Dicey all the way

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

We are witnessing a bizarre debate on the repeal of the 17th Constitutional Amendment. All major political parties agree and have stated in their election manifestos that the Constitution of Pakistan should be restored to its pre-1999 condition. Yet despite the lack of any public disagreement, there is no progress on this vital issue that would truly democratize the legal structure that defines the executive branch of our government. While the PPP-government continues to pay lip service to the Charter of Democracy, one is bemused to hear ludicrous excuses for government's inaction on the matter by some ministers who have probably been nominated to the cabinet for their sly ability to pettifog clear pledges. We might have been blessed with the façade of democracy, but President Zardari continues to jealously guard an autocratic system of governance – supported by a deformed constitutional infrastructure, a yawning gap between the theory and practice of law, and a political culture best characterized by expediency and hypocrisy – that General Musharaf carefully crafted to entrench himself.

Through the 17th Amendment General Musharaf primarily accomplished four things: he was awarded constitutional cover for his extra-constitutional actions of October 1999; he was able to simultaneously retain the office of president and army chief; he could dismiss the parliament under Article 58(2)(b); and he consolidated executive power in the office of the president by retaining the discretionary authority to appoint key state functionaries such as governors and armed forces chiefs. The first two contributions of the 17th Amendment are now irrelevant. The issue of General Musharaf holding two offices is history. And grant of indemnity is pertinent not in relation to the General's unconstitutional actions of 1999, but those of 2007. The PPP has so far used two equivocal arguments to confuse the issue and justify its foot-dragging. The more ridiculous argument is that PPP has presented a comprehensive constitutional package that annuls the 17th Amendment, and thus the onus is now on other political parties to respond to PPP's suggestion.

No one takes this argument seriously because first of all the infamous Naek-package was hurriedly conceived with the singular objective of sabotaging the restoration of judges. But even the mala fide intent of this exercise aside, the Naek-package neither fully reflects the provisions of the Charter of Democracy, nor its spirit. The second argument used by the more guileful PPP leaders is aimed at subtly reneging on the principled commitment to undo the 17th Amendment, and instead initiate a fresh debate on options for striking the right balance of power between the president and the prime minister. This argument is more loathsome for it implicitly acknowledges that the debate about the nature of power to be constitutionally vested in the president and the prime minister is not solely informed by the principles of democracy but is dependent on the identity of the incumbents. It can hardly be overemphasized that the real need is to strike a balance between the three pillars of the state – the executive, the judiciary and the legislature – and not within the executive itself.

The bane of Pakistan's democracy has been competing centers of power within the executive branch – called the troika – and the ability of the indirectly elected president and the unelected army chief to gang up and debilitate the elected prime minister. The Charter of Democracy explicitly stated that the prime minister must be the chief executive of the country as conceived by the original Constitution of 1973. And there was a sense in the immediate aftermath of February 18th that our politicos had learnt their lessons from the palace intrigues of the 1990s and settled once and for all that for democracy to be sustainable and functional, the prime minister must be the repository of executive power and responsibility. But then the co-chair of PPP chose to nominate himself as President of Pakistan. His candidature for president was undesirable for the simple reason that it would result in a natural conflict of interest for PPP between strengthening democracy and consolidating power at the cost of it.

The reasons are obvious. One, strengthening democracy and the office of the prime minister would automatically dilute the whimsical power of Mr. Zardari and his ability to curtail the ambition and autonomy of his party's prime minister. Two, in a coalition government where PPP lacks simple majority at the center, the autocratic powers of the president, now wielded by Mr. Zardari, would give Zardari-led PPP considerable leverage in controlling coalition partners in provinces as well as the composition of federal government in the event that the present coalition falls through. And three, whether or not the PPP-led government completes its five-year tenure, President Zardari would be around to lord over the next national elections. It is almost ironic that Mr. Zardari draws comfort from legal provisions that promise to sustain him in office for five years even if the PPP government falls and no other party or coalition manages to garner an impeachment-friendly two-thirds majority in the parliament. Yet the President has exhibited an unflinching resolve not to allow the return of an independent judiciary or strengthen rule of law that would be imperative to uphold favorable constitutional guarantees.

