18th constitutional amendment set to be Pakistan's game-changer

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River crossings -- and other matters



Islamabad diary

Friday, April 09, 2010
Ayaz Amir

With the passage of the 18th Amendment we will have crossed a river. But anyone thinking that there will be no more to cross should recall Munir Niazi's haunting lines, so applicable to our condition: "Ik aur darya ka saamna tha Munir mujh ko, mein eik darya kay paar utra to mein ne dekha…" (As soon as I had crossed one river, I was confronted by another one -- a most imperfect translation, but I hope the meaning is reasonably clear).

A constitution is just a framework within which to carry out the business of government. It is not even a roadmap. It just sets down a few signposts, that is all. But how its spirit is to be made flesh depends upon the genius or wisdom of the set of persons entrusted with the task of governance.

We celebrated the passage of the 1973 Constitution, little foreseeing that only a few years later a tinpot dictator, the army's divisions behind him, would be trampling it underfoot. I was there as a spectator in the galleries when the Constitution was passed. The then law minister said that Zulfikar Ali Bhutto had fulfilled his pledge to God and man, at which Ahmed Raza Kasuri, the spoiler in that assembly and for that reason Bhutto's bete noire, laughed loudly in derision. Article Six of the Constitution said that subversion of the Constitution would be high treason. That stricture never prevented Zia's coup.

We are celebrating the passage of the 18th Amendment, and doing it all the more frantically because we seem to feel -- although I think this is a misplaced feeling -- that in our collective life there is very little to celebrate. But the cleansing of the Constitution will not by itself bring salvation any closer. By itself it will work no miracles, neither curb inflation nor stabilise the economy. Nor bring calm to the restive landscape of Balochistan. For those outcomes some other therapy is required.

To stretch the Munir Niazi simile a bit further, even as we have managed one river-crossing, we are seeing the hazy outlines of another river ahead of us in the shape of the growing tussle between the government and the Supreme Court over the question of the Swiss cases -- relating to the allegations that President Asif Zardari, when Benazir Bhutto was prime minister from 1988-90, received kickbacks in government deals and the money so received is parked in Swiss bank accounts.

The Supreme Court seems determined to have those cases reopened in Swiss courts. The government seems equally determined to resist these moves. How this tussle plays out we do not know. What is certain is that the political situation will remain unsettled as long as this problem remains.

As a nation we seem to have a knack for manufacturing crises. No sooner is one behind us, than another emerges on the horizon. This is a form of masochism, a hidden desire perhaps for self-inflicted pain. One aspect of this condition is that we can never leave the past behind us. We are forever fighting yesterday's battles. The capacity for moving on, for stepping into the future, we seem not to have acquired.

But the good thing about the 18th Amendment is that it signals an end to the era of excuses. Since the Feb 2008 elections we have already wasted two years in judicial and political wars. When Justice Chaudhry and his colleagues were in the wilderness, we argued they had to be restored if Pakistan was to move forward. They were restored, after a good deal of needless delay, but another cry was immediately raised: that Musharraf's 17th Amendment -- validating his takeover and giving him extensive powers -- had to be repealed before anything else was possible.

With the 18th Amendment's passage the excuses stand exhausted. Government has to deliver if public anger is to be assuaged and disillusionment arrested.

When the Constitutional Reforms Committee began working nine months ago the accepted wisdom was that the committee was just a ruse because Zardari would never give away his powers. The sceptics have been proved wrong. Zardari has shed whatever formal power he had, relating mostly to key appointments and the power to dismiss the National Assembly, not just willingly but almost cheerfully. He will now be a figurehead, like Fazal Ilahi Chaudhry or Rafiq Tarar. As PPP head he will still exercise power, but from the sidelines and indirectly.

Formal authority now rests in the prime minister's office, with all the levers of power in Yousuf Raza Gilani's hands. Left with no excuses, his real test begins now. His government's performance over the last two years has been dismal. Can he take charge and reverse the course of events? This is the challenge before him.

The political system could do with a slight shock. The cabinet is too large and unwieldy, with not a few ministers carrying a reputation either for corruption or inadequacy. The cabinet could do with a trim. The 18th Amendment stipulates that from the next elections the number of ministers, at the centre or in the provinces, shall be no more than 11 per cent of the total membership of the respective assemblies. Why wait until then? This process can begin now, bringing some kudos to the prime minister.

The Swiss cases are clouding the atmosphere. On the one hand we have a relentless Supreme Court, on the other a government beginning to dig in its heels. This has all the makings of a showdown, with unforeseeable consequences. At least we can console ourselves with the thought that it never gets dull in Pakistan.

The December and March brigades though have been proved wrong. They were not sure how precisely it would happen. But with prophetic certainty they were predicting his ouster or downfall. That hasn't come to pass, leaving the soothsayers in a state of some alarm and confusion. But we can be sure we will soon be hearing about another deadline.

Tailpiece: President Zardari's financial exploits are the stuff of legend. But not much is known about the financial success of a few men, little better than carpetbaggers, and some lucky women, who were objects of Pervez Musharraf's largesse. Some are almost rags-to-riches stories, the heroes or heroines arriving in the capital in relatively modest circumstances but making it big simply because they caught the general's fancy, or were the apples of his roving eye. Ladies once part of Yahya Khan's court are part of our historical folklore. But the full story is yet to be told of the ladies who cut a figure in Musharraf's court, and profited greatly from the association.

Tailpiece Two: Is there something in the air of Chakwal which induces a certain sense of bravado? The famous DSP of Lahore who became an instant media sensation when he went public with some of his grievances against his superiors, Imran Babar Jameel, is from Chakwal. He is an MA in Eng Lit, which may explain some of his erratic behaviour. More unusual still is his pursuit of a doctorate in some subject. Not many policemen would be caught doing such a thing. DSP Imran's father (I won't name him) is a well-known poet and man of letters. With such a father, and a background in English literature, anyone could be forgiven for behaving in an odd manner. And odd the DSP did appear at times, almost like a character out of one of the Falstaff plays. It would be a pity if such talent was allowed to go to waste. The Punjab police have a poor public relations setup, not quite in keeping with the times. Given DSP Imran's instant rapport with the media, the inspector-general of the Punjab police, who is not without a sense of humour, could consider making use of his services in this field.

The director-general of the Punjab Rangers who had a traffic policeman picked up and taught a lesson for having the temerity to ask his son not to park his car in a no-parking zone is also -- you've guessed it -- from Chakwal. When I mentioned the incident to some people from his village (Mangwal), they just laughed and said it was entirely in character. The major-general is known for his swashbuckling manner. Pity the traffic warden knew nothing about it.

 

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Sanitising the Constitution



Governance

Friday, April 09, 2010
Dr Sania Nishtar

The 18th Amendment Bill is being widely hailed for the repeal of some of the distortions introduced in the Constitution under military rule and for returning the parliamentary form of democracy closer to its truer shade in Pakistan. A multi-partisan consultative process has enabled a consensus over a set of provisions amongst political actors, who came to the negotiating table with diverse ideologies and motivations. However, significant as it may be, the amendment is not a panacea for the country's ailing governance. Follow-up actions are critical for transformation of the style of governance. I have flagged six points in this regard.

First, with the 18th Amendment, the pendulum of power will move from the presidency to the prime minister, as it should be in a parliamentary system of government. However, institutional checks on the prime minister's powers need to be ensured. As "fusion of powers" is characteristic of parliamentary systems--in the sense that the executive, which consists of the prime minister and the cabinet, are drawn from the legislature--the need for institutional checks and balances becomes all the more important.

