Problematic proposals

Gen. Musharraf's proposals for the establishment of sustainable federal democracy fail to win public support, and their complicated features guarantee a failure of the proposed constitutional system.

A CONSTITUTION is like a suit of clothes; it must both fit and please. Judged by this test which Dr.B.R. Ambedkar was fond of citing, the "proposals of the Government of Pakistan on the Establishment of Sustainable Federal Democracy" have failed dismally to win popular support while their cumbrous, complicated and undemocratic features guarantee a total failure of the proposed constitutional system. The proposals were published on June 26, 2002, "for public comment by July 31, 2002". The "conceptual framework of proposals" was published on July 14. They were drawn up by the National Reconstruction Bureau (NRB) headed by Lt.Gen. Tanvir Naqvi.

In an interview to The Herald (July 2002) he said, "we have given a solution to these problems (President-Prime Minister relations). Just don't throw it out of the window without coming up with alternative solutions." This plea he repeated twice. Specifically, "Please come up with an alternative suggestion that will make sure that democracy is not derailed. Come up with proposals. If you can convince us that democracy will not be derailed after that, that the Army will not have a role to play, nobody will be happier than me."

One is at a loss to understand what he seeks to achieve. For his claims are at total variance with his scheme: "A transfer of power that ensures that the military does not come back... The army has a role, which is a de facto role. That role should disappear." It is a strange way to accomplish these ends by involving the three service chiefs and the Chairman of the Joint Chiefs of Staff Committee (JCSC) in a body, the National Security Council (NSC), which will adjudge and advise the President on whether the Prime Minister, the Chief Ministers and the Federal and Provincial Cabinets deserve to be sacked by him for "(a) serious abuse of authority, or (b) failure to check corruption, or (c) compromising national security interests or (d) violation of the Constitution."

There is not a single democracy in the world against whose Chief Executive, be he President or Prime Minister, the charge of "failure to check corruption" - as distinct from personal corruption - cannot be laid. The other grounds are equally sweeping. What they constitute is a carte blanche to the President for the dismissal of the Prime Minister and the Chief Ministers to be used through the medium of the NSC in which the armed forces will be actively involved. Its other members will be the President, the Prime Minister and the four Chief Ministers. The incongruity of Chief Ministers sitting on a body which advises on the sacking of the Prime Minister needs no elaboration.

The implications of this innovation seem not to have been grasped by its author. "There may be a little deviation here and there because there isn't any textbook in any case that describes exactly what the parliamentary system is"; a point repeated in the proposals. It is untrue. There are standard works on the constitutional laws of the United Kingdom, Canada and Australia which state the rules of the parliamentary system precisely and in almost identical terms. Which is why they are freely quoted in courts in India as also in Pakistan, when the parliamentary system functioned.

All the members of the NSC will be appointed by the President to hold office virtually during his pleasure. "To preclude the eventuality of a consultative body becoming a directive authority, formal voting and decision-making would not be provided for. This, nevertheless, would not prevent deliberations of the council resulting in conclusions being drawn or even consensus from being reached." Sir Humphrey Appleby boasted that what the Cabinet had decided was just what he, as Cabinet Secretary, had recorded. The NSC's decision will be what the President deems it to be.

President General Pervez Musharraf has said that the service chiefs have a mind of their own. This must be true. But a grave danger lurking in the NSC must not be ignored - the Prime Minister and the Chief Ministers will lobby with the service chiefs for their votes. Regardless, their presence on the NSC - which will deliberate also on "the structures, systems and state of federal democracy and governance" will not only undermine democracy and federalism but also politicise the armed forces. The NSC's remit covers not only "removal of the Federal or Provincial Cabinets" but also "dissolution of National or Provincial Assemblies and Proclamation of Emergency" (Para 80 (b)(1)(c)).

President Musharraf has said on more than one occasion that the army has been playing an active role in the affairs of the government since 1988 when democracy was restored; more recently, on July 13. He added that "this fact should be accepted and a more workable solution found", to quote The Nation (July 14). Evidently, the NSC is that "solution". A deviation from democratic governance will be institutionalised thus.

He might reflect on Turkey's travails. The Economist's Ankara Correspondent described graphically (August 18, 2001) the feuding in public between the Generals and the rest of the country - the politicians, the media and business. "If the name of this regime is democracy," wrote Hasan Cemal, a prominent columnist in Milliyet, a conservative daily, "the civilians should remain civilians and the soldiers should remain soldiers. Let everyone do his own job." Tusiad, the largest businessmen's association, voiced a similar view. The correspondent remarked: "At least the once taboo topic of the Generals' role in politics is being debated openly, and without fear that they will lay down the law yet again. That is no small advance."

