Jun 082008

By Kunwar Idris

THE constitutional package handed by the PPP to its coalition partners claims modestly that it is not a sacrosanct document. As if the constitution itself is! Ziaul Haq’s Eighth Amendment made in it no less than 40 changes.
Pervez Musharraf’s Seventeenth Amendment fell somewhat short of that number but was equally radical. More damaging, however, was his extra constitutional assault on the administrative system of the country.

Before Zia, the very parliament which had adopted the constitution amended it seven times: Mohammad Khan Junejo once; Benazir attempted once for the women’s sake but didn’t succeed; Nawaz Sharif made five amendments — the nation was lucky to have escaped his sixth attempt (Fifteenth Amendment) that was to make Sharia the country’s supreme law.

All these amendments added little to the worth of the constitution, and some even curbed fundamental rights. The changes now being proposed by Asif Zardari through his Eighteenth Amendment far exceed the combined number of all amendments made so far. Though numbered 80 in the draft text, the changes proposed are more numerous. The exact count would be a tedious undertaking.

The constitution, thus, has been more of a hobby horse for generals and politicians and not an inviolable code, embodying the basic law of the country and reflecting the aspirations of its people. Ziaul Haq wished to make Pakistan a fortress of Islam and Musharraf to turn it into a model of enlightened moderation. Bhutto and Nawaz Sharif, too, apparently, acted in the cause of democracy and religion but the motive was to entrench themselves in power. The exertions of all four spread over 34 years have made the country a cesspool of violence, extremism and bigotry.

The package now prepared by Asif Zardari, the self-proclaimed soon-to-be founder of a new order, might, in fact, land the country in greater chaos. Its provisions relating to the judiciary have been rejected outright by the lawyers. It would be nothing short of a miracle if they and their civil society companions, call them political agitators if you will, led by Justice Iftikhar Chaudhry and marching in the blazing sun, are able to keep their cool even if they intend to.

The necessity and merit of the amending plethora aside, it is surely going to make the revised constitution more cumbersome and difficult to understand and interpret. Already with its multiple footnotes the constitution makes for exasperating reading.

Take the example of Article 58-2(b) — the scourge of politicians and the pet of the generals. Ziaul Haq added clause 2(b) to the original Article 58, Nawaz Sharif omitted it, Musharraf reinstated it with some changes in the wording. It is again being deleted. The intention is clear but the text is not. Another footnote will have to be added to the five that are there.

Instead of amending so many articles which have already suffered amendments more than once it would make greater sense to rewrite the whole constitution. In any case even with all the amendments incorporated, the constitution is not going to satisfy every political group, province and community as it does not address the more vexatious long-lingering issues of provincial autonomy, status of the tribal areas, security of civil servants and bringing fundamental rights clauses in conformity with Pakistan’s international commitments.

With all these and some other basic and burning issues going unaddressed there can be no new order emerging from Zardari’s dream or deception. Discontent among the provinces, communities, tribes and people as a whole would persist, perhaps even worsen. The feeling is that Asif Zardari’s career in politics is going to be short-lived. The knives are already out. He can become a leader in his own right, and not by mere default (the tragic death of his wife) or by virtue of Musharraf’s reconciliation order, only if he genuinely fulfills his promise of a new order that is also equitable.

The constitutional package, even if the whole of it were to be approved, would not herald a new order; a new constitution adopted after free debate might. Empowering the prime minister and reducing the president to a figurehead more powerless than Chaudhry Fazal Elahi and Rafiq Tarar would satisfy no one.

The package focuses only on the powers of persons. The people expect the institutions of the state from top to bottom to be responsive to their needs. They are not concerned with who gives jobs, plots and loans but that they receive them justly. No government has ever done that, whether the executive authority has been vested in the president or the prime minister. Though it is still struggling to stand on its feet, this government is also embroiled in the fight over jobs and spoils.

That said, the instant thought is one of sympathy for the committee which is to consider the package. It is complex, confusing in parts and at places sloppy in language. Take just one instance. There is a proposal to replace the existing Supreme Judicial Council with a Judicial Commission which would comprise a ‘non-politicised’ retired chief justice of Pakistan, two retired judges of the Supreme Court and two of a high court who are also non-politicised. How will it be determined, and by whom, whether a retired judge is politicised or not?

To an extent every citizen is and in these times even some sitting judges are. And how many retired chief justices would be still around to offer a choice? A rational approach would be to lay down the standards and procedure by which a judge is to be judged and let the existing Supreme Judicial Council do it.

The package does not resolve the judicial crisis nor does it have the making of a new order. It is thus purposeless. Discussions revolving around it will be a waste of time and deepen rifts as hopelessness spreads wider. A straight recourse to parliament is the only answer. A consensus may emerge in the joint committees of the National Assembly and the Senate — when it appears all but impossible emerging out of the party caucuses. Our politicians must not forget that they lose credibility faster than the generals. This time round it is going to be faster still.


Source: Daily Dawn, 8/6/2008

 Posted by at 11:52 am

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