We must also recall the generic weaknesses of the parliamentary form of government. The parliamentary system runs best in a two party-system. However, when no party commands an absolute majority and when coalitions are formed--as is presently the case in Pakistan--governments are seen fire-fighting most of the time. Lack of the needed far-sighted and consistent stance on many policies is, therefore, not just a limitation of capacity within Pakistan's system and short-sighted motivations of its policymakers, but also a limitation of its parliamentary system--a weakness the pendulum swing cannot address.

There are many dire imperatives for ensuring consistency in policy direction in Pakistan, particularly from a national security standpoint--a point I attempted to highlight in these columns on April 3. Now that the Sword of Damocles no longer hangs over parliament, it should turn its attention to these substantive issues and the constraints implicit in party antagonisms and tenuous coalitions. It is imperative to create space for a working relationship within the current political and democratic dispensation that can work in the interest of the state and its people.

Secondly, the government appears to accord high priority to provincial autonomy on its agenda. After pronouncing the Balochistan package, carving Gilgit-Baltistan as a separate province and negotiating the National Finance Commission Award, the 18th Amendment Bill has abolished the Concurrent List and has revitalised the Council of Common Interests.

The government uses the jargon "participatory federalism" for its policy stance in this area. There is no denying that provincial autonomy can be the foundation of a strong federation and the government's policy is, in principle, the correct stance. However, attention should be paid to reservations being mooted with regard to the implications of this for governance at the provincial level, in view of their limited capacity, at least in two of the provinces.

The cost of making drastic changes in the functioning of the state without appropriate analysis and evidence has already been evidenced in the devolution debacle. Drastic changes in federal-provincial relationships can be exploited by entities that are not bona fide with an adverse fallout on the functioning of provincial administrations, at a time when terror, ethnic strife and ideological differences have been whipped up to unprecedented levels. In some provinces, the risk related to blurring of the difference between autonomy and mutiny cannot be ignored anymore. The impact of waning federal oversight on collusive behaviours in the provinces also merits careful analysis. The government must, therefore, develop a phased, incremental and prudent approach towards provincial autonomy.

Additionally, abolition of the Concurrent List in toto will limit opportunities for legislation of a normative nature--particularly norms which relate to the fundamental ethos of the federation. Similarly, domestic legislation as a follow-up to international commitments need not be a provincial prerogative, where capacity constraints can cause delays and duplications would be inevitable. The Charter of Child Rights Bill, which is currently in the pipeline, illustrates both the cases. Overdue for ten-years, the domestic legislation as a follow-up to the United Nations Convention on the Rights of the Child is both normative in nature and in compliance with an international norm; it can be federally enacted and have the same meaning for each of the provinces.

Thirdly, the 18th Amendment Bill attempts to address some of the processes that have the potential to make governance "participatory" and "efficient." The former is evident in the stipulated procedures for appointment of superior court judges and the chief election commissioner and the latter in the provisions, which limit the size of the cabinet and the number of advisors. Whilst these changes are welcome, there are many other things that need to be initialized as a follow-up to improve governance. The civil service reform agenda awaits implementation. The accountability law, the pulse of good governance, is on the backburner; the competition commission law is on hold; the National Anti-corruption Strategy has remained shelved; opportunities to use e-governance to promote transparency in governance remain untapped; conflict of interest within policymaking ranks continues to be pervasive and administrative norms within the bureaucracy have been unchanged.

Fourthly, the bill introduces free and compulsory education up to the age of 16 years. This is a significant step towards recognising the right of a child to education. But this has implications for resource allocations and institutional frameworks. The government currently does not have the structures to enable that. With education predominantly in the hands of the private sector, a quantum shift is needed on the policy stance towards "purchasing services" from the private sector. This has implications, in turn, for the regulatory capacity of the government with resource requirements being a corollary. However, health has not been regarded as a right.

In the fifth place, it is unfortunate that the move of renaming NWFP is inadvertently sowing the seeds of discord in the province with calls for the creation of another province echoing loud even before the bill is debated.

Finally, in relation to high treason, the expanded definitions will hopefully block ad hoc adventurism in the future. I wish there could also be constitutional mechanisms to label those that sacrifice vital interests of the state on the altars of personal interests as committing high treason as well.

The bill is indeed an achievement in terms of having sanitised the Constitution; but as far as governance is concerned, there is a long way to go.

 

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More autonomy?



Friday, April 09, 2010
Two allies of the PPP have sought more political autonomy for the provinces than that envisaged under the 18th Amendment Bill. The demand from the ANP and the MQM – which have acknowledged that things will be far better now that the provisions of the bill have been passed by parliament – is certain to raise eyebrows, notably in Punjab. Traditionally, greater autonomy has been opposed in the majority province for the other federating units on the basis that this would weaken the union. There is a need to drive home the recognition that just the opposite is true. As the ANP chief noted before parliament, greater provincial autonomy should have been ushered in decades ago, indeed well before the 1973 Constitution. Had this happened, we may have avoided the crisis of Federation we face now, with currents of distress running through all three minority provinces. They are of course most acute in Balochistan, where we see periodic violence that takes not only the form of nationalist uprising but also manifests itself in ethnic killings and kidnappings.

The tensions that give rise to this have expanded in recent years. The fact is that our nation constitutes many diverse people. They have different languages, different cultures and different modes of life. To build a bond between them we need to acknowledge first that they are all equal. We must also learn to celebrate differences rather than force uniformity on everyone. But beyond these basics, there is something else that is of far greater importance. People everywhere must have a greater say over the making of decisions about their future. This can play a huge role in creating a stronger whole and giving people everywhere the right to play a part in building a future for themselves. In this context, the points raised by allies – and indeed also by other parties – need to be taken note of. The passage of the 18th Amendment Bill goes a significant way towards correcting ills and granting the smaller provinces the enhanced autonomy they seek. But the PPP should also keep in mind the need to keep up the process of consensus-building it has begun. There is no harm in granting greater autonomy. This has indeed been discussed at many junctures in the history of Pakistan. What we should endeavour to establish is a union of people who are happy to live together and who are equal stakeholders in the future of their nation. Only then will we have the collective energy required to move our country forward along the road to a productive and stable future.

 

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NA unanimously adopts 18th Amendment

ISLAMABAD: With a rare unanimity that made a parliamentary revolution, the National Assembly on Thursday passed landmark constitutional reforms aimed to restore a genuine parliamentary system in the country.

All 292 members present finally voted for the Constitution (Eighteenth Amendment) Bill drafted by an all-party parliamentary committee after separate positive votes cast for each of its 102 clauses ranged between 255 and 289.

This was much more than the required 228 votes, or two-thirds majority of the 342-seat house, thanks to a broad consensus of political parties, though a clause changing the name of the North-West Frontier Province to Khyber Pakhtunkhwa produced some fireworks and a mini-mutiny in the main opposition party, the PML-N.

While three seats of the house are vacant, the vote showed 47 members were absent from the sitting.

The bill, which, besides other changes, seeks to transfer some key presidential powers to parliament, enhance provincial autonomy and repeal the controversial Musharraf-era 17th Amendment, will now go to the 100-seat Senate, which too must pass it with a two-thirds majority before it is signed by President Asif Ali Zardari to be put into effect.

Loud cheers rang out in the house repeatedly during the lengthy clause-by-clause voting, which required members to stand up 102 times to show their support or opposition to a clause, and when Speaker Fehmida Mirza announced the 292-0 result of the final vote through division, in which members record their votes in a register.

Prime Minister Yousuf Raza Gilani hailed the house unanimity on the most important constitutional amendments since the adoption of the original Constitution in 1973 as fruit of the PPP-led coalition government’s reconciliation policy, while the Leader of the Opposition, Chaudhry Nisar Ali Khan, called it a “win-win situation” for Pakistan.

