No wise man will swap the position of an all-powerful president with that of a helpless prime minister as proposed in the recently released constitutional package.
Since January, when National Reconstruction Bureau chief Tanvir Naqvi announced an increase in the number of seats for the assemblies and the seats for technocrats and women and other rules for elections, including the graduation condition, the nation was eagerly waiting for the proposed amendments on which the NRB had been working ’round the clock’.
The NRB released its package-I for public comments on June 26, entitled “The establishment of sustainable federal democracy”. It started with the wise words of “When, in the course of a nation’s history, it became necessary to repair the fabric of society, and to restore a just, democratic and efficient government it is the duty of aware citizens and those with responsibility, to define the needs and find ways to meet them”.
While reading the whole package one reaches the conclusion that it is neither federal, nor democratic and, above all not sustainable in the true sense of the words. One is even tempted to question the ‘awareness’ and wisdom of “those with responsibility”, who have prepared this package.
The NRB stated in its ‘Basis for the Proposals’ 19(b), “… the prime minister must remain the chief executive of the country, which is the essence of the parliamentary form of government”, and repeated that in 19(f) as, “The form of government remains entirely parliamentary, with the executive authority of the state unambiguously in the office of the prime minister”. Just a cursory glance at the amendments proposed in the powers of the president and prime minister clearly shows the opposite direction in the intent, stated above, and the execution, stated in the amendments.
The package proposes amendments in five parts that relate to: i. National and Provincial Assemblies; ii. Qualification and disqualification; iii. Elections and byelections; iv. the Senate and v. checks and balances. Everybody agrees that the 1973 Constitution, or for that mater, any law made by human beings is not perfect and can be improved upon.
The Constitution of any country is a document that provides the basis for its smooth functioning. This is more important in a federal structure. The 1973 Constitution was made after the then Bhutto government sought cooperation from all other parties. It was a commendable effort by Bhutto’s law minister Abdul Hafeez Pirzada, who achieved this difficult task within one year starting from August 14, 1972 under the interim constitution of April 1972.
The Supreme Court did enable the present government to amend the Constitution but also restrict it on many grounds. The consensus amongst the provinces for the 1973 Constitution was unprecedented in the constitutional history of Pakistan. That is why one feels that the 1973 constitution cannot be amended arbitrarily. It will open a Pandora box and may weaken the federation. The package has many clauses that may do exactly that.
Part I regarding an increase in the number of seats, allocation of women and technocrats seats, lowering voters’ age from 21 to 18, introducing joint electorate and reducing the tenure of the assembly from five to four years need not be criticized. These are necessary steps for successful holding of October elections and to give legal cover to the delimitation of the constituencies and to the voters’ lists.
Part II with regard to qualification and disqualification and proposed clause in Article 17(4) may be disliked by many parties which were involved in corrupt practices or believed in autocratic rule of their ‘democratic’ leaders. But overall it is a positive step.
Part III dealing with elections and byelections and part IV with the Senate, including enhancements of powers of the Senate, are also necessary to implement the new scheme and will not be resisted by the stakeholders.
It is the Part V in the name of checks and balances that shows the real intention of the government. Implementing this without a change will turn the current parliamentary system into a presidential system in which the president will have the authority but not the responsibility. This will be a diabolical situation and negates the very concept of ‘unity of command’ that General Musharraf has presented repeatedly.
Now let us see what the General Musharraf can do.
In the light of May 12, 2000 Supreme Court decision, he can issue decrees that are implemented immediately. The latest is the rule of barring any person from holding of the office of the prime minister and the chief minister more than twice. After the October elections the prime minister will be the ‘chief executive’ but the checks and balances part has been taken away from his existing normal powers.
In the present Constitution the president has no discretionary power to dismiss the government. It was introduced as part of the 8th amendment by General Zia and was deleted by Nawaz Sharif through the 13th amendment passed unanimously by all parties within few hours by suspending all rules in April 2000. This check is necessary in order to avoid the events of October 12, 1999, or the past military interventions.
In this proposed package, the president has been armed with sweeping powers apart form the 58 2(b). He need not work on the advice of the prime minister and can appoint the governors in his discretion. Governors can appoint chief ministers but for their removal he “may, in his discretion, with the previous approval of the president, relieve the chief minister and the cabinet of their functions …” (Article 130).
It means that in effect every top slot in all five elected assemblies will always remain on the chopping block of the presidential powers. How can then one say the executive authority of the state rests, unambiguously in the office of the prime minister, as stated in the package.
Even more dangerous is the fact that in the case of the removal of the government there is no time bar for the president to hold elections. The previous Article 58 2(b) authorized the head of the state to remove the head of government but restricted him to “fix a date, not later than ninety days from the date of dissolution, for holding a general elections to the Assembly…”. The proposed amendment has no such bar. When president Ghulam Ishaq Khan (twice) and Farooq Leghari dismissed Nawaz Sharif and Benazir Bhutto governments, respectively, they followed this constitutional requirement and announced an election date in their dismissal orders.
The NRB wizards have other ideas. They propose a new Article 58 (3) which empowers the president to appoint a caretaker cabinet and prime minister that cannot take part in the impending elections in case of dissolution or completion of the tenure of any assembly. It did not specify the time for which they are to be appointed. That is a very dangerous situation. For all practical purposes the president is to rule for five years from October 2002.
The powers of the prime minister have been reduced drastically. If after the 13th amendment the balance of power was unduly in favour of the prime minister, after the proposed amendment it will be heavily tilted in favour of the President. Instead of devolution of power, a favoured phrase of the NRB, it is leading to concentration of power in one office. The proposed National Security Council will have no constitutional checks on the president.
The only check on him is the impeachment powers of the Senate and the National Assembly. It will require, indeed, a Herculean effort by any prime minister to move a motion of impeachment against the president, who will be ruling under the ‘constitution of 2002’. The prime minister can be removed by the president even if he advises him to dissolve the assembly (article 58 (1)).
Article 47 provided for the removal of the president. Even if the impeachment motion is moved, for the joint sitting of the parliament votes of the Senate are to be counted double, under the proposed Article 47. That means out of a total of 557 available votes of a joint sitting (200 of the Senate and 357 of the NA), 369 votes will be required to remove the president.
Putting it the other way, the president will require the support of about 60 members from each house to defeat the impeachment motion. That will not be difficult for the president. Once he survives such a motion, he can simply remove the prime minister and the cabinet or dissolve the assembly and can rule for a period of his liking through the newly appointed members or caretakers.
Mr. Muhammad Tahir-ul-Qadri is a prominent Pakistani scholar and politician.