PAKISTAN

Problematic proposals-II

A.G. NOORANI

The first part of this article was published in the previous issue. Owing to the inadvertent omission of a few paragraphs towards the end of that part, a section of the text therein is repeated at the beginning of this part, but including the paragraphs that were missing, also taking care to ensure a smooth transition in the argument. The omission of a few paragraphs in the previous part owing to a production mishap is regretted.

IF Zulfikar Ali Bhutto's Constitution of 1973 reduced the President to a zero, the Eighth Amendment (of 1985) went to the other extreme. It empowered the President (Article 58(2) (b)) to dissolve the National Assembly "in his discretion where, in his opinion... (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary". The language was borrowed from Section 93 of the Government of India Act, 1935 on which Article 356 of the Constitution of India, for President's Rule in the States ousting State governments, is also based. But there is no provision for President's Rule at the Centre in the Indian Constitution. Nor was there such a provision in the 1956 Constitution of Pakistan. Moreover, Article 48(5) empowered the President to appoint a caretaker Cabinet on the dissolution of the Assembly as also to order a referendum "on any matter of national importance" even without the Prime Minister's advice.

On July 12, President Pervez Musharraf posed the question whether the check on the Prime Minister under Article 58 (2) (b) was effective. "I think it was not effective and failed to provide good governance." Article 58(2)(b) of the Constitution, he said, each time caused confrontation between the President and the Prime Minister and every time, the Chief of the Army Staff, was dragged into the confrontation (The Nation; July 13, 2002).

The Supreme Court of Pakistan took a short-sighted view in Mehmood Khan Achakzai's case (1997) when it said, "In fact Article 58(2)(b) has shut the door on martial law for ever which has not visited us after 1977." It did not. For, successive Presidents abused the power to sack Benazir Bhutto (1990 and 1996) and Nawaz Sharif (1993) only in concert with the Army. It did not restore a proper balance between the Prime Minister and the President. Neither did Nawaz Sharif in 1997, which he would have were he a statesman.

However, in its judgment of May 12, 2000 the Supreme Court of Pakistan was less than fair to the record, and indeed, to itself. It quoted Chief Justice Hamoodur Rehman's note of September 24, 1977 to Zia-ul-Haq pointing out that the 1973 Constitution had reduced the President to a "rubber stamp".

One wishes the court had quoted also the note of January 4, 1978 by Ghulam Ishaq Khan, secretary-general to Zia. It was written on a summary submitted by the Ministry of Law on the judge's retrograde proposals.

It bears quotation in full so prescient it is: "CMLA (Chief Martial Law Administrator) may kindly see, apart from opinion of the Attorney-General, that except for the provision relating to the restoration of constitutional safeguards to civil servants, the other amendments proposed by Justice (retd.). Hamoodur Rehman would not be upheld by the courts under the doctrine of necessity. It would also not appear politically advisable to change the basic structure of the Constitution in such a radical manner by a Martial Law Order.

"The need for checks and balances is no doubt there; but what other checks should be and how this balance be struck requires a political consensus which will not be forthcoming in the present circumstances and if it is imposed from the top is not likely to prove enduring. Even otherwise, some of the proposals, particularly the arrangements envisaged for carrying on the administration of the affairs of the Federation and the provinces when the Assemblies are dissolved, are debatable and are likely to give rise to a different type of problem.

"Personally I am also not in favour of getting the armed forces involved, as a permanent feature, even if such a course be politically acceptable, as in the long run it will politicise the armed forces themselves and result in weakening of the defence of the country. The best that can be done is to try to educate the political parties on the need of some checks and balances which would avoid repetition of the happenings in the near past in the hope that, when elected, they would on their own bring about the required constitutional changes."

These documents were disclosed by Syed Sharifuddin Pirzada, on September 19, 1991 following an exchange in the Supreme Court on September 15, with Raja Mohammad Anwer. Article 58 (2)(b) was thus not necessary to prevent "derailment of democracy".

