A YEAR and a half after he negotiated his way into Aiwan-e-Sadar (the Presidents House) from Zardari House as the custodian of the Bhutto legacy, Pakistan President Asif Ali Zardari has made his own place in the nations tumultuous political history courtesy the 18th Amendment, which restores parliamentary democracy and the federal structure envisaged by the 1973 Constitution.
Back in the autumn of 2008, he was called Mr. 10 per cent for his alleged penchant for demanding commissions for the award of government contracts during the prime ministership of his wife Benazir Bhutto. Though that reputation still precedes him a random Internet search for Mr. 10 per cent first brings up Zardaris name his bitterest critics have to concede grudgingly the space he has carved out for himself in Pakistans history by abdicating power in a nation so used to seeing power being usurped.
A Pakistan President surrendering power caught the imagination of the domestic and international media as well as the public to such an extent that the Constitutional Reforms package which has suggested close to 100 amendments as part of a mega exercise to overhaul the countrys structure of governance has become almost synonymous with Zardari transferring powers from the presidency to Parliament.
Having cocked a snook at the very powers that put him behind bars, Zardari revelling in the plaudits that have come his way both at home and from overseas for decentralising power now does not even try to hide his past. His favourite lines these days are I have walked from the gallows to the presidency and democracy is the best revenge.
And, he does not hide his intent. Addressing the joint session of Parliament on April 5 after the 18th Amendment Bill was tabled, Zardari said: By standing in their shadows [former Prime Ministers Zulfiqar Ali Bhutto and Benazir Bhutto] today and empowering Parliament, I hope to walk into the annals of history. And he did just that when he put his signature to the Bill and made it a law on April 19.
After he pushed for the early passage of the Bill, king-sized posters of Zardari appeared at vantage points in Islamabad; the Bhutto father-daughter duo was relegated to the background in them in a clear attempt by Zardari to step out of the shadows of the countrys first family. He could now command respect however reluctant that neither the Bhutto legacy nor the status of President fetched him.
But, now that the euphoria over the removal of the vestiges of military rule and the transition from a presidential to a parliamentary form of government has died down, the question that is being asked is whether Zardari has been actually weakened. At the individual level, the answer is a clear no since Zardari remains the power centre for the ruling Pakistan Peoples Party (PPP). He is its co-chairman and his writ runs in party circles.
Which is why former Prime Minister Nawaz Sharifs Pakistan Muslim League (PML-N) has been making a lot of noise about Zardaris dual role. Its leaders feel that the President could undermine the constitutional reforms by using his position as PPP co-chairman in order to control the government. The 18th Amendment Act has, in fact, strengthened Zardaris hand over the PPP parliamentary party as it is now he, and not the leader of the parliamentary party, who will declare the defection of a legislator if he or she votes against the party line in the legislature.
While this scenario is specific to the present ruling arrangement, another law has also attracted a lot of interest in recent times. Ali Khan of Washburn University School of Law maintains that the abolition of Article 58(2)(b) is an exercise in futility. This Article allows the President to dissolve the National Assembly if a situation has arisen in which the government of the Federation cannot be carried on in accordance with the provisions of the Constitution....
Article 58(2)(b) was once abolished and later reinstated. Introduced by President Gen. Zia-ul-Haq, it was abolished by Nawaz Sharif in the late 1990s and was brought back by Gen. Pervez Musharraf. In between, it was used thrice by civilian Presidents to dissolve the National Assembly and dismiss Benazir Bhuttos democratically elected governments in 1990 and 1997, and Nawaz Sharifs in 1993. Besides, Article 58(2)(b) disables the President, not the Army chief. According to Prof. Ali, military takeovers have occurred not because of loopholes in the Article, but in violation of the Constitution.
This view is shared by Hasham Baber of the Awami National Party (ANP), a constituent of the ruling coalition at the Centre. He points out that amendments to Article 6, which describes subversion of the Constitution as high treason, has made military intervention difficult as now it cannot be validated by any court. He concedes that unless democracy takes roots in Pakistan and the military is cut down, there will be no foolproof safeguard against an Army takeover.
Herein lies the irony. In the name of democracy, bitter political opponents buried their differences and put their collective weight behind reforms that included abolition of Article 17(4) which made it necessary for every political party to hold intra-party elections to elect its office-bearers and party leaders. Though some members individually protested against this amendment when it was put to vote, the dynastic nature of the leadership of most dominant political parties saw it sail through.
Prima facie, the reason for abolishing this provision was that it was introduced by Gen. Musharraf to control parties and the Constitution cannot micro-manage party functioning. If that is the case, argues Kashmala Tariq of Pakistan Muslim League - Quaid (Like-Minded Group), a breakaway group of the PML-Q, then why was Article 17(3) retained? Doesnt asking every political party to account for the source of its funds amount to micro-management? All the major political parties be it the PPP, the ANP, the PML (both N and Q) have become family ventures and each has a new generation waiting in the wings. So the very champions of democracy ganged up to remove a clause that would have allowed democratic practices to take root, she says.
