        pro-India lobby's views were best expressed by then US Ambassador (to India)
        Chester Bowles in his May 25, 1965 Memo annunciating that India should be
        the main US partner in Asia for containing China. The times may have
        changed, the policy has been revamped to reflect the same aim. Earlier to
        the recent SAARC event , an Independent Task Force co-sponsored by the
        "Council on Foreign Relations" and the "Asia Society" took out a report, viz
        "New Priorities in South Asia: US Policy towards India, Pakistan and
        Afghanistan". As the Task Force states "India represents a partner of great
        value" for the US, being one of the world's largest economies and its
        increasing security presence in the Indian Ocean region. Despite policy
        disagreements there are many converging issues of consequence that
        encourages the US to "transform this relationship into a genuine
        partnership".
        The Independent Task Force recommended that the US and India must, viz (1)
        expand political security, military and intelligence cooperation, (2)
        intensify dialogue on economic and trade issues, (3) negotiate a trade
        agreement in services. Further that the US should, viz (1) ease restrictions
        on cooperation with India in the civilian satellite sector, (2) grant India
        "friendly" country status in export licences for transfers of defence
        equipment, (3) ease restrictions on the export to India of dual-use items of
        civilian and military uses and (4) encourage US official and private
        entities to expand and develop cooperative programmes with Indian
        counterparts. It encouraged India to viz (1) implement domestic economic
        reforms with greater vigour (2) open its economy by reducing administrative
        restrictions and other barriers to foreign trade and investment and (3)
        reduce administrative restrictions impeding cooperative, academic and
        foundation activities. This has now been expressed as a policy statement by
        President Bush in offering India a "Strategic Alliance". It may be noted
        that when the new US administration took over in January 2001 and
        annunciated its National Security Strategy, China was labeled as a
        "strategic competitor" and India an ally to contain China; 9/11 had made US
        change its course but it seems that the Bush Administration is now returning
        to its original policy statement.


        The Task Force recognised that US-Pakistan relations have improved
        considerably since 9/11 because of Pakistan's important geo-political role
        in the "war against terrorism" but noted that the interests of the two
        nations only partially coincide, mainly because of differing perceptions of
        the two countries about freedom fighters and militants in Kashmir, and while
        the US faults Pakistan for failing to restrain Taliban elements from using
        the tribal territories as a safe sanctuary, it worries that continuing
        India-Pakistan tension may hamper US' relations with India. Despite
        Pakistan's laudable goal of making (in Musharraf's words) "Pakistan a
        modern, progressive and dynamic State", the Task Force opined it cannot be
        achieved given "unstable political institutions, weak economic and social
        development", and "an uncertain military commitment to reform".


        The Pakistan policy recommended states that US should viz (1) obtain early
        congressional approval for a five-year, $ 3 billion assistance package with
        two-thirds ($ 400 million annually) allocated for economic and on-third ($
        200 million annually) for security assistance, (2) condition the release of
        aid on Pakistan's progress in political, economic and social reform
        implementation, cooperation in the "war on terrorism" and prevention of
        leakage of sensitive nuclear technology and material, (3) make education the
        principal focus of US assistance with high priority for projects that
        develop Pashtun areas, (4) boost economic and technical support for
        institutions of good governance -- the courts, parliament, police,
        democratic political parties and revenue collection,(5) use appropriated
        funds to buy back Pakistan's official debt to the US and (6) ease
        restrictions on Pakistani textile imports into the US, avoiding new barriers
        after the multifibre agreement comes into effect in 2005.

        In contrast to the unfettered positive recommendations made by the Task
        Force for India, Pakistan must view with concern that almost all the
        recommendations for Pakistan were conditional. Obviously we cannot equate
        ourselves with India economically and politically but then again we have
        been a consistent ally to the US while India remained vocally in the
        opposite Soviet camp. This "India first" policy of the US should not only be
        regarded with concern but with consternation.


        To live amicably with one another, India and Pakistan will have to address
        the core issues, contain the inherent dangers and pursue a settlement
        actively. Kashmir remains the greatest single threat to regional stability
        and the possibility of a nuclear confrontation all too real. The US has been
        engaging in crisis management. Given the dangers the inherent inability of
        India-Pakistan to achieve progress on their own, this approach was judged
        inadequate by the Task Force. There should be a long term US diplomatic
        effort to facilitate and sustain a bilateral process that will gradually
        lead to resolution of bilateral differences, including the core dispute over
        Kashmir. The Task Force feels the US should stress on Pakistan the need to
        (1) permanently prevent infiltration across the LOC and (2) modify its
        present negotiating stance, which makes progress on Kashmir a pre-condition
        for dealing with other India-Pakistan issues. As for India, the US pressure
        is perfunctory, they need to (1) actively engage in trying to reach an
        understanding with the elected Jammu and Kashmir State Government to better
        address the aspirations of Kashmiris and increase the pace of economic
        development and (2) reduce the level of activity by Indian security forces
        and improve their human rights record. US diplomacy should help India and
        Pakistan develop a framework that will enable them to address more
        constructively issues such as nuclear confidence-building measures (CBMs),
        de-escalation along the LOC and the Siachen Glacier, expanded trade
        relations, easing movement of people and reducing hate propaganda.


        US lives with a recurring fear (shared by the developed world) that the
        possibility of a conventional India-Pakistan conflict becoming a nuclear
        conflagration remains very real. The Untied States is advised by the Task
        Force to, viz (1) urge India and Pakistan to initiate nuclear discussions
        without holding these hostage to progress on the Kashmir dispute, seeking
        agreement on nuclear CBMs, including establishment of nuclear risk reduction
        centres, to lessen the chance that accidents, misperceptions, or
        misunderstandings might trigger a nuclear response. The US government is
        urged to search for ways to find a place for a nuclear India and Pakistan
        within the global nonproliferation system. At the same time, it is essential
        that more rigorous controls to prevent the export of sensitive nuclear
        technology or material be implemented.

        The US has always been deeply interested in South Asia, both for economic
        and political reasons. No sooner had the SAARC Summit concluded
        successfully, a whole bunch of analysts opined that US pressure was the
        major reason for the resumption of India-Pakistan talks. Even though US
        officials, including Secretary of State Colin Powell denied being an "unseen
        presence" in Islamabad, they made no secret about actively encouraging peace
        measures between the sub-continent's two nuclear rivals and a readiness to
        facilitate further dialogue to ensure that the present "peace mood"
        persisted in both the near and distant future. In the end, both India and
        Pakistan probably opted for talks both because of domestic compulsions and
        external pressures. If the US can get India and Pakistan to a working
        arrangement that brings enduring peace, the US policy in South Asia will be
        a resounding success and act as a model for other potential trouble-spots
        where US policy is ambivalent at this time.


        Ikram Sehgal, a former Major of Pakistan Army, is a political analyst and
        columnist.

        http://www.thedailystar.net/2004/01/31/d40131020331.htm
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