UNDER the conventions of the parliamentary system, recognised in the United Kingdom, Canada, Australia and New Zealand, to go no further, the head of state has the following rights: 1. to be consulted; 2. to demand information; 3. to select the Prime Minister if the elections yield a hung Parliament in which no party has a clear majority; 4. the discretion to dissolve a House; and 5. albeit in the last resort, to dismiss the Prime Minister. These add up to a President and a Prime Minister each powerful enough to prevent the subversion of the Constitution by the other, but not powerful enough to be able to subvert it himself.

What precisely could and ought President Fakhruddin Ali Ahmed have done on the night of June 25, 1975 when Prime Minister Indira Gandhi advised him to proclaim an Emergency on manifestly, demonstrably false grounds? Was India's constitutional system incapable of meeting her challenge? The answer is that the President could have, and ought to have, sacked her; invited the Leader of the Opposition to form a government; dissolved the Lok Sabha; ordered fresh elections and revealed to the nation the reasons for the action.

These are the two crucial safety valves which the head of state in a parliamentary system alone must control - discretion on dissolution, including the power to force the Prime Minister to advise dissolution in rare cases as King George V did in England, and the power in extreme cases to dismiss the government. Rob him of these powers and you have a puppet as President - like Nawaz Sharif's Mohammed Rafiq Tarar in Pakistan, an elected despotism, not parliamentary democracy.

The letter which President Rafiq Tarar wrote to Nawabzada Nasrullah Khan on March 3, 1999, in response to his request to the President, on February 20, for a meeting with a delegation of the Pakistani Awami Ittehad "in connection with chargesheeting Prime Minister Nawaz Sharif's government", recorded an abject abdication of power: "According to our constitutional framework, the Prime Minister in running the affairs of the government is neither answerable to the President nor is subservient to him. The Prime Minister is only answerable to the National Assembly and not to the President. Specifically, the President is not empowered to impeach, investigate or hear charges levelled against the Prime Minister or initiate any action against him. My mind is absolutely clear in this matter". No Indian President can ever write such a letter to a Leader of the Opposition. He would have met him, sent the memo to the Prime Minister, heard his response and tendered his own advice. In the U.K., the Crown indubitably possesses the power to advise, to encourage and to warn the Prime Minister, as British economist and journalist Walter Bagehot put it. "Commonwealth statesmen would do well to reflect that a republican form of Government, in which the executive assumes independence of the trusteeship of the Crown, leads straight along the path to Tea Pot Dome, Watergate or Mulder and the Sanjay Motor factory". Lord Hailsham, former Lord Chancellor of Britain, missed the point when he wrote this in 1979 in his Foreword to Matters for Judgment, the autobiography of Sir John Kerr, the Governor-General of Australia who had dismissed the Prime Minister, Gough Whitlam, in 1975.

This is where the Australian proceedings help. The labours of the Joint Select Committee of the Australian Parliament on the republic referendum yielded in August 1999 its "Advisory Report on Constitution Alteration (Establishment of Republic) Bill 1999, and Presidential Nominations Committee Bill, 1999". The fact that the people decided not to have a republic does not minimise its value. Its remit was to consider what powers the President should have. It decided to retain those of the Governor-General; no more, or less.

THE Republic Bill sought to insert Section 59 in the Constitution of Australia Act, 1900. Its clause (3) read thus: "The President shall act on the advice of the Federal Executive Council... but the President may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating to the exercise of that power."

Prof. Greg Craven's characterisation was apt: "You are taking the existing jewel of our Constitution from an 1890 setting and you are putting it into a 2000 setting. The jewel remains the same". Para 4.10 of the report spells out those "reserve powers" explicitly: "It is generally accepted that there are probably only four such powers; namely, the power to appoint a Prime Minister, the power to dismiss a Prime Minister, the power to refuse to dissolve Parliament and the power to force a dissolution of Parliament". If the labours of the various constitutional conventions held in Australia from 1975 to 1985 are followed it should be possible to codify the conventions and rules of the parliamentary system.

