The parliamentary system requires a head of State powerful enough to check a wayward head of Government, yet not so powerful as to be able to subvert the systems himself. And a prime minister powerful enough to foil the plans of such a president
Pakistan is at a crossroads today, very much as it was in 1972 and in 1988. On both occasions its leaders took a wrong turn. The Constitution which Zulfikar Ali Bhutto got enacted in 1973 established a prime ministerial dictatorship. In 1988 President Ghulam Ishaq Khan set up an adversarial role against the democratically elected prime minister, Benazir Bhutto.The task now is to establish parliamentary democracy anew, firmly on the basis of a balance of power between the president and the prime minister, render impossible excesses by either and put army rule beyond the pale.
Prime Minister Syed Yousaf Raza Gilani’s pronouncements have been statesmanlike. On April 14 he said his government would ensure a balance of power between the president and parliament. On April 24 he called for “a new and balanced relationship between the civil and military institutions of the State”. On May 27 he acknowledged that President Pervez Musharraf “supports democracy. He is very frank, straight-forward”. On the same day the president pledged, “I will not take any step to dissolve the current parliament … will never dismiss the elected government”.
If the leaders act in this spirit, they will not find it too difficult to craft a new and enduring Constitutional settlement based on the national consensus, putting behind them the ruinous rancour of the past. Fundamentally, the parliamentary system requires a head of State powerful enough to check a wayward head of Government, yet not so powerful as to be able to subvert the systems himself. And a prime minister powerful enough to foil the plans of such a president.
The 1973 Constitution established a prime ministerial dictatorship, tailored to the needs of Mr Bhutto. Mian Mahmud Ali Kasuri resigned in protest as chairman of the Constitution Committee and law minister in October 1972. It made the prime minister all powerful and crippled the president.
He was shorn of discretion on dissolution of the National Assembly (Art. 58) and the power to dismiss a wayward prime minister [Art. 48 (1)]. All the orders of the president had to bear “the countersignature of the Prime Minister” [Art. 48(3)]. The cabinet system was undermined by empowering the prime minister to act directly [Art. 90 (2)]. He became “the Chief Executive of the Federation” [Art. 90 (1)].
A pliable Fazal Elahi Chowdhry was elected president. But there were two salutary provisions. The prime minister was to be elected by the National Assembly [Art. 91 (2)]. Germany’s “constructive vote of no confidence” was emulated. A motion of non-confidence must name the successor [Art. 96(2)].
In its judgement on May 12, 2000, validating the army takeover in 1999, the Supreme Court of Pakistan approvingly quoted a note by Justice Hamoodur Rehman to Zia, on September 24, 1977, criticising the 1973 Constitution as “a deliberate departure” from the 1956 Constitution “in order to render the President ineffective and vest the Prime Minister with absolute powers”.
He was right. But his suggestion that the president be empowered to impose martial law for a limited period made a mockery of democracy. It was a precursor to Article 58(2)(b) inserted by the Eighth Amendment in 1985. It empowered the president to dissolve the National Assembly in his discretion while Art. 48(5) empowered him thereupon to appoint a caretaker cabinet; after dismissing the prime minister.
The Supreme Court should have quoted also the brilliant and prophetic note of January 4, 1978 by Ghulam Ishaq Khan, then secretary general to Zia. It was written on a summary submitted by the ministry of law on that judge’s undemocratic proposals and 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 (R) 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 different type of problem”.
GIK added almost with prophetic insight: “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 happening 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 with Raja Mohammad Anwar on September 15. Article 58(2)(b) is thus not at all necessary to prevent “derailment of democracy”.
Soon after returning to power in February 1997, Nawaz Sharif had the Eighth Amendment repealed by the 13th Amendment. Prime ministerial government was reinstated without any checks. The rest is history.
A G Noorani is a prominent lawyer and a commentator on regional affairs. This is the first article in a series of three. The second will appear tomorrow
Source: Daily Times, 9/6/2008