Also President Zardari seems to have learnt little from history and especially Nawaz Sharif's experience, who had little use of his 2/3rd majority, his handpicked president, ability to appoint service chiefs, and other constitutional guarantees when his nemesis struck. By refusing to fix the corrupting imbalances introduced in the Constitution by dictators, backing out of promises made to the nation, and continuing to rely on a culture of deceit to consolidate personal power, President Zardari is leading the PPP astray. And his lackeys and blinkered advisers who are egging President Zardari on in his naked ambition and craftiness are doing him or the PPP no favors. PPP's reliance on the blessings of Uncle Sam and reluctance of the army to intervene in politics at this time, as guarantees of its government's longevity, is both tragic and foolhardy. Here the ruling party must learn from Musharaf's experience. General Musharaf was the army, and the US was squarely on his side. But with a few costly blunders in 2007, the US found new alliances in Pakistan and even the army began to crave change.

Zardari-led PPP's credibility deficit and the sense of disillusionment and anguish pervading in our country is growing by the minute. The fate of the PPP-led government might not be sealed yet. But time is of the essence. A genuine implementation of the Charter of Democracy can mark the beginning of a corrective process. Without further antics, PPP must fix the Constitution in line with the commitments made through the Charter of Democracy. These commitments include: restoring the Constitution in its 1999-form (with the exception that introduction of joint electorates, women seats in parliament, decrease in voting age and increase in parliamentary seats would be retained); repealing Articles 58(2)(b) and 112(2)(b) that allow the President and provincial governors to sack the national and provincial assemblies respectively; restoring the authority of the prime minister to make executive appointments, including service chiefs; abolishing the concurrent legislative list to facilitate provincial autonomy; including FATA in the NWFP; conferring constitutional protection on local bodies to make them autonomous; and fortifying an independent judiciary by introducing a bipartisan process to make judicial appointments.

To build multiparty consensus around an agreeable Constitutional Amendment bill, the Naek-package will need to be dumped immediately. This package omits some commitments made in the Charter of Democracy, such as repeal of the concurrent legislative list. It undermines vital goals of the Charter such as promoting the independence of judiciary by (i) giving protection and support to the PCO judges of 2007 at the expense of deposed judges, (ii) altering the composition of the judicial nomination commission conceived by the Charter, and (iii) attempting to shake the foundations of an independent judiciary by eroding security of tenure. Further, on the whole, by seeking to grant protection to the unconstitutional acts that Musharaf inflicted on this country on Oct 3, 2007, the package literally ridicules the fundamental object of the Charter: to engender a political culture, backed by constitutional guarantees, which shows no tolerance for coup-makers and their cohorts.

Then there are aspects of the Charter that can either be implemented by the PPP-led government through simple legislation or executive action, and where inaction is indefensible: creating new organizational structures such as a non-partisan accountability bureau and a National Democracy Commission; appointing a Truth and Reconciliation Commission to investigate the Kargil misadventure, unjust dismissal of government servants, excesses of NAB; establishing a Nuclear Command and Control System under a revived Defense Committee of the Cabinet; revamping the intelligence infrastructure wherein the ISI, MI and civilian intelligence agencies report to the PM Secretariat, the Defense Division and the Cabinet Division respectively, their budgets are monitored by the Defense Committee of the Cabinet and their reports synthesized by a Federal Security Adviser to the PM; and ensuring that the administrative powers of the Office of the Chief Justice to constitute benches and distribute workload are more widely dispersed within the senior judges to prevent their abuse by the Chief Justice or the ruling government to seek favorable decisions.

One wishes Zardari-led PPP to wake up to the reality that the health and endurance of its government cannot be secured by a culture of trickery, politics of expediency, favorable constitutional provisions, and an obliging court devoid of all moral authority. In the woebegone Pakistan of 2009 there is simply no substitute to doing what is right.



Email: sattar@post.harvard.edu