People's Democracy

Pakistan to Have a New Beginning

Naresh �Nadeem�

PEOPLE on the other side of our western borders have now given indications � aplenty � that they are against any recurrence of army raj in their country. On April 8, the Qaumi (National) Assembly, lower house of Majlis-e-Shoora in Pakistan, passed the 18th Amendment unanimously, which gives the document a real historic importance. It may or may not be �a parliamentary revolution,� which Raja Asghar claimed it to be (The Dawn, April 9), but there is no denying that the world witnessed on the occasion a �rare unanimity� across the political spectrum there.

CONCURRENCE

OF OPINION

Now the bill is to get a two thirds sanction from the Senate, the upper house, but it does not seem to be a difficult proposition given the unity among political parties on the issues involved. 

This concurrence of opinion, by no means complete, assumes additional importance due to the fact that the National Assembly did not have any secret vote on the bill. Experts have, sadly, missed the significance of this open voting. The fact is: by refusing to have any secret voting, the members chose, so to say, to defy the General Headquarters, with each member present on the occasion openly proclaiming where she or he stood vis-�-vis the army.

The historic document contained as many as 102 clauses affecting no less than 70 articles of the constitution, as it exists today, and each clause was separately put to vote after reading. Thus the 292 members present and voting had to undergo a physical exercise all day, getting up and showing themselves every time the speaker put a clause to vote. The various clauses thus received 255 to 289 votes, far in excess of 228 or two thirds of the 342 member house.

Finally, following the clause by clause voting, when the speaker Dr Fahmida Mirza put to vote the document as a whole, all members present there recorded their �aye� in a register. These included those who had abstained from voting or walked out on one or another specific clause. 

One recalls that the Parliamentary Committee on Constitutional Reforms (PCCR) had presented the draft to the speaker only a week before, on April 1.

To guard ourselves against any illusion, however, we may better remember that as many as 47 members chose to stay away from the April 8 session. Three seats are currently vacant.   

UNIQUE

EXERCISE

This concurrence of opinion was no fortuitous development. The PCCR was constituted in 2008, a few months after the NA polls on February 18, 2008 and government formation in March. No doubt the six-point Murree declaration, which the PPP co-chairman Asaf Ali Zardari and PML(N) chairman Nawaz Sharif signed on March 9, 2008, did not put it in black and white. But, reports suggested, the idea of constitutional reforms did permeate the talks.  

Importantly, the PCCR comprised representatives of all political parties having presence in either house or both, and these included the Pakistan Muslim League (Qaid-e-Azam) which acted as a fa�ade for Musharraf Raj. After the NA speaker formed the committee in consultation with the leaders of all political parties, the 27 member committee elected Senator Mian Raza Rabbani as convenor. The speaker went so far as to reserve for the committee Room No 5 in parliament building, renaming it as the Constitution Room. Here the committee held numerous sittings in the last 20 months, and its sittings covered an equivalent of nine months time. This was thus a momentous constitutional exercise in Pakistan. The News described it as �the best constitutional thing to happen since the 1973 constitution.�

Another unique feature of the exercise was that the committee as a whole or individual members resisted the allurements of media glory. Now it transpires that members had moved at least 20 notes of dissent, but to their credit �they did all this while eschewing the limelight and largely keeping their disagreements behind closed doors� (The Dawn, editorial, April 2).     

MATURITY OF

STATESMANSHIP

However, we must not forget that the PCCR already had before it a document which helped it hammer out a remarkable consensus. On April 2, People�s Daily (Beijing) quoted the prime minister, Yousuf Raza Gilani, as saying that �We acted upon the charter of democracy.� He was obviously referring to the document which the then PPP chairperson late Ms Benazir Bhutto and Nawaz Sharif had signed in London on May 14, 2006, when Musharraf was still in the saddle. The signing took place after several hours of clause by clause discussion by the negotiating teams of the two parties over a whole night.

Before that, representatives of the two parties had a meeting on April 24 at Nawaz Sharif�s residence. Though they could not achieve much, they still kept in touch and finally achieved a worthwhile document three weeks later.

There is no denying that one saw prevarications and vacillations later on. Though the CoD did not talk of a PPP-PML(N) coalition, they did agree that none of them would take the army�s help to come to power or do any hobnobbing with the terrorists who they said were the biggest threat to Pakistan. However, as we saw in the subsequent two years, Ms Bhutto tried to strike a not so clandestine deal with Musharraf while Nawaz displayed a soft corner for the fundamentalists. 

But as they say, all is well that ends well; taking the CoD as starting point, the PCCR members �resolved some of the most intractable issues in the constitution.� Differences did persist till the last moment on specific issues like provincial autonomy or renaming the NWFP, but politicians displayed maturity of statesmanship when it came to taking a side between army raj and democracy. 

FAR-REACHING

ALTERATIONS

Going by its text (published by The Dawn, May 16, 2006), the CoD was a really comprehensive document, covering most of the aspects of Pakistan polity. This explains the comprehensive character of 18th Amendment.

The most crucial aspect of the latest document is that it has done away with the infamous article 58(2)(b) which gave the president wide-ranging powers to dissolve the elected assemblies and dismiss governments. It was General Ziaul-Haq who had in 1985, through the 8th Amendment, inserted into the constitution article 58(2) for the purpose. This changed the polity from a parliamentary system, envisaged in the 1973 constitution, to a semi-presidential one. 