Most party leaders concede guilt. While PML-Q secretary-general Mushahid Hussain lamented the dichotomy in the attitude of the ruling elite, which condemns military dictatorship but condones the lack of democracy within its own political outfits, Hasham Baber insists that Pakistans democracy is too immature to deal with the pulls and pressures of intra-party squabbles. It needs to evolve, and these reforms cannot be an end but the beginning of a process, he says. Academics and civil society activists insist that the ruling elite be it political or military should develop a culture for the respect of law.
As Ali Khan put it: Law cannot do anything if the culture of the ruling elite is lawless. Law works only when there is a will to respect the law. I dont see how respect for law can be generated by merely making amendments to the Constitution. Constitutional amendments are great national events, particularly when they are made in the aftermath of a dictatorship. Pakistanis have a right to celebrate the change. Euphoria is a burst of energy, not a commitment to the rule of law. Whether the ruling elites have indeed changed for the better is an open question.
Only time will tell how effective the 18th Amendment is in keeping the military at bay. It is an open secret that the Army still has the upper hand on matters of foreign policy particularly relations with India and Afghanistan and the establishment remains a feared entity that makes radical votaries of democracy ever watchful of their steps and mindful of their shadows.
That the actions of politicised intelligence agencies can undermine democratic governance was underlined recently by the United Nations Commission tasked with inquiring into the circumstances leading to Benazir Bhuttos assassination. In a passing reference to the steps taken to curb the involvement of intelligence agencies in political matters, the report states that the democratic rule of law in Pakistan could be greatly strengthened with a thorough review of intelligence agencies based on international best practices in this area.
Still, there can be no denying that the reforms complement a process that has seen the media open up phenomenally, the judiciary take on the government, and civil society take up cudgels against the powers that be. Sadly, the momentum gained by democratic forces during the lawyers movement for the reinstatement of the Chief Justice of Pakistan (CJP), Iftikhar Chaudhry, has been lost, but die-hard optimists believe that similar mobilisation is possible if the occasion arises. For now, however, an early test of the governments commitment to the reforms will come within 90 days of the 18th Amendment becoming law.
In a bid to return to the federal structure of governance envisaged in the 1973 Constitution the terms of engagement of the Council of Common Interest (CCI) where representatives of the federal and provincial governments jointly oversee Part II of the Federal List, which includes railways, mineral oil, natural gas and water, have been changed.
While the Concurrent List has been done away with, the 18th Amendment makes it mandatory to convene a meeting of the CCI once in 90 days and any of the four provinces can requisition a meeting of the Council to discuss an urgent matter.
Balochistan and Khyber-Pukhtoonkhwa (the new name for the North West Frontier Province as per the 18th Amendment) are particularly hopeful that this will signal the end of Punjabi dominance over their assets. Though the 18th Amendment does not directly give full autonomy to the provinces, it is an about-turn from centralisation and a step forward towards decentralisation, says ANP leader Baber.
Traditionally, in Pakistan, Punjab has been the greatest beneficiary of resources of other provinces particularly of Balochistan and Khyber-Pukhtoonkhwa, which is the major source for hydroelectricity. Because the establishment and the ruling elite are Punjabi-dominated, we were short-changed. Though the CCI mechanism has been in place since 1973, it was convened only once in 1990. Now that it is mandatory for the CCI to meet once every 90 days, Balochistan, Khyber-Pukhtoonkhwa and Sindh can balance out the brute majority of Punjab, which dominates our ruling elite, Baber says.
Whether the 18th Amendment will help provinces break the Punjabi stranglehold or create new points of contention is anybodys guess, but a more immediate flashpoint appears to be between the legislature and the judiciary with the drastically changed provisions for appointment of judges to the superior courts already being challenged by bar associations and a few lawyers in the Supreme Court.
Though appointments to the Supreme Court and the High Courts will be made by judicial commissions headed by the CJP and the respective chief justices, their recommendations will have to be sent to a parliamentary committee for approval. The recommendations can be overruled by this committee if three-fourths of the members vote against the decision of the judicial commission.
Ironically, the very forces that created the democratic space that is now visible in Pakistan are now pitted against each other over these provisions. Former Supreme Court Bar Association president and PPP leader Chaudhry Aitzaz Ahsan a driving force behind the lawyers movement for the reinstatement of the CJP fears that if 17 judges of the Supreme Court strike down the amendment adopted by the representatives of 170 million people, it would naturally be seen as a clash between two pillars of democracy.
Meanwhile, the Supreme Court has asked the National Accountability Bureau to reopen the corruption cases against the President. Alarmed by the prospect of a possible showdown that could well unravel the process of reconciliation, pressure is being mounted on the judiciary not to develop a military-like aura of self-righteousness. Writing in The Friday Times, political analyst Hasan-Askari Rizvi noted that the negative fallout of the oversized role of the superior judiciary is going to destabilise the political system.
The fragility of the political system is a nagging fear in a country that has seen 32 years of military rule in the 62 years of its existence. Cynics and there are enough of them remain sceptical about how far the reforms will turn Pakistan into a vibrant democracy as the polity remains inherently feudal.
If they see any ray of hope, it is in provisions such as the Right to Education and the Right to Information (RTI) both of which have now been made fundamental rights. These measures, it is hoped, will broad-base education in a country with high levels of illiteracy the literacy rate is 53 per cent and make the systems more accountable.
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