Dr. Herbert Evatt, an eminent jurist and once Australia's Foreign Minister, favoured codifying the reserve powers in positive law as "definite constitutional rules, enforceable, if necessary, by the ordinary courts of law". He was not the only one to knock the myth of non-justifiability of conventions for a six. Sir Ivor Jennings had noted that "the major principles are firmly fixed and can be stated with almost as much accuracy as the major principles of the common law. They are rules whose nature does not differ fundamentally from that of the positive law of England". India can also profit by this advice to codify the conventions.

Invariably every work on British constitutional law mentions the extreme cases in which dismissal of the Prime Minister would be justified. On dissolution, the classic statement of the law was in a letter to The Times (London) of May 2, 1950 by "Senex". He was none other than Sir Alan Lascelles, the King's Private Secretary. Almost every textbook cites it as an authority on the topic. It bears quotation in full: "It is surely indisputable (and common sense) that a Prime Minister may ask - not demand - that his Sovereign will grant him a dissolution of Parliament, and that the Sovereign, if he so chooses, may refuse to grant this request. The problem of such a choice is entirely personal to the Sovereign, though he is, of course, free to seek informal advice from anybody whom he thinks fit to consult.

"Insofar as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign - that is, one who has at heart the true interest of the country, the Constitution, and the Monarchy - would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his government, for a reasonable period, with a working majority in the House of Commons". What more does a head of state need? There is also the "forced dissolution" which Eugene A. Forsey discuses in his classic The Royal Power of Dissolution of Parliament in the British Commonwealth. The Prime Minister is not sacked; but is forced to advise dissolution in order to secure a fresh mandate in a radically new situation.

WHERE then, is the need for the Proposals so laboriously crafted by the National Reconstruction Bureau? As they sum up, the President will have "discretionary authority... 1. to appoint the Prime Minister; 2. remove the Prime Minister and the Cabinet; 3. refer advice given by the Prime Minister or Cabinet to either for reconsideration; 4. dissolve the National Assembly: (a) refer to the National Assembly when advised by the Prime Minister (b) when a government cannot be constitutionally conducted; 5. appoint Governors; 6. grant approvals to Governors to: (a) remove Chief Ministers, (b) dissolve Provincial Assemblies".

This makes a mockery of the parliamentary system, federalism and democracy itself. The President is not even enjoined to appoint as Prime Minister "one who in his opinion is most likely to command the confidence of the majority of the members of the National Assembly". This omission by itself runs counter to the Supreme Court's judgment. The Prime Minister and the Cabinet can be removed on the vague, sweeping grounds that have been noted earlier.

Article 58(2)(b) on the dissolution of the National Assembly will be reintroduced. Since the "Governor's discretion and powers... will be subject to the previous approval of the President", the Supreme Court's directive on federalism is clearly violated. An indirectly elected President will enjoy vast discretionary powers; for example, power to appoint a caretaker Cabinet; power to call for a referendum; power to remove a provincial governor; power to appoint the Chief Election Commissioner; power to appoint the Chairman, Federal Public Service Commission; power to appoint the Chairman, Joint Chiefs of Staff and the three service chiefs.

President Musharraf has invited public comment and pledged to hold elections in October 2002. He has time enough to strip the 1973 Constitution of its curbs on the President and restore the President's discretionary powers under the 1956 Constitution to usher in the parliamentary system in its proper form in order to redeem his pledge.

In South Asia alone he has two models to reflect on; one as an example, the other, as a warning. The Constitution of Nepal (2000) has worked successfully for over a decade despite political turmoil. It faithfully emulates the parliamentary model (Article 35).

In Sri Lanka, the constitutional impasse continues because President Chandrika Kumaratunga reneged on her promises of 1995 to restore the parliamentary system without the deformities introduced by her mother, Prime Minister Sirimavo Bandaranaike, in the 1972 Constitution. Under it the President was appointed and was removable by the Prime Minister. The draft Constitution which President Kumaratunga proposed on August 3, 2000 would introduce the parliamentary form only with her continuing as President but with all the powers of the Prime Minister (Clause 233).