Messages of congratulations to the house and the nation soon came also from President Asif Ali Zardari and PML-N leader Nawaz Sharif, for both of whom the prime minister voiced his special thanks for their role in bringing about this change.

Inside a jubilant house, passage of clauses removing the name of former military president Ziaul Haq from the Constitution and repealing the 17th Amendment and the Concurrent Legislative List produced the loudest and longest desk-thumping with PPP, PML-N and MQM members chanting slogans of “jiay Bhutto”, “Jiay Nawaz Sharif” and “jiay Altaf” for their leaders.

But there was only a subdued greeting for a clause that will repeal the Constitution’s Article 58(2)b to deprive the presidency of discretionary powers to dissolve the National Assembly and appoint armed forces’ chiefs and provincial governors that were arbitrarily assumed by previous military president Pervez Musharraf.

Five amendments to the bill moved by PML-Q members, including one against the Khyber Pakhtunkhwa name for the NWFP and another against the repeal of the Concurrent List, were rejected, but the one on the new provincial name was marked by some sentimental speeches from its sponsors and a protest walkout by three PML-N members in violation of the policy of their party, which itself had proposed the new name as a compromise on the original Pakhtunkhwa demanded by the ANP.

The three men -- former NWFP chief minister Sardar Mehtab Ahmad Khan, Capt (retd) Mohammad Safdar, a son-in-law of Nawaz Sharif (both belonging to NWFP’s Hazara division) and Sahibzada Fazal Karim from Punjab -- first did not stand in support of the amendment with other party members and later, when the chair called up the opponents of the clause to stand up, walked out of the house in an obvious protest against the new name.

Although there is no legal penalty for such a violation of party discipline, the protest was an embarrassment for the PML-N.

However, the three members later voted for the bill as a whole.

“This is an achievement of our reconciliation policy,” Prime Minister Gilani said about the vote, and described the amendments as realisation of the visions of Quaid-i-Azam Mohammad Ali Jinnah, the late PPP leaders Zulfikar Ali Bhutto and Benazir Bhutto, Mr Sharif who signed the Charter of Democracy with Ms Bhutto as well as the entire political leadership of the country to make the supremacy of parliament possible. But he said it was not the end of the road and promised his government would be prepared to bring more changes if it received similar support in the future.

“We are not thinking of power, we are thinking about our future generations who could say that (people’s) representatives of today have given a direction to the nation,” Mr Gilani said.

He said the amendments would restore a “truly parliamentary system” in the country on the Westminster model that he said was closest to the thinking of the Quaid-i-Azam and the late Mr Bhutto and best suited to this region, while the one being replaced and given by dictators was a hotchpotch, neither parliamentary nor presidential.

Opposition leader Nisar Ali Khan indirectly lauded President Zardari’s role in bringing about the amendments as PPP leader and said the bill’s approval showed the country’s politicians could rise above party politics and take decisions.

He said he felt proud as a member of this parliament and assured the government of opposition’s full support in matters such as solving people’s problems and ridding the country of the “legacy of military dictators” and foreign dictation.

The opposition leader also appealed to all politicians to make a commitment never to lend a helping shoulder to any military dictator and repeated his demand for the trial of Gen Musharraf for high treason.

More parties’ leaders wanted to speak but the speaker said she would allow them time on Friday.

 

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Parliament passes law to clip Zardari’s powers

Pakistan’s Lower House of the Parliament on Thursday passed the historic constitution (18th amendment) bill, 2010, aimed at restoring the 1973 constitution in its original form, with a two third majority.
The unanimously approved reform bill strips President Asif Ali Zardari of key powers in a move to bolster parliamentary democracy weakened by military rule.
A jubilant Prime Minister Yousuf Raza Gilani declared that parliamentary democracy was now being fully restored as MPs
slammed fists on desks in celebration after shouting “hang Musharraf, hang.”

“The impossible has been made possible by the house today,” Gilani told the parliament in a speech.
The House passed the bill containing 102 clauses, rejecting a few amendments moved by members regarding concurrent list, renaming the NWFP, intra-party elections and women seats in the House and within parties, proposed by a few members of Pakistan Muslim League-Quaid (PML-Q).
The historic amendment rolls back four decades of infringements by military rulers on Pakistan's 1973 constitution, say members. It is expected to sail through the upper house of parliament as early as next week and then pass into law.

 

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Passage of 18th Amendment: Seraiki students want their demands included in bill


* Protesters ask govt to reconsider the package for incorporation of Seraiki demands

Staff Report

ISLAMABAD: Hundreds of Seraiki students and political activists staged a protest demonstration here on Thursday in front of Parliament House and demanded insertion of Seraiki demands in the 18th Constitutional Amendment.

They said the 18th Amendment was being bulldozed in an unusual haste. They demanded an amendment in the Article 251 of the Constitution to give equal educational and planning rights to all languages of Pakistan. The protestors were wearing cloaks inscribed with slogans “Qaidi Takhat Lahore Dey”. They chanted slogans against the alleged exploitation of the Seraiki people by the Punjab’s establishment and bureaucracy.

“It is shocking to note that the parliamentarians did not consider plight of Seraiki people, hence left the constitutional package incomplete and ineffective for them. We are afraid, without giving the right of self rule to Seraikis, they have put us at the mercy of the Punjab administration which is always bent to suppress the genuine voice of Seraikis”, said Mutahir Malik, a student of Quaid-e-Azam University.

They protestors asked the government to reconsider the constitutional draft package for incorporation of Seraiki demands like creating a Seraiki province, declaring Seraiki a national language, awarding quota in services and educational institutes and giving appropriate representation to Seraiki people in all national forums. They said the Seraikis did not want to launch a separatist movement but, if ignored today, they would not allow any development in other parts of the Punjab province.

They congratulated people of Pukhtoonkhawh for securing their identity with the support of all political parties, particularly the PPP. They urged leaders of all political parties to raise Seraiki issue with same enthusiasm and sincerity. They said Seraikis were being left out of mainstream political decision making as was evident from the contents of constitutional package, which, they said was void of Seraiki demands.

 

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DEMOCRACY & THE ARMY IN PAKISTAN

By B.Raman

The two Houses of the Pakistan Parliament will be taking up for discussion on April 5,2010, the 18th Constitution Amendment Bill, as recommended by an all-party constitutional review committee. It has to be approved by a two-thirds majority by the two Houses and the provincial Assemblies before it comes into effect. Salient points of the Bill as extracted from the “Dawn” of April 3,2010, are annexed.

2. The Bill seeks to amend a number of provisions of the Constitution in order to remove or rectify various distortions in the 1973 Constitution, which was brought in by the late Zulfiquar Ali Bhutto when the was the Prime Minister till he was overthrown in 1977, arrested and got executed by Gen.Zia-ul-Haq. These amendments, in effect, will restore the powers of the Prime Minister as they were intended to be by Z.A.Bhutto under the 1973 Constitution and reverse the process of strengthening the position of the President at the expense of that of the Prime Minister by successive military dictators in order to impose their will on the civilian Prime Ministers whom they inducted into power in order to give a civilian façade to the military dictatorship.

3. A new article 90 in the Bill seeks to restore the authority of the Prime Minister by providing for the exercise of the executive authority of the federation “in the name of the president by the federal government consisting of the prime minister and federal ministers, which shall act through the prime minister, who shall be the chief executive of the federation”. Thus, all executive powers will be exercised by the Prime Minister in the name of the President. According to the amendment, the President would continue to be the Supreme Commander of the Armed Forces, but “the President shall, on advice of the Prime Minister” appoint the Chairman, Joint Chiefs of Staff Committee and the three services chiefs. The President will not have any discretionary powers to decide who will head the Armed Forces.

