The Constitutional Package
On May 25, the Law Minister Senator Farooq H Naek, accompanied by Mr Asif Zardari, unveiled some of the salient features of the much anticipated and talked about constitutional package. Almost all the clauses that he talked about in the press conference in Islamabad related to clipping of the powers of the President; and he did not disclose the details about the reforms concerning the judiciary and the remaining details of the 62-point constitutional package.
It remains unclear as to why the package was announced prior to consulting the coalition partners, and why the whole constitutional bill could not be released to the media. If it was not ready or the plan was to release it after finalizing it with the partners, then there was no point in announcing it in a hurry, unless the purpose was to pre-empt the Chief Justice of the Supreme Court, Mr Ifthikar Ahmad Chaudhry’s address to the Faislabad District Bar, or the lawyers’ long march on the capital. Either way, it goes without saying that the matter is not being handled in an appropriate fashion, and leaving the whole nation in a state of perpetual guessing game.
One need not be a rocket scientist to state that the system of governance in the country has failed. Almost all the major institutions of the State are to be blamed for this failure but some of the responsibility can also be laid on the Constitution of Pakistan. It took the law-makers 26 years to draft a constitution which contains innumerable reproductions of the Indian Constitution. The copying has been done in such a clumsy manner that many of the grammatical errors contained in the Indian Constitution have also been reproduced in the Pakistani one.
The shortcomings of our constitutional provisions come to the fore whenever any particular clause faces close public and judicial scrutiny. The nation has repeatedly experienced it while witnessing the judicial deliberations over Article 58(2)(b) and we all discovered last year that no mechanism exists in Article 209 to remove the Chief Justice of the Supreme Court on any grounds including those relating to corruption charges.
The reason for this shoddy drafting is simple and clear; and unfortunately it is also very tragic. Our rulers never contemplate amendments only to improve upon the Constitution. The purpose at all times has always been to amass more power to themselves. If the President is solely in power in the form of a military dictatorship, then he deems it his right to modify Constitution in such a manner that all power vests with the President. If a democratic setup as is the case at present is in power and the President happens to be from the opposition, then all the energies are invested to deprive the President virtually of all the powers and concentrate them in the office of the Prime Minister. No one bothers to contemplate a situation where President Musharraf will not be in power and a political party opposed to such a person will be ruling the country on the basis of majority in the National Assembly. How would one control such a political party, and what would be the mechanism to dislodge an unbearable party? Would the politicians then again resort to writing letters to the Chief of Army Staff and approaching the GHQ?
Democracy basically means that political power is ultimately in the hands of the whole adult population, and that no smaller group has the right to rule. Those who seek to justify democracy for a society like Pakistan where power is clearly in the hands of one section of the population (for example, the military, or elite section of the populace, including a section of the bureaucracy) mean something different and their concept is almost akin to the communist countries and even the most ruthless dictatorships presently in the world, like in North Korea and Burma. Democracy has to be based on certain principles, and one of the cardinal ones in this respect is balance of power amongst the institutions of the State which in case of Pakistan include the legislature, executive, judiciary, media and the armed forces. A fanatical belief in democracy can make democratic institutions impossible. Some sort of practicality has to be kept in mind, particularly in light of our past experience starting almost since independence.
The PPP and PML-N ad nauseam have been talking about making parliament supreme. No one really knows as to what is meant by this resolve. Assemblies which seldom meet, and which most of the time lack proper quorums, and generally lack quality debates, cannot be expected to be supreme. It is simply a rhetorical statement, and utterly meaningless as nobody anywhere in the world would ever disagree with such a resolve.
However, what would you make of George Bernard Shaw’s comment that democracy substitutes election by the incompetent many for appointment by the corrupt few. Mr Shaw was not from Pakistan but who can appreciate his comment better than a citizen of Pakistan who repeatedly end up electing one incompetent and corrupt ruler after another following a lapse of a decade long military dictatorship.
In such a bleak situation, the much talked about transfer of power presently enjoyed by the President to the Prime Minister is hardly going to make any difference in Pakistan’s polity and general plight of the masses. Abolishing Article 58(2)(b) regarding the President’s power to dissolve the National Assembly and to transfer the power to appoint the Services Chiefs, and to appoint governors, to the PM, can hardly be regarded as revolutionary and reformatory steps. Among several proposed amendments, the package also contains a change in the Constitution that will give the PM the power to act as the Executive Authority of the Federation. Presently, Article 90 says the executive authority of the Federation shall vest in the President and shall be exercised by him, either directly or through officers subordinate to him in accordance with the Constitution.
Article 6 is also being proposed to be amended in that cases of high treason can be instituted against judges of High Courts and the Supreme Court who validate the suspension or abrogation of the Constitution; and that they would cease to be the judges of the superior courts. This is obviously being proposed in view of the unpleasant experiences associated with the recent introduction of the PCO (Provisional Constitutional Order) on November 3 last year but ironically can also said to apply in principle to judges who upheld the take-over by Musharraf in October 1999. Similarly, the criticism of the judiciary or the armed forces would not attract disqualification for candidates to the assemblies under Article 63 which with the issue of disqualification of the members of the Parliament. The drafters are not bothering to look at some of the clauses of Article 62 which enumerates the qualifications of Parliament members and some of which, such as possessing adequate knowledge of Islamic teachings and practicing obligatory duties prescribed by Islam and abstention from major sins, can be invoked to virtually disqualify the whole of the Parliament. This is yet another example of the short-sightedness of our rulers.
The major justification for introducing these constitutional amendments at this stage, and in such a hurry, is to facilitate the restoration of the judges sacked through the unconstitutional steps taken by President Musharraf in November 2007. No mechanism has been revealed so far and the matter remains at the mercy of the media which is indulging in constant kite flying in this respect. However, the Law Minister admitted that the tenure of the Chief Justice of the Supreme Court would be limited to three years which again appears to be individual specific as the framers of the amendments obviously have Mr Ifthikar Chaudhry in mind; final decision in this regard has yet to be made and apparently Asif Zardari and Nawaz Sharif in their May 27 meeting in Islamabad have agreed to extend this limitation to five instead of three years.
The irony is that the package at this stage is being justified on grounds of restoring the judiciary but it remains totally silent on this crucial issue. PML-N says that that the restoration of the deposed judges has nothing to do with any constitutional package as the two are separate things, and the Party may have a point in this case.
The PPP first signed the Charter of Democracy, and later the Murree Declaration, and perhaps did not reflect upon its contents in detail. I say this because many of the issues mentioned in these two documents are not being included in the proposed constitutional package, and no plausible explanation has so far been given to justify their exclusion.
Constitution of any country can be amended in a short time, or within minutes as we in Pakistan have experienced on numerous occasions, or sometimes it may take years if controversial issues such as the issue of reservations for women in the Indian Parliament are involved. It is so far unclear as to how the PPP wishes to treat the proposed package. However, the way things are developing it seems that the PPP desires to hold extensive talks with a wide spectrum of political parties, and also initiate some sort of a debate in the media on the subject which may thus prove to be a long-drawn exercise, spanning over months. In other words, there may not be an instant solution to the lingering judicial crisis, and the political stability in the country may persist. What we may be seeing is that the whole system in the country is equal to the scum of the parts!