Modern Turkey was founded by a soldier. Pakistan was founded by a lawyer who was committed to democracy. Turkey's NSC has a history. In the 1961 Constitution, which marked the transfer of military rule to civilian government, Article 111 established an NSC consisting of "the Ministers as provided by law, the Chief of the General Staff, and representatives of armed forces". It was to be presided over by the President and in his absence, the Prime Minister. Its remit was to make "fundamental recommendations to the Council of Ministers with the purpose of assisting in the making of decisions related to national security and coordination." It was the army's price for granting democracy.

Turkey's present Constitution, enacted in 1982, recalls in its Preamble "the operation carried out on September 12, 1980 by the Turkish Armed Forces in response to a call from the Turkish nation." Article 118 establishes an NSC comprising the President, the Prime Minister, the Chief of the General Staff, and the Ministers of Defence, Internal Affairs and Foreign Affairs. Its remit is the formulation and implementation of "the national security policy of the state". It can decide on measures for the preservation of the independence of the State "and the peace and security of society". In Turkey the Chief of the General Staff is appointed by the President, but "on the proposal of the Council of Ministers". In Pakistan the President appoints the Chairman of the Joint Chiefs of Staff Committee, and the Chiefs of Army, Navy and Air Staff entirely "in his discretion".

In contrast to Turkey, Pakistan has a history of discarded NSCs. One, set up on March 2, 1985 by Zia-ul-Haq's Revival of the Constitution Order, 1973 (Article 152A) was put to rest by the Constitution (Eighth) Amendment Act, 1985, which came into force on November 9, 1985. Another was set up on January 6, 1997 by President Farooq Ahmed Khan Leghari through amendments to Rules of Business 1973. This Council for Defence and National Security died a quiet, unwept death.

President Musharraf would be well-advised to discard this grotesque creature for three reasons. First, as the single-most-criticised feature of the proposal, it lacks popular acceptance and moral legitimacy. Secondly, it invites legal challenge. Even if the Supreme Court upholds it now, on another day in another clime another Bench might not do so. The Supreme Court's judgment of May 12, 2000 conferred on the Chief Executive the power to amend the 1973 Constitution subject to certain qualifications set out in clauses (b) (c) and (d) of Para 6(1) of its order and to an overriding proviso in Para 6(iii) "That no amendment shall be made in the salient features of the Constitution; i.e., independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions" (emphasis added, throughout). This would apply also to the other gross deviations from the "parliamentary form" which will be mentioned hereafter.

The third reason is of a practical nature. The NSC and other deviations are utterly unnecessary for securing the very legitimate objective which Musharraf wishes to accomplish. It is to attain a proper balance between the head of state and the head of the government; between the President and the Prime Minister. The parliamentary system, if properly understood, accomplishes precisely that - democratically, fairly and effectively with proper checks and balances.

The proposals themselves concede (Para 19(a)) that "the Prime Minister must remain the Chief Executive of the country, which is the essence of the parliamentary form of government". No court can ignore this admission. The proposals rightly stress the need for "checks and balances" and hold that "a presidential system cannot be introduced".

What is overlooked is that the parliamentary system was blighted by Zulfiqar Ali Bhutto's 1973 Constitution which, reducing the President to a cipher, virtually invited the Prime Minister to be an autocrat. All checks and balances were omitted. President Musharraf has only to restore them in the light of the 1956 Constitution and developments in other parliamentary democracies since - especially in Australia - and he will establish a democratic parliamentary system firmly rooted in a national consensus.

Ever since he assumed power on October 17, 1999 as Chief Executive Musharraf has been making three propositions. "What Pakistan has experienced in the recent years has been merely a label of democracy not the essence of it. I shall not allow the people to be taken back to the era of sham democracy but to a true one. And I promise you I will, Inshallah." It was the 1973 Constitution that established a sham democracy. As a cure, the NRB's proposals are far worse than the disease. His two other propositions were that checks and balances must be restored and military rule rendered impossible. Both are laudable aims.

It is, however, historically wrong to depict the army as a bashful maiden being constantly, repeatedly seduced by scheming politicians. Ayesha Jalal's excellent book The State of Martial Rule established, on the basis of archival material, that Pakistan's democracy was undermined by ambitious Generals in cahoots with bureaucrats. Not that the politicians were a model of efficiency or probity. She documents fully the American support to the Generals. As early as in 1950, the U.S. Military Attache noted that Ayub Khan was "believed to be pro-American". Zia-ul-Haq struck in July 1977 when Bhutto had all but wrapped up an accord with the Opposition.

But President Musharraf makes a valid point when he says that even during democratic governance, politicians, in or out of power, sought the Army's mediation or intervention. The autobiography of a former Chief Justice of the Supreme Court of Pakistan, Sajjad Ali Shah, Law Courts in a Glass House records (page 428)) that "during the time when this government-judiciary tussle was going on, I had about three or four meetings with General Jehangir Karamat (then COAS), the main object of which was to try to resolve the differences in the larger interest of the country. In my meetings with General Karamat, Lt. Gen. Nasim Rana, D-G, ISI, was always present and he actively participated in the discussions." Comment is unnecessary. The role of the Inter-Services Intelligence in the 1990 elections is well known.