4. How effective will be the exercise by the Prime Minister of the power to recommend who should head the Armed Forces would depend upon how willingly the Chief of the Army Staff (COAS) goes along with the recommendation of the Prime Minister. Nawaz Sharif, as Prime Minister, had similar powers in 1999, but those powers could not protect him from the wrath of the Army in October,1999, when he advised the then President Mohammad Rafique Tarar to dismiss Gen.Pervez Musharraf as the COAS and appoint in his place Lt.Gen.Ziauddin, the then Director-General of the Inter-Services Intelligence (ISI), as the COAS. Tarar issued the orders when Musharraf had not yet returned to Pakistan after a visit to Sri Lanka. A group of Lts.General loyal to Musharraf and opposed to Ziauddin, an enginner, taking over as the COAS, refused to comply with the orders of the President issued on the recommendation of the Prime Minister. They dismissed and arrested both the Prime Minister and the ISI chief and paved the way for Musharraf to take over as the Chief Executive on his return to Karachi from Colombo. The judiciary endorsed their action under the so-called doctrine of necessity.

5. Thus, what has always determined the course of democracy in Pakistan is not what is written in the Constitution, but what the Army thought of the actions and decisions of the President and the Prime Minister. When it was unhappy with their actions and decisions, the Army has bulldozed its way into intervention to seize power irrespective of the Constitution. Constitutional provisions and laws have been allowed by the Army to operate only so long as they suited the Army.

6. Since the 1973 Constitution came into force, the Army has intervened twice directly and thrice indirectly. The direct interventions were in 1977 when Z.A.Bhutto was arrested, got tried and executed by Zia and in 1999 when Nawaz Sharif was arrested, tried and banished to Saudi Arabia by Musharraf.

7. The indirect interventions were in 1990 when the Army instigated the then President Ghulam Ishaq Khan to dismiss Benazir Bhutto, in 1993 when the Army instigated Ghulam Ishaq Khan to have Nawz eased out and in 1996 when the Army instigated the then President Farooq Leghari to dismiss Benazir. Pakistan’s political leaders paved the way for the politicization of the Army by inciting it to act against their political opponents whom they were not able to confront politically. Thus, Nawaz incited the Army and the President to act against Benazir in 1990 and 1996 and Benazir incited them to have Nawaz eased out in 1993. The Pakistan Army might not have become politically as interventionist as it has been but for the country’s opportunistic politicians who had no qualms in encouraging the Army to intervene when it suited their partisan political interests.

8. The new Constitution Amendment Bill seeks to make it difficult, if not impossible, for the Army to intervene in future directly or indirectly. To rule out direct military intervention, the Bill seeks to amend Article 6 of the Constitution to include suspension of the Constitution and putting it in abeyance among acts of high treason which no court shall validate. Zia and Musharraf were able to intervene directly, dismiss an elected Prime Minister and dissolve the National Assembly because there was no provision in the Constitution against it and a compliant judiciary validated their actions post-facto.

9. Theoretically, this cannot happen now and the Army cannot intervene directly. But, what would happen if an Army chief not only dismisses the Prime Minister and dissolves the National Assembly, but also suspends or abrogates the Constitution?

10. The Amendment seeks to rule out indirect intervention by the Army through the President by abolishing the powers of the President to dismiss the Prime Minister and dissolve the National Assembly except when the Prime Minister loses the confidence of the National Assembly and no other person enjoys the confidence of the Assembly to form a new Government. The power of the President to dismiss the Prime Minister and to dissolve the National Assembly was introduced by Zia before he ordered elections in 1985 and inducted Mohammad Khan Junejo as the Prime Minister. He dismissed Junejo under this power and dissolved the National Assembly in 1988 due to differences with Junejo over the Afghan policy and the latter’s insistence on releasing to the public the report of the committee which had enquired into the explosions at the Ojehri camp of the Army in which the arms and ammunition, including Stinger missiles, given by the US to the ISI for issue to the Afghan Mujahideen were stored. The explosions took place when a US team was to inspect the stocks following allegations of misuse of the stocks by the ISI and diversion of some of the missiles to Iran.

11. The power to dismiss was retained by Ghulam Ishaq Khan and Leghari, but Nawaz got it abolished when his party secured a two-thirds majority in the 1996 elections. Musharraf re-introduced it. He used to argue that the Army was forced to intervene directly in 1977 and 1999 because the Constitution did not provide any way of dealing with an arbitrary and unpopular Prime Minister, who managed to retain his support in the National Assembly. He strongly argued in favour of retaining the power of the President to dismiss an arbitrary and unpopular Prime Minister, but only on the recommendation of the National Security Council, which would be chaired by the President.

12. Now, this power is being sought to be abolished without providing a safety valve for action against an arbitrary and unpopular Prime Minister, who retains the confidence of the National Assembly. In other democracies, in similar situations, the pressure of political and public opinion acts as a safety valve. Only in the case of the arbitrary dismissal of Chief Justice Iftikhar Mohammad Chaudhury by Musharraf did political and public opinion assert itself. Otherwise, Pakistan does not have a history of such assertion.

13. When the Army directly intervened and dismissed an arbitrary and unpopular Z.A.Bhutto in 1977 and an equally arbitrary and unpopular Nawaz in 1999, a helpless public opinion hailed the Army’s actions as deliverance The absence of a safety valve against an arbitrary and unpopular Prime Minister could again lead to the Army’s intervention in future with the support of the public. In Pakistan, the romanticisation of democratic traditions is confined to the elite. For the common man, the Army and the political class are equally evil. When caught between a looming military dictatorship and an arbitrary political ruler, they choose whoever can provide them immediate relief. Public memory in Pakistan and about Pakistan is short. We tend to forget how the people of Balochistan and the North-West Frontier Province (NWFP) celebrated in 1977 when the Army threw out Z.A.Bhutto and how people all over Pakistan celebrated in 1999 when the Army threw out Nawaz and installed Musharraf as the ruler.

14. All lovers of democracy should welcome the Constitutional Amendment despite its imperfections. It would definitely strengthen the chances of the revival of democracy in Pakistan provided the political parties and the Army play the game according to the new rules. Even if one assumes that the political leaders have learnt their lessons and will now play the game according to the amended Constitution, will the Army do so? The Army thinks that it knows better than the political class what is good for the country. For the last 60 years or so, the Army has convinced itself that it has a legitimate political role to play---direct or indirect--- and is determined to play it should circumstances warrant it-----Constitution or no Constitution.

15. Look at Gen.Ashfaq Pervez Kayani, the COAS. When he took over as the COAS, he said the Army’s place was in the barracks and withdrew all army officers exercising non-military functions. He has again come out of the barracks and has been playing an increasingly active and assertive role in decision-making----whether it be in respect of national security or foreign policy or relations with India. So long as the Army’s mindset that it is not only the defender of national security from external and internal threats, but also the guardian of the interests of the people persists, democracy in Pakistan will continue to be on the sufferance of the Army. The US cannot escape its share of the responsibility for the persistence of this mindset and for the repeated failures of democratic experiments in Pakistan. Kayani would not have acquired the kind of image that he has acquired without the blessings of the US


SALIENT POINTS OF THE CONSTITUTION (18TH) AMENDMENT BILL ( as reported by the “Dawn” )

Here are the main features of the amendments.

Repeal the Legal Framework Order of 2002, along with its amendments, as having been issued without lawful authority, as well as the 17th Amendment of 2003 based on it.

Amend Article 1 to rename the NWFP as Khyber Pakhtunkhwa.

Amend Article 6 to include suspension of the Constitution and putting it in abeyance among acts of high treason which no court will validate.

New article 10A to confer right to fair trial.

New article 19A to give every citizen the right to access to information in all matters of public importance.

