Jun 102008

It is perfectly possible to strike a balance which prevents exercise of arbitrary power alike by the president and the prime minister. That can be done by grafting onto the 1973 Constitution the well-established checks and balances of the parliamentary system to prevent abuse of power

The problem for Pakistan at this stage, when a new civilian government is in place, is to devise a Constitutional framework which prevents the prime ministerial government without any checks and balances which Pakistan suffered under ZA Bhutto (1973-1977), Benazir Bhutto (1988-1990 and 1993-1996) and Nawaz Sharif (1991-1993 and 1997-1999).

At the same time, such a framework must prevent arbitrary dismissals of the PM by the president: Mohammed Khan Junejo’s dismissal by Zia-ul-Haq on May 29, 1988, Benazir Bhutto’s dismissals on August 16, 1990 and November 5, 1996, by Presidents Ghulam Ishaq Khan and Farooq Ahmed Khan Leghari, respectively; and Nawaz Sharif’s dismissal by President Ghulam Ishaq Khan on April 18 1993.

Besides, military rule must be rendered impossible.

Can this be done?

It is perfectly possible to strike a balance which prevents exercise of arbitrary power alike by the president and the prime minister. That can be done by grafting onto the 1973 Constitution the well-established checks and balances of the parliamentary system to prevent abuse of power. The 1956 Constitution provides some guidance.

For example, article 42 of the 1956 Constitution enjoined the PM, explicitly to communicate to the president all decisions of the cabinet relating to the affairs of the nation, and proposals for legislation; to furnish to the president such information relating to these matters “as the President may call for” and “if the President so requires” to submit to the cabinet any matter on which a decision has been taken by a minister alone.

But it was replaced by Art. 46 of the 1973 Constitution with a vague duty to “keep the President informed on matters of internal and foreign policy” and on intended legislative proposals. The president’s limited and proper rights to ask for information and consideration by the Cabinet were dropped. They were restored in 1985 by the Eighth amendment.

Both constitutions required the president to “act in accordance with the advice” of the cabinet. The 1973 Constitution made it more explicit (“binding”) and removed all discretionary powers (Art. 48). The Eighth Amendment added a proviso empowering the president to empower the president to require the cabinet or the PM “to reconsider such advice” while binding him to “act in accordance with the advice tendered after such reconsideration”. Such a proviso was added to art 74(1) of the Indian Constitution by an amendment in 1978.

The 1973 Constitution omitted whatever discretion the president had on the appointment and dismissal of the PM. He was removable only by a vote of no-confidence by the National Assembly (Art 96). It was deleted by the Eighth Amendment which introduced the obnoxious Art 58(2) (b) (President’s rule at the Centre). But, it made one improvement. The President cannot dismiss the PM unless he has lost a majority in the National Assembly and the president summons it to “require the Prime Minister to obtain a vote of confidence from the assembly”.

Clearly, a thorough review is required, so that the Constitution is shorn of all the undemocratic features introduced by the 1973 Constitution and the Eighth Amendment. A return to full blown parliamentary system is required.

Under the conventions of the parliamentary system, recognised in the United Kingdom, Canada, Australia and New Zealand, 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 very last resort, to dismiss the prime minister.

These added 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. The president must also have the power to force a dissolution and require the PM to face the electorate, but without dismissing him, if he goes flagrantly beyond his electoral mandate on a matter of fundamental importance.

There is little controversy about dissolution of Parliament. The PM must have this power, whether to seek a mandate or keep his flock in place. But he has no absolute right to demand dissolution regardless of the circumstances. The president must have the discretionary power to refuse.

The locus classicus cited by every work on constitutional law is a letter by ‘Senex’ published by The Times, London on May 2, 1950. He was none other than Sir Alan Lascelles, Private Secretary to the King. 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 who he thinks fit to consult.

“In so far 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) that 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 reasonable period, with a working majority in the House of Commons.”

A prime minister whose advice to dissolve is rejected, can resign and force an election.

A G Noorani is a prominent lawyer and a commentator on regional affairs. This article is the second in a three-part series. The concluding article will appear tomorrow

Daily times, 10/6/2008

 Posted by at 9:17 am

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