After 56
years of independence, Pakistan finds its
political space curtailed, government
institutions truncated and
extra-constitutional forces in a superior
position making systemic imbalances acute,
writes Dr Syed Jaffar Ahmed.
A few days before the elections, the law
minister, Khalid Ranjha, announced that the
legislators elected in the general elections
would be administered the oath under the
1973 constitution of which the LFO was a
component. (Subsequently when the new
National Assembly was elected the members
were provided newly printed copies of the
constitution incorporating the LFO implying
that a number of constitutional provisions
were amended without their being put before
parliament.)
In the elections, no party secured a clear
majority. On November 15, the president
partially revived the constitution, keeping
the articles prohibiting floor crossing by
the MNAs, and the power of the parliament to
amend the constitution, in abeyance. This
was done to give to the pro-establishment
political formation, the Pakistan Muslim
League (Quaid-i-Azam), or PML(Q), time to
win over MNAs from other political parties.
Once the required strength of MNAs was
engineered for the PML(Q), the said clause
of the constitution was also restored. The
session of the National Assembly was also
called on November 16, five weeks after the
elections, only to ensure simple majority
for the PML(Q). The party's candidate won
the prime ministerial slot by a majority of
one vote only.
The day the National Assembly met in the
afternoon, Gen Pervez Musharraf was sworn in
as president in the morning. Instead of
being elected according to the procedure
laid down in the constitution, that is,
through the electoral college comprising the
two houses of parliament and the four
provincial assemblies, he took the oath
disregarding the parliament on the pretext
of being elected in the referendum which was
acknowledged as a 'democratic mandate' by
the LFO that had been included in the
constitution again without reference to
parliament. Curiously, the president's new
oath was described to have been taken on the
restored constitution. A constitution could
not be violated in a better way.
After his becoming the 'constitutional'
president (November 16) but before the
election of the prime minister (which took
place on November 21) the National Security
Council was constituted with 13 members. Gen
Musharraf despite being elected president
did not relinquish the post of the chief of
army staff. Gen Zia had also done so but he
made a bargain with the parliament and had
sought its approval of these extraordinary
measures. Parliament had accepted these
steps as well as other clauses of the Eighth
Amendment as the price of the removal of the
martial law. This time round, the military
ruler did not get into any deal with the
parliament and did all constitutional
engineering as well as amendments in the
constitution before the parliament was
called.
Pakistan's fourth military rule, thus,
resulted in the ultimate supremacy of the
military over not only the prime minister,
parliament or any other institution but the
entire constitutional machinery. With the
chief of army staff serving as the president
having been given the power to dissolve the
government and the National Assembly,
through the LFO, the imbalance of the system
has reached its extreme limit.
At present, there exists a curious situation
in the country. Of the three branches of
government - the executive, the legislature,
and the judiciary - all seem to draw their
legitimacy from different sources. The
executive holds that it has taken oath on
the restored constitution that includes the
LFO; almost half of the legislators hold the
same view while the rest of the members
belonging to the opposition are convinced
that they have been sworn in on the
constitution and not on the LFO; and the
judiciary which had taken oath on the PCO
has not taken oath after the restoration of
the constitution. These anomalies and
contradictions make mockery of the idea of
constitutional governance. To speak of the
institutional balance inherent in a
parliamentary democracy - an ideal of
Pakistan's freedom movement - and to search
for the spirit of sovereignty of the people
in this imbroglio would be an absurd
proposition.
At the centre of the post-2002 election
institutional imbalances and the continuing
controversy built around them are the issues
of Article 58(2)(b) and the establishment of
the NSC. It is not that these are the only
issues generated by the induction of the LFO
in the constitution. A number of other
clauses of the LFO, for example, the
allowance given to Gen Musharraf to
simultaneously hold the offices of the chief
of army staff and the president, and the
provision giving the president the power to
appoint three services' chiefs and the
chairman of the joint chiefs of staff
committee in his discretion will give to the
president an exceptional and dominating
position over the prime minister.
But of much adverse implications would be
the clauses pertaining to the reintroduction
of Article 58(2)(b) and the incorporation,
for the first time, in the constitution, of
the NSC. These aspects of the LFO would
demolish whatever weak edifice of
parliamentary democracy Pakistan has been
able to erect in the past.
Article 58(2)(b) destabilized the system in
the past when it was in operation during
1985 to 1997. The presidents invoked it four
times dissolving the assemblies and wrapping
up the democratic governments without
letting these governments sufficient time to
overcome their weaknesses through a process
of trial and error. Instead of doing this
the presidents struck at the weak political
governments on the pretext of their
weaknesses of mismanagement, corruption, and
failure in bringing about a satisfactory
state of law and order in the country.
No one can claim that such weaknesses would
not exist in future. One also cannot be sure
that in future presidents would be more
patient with the governments. So the
reintroduction of Article 58(2)(b) is likely
to lead the country to another era of
political instability. With a pliable prime
minister and a similar parliament the system
may continue for a while but it would come
to a critical crossroads as soon as either
the prime minister or parliament or both
regain confidence and begin to assert
themselves.