Article 25A to make the state provide free and compulsory education to all children aged five to 16 years.

President to act on the prime minister’s advice to dissolve the National Assembly, set a date for the general election and appoint a caretaker government.

Repeal Article 58(2)B empowering the president to dissolve the National Assembly.

Amend Article 59 to increase Senate seats to 104 from the present 100 with one representing non-Muslim minorities from each province.

Amend Article 61 to increase working days of Senate in a parliamentary year to 110 from 90.

Amend Article 70 and omit Article 71 to do away with provisions for the constitution of a mediation committee in case of difference between the two houses on a bill and revert to calling a joint sitting of parliament in such an event.

Amend Article 89 to bar promulgation of an ordinance when either of the two houses is in session, rather than only the National Assembly, and restrict re-promulgation to only one time and that too in compliance with a resolution of either house.

New article 90 to substitute previous one to provide for exercise of the executive authority of the federation “in the name of the president by the federal government consisting of the prime minister and federal ministers, which shall act through the prime minister, who shall be the chief executive of the federation”. Abolish the concurrent legislative list and some subjects in the federal list 1 included in federal list.

Amend Article 92 to restrict the strength of the federal cabinet, after the next election, to 11 per cent of total members of parliament and of the provincial cabinets to 15 members or 11 per cent of an assembly, whichever is higher, and of advisers of the prime minister or chief minister to a maximum of five.

Amend Article 101 to provide for a provincial governor to be the resident and voter of the same province.

Amend Article 104 to provide for a speaker of a provincial assembly to be acting governor.

Amend Article 127 to increase working days of provincial assemblies to 100 days from 70 days.

Amend Articles 153 and 154 to provide for the Council of Common Interests to consist of the prime minister, provincial chief ministers and three members from the federal government to be nominated by the prime minister, have a permanent secretariat and meet at least once in 90 days.

Amend Article 157 to bind the federal government to consult a province’s government before deciding on the construction of a hydro-electric power station there.

Amend Article 160 to provide for the share of provinces in each NFC award not being less than given them in the previous award.

Amend Article 167 to authorise provinces to raise domestic and international loans or give guarantees on the security of the provincial consolidated fund within limits and conditions specified by the National Economic Council.

Amend Articles 168 and 171 to set auditor-general’s tenure at four years and to provide that the auditor-general’s reports will come to both houses of parliament.

Amend Article 175 to provide that, subject to existing commitments, mineral and oil and natural gas within a province or its adjacent territorial waters “shall vest jointly and equally in that province and the federal government”.

New article 175A to provide for the constitution of a seven-member judicial commission — for naming judges for appointment to superior courts to be confirmed by a parliamentary committee — consisting of the chief justice (chairman) and two senior-most judges of the Supreme court, a former chief justice or judge of the same court to be nominated by the chief justice, federal minister for law and justice, the attorney-general and a senior advocate of the Supreme Court to be nominated by the Pakistan Bar Council for two years.

Amend Article 213 to provide for the prime minister to send, in consultation with the leader of opposition in the National Assembly, three names to a parliamentary committee for confirmation of one of them as the chief election commissioner and in case of difference, both of them to send separate lists.

Amend Article 232 to provide for declaration of emergency after a resolution passed by the assembly of that province and that if the president declares emergency “on his own”, the proclamation to be presented before both houses of parliament for approval within 10 days.

Amend Article 242 to provide for appointment of the chairman of the Federal Public Service Commission by the president on the advice of the prime minister and of the chairman of a provincial commission by the governor concerned on chief minister’s advice.

New article 243 to provide for appointment of chairman of the joint chiefs of staff committee and chiefs of staff of the army, navy and air force by the president on the advice of the prime minister.

 

[ajtr]

Constitutional deception



Tuesday, April 13, 2010
Asif Ezdi

As more and more details of the Constitution Amendment Bill come under public scrutiny, it is becoming clear why there is such a headlong rush in getting it passed by parliament. To quote Shakespeare, “Though this be madness, yet there is method in it.” Or a piece of constitutional sleight of hand.

The main avowed purposes of the bill are four: (1) to restore a true parliamentary system of government; (2) to empower the parliament; (3) to depoliticise appointments to the superior judiciary; and (4) to give greater autonomy to the provinces. Even a cursory examination of the text of the bill shows that it will fail to achieve the first three, while the fourth object – more powers to the provinces, – which is highly desirable in itself ,– is needlessly being accompanied by a quite unnecessary and potentially dangerous weakening of the federal government and legislature, which none of the provinces has demanded.

The main achievement of the bill touted by its authors is that it will restore parliamentary democracy. But that is true only in a formal sense. The new Article 91 declares the prime minister to be the “chief executive” of the federation – incidentally, a bizarre use of a term which is usually reserved for the corporate world – but the substance of power will remain with Zardari.

Anyone who thinks the appointment of the army chief or cabinet ministers will now be in the hands of Gilani should wake up. The locus of power will remain in the Presidency and will not move to the to the Prime Minister’s House.

That is not only because Gilani knows his place. It is also because the constitutional amendment fails to spell out, as it should have, that the president will stay out of party politics after his election. In all established parliamentary democracies with an elected head of state, bar none, he is either a non-political figure or severs his political links after assuming office. This is also implicit in Article 41, which states that the president represents the unity of the republic. He obviously cannot perform this role if he is identified with a particular political party.

All previous elected presidents of Pakistan under the 1973 Constitution have kept out of active politics. But Zardari has no such intention, and will stay as the party leader and the de facto executive head of the country after the passage of the amendment bill.

Besides, the amended Article 63A on the disqualification of defecting members of parliament will virtually give future party heads dictatorial powers over MNAs and senators. The party head will not be required to be an elected member of parliament. He need not even be living in the country. Besides, there will be no constitutional requirement that he should have been elected to the party leadership. All this is clearly designed to give Zardari and the next generation of the family represented by Bilawal Zardari a permanent hold over the PPP, and through it over the political destinies of the country.

Since other major parties of the country – the PML-N, the PML-Q, the ANP, the MQM and the JUI-F – are also treated by their leaders as personal fiefdoms, they too have supported the amendment to Article 63A, authorising the party head, in place of the parliamentary leader, to declare that an elected member of the party has defected and therefore disqualified himself from continuing his membership of the parliament. The personality cult in the MQM reached its height when a few months ago the birthday of the daughter of the Quaid was celebrated in the country and abroad with a spontaneous outburst of joy. This would have made even Stalin blush. Even he did not order party festivities to celebrate the birthdays of his children.

Dynastic politics will receive a boost also from the proposed deletion of Article 17(4), which presently makes intra-party election of party leaders mandatory. The PML-N’s Ahsan Iqbal has tried to justify it by pointing out that it was inserted under the Legal Framework Order by the-then military dictator, and that since the Political Parties Act already provides for intra-party elections, a constitutional provision to that effect was unnecessary.

Will he please explain why some other provisions of the LFO (like lowering of the voters’ age and increase in the size of the assemblies) have been retained? Also, why has it not been found necessary to delete also as well the provision in Article 51 (6) (a) that members of the National Assembly shall be elected by direct vote? Doesn’t the Representation of the People Act also provide for direct elections?

The reason why intra-party elections must remain mandatory under the Constitution is that an ordinary law can always be changed by the government in power through a simple majority of votes in parliament, or even through an ordinance, while a constitutional guarantee can only be withdrawn with the approval of two-thirds majorities in both houses. Moreover, a guarantee given under Article 17 can be invoked before a High Court or the Supreme Court under their original jurisdiction.

