THE constitutional package prepared by the PPP part of the ruling coalition has saddened the democratic-minded public because they expected the winners of the February election to know their priorities better. By the same token it must have offered satisfaction to all denigrators of democracy, especially the country’s permanent establishment, for nothing pleases them more than disarray in the democratic camp.
The package authors’ lack of comprehension of the priorities on the democrats’ agenda apart, the document invites criticism for being derogatory to PPP’s pool of collective wisdom, for trivialising the constitution, and for long windedness.
A preliminary objection to the manner of preparing and broadcasting the document may be recorded. A smooth functioning of the present coalition is a prerequisite to a transition to democracy.
In order to avoid damage to intra-coalition understanding it would have been better to entrust the drafting of constitutional amendments to a committee comprising all coalition partners.
Besides, constitutional reform is not a private matter between the PPP and its coalition partners. It is a matter that concerns the entire society. There is no evidence that the people at large have been asked to give their views. The disclaimer that the package is only a draft for discussion is welcome but it does not meet the objections raised here.
There are no two opinions on the need for a drastic overhaul of the constitution because successive assaults by autocratic regimes have gravely undermined its capacity to serve the needs of a modern, democratic order. The list of demands for changes in it is quite long:
— The federating units are clamouring that all anti-federation features of the constitution — and these are many — must be removed.
— The democratic–looking parties wish to revert to the parliamentary system that has arbitrarily and unabashedly been turned into a presidential one.
— The rights community wants the fundamental rights articles strengthened and some basic rights, such as the rights to education, healthcare, and social security, transferred from the principles of policy to the chapter on fundamental rights.
— The articles inserted to legitimise the election of Generals Ziaul Haq and Pervez Musharraf through sham referenda or extend protection to their actions are disgraceful patches on the basic law and need to be removed.
However, equally undeniable is the fact that revision of the constitution cannot be undertaken as a crash project. Making and unmaking of constitutions must of necessity be an exercise spread over a reasonable period of time and such efforts acquire legitimacy in proportion to the consensus behind them.
The authors of the 1973 Constitution were aware of this condition. Amendments rushed through by elected representatives without due deliberation can be as harmful as those imposed by usurpers of state authority.
Thus, while much can be said for beginning the process of constitution’s revision by, say, establishing an all-party commission, at the moment top priority attaches to removal of obstacles to democratic governance and to effecting a break from the legacy of authoritarianism that has been eating into the vitals of the Pakistani people.
These priority issues are: cancellation of all measures taken under the cover of the extra-constitutional emergency of Nov 3, 2007, especially those related to the judiciary and the presidency, and rehabilitation of the prime minister’s office.
The contents of the package must therefore be judged in terms of their urgency and relevance to a speedy transition to parliamentary democracy.
The proposals that pass the urgency test are: renaming of NWFP as Pakhtunkhwa; the amendments that extinguish the president’s discretionary powers, including those under 58-2(b); the deletion of Article 268 (2), under which presidential permission is needed before attempting a change in laws placed in the sixth schedule; and a new article to secure the restoration of the superior court judges.
Most of the other proposals, whether welcome or not, do not survive the urgency test.
The proposed amendment to Article 6 whereby acts of treason are defined and judges who justify coups or swear allegiance to orders like PCO are added to the roster of culprits is for gallery effect only. The revised text will offer as little guarantee against military takeovers as the existing provision.
Some other proposals ostensibly to pacify the less populous provinces, such as increase in the period during which the Senate may give its comments on the budget (from seven days to 14) or deletion of a few items from the Concurrent List, are likely to annoy the nationalists as meaningless sops, especially since their demand for a review of the emergency provisions has been ignored.
An example of awkward drafting is the new Article 95-A. Several paragraphs have been penned to make a provision that could have been put in a sentence: In the absence of the prime minister, the senior minister will head the cabinet and in the event of the prime minister’s office falling vacant a new prime minister will be elected within 30 days.
A masterpiece of ambiguity is the proposed new Article 243-A which says no person shall declare war without prior approval of the prime minister or the cabinet. This attractive looking proposal is unnecessary once all actions of the president are made subject to cabinet’s advice.
Some of the proposals that need detailed examination are: the proposals to change the composition of the Council of Common Interest, the replacement of the Supreme Judicial Council with a judicial commission lorded over by retired judges, the replacement of the president by the federal government as the authority for drawing up the rules of business (which should preferably be done by parliament), and the reduction of the National Assembly quorum from one-fourth of the members to one-sixth. It has been proposed to exclude the president from the parliament presumably on the ground that he had been included under a Zima amendment.
But Indian democracy has not come to grief by mentioning the president as part of parliament.
Then one is astounded to find a regressive proposal that the prime minister must be a Muslim. The new article devised to validate ordinances made between July 12 and Dec 15, 2007 does little credit to the PPP, to say the least.
The trouble with drafting a constitutional package that goes beyond the immediate needs is that many groups will assail non-inclusion of proposals to revise the provisions unwelcome to them.The best course now will be to refer the package to an all-party committee which may broaden the scope of reform and prepare for immediate action a shorter bill comprising only the following points:
Renaming NWFP as Pakhtunkhwa; abolition of the president’s discretionary powers [that will take care of 58-2(b)]; deletion of 268 (2); and cancellation of all measures taken under the emergency of Nov 3 (that will secure restoration of judges and a change at the top.)
Source: Daily Dawn, 12/6/2008