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May 1, 2019

Presidential system through referendum: Task impossible for present set-up, say experts

Top Story

May 1, 2019

ISLAMABAD: Can the government introduce presidential system in Pakistan simply by holding a referendum? The answer is no because holding of a public referendum to achieve any objective has become very difficult courtesy of the 18th Amendment.

“Keeping the history of adventures with the Constitution, we consciously inserted in Article 48 (6) the provision of seeking approval of the joint parliamentary session to hold referendum,” said former chairman Senate Senator Raza Rabbani. Top constitutional and legal brains of the country are unanimous that introduction of presidential form of government in Pakistan through a constitutional amendment or a referendum is not possible.

According to the constitutional and legal experts, changing the form of government from Parliamentary to Presidential, the government has to elect a constituent assembly or scrap the existing constitution and bring a new one.

It cannot be changed by holding a referendum. Even if the government bypasses the Constitution and decides to go to the public through referendum, it has to get parliament’s approval first before going to the public. The ruling coalition, according to experts, cannot get any resolution or bill passed from the joint sitting of Parliament.

Before the 18th Amendment, Parliament under Article 48 (6) of the Constitution was authorised to lay down a procedure for holding the referendum and compiling and consolidation of the result of a referendum.

However, Clause 6 of Article 48 was modified in the 18th constitutional Amendment by adding certain barriers for holding any referendum.

The Article 48 (6) of the Constitution before the 18th Amendment reads, “An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum”.

However, Senator Raza Rabbani says keeping the history of adventures with the Constitution in view all the parliamentary parties unanimously decided to add certain changes in clause 6 of Article 48 of the constitution. After 18th Amendment Article 48 (6) now reads, “If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered by either “Yes” or “No”.

Former chairman Senate Mian Raza Rabbani while talking to The News said Pakistan’sgenesis is based on parliamentary and federal system. The country has seen the presidential form of government thrice and everyone knows this system failed badly.

“From the government of India Act till today, the constitutional dispensation of this region is based on federal and parliamentary system. In 1962 we adopted presidential form of government under Ayub Khan’s authoritarian regime but we have seen the outcome of that system. The fallouts of that authoritarian era is in front of everyone. General Ayub, General Zia and General Musharraf ruled the country for more than three decades through presidential form of government. Did they solve Pakistan’s problems,” commented Senator Raza Rabbani.

“The people of Pakistan have struggled for the perseverance of parliamentary form of government. We have to accept the reality that Pakistan is a multi-ethnic and multi-lingual state. This type of state can only be represented through parliamentary form of government. The presidential form of government will engulf the polarization between the provinces”, said Senator Rabbani.

“Referendum cannot change the Constitution. The process of amending the Constitution is described in Article 238 and 239. After the 18th Amendment now the government or prime minister of Pakistan cannot call for the referendum. Keeping the history of misadventures with the Constitution, we revised Article 48 (6) that if the prime minister calls for a referendum then the government will have to put that question before the joint sitting of Parliament. If the joint session of Parliament gave approval of that question then the government can hold the referendum in the country.

Senator Rabbani further said, “The history of referendum is not exemplary in Pakistan and we know that no one will accept such kind of referendum. The Supreme Court of Pakistan termed four as basic pillar of the Constitution including (i) Parliamentary form of government, (ii) Federalism, (iii) Islamic way of Life and (iv) Democratic dispensation. If you have to alter the basic structure of the constitution then you have to elect a constituent assembly only for introducing the amendment”.

He said there was a room for improving the system but one cannot blame the existing system. There is no fault in the system. The fault is in the ruling party which has failed to deliver. It will be disastrous for the federation if anyone tries to change the constitution and introduce any form of government other than Parliamentary.

Abid Hassan Minto, one of the senior most legal and constitutional experts of the country, thinks presidential form of government has no scope in Pakistan. Great Britain has been exercising the parliamentary system since last 200 years whereas India is also following the same system since its formation and both are successful.

There is no fault in the parliamentary system, the fault is in the ruling elite who always want more and more power. If there is any fault in the parliamentary form of government then they should improve the system instead of altering it.

“There is no space for presidential form of government in the Constitution of Pakistan. If they want to introduce this system then they will have to scrap the existing constitution and bring a new one. But for this, they have to go the people”, commented Mr. Minto. Talking to The News, Opposition Leader in the Senate Raja Zafarul Haq said the demographic and ethnic divide of Pakistani society was so deep that it will never accept the presidential form of government.

“The population of Punjab is far greater than the rest of the country. Presidential form of government will establish monopoly of the most populated province and other provinces will never accept such move. Ultimately this will result in confrontation between the provinces which can harm the federation. Therefore, one should not even think about any such move”, commented Raja Zafarul Haq.

He said even if the government tried to introduce this system through a referendum it will not succeed because the ruling alliance lacks majority in Parliament (National Assembly and the Senate). The call for referendum cannot be approved from the joint sitting of Parliament. It is pertinent to mention here that if the government decides to hold a referendum then it will be presented before the joint sitting of Parliament for approval.

According to Rule 72 of the rules and procedures of Parliament, “all decisions at a joint sitting shall be taken by the votes of majority of members present and voting”. The question is whether the government has majority in both Houses of Parliament. It is also important to not here that all the previous referendums were held in dictatorial regimes. Can the civilian government win a referendum, it is yet to be seen.

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