Jun 172008

Asif Ezdi

According to some reports, Washington has been pleading that Musharraf should not be dragged through the courts. It could be that Washington is working for a deal that Musharraf should not be brought to justice for his actions. Such a deal, if there is one in the works, must be rejected. The politics of NRO must stop. For too long, the high and mighty have gone scot-free. While the petty thief or robber is burnt to death without a trial, the big-time plunderers get to keep their loot and those whom the Constitution declares to be guilty of high treason are free to strut about up and down the country. A pardon should be considered only after conviction, if there is a full admission of wrongdoing, a sincere apology and a plea for forgiveness. Not before that.

The language used in the proposed amendment (“indemnify any act whatever”) is so broad that the government would have the power to compensate anyone for any loss he suffers, even loss arising from his own deeds and misdeeds, at the taxpayers’ cost. The government would even have the power to “compensate” those charged with corruption but acquitted under the NRO for any loss they may have suffered because of unsuccessful or incomplete prosecution. If that is not the intent of this amendment, then Naek should improve his legal drafting.

Strengthening parliamentary democracy

Several of the amendments proposed in the constitutional package seek to retransfer to the prime minister those executive powers which were taken from him under the Seventeenth Amendment and vested in the president. If these amendments are adopted, the president would become a mere figurehead.

Making the prime minister the effective chief executive of the country is right, but we need to ponder carefully whether the president should also lose the power to dissolve the National Assembly in a political crisis in which, as the Constitution says, “an appeal to the electorate is necessary.” The country has suffered in the past eight years because of an all-powerful president who is accountable to no one. But our past history shows that an all-too-powerful prime minister can also be a threat to democracy.

Two solutions are worth considering: the term of the National Assembly (and thus the maximum term of office of the prime minister) should be reduced from the present five years to four; and the president should retain the power to dissolve the National Assembly in a political crisis but this power should not be unchecked.

Article 58 (2) (b) has been misused in the past to topple governments at the behest of the army, but it is not the unqualified evil it is sometimes made out to be. It is not difficult to conceive of situations in which dissolution of the National Assembly offers the only way out of a political crisis. What we need to do is to find a way to check a misuse of this Article instead of scrapping it altogether.

At present the only check on the misuse of the power to dissolve the National Assembly is that the matter must be referred to the Supreme Court. This is wrong because the dissolution of the National Assembly is a political, not juridical, matter. Whichever way the Supreme Court decides, it will be accused of political partisanship. That will be bad for the Court and bad for democracy.

The check on the misuse of Article 58 (2) (b) should be political, not juridical. There are two options: either the president who dissolves a National Assembly should go with the Assembly and the prime minister (as happened in 1993 when both President Ghulam Ishaq Khan and Prime Minister Nawaz Sharif went together); or a fresh election for the office of president should be held after the new National Assembly has been elected. Of the two, the latter would be preferable because a president who also loses his job when he dismisses a prime minister might be so reluctant to use this power that he might not exercise it even in cases where that would be in the best interest of the country.

There is much talk these days about restoring the “sovereignty” of Parliament. (This is a misnomer because in a constitutional democracy only the people are sovereign and Parliament has only those powers which the Constitution gives it.) All governments, both civilian and military-dominated, have been guilty of bypassing the Parliament. Ministers are seldom in attendance and major issues of domestic, foreign and security policy are rarely debated. Much of the legislation is done through ordinances. If the power of the government to promulgate ordinances (Articles 89 and 128), which is a legacy of British rule, is withdrawn, it would help the Parliament come into its own.

But the Parliament itself must bear a large part of the blame for its ineffectiveness. The last National Assembly set a dubious record by approving Musharraf’s emergency and the scrapping of the Constitution in a matter of minutes, without a debate. The country will not take the Parliament seriously unless the Parliament takes itself seriously.

Guarding against future coups

The constitutional package contains two proposals seemingly to guard against future military coups: amendments to Article 6 declaring that anyone who suspends the Constitution, as well as any judge who validates its abrogation or suspension, will be guilty of high treason; and an amendment in the oath for members of the armed forces requiring them to swear that they will not abrogate, subvert or suspend the constitution. The former proposal is unnecessary, while the latter is downright puerile.

Article 6 in its present form already lays down that anyone who subverts the Constitution or abets its abrogation or subversion is guilty of high treason. “Subverting” the Constitution is a term broad enough to include suspending or putting it in abeyance. Similarly, the validation of an act of abrogation or subversion is covered by the term “abetment.” Therefore, the proposed amendments in the Article are redundant. Article 6 has remained a dead letter not because of any flaws in its language but because the judiciary and the Parliament have in the past validated the imposition of martial law. If the government is serious about implementing this Article, it should not try to protect and perpetuate the Dogar court which validated the PCO. Instead, it should hold them and the principal perpetrator, a former army chief, to account. The proposed amendment is in reality meant to provide an excuse for non-action.

Again, the present oath for members of the armed forces under which they solemnly commit themselves to upholding the Constitution is quite adequate. Musharraf broke that oath twice when he put the Constitution “in abeyance.” To suggest that he would not have done so if in his oath he had also promised not to put the Constitution “in abeyance” is ridiculous. The language proposed by Naek in fact detracts from the solemnity of the oath. If we are to make this amendment, then by the same line of reasoning the members of the legislatures should also be asked to take an oath not to steal public money.

Recipe for legal chaos

The country presently finds itself in a legal limbo because of stonewalling by the PPP leadership on the restoration of the deposed judges. There is no legally constituted and functioning Supreme Court or High Court. The judges who stood by their oath to the Constitution and declared the PCO to be unconstitutional are “non-functional,” to quote Naek, while those who broke their oath or took oath under the unconstitutional order of a military dictator and upheld the PCO are “functional.” The amendments proposed in the constitutional package will make this confusion worse confounded. Although there is no formal validation of the PCO, the judges who validated the PCO and declared Musharraf’s election to be legal will be retained and will form a big majority in a bloated 29-member Supreme Court. The result will be complete legal and constitutional chaos. The country is already paying a huge price because Zardari does not wish to see the NRO jeopardised at the hands of an independent judiciary. For eight years, it was a military dictator who was holding the country to ransom. He has now been joined by another hostage-taker. This duo must not be allowed to play with the country’s future.


The writer is a former member of the Foreign Service. Email: asifezdi@ yahoo.com
Source: The News, 17/6/2008

 Posted by at 7:28 am

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