Making the Constitution Workable


Within hours of the unanimous approval of the 1973 Constitution by the elected representatives of all the Federating units of Pakistan, “fundamental rights”, the very soul of any Constitution, was held in abeyance. If then PM Bhutto had a legitimate reason for the immediate suspension, then the Constitution was unworkable and in need of suitable amendments to make it fit for governance of the country on an equitable basis. If on the other hand, the suspension was simply to gag the opposition to Bhutto and his PPP government, then it amounted to a civilian coup de d’etat which was volatile of the Constitution. Civilian or military, it does not matter, suspending fundamental rights goes against the tenets of any Constitution. Always the wily politician, Bhutto got away with something that may have been legally correct but was morally wrong. For 15 years these rights remained suspended till restored by late PM Mohammad Ali Khan Junejo, in the meantime many amendments substantially changed the character of the original document, there always being “the doctrine of necessity”. The 1973 Constitution in its purest form certainly cemented the Federation in the aftermath of 1971 but was not geared for smooth governance, suitable amendments were required. Without going into the history of the amendments made and reasons thereof, some were done in good faith in keeping with the genius of democratic environment prevailing in the country, in many cases the speed and the manner of their passing through Parliament symbolized the bad faith manifest in them.

Contrary to public opinion, the 1973 Constitution has not been overhauled and defaced as some have suggested, it has simply been made more workable. Having involved a set of proposed amendments duly crafted by the National Reconstruction Bureau (NRB), the military regime assessed the depth of the opposition and the motivation of the protest, and to their credit, the government has withdrawn almost two-thirds of the proposals. Therefore, what Gen Pervez Musharraf unveiled last Wednesday was that the National Security Council (NSC) was the bare necessity required to ensure that military interaction would cease in future in direct form and that a mechanism to gauge the issues and debate it in higher council (where the Armed Forces would have some say but not VETO powers) would be put in place. All the other amendments were under the Legal Framework Order (LFO) 2002 and were necessary to ensure that democracy would have some future on its return to Pakistan and would not be subject to intrigue and conspiracy as in the past, or repeated military intervention thereof.

To restore the teeth of the Presidency it became necessary to revoke the 13th Amendment and to restore Article 52 (2) b. The NSC is a must, the membership weighted towards civilian rule will ensure it will not be a rubber stamp for the Armed Forces, certainly not a super-parliament as its opponents make it out to be. The NSC needs a permanent Secretariat to fulfil primarily a geo-political role, it’s major aim being to spell out a comprehensive and periodical “National Security Strategy” that would act as a roadmap for the Executive and the Legislature both. The State Bank of Pakistan (SBP), the National Accountability Bureau (NAB) and the Local Bodies needed Constitutional cover, and they got that under Article 61. LFO 2002 is far from being outright surgery of the Constitution as alleged by the regime’s opponents, the changes will make the Constitution more pragmatic in keeping with the genius of the people and relevant to the realities on the ground.

While the President himself is an excellent communicator, he is almost on his own in selling his proposal to the skeptics. Controversial issues require deft and slick handling in this electronic age. Most horizontally selected PR-men are only good at character assassination, successful only when targeting those who cannot fight back. One must agree with Osama Bin Laden’s autobiographer and well-known journalist Hamid Mir who was recently extremely vocal against those paid out of intelligence (or other) funds. It is virtually important to name every one who has been the beneficiary of secret funds. One must also be taken to account to find if these funds were used for official purposes, for self-propagation, or even diverted to personal use.

One is extremely disappointed that the President withdrew some of his proposals, including that reducing the term of the Senate from 6 to 4 years and the National Assembly from 5 to 4 years. For democracy to succeed repeated reference has to be made to the electorate, the shorter the term of the elected assemblies, the lesser the chances for out-of-Parliament intrigues to succeed. Moreover the election to the Senate should have been direct and not dependant upon permutations and combinations effected by the Provincial Assemblies. A number of our former Senators were elected by purchasing the available Provincial Assembly electoral votes, some Senators were virtual unknowns who had no connection whatsoever to the electorate. Even more disappointing was the fact that the proposal of having “run-off” election was not even mooted by the President or the NRB. The present “first-past-the-post system”, where a solid bloc of votes, in some cases less than 25% of the votes cast, is enough to elect a representative is defective, he subsequently only looks after only a segment of his constituency while ignoring the majority. Is this the “grassroots democracy” the President keeps talking about? Without a “run-off” election, particularly in a country with a multitude of political parties and factions thereof, democracy is a farce and we are fooling ourselves that it has deep roots. Any elected representative who does not command outright majority of the votes cast in his/her constituency can never have the credibility of a real democratic entity.

Most disappointing was the President’s decision to retain the post of the COAS. I am firmly for the Pervez Musharraf staying in office and through a transition period so that his reforms can take hold, and if it takes 5 years so be it! Keeping the COAS post does not gel with democratic mores, this gives the perception of personal ambition superceding the commitment and excellent work he has done for the past three years. He has raw courage, why not trust the men he has led to stand by him? After all, he has overseen all promotions to the various senior ranks over the past four years, right from the day he became COAS and barring one or two exceptions, over a score have been made on merit. And as President he remains Supreme Commander and thus technically in uniform. However, if Pervez Musharraf continues to keep the post of COAS then unfortunately he provides the ammunition his opponents need to call the proposals unacceptable and un-democratic.

With destiny written all over him Pervez Musharraf has a remarkable propensity to bounce back. For a man who has safely guided the destiny of this nation through a very critical period in its history, his inability to trust his own inherent raw courage is not in character. He is a man of destiny, as President he does not need to hang on to the post of COAS in violation of the very democratic norms he wants to instill in the country. The tragedy is that a superb performance of this gifted man in the governance of an extremely difficult country to govern, and that too in extremely trying circumstances, may result in a negative blot in history.

Mr. Ikram Sehgal is Publisher and Managing Editor of Defence Journal (Pakistan).