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Legal Eye

November 9, 2019

Presidential-plus

Opinion

November 9, 2019

Our zeal for a presidential system is abiding. Those who are critical of democracy for being unsuited to the ‘genius of our people’ but who also can’t support autocracy openly settle for what they think is a middle ground: a presidential system with a powerful chief executive who can pick his team and run his programme without being hindered by parliamentary oversight. That dream has come true. The form of democracy we’re practising isn’t just presidential. It is Presidential-Plus. It has rendered parliament irrelevant and other checks and balances null and void.

Look at the team Prime Minister Imran Khan has put together, whether in the center or provinces. Is he constrained in any way by parliament? He has brought in technocrats he felt were most suitable and qualified to head key regulatory institutions like the State Bank and SECP. He has brought in the most celebrated professional in tax matters to head the FBR. His cabinet comprises folks from all sorts of backgrounds, including many that General Musharraf picked when he was heading a formal one-man system and unimpeded by democracy.

IK is also unconstrained by the trappings of federalism. There is no sense today that Punjab is a federal unit independent of the centre. It is the center running Punjab (or running it down) through Mr Buzdar and others. The control that the centre exercises over Punjab was not visible even when the PM’s brother was the CM of Punjab. If we exclude Sindh (about which the center has had some creative ideas expressed by our learned law minister), the centre can pretty much do as it wishes across the rest of Pakistan.

A presidential system generally symbolizes a head endowed with considerable discretion in exercise of the executive functions of the federation. But presidential systems are neither meant to be unitary nor seek to demolish the pillars of state other than the executive. Our system has acquired a Presidential-Plus facade not just because key members of the cabinet don’t sit there due to their influence within parliament (or any connection with it), but also in a sense that parliament has probably never been as irrelevant in recent history as it is today.

Our current system is Presidential-Plus because it hasn’t just undone oversight of parliament over the executive. It has also usurped the role of parliament and transformed the executive into a super legislator. Last week, our president promulgated eight ordinances, including Letter of Administration and Succession Certificates Ordinance, Women’s Property Rights Ordinance, NAB Amendment Ordinance, Legal Aid and Justice Authority Ordinance, Whistleblower Authority Ordinance, Benami Transactions Amendment Ordinance and CPC Ordinance.

The week before last, the president promulgated the Pakistan Medical Commission Ordinance that repealed the PMDC Ordinance 1962, fired all PMDC employees and made provisions for hiring back those of the employees the new commission likes. The ordinance was issued on October 20; it creates an entirely new three-tiered organization to regulate the medical profession to be overseen by a medical commission. And within 48 hours the PM had handpicked members of the commission without being bogged down by a transparent process.

Our constitution doesn’t conceive of the president as an ordinance factory. And it doesn’t allow the executive to usurp legislative powers just because the party in control of the executive doesn’t have simple majority in both houses of parliament and must reach across the isle and develop consensus through negotiations in order to get laws passed. While exercising judicial review of executive actions, the courts look at the intent behind such actions. But legislative acts are shown deference because they reflect the collective wisdom of peoples’ representatives.

While an ordinance, which is essentially legislation by executive, is treated as ordinary law by the constitution, this power is subject to strict conditions. The first is that the president must be satisfied that there is necessity of immediate action. And second, such necessity must have arisen at a time when parliament is not in session. Previously there was no bar on re-issuance of ordinances. The 18th Amendment changed that and now the life of an ordinance is 120 days, which either House may extend once for another 120 days through resolution.

So an ordinance is temporary law made by the executive with a maximum life of 240 days. Article 54 of the constitution gives the president the power to call a session of parliament and to prorogue it. The president, in view of Article 48, acts on the advice of the PM. So depending on when the PM wishes to give effect to a new law that represents his desires he can manage the timing of parliamentary sessions. We thus have an executive head that doesn’t just enjoy vast powers to implement laws but also to manufacture them.

Nine ordinances were issued in the last 10 days of October. The president had suddenly prorogued the last session of the National Assembly on October 2 after the Election Tribunal disqualified the deputy speaker of the National Assembly. At the time the immediate object was to preempt fresh election for deputy speaker and afford time to Mr Suri to secure a stay order from the Supreme Court. But the Presidential-Plus regime made use of the opportunity to bring in all these laws by executive decree. What emergency abruptly erupted that made this essential?

Let’s forget about petty stuff such as amendment to the NAB law to inflict C-class on PM’s foes charged with corruption of over Rs50 crore. There might be real emergency there. What if any of the accused was to die or be released by courts on bail without suffering C-class to the PM’s content while the change in law made its way through parliament? But in case of the Pakistan Medical Commission and several other laws, entire regulatory structures and statutory regimes have been set up afresh through ordinances as emergency measures.

While courts scrutinize executive actions on a daily basis in judicial review, laws are afforded due deference because they reflect the wisdom of the legislature. It is parliamentary scrutiny (bi-partisan oversight, negotiation, debate, critique etc by peoples’ representatives) and laws as its products that attract deference. Abusing Article 89 to set up the cabinet and the president as a parallel legislature goes against the constitution. Disclosure, debate and oversight in parliament act as cleansers and prevent promulgation of atrocious laws.

It is settled law that the state can’t dispense patronage and largess at its whim. The Pakistan Medical Commission Ordinance has fired all permanent employees of the PMDC without any process. And then created a backdoor to hire back those who can curry favor with the ruling regime. If there were such an emergency to set up a Medical Commission in PMDC’s stead through an ordinance, wouldn’t the intuitive thing be to retain employees to keep things going? Handpicking not just top folks but every employee down to the chowkidars is what cronyism looks like.

Let’s not even get into the question of who exercises power on the centre’s behalf. That is a different can of worms. Let’s assume our PM is all-powerful. He sits atop a regime that has rendered our constitutional structure of checks and balances redundant. Parliament has been reduced to being the speakers’ corner. Our Election Commission is not independent or effective. A big question mark hangs over the judiciary’s ability to control excesses of the state. And the media no longer enjoys freedom and vigour to act as a critical messenger or a mirror.

So the question is this: is this Presidential-Plus system working? Is concentration of power in one pillar of state at the expense of all others the cause of our ills or the panacea?

The writer is a lawyer based in Islamabad.

Email: [email protected]

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