CONSTITUTIONAL AMENDMENTS IN PAKISTAN

(Edited version published in “The News” April 06, 2010)

Part-I

Since Pakistan came into existence there has been a tussle between the politicians and the generals. Apart from the initial lot of our leaders who led the Pakistan movement and died soon thereafter, the politicians’ record is marred by in-fighting, accumulation of powers, non-delivery to the people and being totally in-sensitive to the security concerns of the state. The eras of political rules like 50’s, 70’s, 90’s and even the current stint has one common feature that is in-fighting. The politicians don’t realize that it is the unity amongst them which may lead to more political stability. Yet we see time and again that the politicians, when out of power, make a bee-line towards the GHQ insisting that the incumbents may be thrown out, no matter what the consequences are. I remember very well the illustrious politicians of Pakistan who were competing to congratulate General Pervez Musharraf after he had toppled the government of Nawaz Sharif on October 12, 1999. The political eras are also full of examples of politicians trying to get all kinds of powers on paper without any kind of delivery for the nation and its people and without making any contribution towards strengthening the political institutions.

Needless to say when vacuums are created the law of nature applies and such vacuums are always filled. Thus we come to the military eras of Pakistan. These have sometimes provided relatively better governance but have always been dominated by the generals having a go at the constitution to consolidate their rule. The generals must remember that no matter what the causes of their take-over may be they will never have legitimacy. The politicians should remember that no amendments to the constitution can protect them from their in-adequacies and short-comings. In the next election, the people of Pakistan are not going to vote for the person who brought in the 18th amendment or who removed the two term restriction on being the Prime Minister or who enhanced the powers of the Prime Minister. In the end they will vote for the one who improved their life, who reduced their miseries, who created job opportunities for them, who removed the power and gas outages for them, who improved their living conditions, who gave them justice in thanas and the courts, who gave them prosperity and who protected the institutions and interests of the state that we call Pakistan.

We should remember that every time a general has taken over in Pakistan, he has been welcomed by the people, who have been so thoroughly disgusted at the performance of us politicians that they are ready to welcome him. Democracy would reign supreme in Pakistan if upon an un-constitutional power grab, the public comes out in the streets against it. But this can only happen if the politicians enjoy the respect of the people, the country’s interests have been adequately protected by them, the people’s lives have improved and the people see politicians performing their duties responsibly and transparently. Even the illiterates running in our streets know that is not the case.

We seem to be going through still one more effort of amending our constitution. We have a problem with the powers of the President. Agreed that in a parliamentary form of democracy like we have, the Chief Executive should be the Prime Minister. But do we really believe that taking all the powers from the President and giving them to the Prime Minister would resolve all our problems? What we should ensure is that like in a true parliamentary system the whole chain, the Prime Minister, the Cabinet and the Parliament be empowered and not just the Prime Minister. Every elected person should feel part of the governing structure. The voter should feel their voice is reaching the corridors of power. Let us see some amendments with respect to that.

The most notorious section of our constitution currently seems to be Article 58(2)(b). I agree it should not be there. But every country has a constitution that suits its own peculiar requirements and circumstances. There is no one example which may be followed. A number of coups have been avoided in this country and democratic process has followed as a result of article 58(2)(b). A very powerful Prime Minister in 1997, with two third majorities, removed this article and in less than two years was toppled. The reason was that an amendment existed on paper, resting on very weak political institutions. So when the most powerful institution of the country was cornered, it acted. For the time being we need a safety valve in the shape of 58(2)(b). A judicial review as we currently have in the 17th amendment is not appropriate. We politicians should try and resolve our problems politically. If we rely on the judiciary to help us then it will start encroaching in other areas too. The President’s power under this section should be there but with adequate political checks. One check may be that after having exercised this power, the President should be obligated to seek a vote of confidence from the newly elected National Assembly, failing which he or she should be stripped out of power.

With respect to the appointment of Governors and Service Chiefs, agreed that the power should be with the Prime Minister but is there any harm if the Prime Minister consults the Head of the State? There have been two times in our history when an all powerful Prime Minister has appointed an army chief, in 1977 and in 1999. We know the outcome of both these appointments. We should realize that in this game there cannot and should not be any favorites one is seeking to appoint. Such appointments should be made purely on merit and for the betterment of the country and the institution, and in doing so consultation would not harm in any manner.

We have a very important issue of provincial autonomy. Nobody can disagree with the concept but a few fundamental questions arise. Is it not true that our provinces right now are far more autonomous than the Indian states? Is the abolition of the concurrent list the only way more autonomy may be given to the provinces? Is it not the current structure of the federation, where Punjab constitutes over 60% of the population, the main problem? As the federation stands today, when Pakistan grows, Punjab grows at a faster rate than the rest of the country and thus becomes richer. No country of the world has a state unit which constitutes such a large portion of it. No matter how much autonomy we give to the current provinces, they will always complain about Punjab. India started with fourteen states and has twenty eight now. Our constitution does not forbid the creation of new provinces. There is a well defined procedure outlined in it. Let us agree on certain parameters for this purpose. The creation of a new province should not be based on ethnic or linguistic reasons. Its capital should be reachable by the population easily. The current balance in the senate should not be distorted, meaning that the balance Punjab, Balochistan, Sindh and NWFP have in the Senate at present should be retained after the creation of the new provinces. This criteria can only be met if we split the existing provinces in equal numbers.

When we did away with the divisions, although they seem to be creeping back in some provinces, we had far too many. If we look at the evolution of divisions in Pakistan, we get a better sense of what the breakup of the four provinces should look like. The Provinces may be split on the basis of the following old divisions:

Sindh into: Karachi, Hyderabad, Mirpurkhas and Sukkur.

Punjab into: Multan, Lahore, Sargodha and Rawalpindi.