As regards the legislative supremacy of the parliament, or the much-touted “parliamentary sovereignty,” there is no bigger threat to it than the misuse of the government’s ordinance-making power which short-circuits the process of parliamentary and public scrutiny before a law is approved. Yet, instead of limiting this power, the 18th Amendment actually enhances it, so that in future the maximum life of an ordinance will be not four months but almost one year. All that a government would need is resolutions in the two houses of parliament. It is a devastating commentary on our parliament that it is abdicating to the government its primary function, which is to pass laws.

The abolition of the concurrent list, which is being sold as a major step to increased provincial autonomy, is the most harmful of the proposed amendments. To his credit, S. M. Zafar, a senior and experienced member of the Constitutional Reform Committee, has been arguing forcefully for the retention of the list. But his carefully reasoned arguments have largely fallen on deaf ears because in the Charter of Democracy the PPP PML-N and the PPP PML-N made a commitment to abolish the list and are now unwilling to “re-open” this issue.

An In his article of April 11, by Babar Sattar which appeared in this paper on 11 April defends this step on the ground that it would will give the provinces greater power to legislate for themselves in matters of civil and criminal law. This argument is based on the popular misconception that the provinces cannot do so at present. The fact is that they already have this power under the concurrent list. What the abolition of this list would do is to take away the power of the federal parliament to legislate on these matters when country-wide uniformity is needed. All that needs to be done to strengthen provincial autonomy is to lay down that a provincial law would prevail over a federal law if the provincial assembly passes it with a qualified majority, such as a majority of its total membership.

Another point made by Babar Sattar in support of the abolition of the concurrent list is that, after it is adopted, a progressive provincial assembly, such as that of Sindh, would will be able to amend an obnoxious federal law like the Hudood Ordinance or abolish the death penalty. This too is based on a misreading of the 18th Amendment, because under the proposed Article 142 (b), criminal law will remain a concurrent subject, and under Article 145, a provincial law which is repugnant to a federal law will be void.

All these issues need to be thoroughly debated in parliament and the public. This debate is being stifled by the mad rush to pass the bill in a matter of a few days. If this is not stopped, the country will be landed with a plethora of serious political and constitutional difficulties.

 

[ajtr]

The 18th and after



Tuesday, April 13, 2010
Mir Jamilur Rahman

The successful passage of the 18th Amendment in the National Assembly has proved that our politicians of different shades can work together if the goal is political stability and national harmony. It was a considerable achievement considering the fact that the PPP, the largest party in the National Assembly, with 124 members, faces a shortfall of 50 votes to command even a simple majority. However, for ordinary legislation “‘all decisions of the National Assembly shall be taken by the majority of the members present and voting’.” According to this proviso the government needs only one-fourth of the total membership (86 MNAs) to carry out the legislative business. A number less than 86 would invite a quorum objection, obliging the Speaker to suspend the proceedings.

The number of votes required for the passage of a constitutional amendment is considerably higher. It has to be passed by the “‘votes of not less than two-thirds of the total membership of the House’.” Thus, the minimum requirement for the a successful passage would be 228 votes in the National Assembly NA and 67 votes in the Senate. It is for good reason that the procedure for amending the Constitution has been made relatively difficult. The Constitution, 73 is the basic document of the state, was made promulgated by an elected assembly with the consensus of the provinces. Therefore, it becomes essential for the sake of provincial harmony that constitutional bills are backed by provincial consensus. The Special Committee had representation from all the provinces. The constitutional package that it recommended to the National Assembly NA had the consensus of all the provinces.

The military dictators, Zia and Musharraf, made fun of the Constitution 1973 by amending it at will. Zia had publicly said that he considered the constitution a piece of paper, which he could throw away at his own sweet will. They both had disfigured the Constitution 73 beyond recognition. It was the promise of the PPP and other political parties that they will restore the Constitution to its original form. Once the Senate passes this bill, this promise will stand fulfilled. The stinking amendments made by Zia and Musharraf will stand repealed, bringing back the fragrance of Constitution 73.

For the successful passage of the constitutional amendment in the NA National Assembly, the government needed 228 votes, which it collected with apparent ease. In the Senate the government might face difficulties in securing two-thirds votes of the total number of votes, which comes to 66 votes. However, no party in the Senate is in a position to block the amendment. Moreover, the senators will vote for the amendments as their party colleagues have done in the National Assembly.

The issue of provincial autonomy often crops up, giving rise to acrimony between Islamabad and the provinces and Islamabad. The present government has given serious thought for to the solution of this recurring problem. The removal of the Concurrent Legislative List is the first tangible step towards provincial autonomy. It gives the provinces exclusive right to legislate on 47 subjects enumerated in the Concurrent List. It does reduce the number of subjects from the federal jurisdiction.

But the Centre is still left with the Federal Legislative List of 67 subjects, which include taxes and duties of various kinds. It also includes fearful subject like “‘migration from or into, or settlement in, a province or the Federal Capital’.” It gives federal government the constitutional right to control the movement of the population within the country. For instance, it could make laws to organise and control the migration of people to the overcrowded cities.

By restoring the Constitution Pakistan has taken an important step forwards to national cohesion. It bodes well for democracy if the Constitution is applied in letter and spirit.

 

[ajtr]

Pakhtunkhwa to Hazara



Saturday, April 17, 2010
Saleem Safi

Most political forces, except for the ANP, had treated the renaming of North-West Frontier Province as a non-issue. But after the resolution of the provincial assembly in favour of the name "Pakhtunkhwa," the issue had gradually entered all sections of Pakhtun society, including writers, journalists and intellectuals.

For political point-scoring, the PPP's Najmuddin Khan, the JUI-F's Akram Khan Durrani, the Jamaat-e-Islami's Pir Muhammad Khan, as well as the ANP itself, had made concerted efforts to get the resolution through the provincial assembly in 1997. Even the PML-N had paved the way for the resolution's passage. Ironically, except for two Pakhtuns, the Saifullah brothers, no one from Hazara, Dera Ismail Khan or Chitral had raised objections. The unanimous support had given the resolution political, democratic and moral sanctity.

Pakhtuns and non-Pakhtuns in the province have been living peacefully. Besides the Pashto-speaking majority living in Battagram and Mansehra in Hazara, most of the tribes in Hazara, like Mashwani, Tahirkheli, Swati, Tareen and Jadoon, are originally Pakhtun. In a recent example of Pakhtuns supporting non-Pakhtun chief ministers for the provincial assembly, the ANP in 1991 and 1997 backed Pir Sabir Shah and Sardar Mehtab, who are from Hazara.

There are reasons behind Hazara's sense of deprivation and alienation. First of all, people from the region feel as much aliens in the provincial capital, Peshawar, as a person from southern Punjab feels in Lahore. The distance from Peshawar, and the main route to Hazara division passing through another province, is among the other disadvantages for people in Hazara. Meanwhile, because of greater proximity and easier access, the people of Hazara division have more interaction with Islamabad and Punjab. But Punjab considers them as residents of a Pakhtun province, even though in Peshawar they are not accepted as Pakhtuns.

After the Pakhtunkhwa resolution, the turf war within the PML-N had compelled Sardar Mehtab Ahmed Khan to adopt a tougher stance. Resultantly, the ANP quit the coalition government. This hardening of political stances on both sides made the issue a matter of life and death for the parties. Since 1997, the ANP made the issue the main point in its political agenda, and in Hazara, the PML-N attracted public support for opposing the proposed name.

During the deliberations of the Parliamentary Committee on Constitutional Reforms (PCCR), the ANP and the PML-N committed the blunder of bringing the debate into the media and public discussion. The debate aroused sentiments for and against the proposed name among Pakhtuns and people in Hazara. The leadership of the ANP and the PML-N linked the passage of the 18th Amendment with the renaming issue. However, the mounting pressure on the two parties compelled them to accommodate each other, persuading the ANP to back down from its previous position and accept a hyphenated name and the PML-N to agree to the very inclusion of "Pakhtunkhwa."