Whichever model Pakistan emulates, it is clear that the one which the proposals envisage will be neither acceptable to the people nor workable in practice. Therein lies the challenge to the statesmanship not only of President Musharraf but also of the political parties.

They must propose concrete alternatives that make sense and reflect their own democratic commitment as distinct from loyalty to leaders who were tried, found wanting, and are discredited. Perhaps the best course is for the President to make minimum constitutional amendments before the polls in order to restore parliamentary democracy. The next National Assembly and Senate will have two tasks - elect him as President and enact constitutional amendments based on a firm consensus.

Gen. Arif was Vice-Chief of Army Staff under Zia. The manner in which they parted in 1987, a decade after the coup, left a bad taste. Zia was devious. Arif was "kept under surveillance by junior officers". The book has a fund of information about various events. Neither the judiciary nor the Army emerge with credit. "The struggle for power between the Presidents and the Prime Ministers often imposed a strain on the judiciary, which frequently became an arbiter in the struggle for the distribution of political power. Political streaks were clearly visible in some judicial judgments, and the higher judiciary was criticised for this trend.

"To add to the anxiety of the democratic policy, the constitution was stabbed, more than once, with the dagger of martial law. This had a negative, long-term effect on all aspects of national life. The impact on the judiciary was even more direct and damaging. A weak judiciary co-existed with a strong civil and military executive, and this imbalance weakened the nation and the judiciary. In addition, the judiciary weakened itself through infighting which harmed its image and prestige."

Arif's conclusion is particularly important coming as it does from a soldier who was chief aide to a military dictator. "Despite the faults and failures of democratic governments in the country, the military is not a panacea for Pakistan's political and administrative failures. It has no magic wand to put the wrongs right. Nor does the Constitution authorise it to administer the country. Its organising ability and efficiency are best utilised for the defence of the motherland. It performs other tasks at the cost of its defence obligations.

"The military establishment itself at the professional plane may critically evaluate the balance sheet of gains and losses sustained by the country and by the military itself during the military rules of Generals Ayub, Yahya and Zia."

The record of the politicians and that of the Army and the judiciary is laid bare in these three books: Constitutional and Political History of Pakistan by Hamid Khan (Oxford University Press, pages 959, Rs.1,295); Low Courts in a Glass House: An Autobiography by Sajjad Ali Shah (OUP, pages 834, Rs.795); Khaki Shadows: Pakistan 1947-1997 by General K.M. Arif (OUP, pages 452, Rs.595).

Hamid Khan is a leading lawyer with able legal works to his credit. In this formidable volume he has woven into his comprehensive survey of events, from Pakistan's establishment till the Supreme Court's validation on May 12, 2000 of the military coup in October 1999, the interplay of events political and constitutional and the armed forces' interventions. It is excellently documented and well sourced. Not one event of any significance is omitted. Many fresh insights and much new information is imparted. This is a truly indispensable work.

The former Chief Justice of Pakistan, whom Prime Minister Nawaz Sharif ousted, has given his unreadable and self-serving memoirs a title which invites the retort that those who have dwelt in a glass house should not throw stones at it after their eviction from its premises. But the retort would be misconceived. One welcomes whatever information he provides. What he glosses over is his own political bias and intrigues against Nawaz Sharif whose conduct was, of course, reprehensible. The episode of the storming of the Supreme Court by members of Sharif's party is objectively described in Hamid Khan's book.

On August 21, Musharraf made a few cosmetic changes and enforced his Proposals even though, as he admitted, "a majority of the people spoke against" the NSC. He has flouted the Supreme Court's opinion and cocked a snook at the proposed Parliament - "I will decide whether I should go or they should go". It cannot amend his amendments.

It remains to be seen how the Court will respond. The Commonwealth will also have to decide on its response. Musharraf has reneged on his promises and set himself on a collision course with his own people.