As far as the NSC is concerned, this body
would have a permanent destabilizing role
and would continue to haunt the cabinets and
parliaments in future.
The idea of the NSC is not new as it was
floated even in 1985 by Gen Zia's government
which attempted to institute this body in
the constitution by introducing Article
152(a). The proposed NSC was to comprise the
president, the prime minister, the Senate
chairman, the joint chiefs of staff
committee chairman and the chief ministers.
Its role was suggested to make
recommendations relating to the proclamation
of emergency, security of Pakistan and any
other matter of national importance that
might be referred to it by the president in
consultation with the prime minister.
Though the role of the NSC was primarily to
make recommendations, it would have enabled
the president to issue executive directives
to the elected government, and would have
conflicted with the authority of the elected
government. This proposal was withdrawn in
November 1985 when Gen Zia was compelled to
make a deal with the parliament. Though the
parliament accepted the president's extended
powers as incorporated in the Eighth
Amendment, it was successful in forcing Gen
Zia to withdraw the NSC proposal.
The idea of the security council came up
once again in 1997 when president Farooq
Leghari dismissed the government of Benazir
Bhutto and installed a caretaker government
under prime minister Meraj Khalid. The
government amended the rules of business
adopted in 1973 to provide for a council for
defence and national security (CDNS). The
CDNS comprised the president, the prime
minister, four federal ministers, the
chairman of the joint chiefs of staff
committee, and the three services chiefs.
The role of the CDNS was more of an
executive body with its thrust directly
towards security-related issues. It survived
for a short period and was deleted from the
rules of business in January 1997.
A security council was once again brought
into being after the military takeover in
October 1999. This time the council, which
was named National Security Council,
comprised the chief executive, the chiefs of
the naval and air staff and others as
appointed by the chief executive. The role
of the 1999 NSC was to discuss and tender
advice to the chief executive on such
matters as the chief executive deemed
expedient, for example, matters relating to
national security, foreign affairs, law and
order, corruption, accountability, recovery
of bank loans and public debts from
defaulters, finance, education, health,
Islamic ideology, etc.
General Musharraf reconstituted the NSC on
August 7, 2001. As by then he had assumed
the office of the president, the new NSC had
the president as the chairman, apart from
having the chairman of joint chiefs of staff
committee, the services chiefs, the four
governors and others, as appointed by the
president.
The NSC as incorporated in the constitution
through the LFO is projected as a 'forum for
consultation on strategic matters pertaining
to the sovereignty, integrity and security
of the state; and the matters relating to
democracy, governance and inter-provincial
harmony. As for the composition of the NSC,
the president is the chairman of the council
while its other members are the prime
minister, the chairman of the Senate, the
speaker of the National Assembly, the leader
of the opposition in the National Assembly,
the chief ministers of the provinces, the
chairman of the joint chiefs of staff
committee and the chiefs of staff.
Though the LFO describes the NSC as a
consultative body which can deliberate on
almost all important subjects one wonders
whether it would be an encroachment on the
functions of the parliament or the cabinet
or both. Giving the rationale of the NSC,
the constitutional package-I had claimed
that it would be a non-executive
consultative forum which would include the
major centres of the power in the country.
It was also claimed that in order to avoid
the impression of it being a directive
authority formal voting would not be held
for decision making but deliberations would
be conducted in a manner that these should
result in reaching consensus. What one is
compelled to ask is as to why at all a
consultative body is needed to deliberate on
almost all important matters of statecraft
in the presence of parliament and an elected
executive. Moreover, some of the members of
the NSC like the chairman of the Senate,
speaker of the National Assembly and the
leader of the opposition in the National
Assembly are all part of the parliament
which is an adequate forum for discussing
national issues. Similarly, the chief
ministers of the provinces join the prime
minister in different official bodies and
forums like the governors' conference which
is the right place for the executives of the
centre as well as the provinces to consult
each other. The services chiefs too
constitute part of the executive and should
be consulted at that level.
The present structure, nature and scope of
the NSC would make it a supra-institutional
body whose very presence would have a
limiting affect on the parliament and the
cabinet.
In the light of the above one is tempted to
conclude that after 56 years of independence
and despite experiencing serious crises,
Pakistan has not moved ahead on the road to
democracy. Instead, it appears that over the
years the political space has been
curtailed, the political institutions have
been truncated and undermined, and the
extra-political forces have acquired for
themselves more space and a superior
position. The institutional imbalances have
become more acute and the destiny of a
viable and sustainable parliamentary
democracy has moved farther away.
Dr Syed Jaffar Ahmed is Assistant
Professor at the Pakistan Study Centre,
University of Karachi.
This publication comprises 21 papers
presented at a seminar on the domestic
policy of South Asian countries organized by
the IRS and the Munich-based Hanns Seidel
Foundation in Islamabad. These cover India,
Nepal, Pakistan, Bangladesh and Sri Lanka.
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