NWFP into: D.I. Khan, Hazara, Peshawar and Malakand.

Balochistan into: Quetta, Kalat, Sibi and Makran.

Creation of more provinces in Pakistan will strengthen the federation as it exists today. These provinces should be given direct control of more sources of revenue. Currently a major chunk of the combined revenues of Federal and Provincial Governments are collected by the Federal Government. Almost three fourth of all Provincial expenditures are met through resource transfers from the Federal government as per the NFC awards. More autonomy may also be given to the provinces by making their share in their natural resources more equitable, and by giving them adequate employment quotas in all government services.

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Part-II

In Part-I of this article, a case had been built that for true strengthening of the federation the existing provinces should each be split into four provinces based on the old divisions. With respect to other constitutional reforms, the constitution as it existed on 12 October 1999 should be restored, but the amendments relating to joint electorates, minorities and women reserved seats, lowering of voting age and increase in number of seats of parliament should be retained. The term of the National Assembly should be reduced to 4 years. There is a lot of talk of abolishing the concurrent list. The concurrent list is a list of areas where both the Provinces and the Federal Government can legislate. In case of a conflict, the federal legislation currently prevails. We seem to believe that abolishing the concurrent list and reducing the Federal legislative list is the way for achieving more provincial autonomy. No body seems to have done any home work on the implications for the federation, as it currently exists, of such a move. It may entail a major dismantling of the federal structure and major enhancement of the capacity of the provincial governments. The Federation may seize to function and may become redundant. My suggestion is that we reduce the federal legislative list somewhat and add these items to the concurrent list. The existing concurrent list should be retained. However, in the concurrent list we should have two sections. One section should be laws and areas where the federal legislation will prevail. The other should be laws and areas where provincial legislation will prevail in case of a conflict. This will give adequate autonomy to the provinces without jeopardizing the federal structure.

Now the all important issue of appointments to the senior judiciary. Every country has its own unique system. In the US, the process starts from the executive with scrutiny of the Bars only with respect to competence of the nominees, and ends with congressional scrutiny. In the UK, the process is in the hands of a commission comprising parliamentarians, judges, executive and distinguished citizens, currently chaired by a distinguished citizen. In India it is a committee of five senior most judges where the executives have some powers of blocking it, but with good reason. I fundamentally agree with the concept of a judicial commission making initial recommendations, although we should avoid tie situations. I also agree with parliamentary scrutiny in the end. In between, the prime minister of the country should have some say too. So the Charter of Democracy’s clause of three recommendations of the judicial commission to be sent to the prime minister, who then forwards one to the parliamentary committee, seems appropriate.

The appointment of the chief justices of the provincial and supreme courts should be made by the prime minister. These should not only be based on length of service, but also on competence and reputation. The appointments must also come before the parliamentary committee, which having a representation of opposition and treasury equally, should be able to block with a two third majority. Similarly the appointments of the head of Accountability Organization or the Chief Election Commissioner again should be made in a similar fashion as the appointment of the chief justices.

The current system of our elections, being first by the post, is biased towards the larger political parties of the country. In the national and provincial assemblies, like the reserved seats of women and minorities, a new category of technocrat members should be added. All these reserved seats should depend on the actual percentage of votes a particular political party is able to get in an election and not on the number of members they are able to elect. A serious problem in Pakistan is the non existence of adequate capacities within the ranks of political parties to govern, once they get into power. Like the senate, the addition of technocrats in the national and provincial assemblies would give the political parties improved capacity to govern. Also, the minorities still remain unrepresented in the senate provisions for which should be made in the constitution.

Most of the legislation in Pakistan is done through an ordinance which essentially is a legacy of our colonial past. No country in the world, in the presence of duly elected bodies, permits the issuance of ordinances. If we look at the history of our legislation, apart from the NRO, no ordinance has subsequently been removed or significantly changed by an assembly. If we want to empower our assemblies, we must get rid of the power of the executive to issue ordinances.

The last local government system had a lot of positive points. It was democracy in its purest form. The system had its teething problems though. Revenue and law & order functions should be taken away from these local bodies. Other powers should remain intact. After the election of the Union Council which elects a Nazim, a Naib Nazim and certain number of councilors directly, the Nazim of Union Council becomes a member of the district council and Naib Nazim of the Union Council becomes a member of the town / tehsil council. The voting for the Nazim and Naib Nazim of district / tehsil / town councils and for the reserved seats in these councils, should only involve the members of these respective councils and not the councilors of the union councils. It has been seen in the last two elections that involving the councilors leaves the system open for more malpractices.

With respect to the status of FATA, the options are that FATA can continue the way it is now, administratively and politically, or it can become part of our existing provinces, or become a new province or be given special status like Gilgit-Baltistan. Obviously the people of FATA must be consulted in what they want for themselves. But my recommendation is to give them the status similar to that of Gilgtit-Baltistan.

Years of mismanagement, political manipulation and corruption have made Pakistan’s civil services incapable of providing effective governance. The last regimes devolution plan led to further confusion. Reforms of the civil service should be prioritized in order to make it into a more effective and an accountable institution. The recommendations of the National Commission on Government Reforms, which was set-up by the last government in 2006 and which has presented a report to the Prime Minister in May 2008, could be the starting point for the debate to reform the civil services.

My advice to my political colleagues – the eighteenth amendment is a good effort although let us see what happens to it eventually. It is necessary, but certainly not sufficient. If we really want to strengthen democracy, let us start delivering to the people and let us learn to protect the interests of the state rather than our own. What has happened in Washington should be an eye opener where the red carpet was rolled out for our Army Chief, with politicians nowhere to be seen, only two year after the election. Such is the level of vacuums we create which of course take no time in filling.

“The writer is the Secretary General of Pakistan Muslim League and a former Federal Minister.”