In 1985, the Eighth Amendment put undemocratic curbs on the Prime Minister's power and tilted the balance in favour of the President. In 1997, Nawaz Sharif secured the repeal of that Amendment through the Thirteenth Amendment and restored the 1973 imbalance in favour of the Prime Minister. It reflected a national demand and was passed unanimously by the National Assembly.

The 1956 Constitution, abrogated in the military coup of 1958, provided for the election of the President of Pakistan by members of the National Assembly and the Provincial Assemblies (Article 32). The 1973 Constitution provided for his election at a joint sitting of the National Assembly and the Senate (Article 41(3)). The 1956 Constitution said that "it shall be the duty of the Prime Minister" to communicate to the President all decisions of the Cabinet and proposals for legislation; furnish such information "as the President may call for" and "if the President so requires, to submit for the consideration of the Cabinet any matter on which a decision has been taken by a Minister but which has not been considered by the Cabinet." This was deliberately diluted in Article 46 of the 1973 Constitution: "The Prime Minister shall keep the President informed on matters of internal and foreign policy and on all legislative proposals..." The President's rights were omitted.

That the President must act on the advice of the Cabinet is accepted. Bhutto's Article 48(1) referred, however, to "the advice of the Prime Minister" and added that "the orders of the President shall require for their validity the counter-signature of the Prime Minister". This effectively barred the President from making an order dismissing the Prime Minister. The 1956 Constitution preserved this power of last resort (Article 37 (6) and (7)).

The 1973 Constitution made the Prime Minister "the Chief Executive of the Federation" (Article 90). That he was to be elected by the National Assembly and was removable by means of a motion of no-confidence, which also named the successor (Article 96), on the lines of Article 67 of the Basic Law of Germany, were wholesome innovations often advocated in India to curb defectors (aya Ram, gaya Ram in India; lota in Pakistan). What was reprehensible was the provision (Article 58) which made the Prime Minister's advice to dissolve the National Assembly binding on the President. Such a provision destroys one of the major checks on the Prime Minister's power and is a perversion of the parliamentary system. It is unheard of. The Chairman of the Constitution Committee and Law Minister, Mahmood Ali Kasuri, resigned in protest in October 1972.

The Eighth Amendment went to the other extreme. It empowered the President (Article 58(2)(b)) to dissolve the National Assembly "in his discretion where, in his opinion.... (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary". The language was borrowed from Section 93 of the Government of India Act, 1935 on which Article 356 of the Constitution of India, for President's Rule in the States ousting State governments, is also based. But there is no provision for President's Rule at the Centre in the Indian Constitution. Nor was there such a provision in the 1956 Constitution of Pakistan. Moreover, Article 48 (5) empowered the President to appoint a caretaker Cabinet on the dissolution of the Assembly as also to order a referendum "on any matter of national importance" even without the Prime Minister's advice.

One wishes the court had quoted also the note of January 4, 1978 by Ghulam Ishaq Khan, Secretary-General to Zia. It was written on a summary submitted by the Ministry of Law on the Judge's retrograde proposals.

It bears quotation in full so prescient it is: "CMLA (Chief Martial Law Administrator) may kindly see, apart from opinion of the Attorney-General, that except for the provision relating to the restoration of constitutional safeguards to civil servants, the other amendments proposed by Justice (retd.) Hamoodur Rahman would not be upheld by the courts under the doctortine of necessity. It would also not appear politically advisable to change the basic structure of the Constitution in such a radical manner by a Martial Law Order.

"The need for checks and balances is no doubt there; but what other checks should be and how this balance be struck requires a political consensus which will not be forthcoming in the present circumstances and if it is imposed from the top is not likely to prove enduring. Even otherwise, some of the proposals, particularly the arrangements envisaged for carrying on the administrators of the affairs of the Federation and the provinces when the Assemblies are dissolved, are debatable and are likely to give rise to a different type of problem.

"Personally I am also not in favour of getting the armed forces involved, as a permanent feature, even if such a course be politically acceptable, as in the long run it will politicise the armed forces themselves and result in weakening of the defence of the country. The best that can be done is to try to educate the political parties on the need for some checks and balances which would avoid repetition of the happenings in the near past in the hope that, when elected, they would on their own bring about the required constitutional changes."

These documents were disclosed by Syed Sharifuddin Pirzada, on September 19, 1991 following an exchange in the Supreme Court on September 15, with Raja Mohammad Anwer. Article 58(2) was thus not necessary to prevent "derailment of democracy".