However, "Khyber" does not relate either to Hazara and the other non-Pakhtun regions of the province. Besides, it is also the name of an agency in FATA.

The mistakes of the ANP and the PML-N provided the PML-Q and other parties with an opportunity to avenge their political defeat in Hazara and settle scores with the two parties. The PML-Q aroused people's emotions against the new name, which resulted in looting and other forms of violence by those who wanted to vent their anger against the PML-N. The killings and injuries caused among protesters fuelled the anger and the PML-Q skilfully turned the mood against Pakhtuns. This raised ethnic tensions in the region and in the province.

Instead of trying to calm the situation, the ANP government behaved in a way that further inflamed emotions and created more opportunities for the PML-Q to play its dirty politics. After agreement on the new name, the ANP government should have sent a jirga of elders to Hazara division to cool down emotions there. Instead, it opted to celebrate the "victory" by illuminating buildings in major cities and towns in a province which daily suffers from more than 18 hours of loadshedding.

While the PPP, which is a coalition partner in the provincial government, has become a silent spectator, the JUI-F and other political parties played a negative role in the episode. Akram Khan Durrani, a right-hand man of Maulana Fazlur Rehman, was the mover of the Pakhtunkhwa resolution in the provincial assembly. In PCCR deliberations, the JUI-F did not oppose the name Pakhtunkhwa. But now Azam Swati, a close friend of Maulana Fazlur Rehman, is actively supporting the protests in Hazara.

Sirajul Haq of the Jamaat-e-Islami had proposed five names in the provincial assembly, including Pakhtunistan and Pakhtunkhwa, with none of the other three mentioning Hazara. Meanwhile, the Jamaat's central media coordinator, Sajjad Qamar, stated that his party was not against "Pakhtunkhwa." But the Jamaat-e-Islami's leadership in Hazara is taking an active part in the protests against the new name.

Those who propose "Pakhtunkhwa" being removed from the new name ignore the likelihood of the protests spreading to Pakhtun-dominated districts of the province.

Out of necessity, Hazara may be added to the new name. As far as the demands for the creation of Hazara and other provinces are concerned, that is not a bad proposal. But in this emotionally charged environment, demands for a new province should be postponed for the time being. As to the question of how to determine course and create political consensus for the redrawing of the existing provincial boundaries, this will be discussed in future columns.

 

[ajtr]

Pakistan's Constitution

Introduction
Pakistan's constitution has been undermined by a pattern of military coups interspersed with short-lived civilian rule. Not until 1973 was a constitution written by a democratically elected assembly. Even following that, the document has been continually reshaped by coups and the wishes of powerful members of Pakistan's political elite. It has swung between a parliamentary form of democracy and one in which executive power rests with the president. In the latest of repeated moves to amend the document, in April 2010 Pakistan signed into law constitutional reforms (BBC) that transferred key powers from the president to the prime minister and the parliament. It also provided for greater autonomy to the provinces and extended fundamental rights to include right to education and information. The changes were demanded by the Pakistani public and the politicians as a reversal to measures taken by former military chief and president Pervez Musharraf.
Historical Context
Experts say some of Pakistan's main constitutional principles and controversies still stem from colonial times. At the time of its independence in August 1947, Pakistan inherited the Government of India Act of 1935 (PDF) as its constitutional model--a framework designed by a colonial power to govern a colony that provided for a strong central government, a bureaucracy dominated executive unanswerable to the legislature, and very limited representation with continuation of feudal domination over politics. Under this act, the head of the state was the governor-general and legislative functions were performed by the constituent assembly, which was tasked with enacting a new constitution. The governor-general had the power to appoint or dismiss ministers at his discretion as well as assume emergency power.
1956 Constitution: The constitution of Pakistan that came into existence on March 23, 1956, abolished the office of the governor-general and provided for power-sharing arrangements between the president and the prime minister. East Pakistan (now the independent state of Bangladesh) and West Pakistan (known as Pakistan since 1971) were to have equal seats in the national legislature. While parliamentary and federal in form, the constitution ensured that the president retained supreme powers and the center was more powerful than the provinces. But this constitution had a very short life. The country's first general elections were scheduled for February 1959, but President Iskandar Mirza, fearing a rise in East Pakistan's influence could undermine his hold on power, abrogated the constitution before the elections in 1958, establishing martial law and appointing army chief Ayub Khan as chief martial law administrator. This set a precedent for the military to assert itself into the country's political affairs. It also led to a pattern of takeovers, subversion of constitutional provisions, and a military-bureaucracy dominated executive that superseded the elected parliament.
1962 Constitution: A new constitution came into effect in 1962 which failed to include fundamental rights until the first amendment was made to it, granting the executive power to the president and abolishing the office of the prime minister. Most significantly, it institutionalized the intervention of military in politics by providing that for twenty years, the president or the defense minister must be a person who had held a rank not lower than that of lieutenant-general in the army.
In 1969, the 1962 constitution was suspended, martial law was declared, and General Yahya Khan took over. After the secession of East Pakistan to form the new state of Bangladesh, a new constitution was brought in 1973.
The 1973 Constitutional Framework
The 1973 Constitution was the first constitution to be framed by elected representatives in Pakistan. The 1973 constitution created a parliamentary form of democracy in which the executive power is concentrated in the office of the prime minister. It established the Pakistani president as the formal head of state, bound to act on the advice of the prime minister. The parliament consists of two houses--the national assembly and the senate. The Constitution also provides for four provincial governments and the distribution of legislative power between the federation and the provinces. Moeen Cheema, assistant professor of law and policy at Lahore University of Management Sciences, says that though the constitution provided for it, provincial autonomy was never really implemented by the 1973 constitution. He holds all military and civilian governments guilty on this charge.
The new constitution included an article (6) which stated anyone who now abrogated or attempted or conspired to abrogate or subvert the constitution shall be "guilty of high treason." It was an attempt to guard against the takeover of the state by future military rulers. This did not stop army chief General Zia ul-Haq from staging a coup, proclaiming martial law in 1977, holding the constitution in abeyance, and putting in its place a Provisional Constitutional Order (PCO). The PCO not only gave the military regime the right to rule but also the right to amend the constitution at will. The regime used this to fashion a new constitutional order for the post-martial law period. In 1985, the 1973 constitution was revived but an eighth amendment was introduced into the constitution that changed its basic structure and some of its essential features. It shifted the executive power from the office of the prime minister to that of the president and under article 58(2)(b) he was also given the right to dissolve the national assembly at his discretion. Experts say the amendment diminished provincial autonomy and created a weak legislature and a docile judiciary.
Article 58(2)(b) was used in the 1990s by the president to dismiss the elected governments of Prime Ministers Benazir Bhutto and Nawaz Sharif on charges of corruption. Sharif, when he came to power a second time in 1997, abolished the article and instead gave the prime minister the power to dissolve the national assembly. When Army Chief General Pervez Musharraf deposed him in a coup in 1999, yet another phase of constitutional amendments began.
Military Rulers and the Constitution
Experts say there is a clear pattern to the military coups and the classic maneuvering that follows to give these coups legitimacy and strengthen the powers of the military rulers. Tracing it from the first military takeover to the most recent one (in 1999 by Musharraf), Cheema says the army chiefs take six important steps. They co-opt the bureaucracy; use accountability against politicians; entrench the army in political and civil affairs; create a new breed of politicians subservient to them under the guise of local government reform; hold elections to create some sort of democratic legitimacy; and finally move to co-opt the judiciary.

