Jun 112008

 The Parliament of 2008 has no less power. One hopes that it will be exercised after a thorough debate and it will enact amendments that command the support of all the political parties as well as the president in a Constitutional Settlement that marks a new beginning for a truly democratic Pakistan
In continuing with the discussion of Pakistan’s case and how a balance might be struck between the president and the prime minister, the English case can be instructive. On dismissal, every work on Constitutional law says that the Crown’s power does exist. Although it has not been exercised since 1783, it has not become extinct either.

Prof Geoffrey Marshall writes: “Dismissal would be appropriate if a government, by illegal or unconstitutional administrative action, were to violate some basic convention of constitutional behaviour. Even then it would be necessary for the breach to be a profound one for which no other remedy could be found”.

Prof Vernon Bogdanor asserts that dismissal can be used “at the point at which the constitution itself, which determines the role of the head of state, appears to be under threat. At that point, it may be suggested, the sovereign has the right to exercise his or her discretion, to act as a constitutional guardian, to ensure that the values which lie at the foundation of a constitutional system are preserved. In such circumstances, some would suggest that the sovereign has the right, and perhaps indeed the duty, to act as a guardian of the constitution. The doctrine that the sovereign is required to act on the advice of ministers presupposes that ministers themselves act within the framework and presumptions of constitutional government.”

In his authoritative work on Dissolution of Parliament, Prof Eugene A Forsey writes: “It is probably safe to say that under modern conditions forced dissolutions will take place only if the crown considers them necessary to protect the Constitution or to ensure that major changes in the economic structure of society shall take place only by the deliberate will of the people. In other words, the power to force dissolution is now likely to be used only negatively, preventively; never as a means of bringing about some positive and desired by the King himself or his representative.”

The Crown will nonetheless need the PM’s advice to dissolve. If he refuses, he can be dismissed. The new PM will advice dissolution and the country will give its verdict.

Not one authority on the parliamentary system questions the head of State’s right, power and, indeed, the duty to dismiss the PM in extreme cases. But they stress the dangers of abuse. A work published in 2007, while disfavouring dismissal, grants its use in “the most exceptional circumstances” or as “an available measure of last resort” (Colin Turpin and Adam Tomkins, “British Government and the Constitution”, Cambridge University Press; pp. 361-2).

Take a test case.

Indians rightly criticised President Fakhruddin Ali Ahmed for his subservience to Prime Minister Indira Gandhi. But no lawyer has braced himself to consider his options under the parliamentary system. The question is: What precisely could and should President Ahmed have done on the night of June 25, 1975 when Prime Minister Gandhi advised him to proclaim an Emergency on manifestly, demonstrably false grounds? Was the democratic 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. Or, he could have simply declined to sign the Proclamation and waited to see how she conducted herself. If she behaved unconstitutionally, dictatorially even without the Proclamation, the president could have sacked her from the office.

In both cases, dismissal of the PM and refusal to dissolve, the president risks public controversy, but no president would act thus unless he was sure of public support. The task, then, narrows down to codification of the conventions.

Australia’s experience can help. On November 11, 1975 its Governor General Sir John Kerr dismissed from office Prime Minister Gough Whitlam. The country was plunged into a constitutional crisis. But, instead of sterile rancour, a constructive course was adopted of holding all-Party Constitutional Conventions over the years. The Joint Select Committee of the Australian Parliament submitted in August 1999 its “Advisory Report on Constitution Alteration (Establishment of Republic) Bill 1999, and Presidential Nominations Committee Bill, 1999”. It was asked to consider what powers the president should have. It decided to retain those of the governor-general.

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.”

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”.

A fair course is to restore the 1973 Constitution with the president’s powers under the democratic Constitution of 1956, while also making clear his status as Constitutional head of State bound by the prime minister’s advice, and codify the conventions of the parliamentary system in the Constitution itself in order to prevent abuse of power by both the prime minister and the president. The reports of the Australian Conventions can help in this exercise.

The Legal Framework Order promulgated on August 21, 2002 revived the 1973 Constitution with 29 amendments and restored Art. 58 (2)(b). But as President Musharraf conceded on October 8, 2002, the new Parliament to be elected then had the power to amend the Constitution “as per existing Constitutional provisions.” That applies to the PCO of November 3, 2007 also.

The Parliament of 2008 has no less power. One hopes that it will be exercised after a thorough debate and it will enact amendments that command the support of all the political parties as well as the president in a Constitutional Settlement that marks a new beginning for a truly democratic Pakistan.

Finally, there are various varieties of the National Security Council. India has one, for instance. It is different from the American Council. Pakistan will, if it so chooses, establish one to suit its needs and in conformity with the principles of democracy.

A G Noorani is a prominent lawyer and a commentator on regional affairs. This article is the last in a three-part series

Source: Daily Times, 11/6/2008

 Posted by at 9:54 am

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