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WEEKLY
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| The task at hand |
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Monday, November 16, 2009
Asif Ezdi
The writer is a former member of the Pakistan Foreign Service.
November has not been a good month for Zardari. It started with the NRO debacle and this week, he has now been hit by the Agosta scandal. Before the month is over, the corruption cases against him will stand reopened. On top of all that, there are no overseas visits to western countries to provide respite from the monotony of life in the presidency.
Farhatullah Babar, who has the unenviable job of putting a good face on Zardari’s major and minor shenanigans, predictably dismissed the allegations of kickbacks in the submarine deal as a conspiracy. But he did not explain why a French daily should be scheming against Zardari; or who else might be behind this plot. Babar also said what everyone knows: that Zardari was not the president, prime minister or defence minister when the submarines were purchased (September 1994). What the spokesman omitted to say was that Zardari was then a federal minister in Benazir Bhutto’s second term as prime minister. More importantly, he was the country’s first husband.
Also, the spokesman’s claim that French President Sarkozy dismissed these reports last July is disingenuous. Sarkozy was only speaking of speculations that the bombing of French nationals in Karachi in 2002 was not carried out by Muslim extremists but was an act of retaliation by people who were supposed to receive the alleged commissions. Sarkozy did not deny that the kickbacks were paid.
The allegations made in the French daily against Zardari merit a full and transparent investigation. If the government refuses to hold such an inquiry or attempts a cover-up, these reports will only gain credibility. That would not only do further harm to Zardari’s already tainted reputation but would also damage the prime minister’s standing.
Zardari finds himself in a decisive — some would say terminal — phase of a struggle for political survival. Besides exploring other options to get out of his troubles, he has now signalled a willingness to support the repeal of the 17th Amendment. According to some reports, he might even be prepared to give up the power to appoint the army chief. But Zardari’s credibility is extremely low and in any case, there aren’t many who are prepared to bet on his remaining in office for very long.
It is no secret that despite his professed commitment to undo the 17th Amendment, Zardari has been doing everything to obstruct and delay its repeal. The parliamentary committee on constitutional reforms was set up for precisely for this purpose and, so far, it has come up to Zardari’s expectations. It has been striving for a consensus on a comprehensive package of constitutional reform and, as Zardari had intended, the question of repealing the 17th Amendment, on which there is a broad agreement, has become inter-linked with the issues of wider provincial autonomy and the renaming of NWFP, on which a difference of opinion persists.
The deliberations of this committee, which are held behind closed doors, have been marked by total opaqueness. It has been meeting for several months but has not once briefed the media about its goings-on. The proposals made by different political parties have been treated as closely guarded secrets and the fate of proposals from the public is unknown. Such information about proceedings in the committee, as has trickled out, hardly inspires confidence.
It has been reported that in a major breakthrough, the committee agreed on November 6 to recommend the abolition of the concurrent list. According to one newspaper, there was also an agreement to transfer to the provinces all subjects on the federal list, except foreign affairs, finance, defence, currency and communications. This would be a serious development because if this proposal is passed by parliament, the result would be the dismantling of the federal government.
The real task before the committee is to recommend measures that would strengthen provincial autonomy, while at the same time preserving an effective and viable federal government. Instead of abolishing the concurrent list, the committee should be considering two things. First, it should add to this list by transferring to it some of the subjects on the federal list. Second, it should divide the concurrent list into two parts: one part consisting of those subjects on which a federal law prevails over a provincial law and the second part consisting of those on which a provincial law takes precedence over a federal law. This would expand the sphere of activity of the provinces without weakening the federal government. The result would be a win-win situation for all.
Besides the proposed abolition of the concurrent list, there are also two other proposals made in the Charter of Democracy that do not stand up to closer scrutiny: the new procedure for the appointment of judges of the superior judiciary and the establishment of a constitutional court.
The charter suggests a rather protracted two-step procedure for the higher judicial appointments: (a) nomination of three candidates for each vacancy by a commission on which, besides senior judges, lawyers’ associations would also be represented; and (b) confirmation by a parliamentary committee. Since lawyers’ associations and the parliament are political organisms, the whole process will come to resemble an election campaign. The result would be the politicisation of the judiciary, compromising its independence and standing.
The main flaw in the proposal for setting up a constitutional court is that most of the cases which raise issues of constitutional law also involve points of ordinary law. Therefore, setting up a court to decide cases of constitutional law alone would present practical difficulties and could produce friction with the Supreme Court. In countries which follow the Anglo-Saxon legal tradition – of which Pakistan is one — the ordinary courts deal with all kinds of issues. The only exception is South Africa. In the United States, for example, the Supreme Court is also the highest constitutional court. If the basic purpose of the proposed constitutional court is to give equal representation to the federating units, the answer lies not in creating a special court but in setting up a special bench in the Supreme Court composed of judges from all provinces to deal with cases involving important issues of constitutional law.
The constitutional reforms committee is mainly charged with removing the deformities introduced into the constitution by Musharraf. During the three-year period from October 1999 to the end of 2002 when the constitution remained “in abeyance,” he promulgated three amendment orders, which were later ratified by parliament in the 17th Amendment. Ziaul Haq has an even more distinguished record. From July 1977 to March 1985, he issued 24 amendment orders to the constitution which were subsequently validated by parliament in the Eighth Amendment. The committee already has its hands full and it would be too much to expect it to undo all the depredations wreaked on the constitution by the two military dictators. That is also not the mandate given to it.
But the committee would do well to make use of the opportunity it has of proposing constitutional amendments to put an end to the abuse of the ordinance-making powers of the government — of which NRO is the most shameful example — and to the immunity from legal proceedings enjoyed by the president for his personal acts. Both these provisions are taken from the Government of India Act of 1935 and are vestiges of the powers and privileges enjoyed during the colonial period by the viceroy. The scrapping of the ordinance-making power, except when the National Assembly stands dissolved, would make parliament supreme in the legislative field, while the withdrawal of the president’s immunity for acts done in his private capacity would establish the fundamental principle that no one is above the law. If the committee takes these steps, it will leave behind a memorable legacy.
Email: asifezdi@yahoo.com
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ISSN 1563-9479 