Role of the Judiciary
As this Backgrounder points out, Pakistan's courts and judges are cast as protectors of the constitution in a separation-of-powers system. In many circumstances, however, they have found it expedient or necessary to accommodate constitutional changes or unconstitutional maneuvers by Pakistan's leaders. They have done so either because they thought this was essential to their own survival or that of the state.
Legal history expert Tayyab Mahmud writes in Utah Law Review that while the successive constitutional crises that confronted the Pakistani courts were not of their own making, "the doctrinally inconsistent, judicially inappropriate and politically timid responses fashioned by the courts ultimately undermined constitutional governance." The refusal of the Chief Justice and twelve other Supreme Court judges to sign Musharraf's decision to suspend the constitution and rule by decree in November 2007, for the first time, brought the judiciary and the executive in direct confrontation with each other.
Musharraf's Legacy
Musharraf's 1999 coup, declaration of emergency, and creation of a PCO were also validated by the Supreme Court on the basis of the doctrine of state necessity. The PCO barred any court from making any order against the Chief Executive (Musharraf) or calling into question the emergency. The Supreme Court gave Musharraf the authority to amend the constitution and three years to hold general elections. In 2002, Musharraf engineered a controversial referendum which elected him as president for five years. The referendum also put in place a legal framework order which, through article 58(2)(b), restored power in the president to dissolve the national assembly at his discretion.
Musharraf was reelected in October 2007 in another controversial election. The following month, he declared another state of emergency, suspended the constitution (which had been amended through the legal framework order), and brought in another PCO. This time the PCO targeted the judiciary and the media. As per the constitutional provision, a presidential ordinance in Pakistan can only be effective for four months unless it is approved by parliament or is reissued. Human rights activist I.A. Rehman writes "the extra-constitutional regimes have developed a tradition of exempting ordinances issued while the constitution is in abeyance." Therefore, he says, the ordinances issued by General Musharraf between October 1999 and November 2002 are not subject to the lapse rule even though they never received the parliament's approval. These include the two ordinances that amended the basic media laws barring the use of any material which defames or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state. "A more draconian curb on the freedom of expression cannot be imagined," writes Rehman.
Under an amendment to the 1952 Army Act, the military can now try civilians for a wide range of offenses previously under the country's judiciary. "The military is Pakistan's principal human rights abuser, yet Musharraf has changed the law so that it can play judge, jury, and executioner," says Ali Dayan Hasan, a South Asia researcher at Human Rights Watch. Another decree has ended the independence of the Pakistani Bar Association. Hasan sharply criticizes the move as politically motivated: "This is a despicable attempt to end political opposition by threatening the livelihoods of government critics."
Constitutional Reforms
In April 2010, Pakistan adopted comprehensive reforms through the passing of the eighteenth amendment that restored many of the provisions of the 1973 constitution. It limited the powers of the president and restored power to the provinces. It reversed constitutional changes made by former military chief and president Pervez Musharraf by transferring presidential powers to the parliament and the prime minister, including the rights to dissolve an elected parliament and to appoint military chiefs. Even as analysts welcomed the amendment's promise of devolution of powers from the center to the provinces, most believed distribution of revenues from natural resources between central government and the provinces may be challenging to implement (Dawn).
Still, the constitutional reforms may not prevent future military coups. Washburn University's Ali Khan says, "Constitutional violations will continue to occur until two things happen: Political elites behave within the rule of law, and armed forces decide not to intervene." Here, Khan says, the answer may lie with a resistant judiciary that refuses to ratify a military coup, as seen with the emergency proclaimed by Musharraf in 2007.

 

[nandu]

Between the lines
A half measure
By Kuldip Nayar

The 18th amendment is meant to restore democracy, but Pakistan has yet to prove that it has become a democratic country.

There was a document, called Charter of Democracy, which the presidents of Pakistan People's Party and the Muslim League signed at London on May 14, 2006. Both of them, the late Benazir Bhutto and Nawaz Sharif, called upon the people of Pakistan to join hands to save their motherland from the clutches of military dictatorship and to defend their fundamental rights.

When I read the recent 18th amendment to Pakistan's constitution, I didn't find anything to stall a military coup. Pakistan had the consensus-based constitution when the nation adopted it in 1973 under Zulfikar Ali Bhutto. Yet Gen Zia-ul Haq and Gen Musharraf marched in the army when they so desired to crush all institutions under their jack boots.
When I asked Bhutto in an interview after the Bangladesh war if he could guarantee that the military would not take over again as was his experience when Gen Mohammad Ayub imposed the martial law, Bhutto replied that this time his men would come on to the streets and face the tanks. However, when Bhutto was arrested by Zia and detained at Murree, not even a dog barked. The nation slipped into martial law rule as easily as a person would in new clothes. It looked as if it did not matter to the people who the ruler was.

The 18th amendment is a step towards restoring democracy. Pakistan has yet to prove to the world that it has become a democratic country. The nation showed the signs of a liberated country when people rallied behind the lawyers to put back Chief Justice Iftikhar Chaudhary in his seat. It is clear that the judiciary has become free. But the supremacy of Pakistan's parliament, is yet to be established.

The question that remains is: will people defend fragile democratic polity, which Pakistan has acquired, when it is challenged by a civilian dictator or a military chief?

India has one of the best constitutions in the world. Yet it lost the democratic system when Indira Gandhi took to totalitarian ways and imposed the emergency. The apolitical military in the country rightly stood aloof to let the affairs of governance be settled by the people themselves. Indeed, they did when they put democracy back on the rails.
The people gave the Congress such a humiliating defeat at the polls that the party was wiped out in northern India. Candidates put up by the opposition won by a margin of lakhs. This was the people's anger against the temerity to replace democracy with personal rule.

Basic structure of constitution

Pakistan should learn one thing more from India: how to restrain its National Assembly from becoming dictatorial and changing the basic structure of the constitution. The supreme court of India has held in the Keshavanand Bharti case that parliament cannot change the basic structure of the constitution. Democracy, secularism and the federal structure of the polity are considered three pillars of the constitution. Similarly, Pakistan can have democracy, the country's Islamic character, the federal structure and pluralism as the basic structure of the constitution.

Pakistan can probably teach a lesson to India by taking action against those who ousted the elected government of Nawaz Sharif and sat on the gaddi forcibly. India should have done so after the emergency by not only punishing the guilty politicians but also civil servants who became a willing toll of tyranny.

Had the perpetrators of the emergency been punished there would have been a lesson taught to the saboteurs of democracy. Unfortunately, some people who played a leading role during the emergency are members of Manmohan Singh's cabinet. Punishment to those who violate the constitution is the only way to ward off repetition.

In this context, the power given to president of the ruling party through the 18th amendment to remove the prime minister can lead to dictatorship of the party chief. The prime minister should be removed by parliament alone.

The point on which Pakistan's 18th amendment has excelled India is on defection. In India, MPs do not have the freedom of conscience. They must obey the party whip or lose their membership. In Pakistan, a member of the Senate or the National Assembly can defy the party whip except on the finance bill or a motion of no-confidence.

Still such progressive measures are very few in the 18th amendment. They definitely fall short of what the Charter of Democracy pointed out ""¦the threats to its survival, the erosion of the federation's unity, the military's subordination of all state institutions, the marginalisation of civil society, growing poverty, unemployment and inequality, breakdown of rule of law and the unprecedented hardships facing our people under a military dictatorship, which has pushed our beloved country to the brink of a total disaster."

There is no such categorical statement in the 18th amendment or even in the speeches made by the treasury benches. Both PPP and the Muslim League have to re-read the Charter of Democracy which had recommended 26 amendments to the constitution and 36 other measures. The 18th amendment remains only a half measure.

http://www.deccanherald.com/content/65375/a-half-measure.html