CIVIL SOCIETY PAKISTAN

May 29, 2008

Constitutional package

Filed under: NEW GOVERNMENT AFTER MARCH 24-2008 — civilsocietypakistan @ 3:56 am
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BUSINESS RECORDER

MAY 29, 2008

EDITORIAL

EDITORIAL (May 29 2008): As the lawyers’ deadline for a long march in support of judges’ reinstatement draws near, the ruling coalition partners have dug in their heels over their differing positions. While the PML (N) leadership is now fully committed to join the march, the PPP leaders would stay put busy as they are in firming up the draft for a constitutional amendment.

The PML (N) says its coalition partner is bound by the Murree Declaration to restore the judges via a parliamentary resolution followed by an executive order, but the PPP insists it is working for a higher mission and that is to secure the independence of judiciary as envisaged in the Charter of Democracy. Of course these are two different worldviews but political expediency, if you like, keeps the coalition intact, as of now.

With early signs hinting that the PPP will not participate in the long march, the hope of a parliamentary resolution is already dead. But can the PPP succeed in getting the constitutional amendment passed; the answer is yes. But it would take time. Even after months of work on the draft all that Law Minister Farooq Naek could put on display last week was a few highlights, mockingly insignificant from his detractors’ point of view, for they think the main issue now is the judges’ reinstatement which threatens the very existence of the coalition. The draft now being given the ‘final touches’ in Naek’s office for what would be the Eighteenth Amendment, is said to contain 62 changes in the constitution, mainly aimed at ridding the document of the ‘distortions’ injected by the LFO-based Seventeenth Amendment. Additionally, it would adopt ‘Pakhtunkha’ as the name of the NFWP province.

The concentration of power in the office of the President has been a principal concern of various democratic governments in Pakistan. Rightly, then, the framers of the 1973 Constitution, who had gone through the long spell of military rules of Ayub Khan and Yahya Khan, saw to it that the un-elected President should be denied this opportunity.

But General Zia-ul-Haq acquired the power to dismiss the government and dissolve the National Assembly by enacting Article 58 2(b). This was repealed by Nawaz Sharif but re-introduced by President Musharraf. Now that once again democratic forces are in the saddle, repeal of this infamous undemocratic provision is on the table and forms the heart of the constitutional package.

There is no reason that it should not be passed, but we would like a caveat to be tagged to the amended provision: instead of centre of power reverting back to the Prime Minister it should revert to the Cabinet. Pakistan is a parliamentary democracy in which the ultimate repository of power is Parliament that wields it through the Cabinet. The Prime Minister is not above the Cabinet but only the ‘first among the equals’.

Without going into any polemics, we would insist that historically the elected Prime Ministers did not hesitate to amass state power at the cost of the Cabinet and the Parliament. They liked to rule with the help of so-called kitchen cabinets, earning for them the notoriety of being autocratic. This should not happen again. Hopefully, the constitutional package will take care of this anomaly by replacing the word ‘Prime Minister’ with ‘Cabinet’. The same should be done in the case of Chief Ministers who too should desist from being centres of all power.

As regards the parliamentary resolution, the public opinion and experts’ advice are not unanimous. For instance, if there is the lawyers’ position that judges can be reinstated by an ordinary executive order, then what do you think of the opinion of a senior lawyer that should this be accepted then how do you preempt future governments taking up the same route as ‘case law’. Let there be more parleys between the government and the legal fraternity before the package fixes limits for judges’ tenure and retirement.

In the absence of a fuller account of the proposed constitutional package, a national debate is not possible. But that seems to be a temporary difficulty, and there is the possibility that the government would table it soon after the Budget Session. There is no dispute about the need to shift the balance of power from the President to the Parliament, as it was settled by the people by voting against the Musharraf government on February 18. That should be the core of the Eighteenth Amendment, but there are bound to be many other issues that need public exposure and discussion.

Although we have the history of bulldozing legislations, but this time that tradition should change and a full-blast debate inside the parliament and outside should be initiated. Of course it is nice and perhaps noble to insist on restoring the 1973 Constitution to its original form, but keeping this basic document relevant to the changing times and the ground realities is also essential.

The major challenges that the country faces today are of economic nature, impacting the quality of federalism in Pakistan. A number of political-economy-related provisions, like concurrent list, need to be reviewed and amended if required. Let the constitutional package look into this aspect as well.
Copyright Business Recorder, 2008

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