The insidious nature of article 58(2) is evident from its misuse thrice. As president, Ghulam Ishaq Khan dismissed the Benazir government on August 6, 1990 and later the Nawaz Sharif government in 1993. In the third instance, Farooq Leghari dismissed the Benazir government in November 1996. In the second instance, though the Supreme Court reinstated Nawaz as the prime minister, the resulting stalemate compelled both Ghulam Ishaq and Nawaz Sharif to resign.

In 1997, the 13th Amendment stripped the president of the power to dissolve the assemblies and order new elections.

But then, self-declared president, General Pervez Musharraf, reintroduced it as article 58(2)(b) through the 17th Amendment in 2003. Like the 8th Amendment, the 17th too did not require a test of majority in the assembly. The only difference between the two amendments in this regard was that the latter required a Supreme Court endorsement for an assembly�s dissolution. As the Supreme Court of that time had had no compunction in endorsing the Legal Framework Order of General Musharraf, the latter might not have a cause to fear this stipulation.

Now the 18th Amendment has done away with article 58(2)(b), and the president can dissolve the National Assembly only if a party loses its majority in a verifiable way and no other party or combination comes forward to form an alternative government. The president can dissolve the National Assembly (or a provincial assembly) on the prime minister�s (or the chief minister�s) advice, but that would require a majority resolution of the concerned body. 

A curious thing is that the 18th Amendment �purges� from the constitution the name of General Ziaul-Haque as president. What it means in practice, nobody is sure.

Another important feature of the latest legislation is that any attempt to suspend the constitution or put it in abeyance will be treated as treason, punishable with death. This clause is obviously directed against any future usurpers of power. This may indeed work as a powerful deterrent to ambitious generals till the time political parties maintain their unity on the issue.

PROVINCIAL

AUTONOMY

A number of the 18th Amendment clauses enhance the scope of provincial autonomy in the country. For example, it has eliminated the concurrent list, transferring the subjects to provinces. There will now be a National Finance Commission (NFC) after a gap of 13 years, and the provinces will share with the centre the revenue coming from the mines, crude and other underground resources in their respective areas. Also, the NFC award for a province can never go down in subsequent years. This means the money coming from the centre to a province will either increase next year or remain the same at least.

The 18th Amendment gives the Council of Common Interest additional powers and the provinces more say on national matters by enhancing their representation in the council.

Proclamation of emergency in a province due to internal disturbances would require a resolution from its own assembly. If the president acts on his own, within ten days the proclamation will be placed before both houses of parliament for approval.

The Senate�s strength is to increase from 100 to 104; each of the four provinces can now send one minority community member to it.

A High Court will be established for Islamabad, a federal territory. Its judges will come from all the four provinces.

The North Western Frontier Province is to be renamed Khyber-Pakhtunkhwa. Earlier (People�s Democracy, March 2, 2008), we had said this was one of the three important demands of the Awami National Party for joining the federal government. While the PML(N) for long opposed this demand, it finally agreed to this name change, though three of its NA members walked out on April 8 on this issue. The PML(Q) and PPP(Sherpao) too have reservations about it. This demand of the Pakhtun people is based on the logic that every other province derives its name from the majority nationality inhabiting it and, moreover, there is no justification of continuing with the old colonial                           nomenclature.

But the 18th Amendment did nothing about the merger of Federally Administered Tribal Areas (FATA), bordering Afghanistan, into the NWFP. This is a serious omission as the lack of constitutional rights there has reportedly created a political vacuum which the Taliban exploit to the hilt.

Nawaz Sharif and other leaders have assured justice for the Baloch people, adding that Nawab Akbar Bugti�s killers won�t be �salvaged.� 

LET�S ALL

HAVE HOPE

Judicial reform is yet another notable aspect of the 18th Amendment, among a large number of other aspects here untouched. There will be a judicial commission for the appointment of Supreme Court and High Court judges, headed by the chief justice of Pakistan. The government will propose three names for each vacant post for the commission�s consideration. However, for supervision, there will also be a 12 member parliamentary committee, with equal members from the ruling party and the opposition. It can veto any selection by a two thirds majority. In case of the Federal Shariat Court, its chief justice will also be included in the judicial commission.

Far-reaching changes have been made in regard to the Election Commission, attorney general, chiefs of the three services, auditor general and other high offices. Of particular importance is the case of service chiefs: the president will go by the prime minister�s advice in appointing them. But the position regarding the Inter Services Intelligence and Intelligence Bureau is still unclear. This is surprising. One may recall that the government had had to bite dust in the last week of July 2008, on the issue of bringing these two institutions under civilian control. 

The two-term restriction on someone becoming a prime minister or a chief minister is to go now. The main beneficiary will be Mian Nawaz Sharif.

It is thus that Pakistan is now at the threshold of a new age � the age of a sound and sustained democratic dispensation. About these alterations, many have apprehensions. For instance, in the online journal All Things Pakistan,  Adil Najam writes on April 1: �However, given that this is Pakistan politics, it will be wise to wait until this actually passes through parliament, actually becomes reality and its provisions are actually made clear. After all, we are quite used to things changing � dramatically at that � at the last minute, and sometimes even after the last minute!�

Such apprehensions are understandable. As detailed in these columns more than once, army bosses have very big stakes in Pakistan, and one is not sure whether they would easily give up. Still, we do have ground to believe that the people�s will would prevail � to the benefit of the country itself, of the subcontinent, of world peace.