The two Houses of the Pakistan Parliament will be taking up for discussion on April 5, 2010, the 18th Constitution Amendment Bill, as recommended by an all-party constitutional review committee. It has to be approved by a two-thirds majority by the two Houses and the provincial Assemblies before it comes into effect. Salient points of the Bill as extracted from the Dawn of April 3,2010, are annexed.
The Bill seeks to amend a number of provisions of the Constitution in order to remove or rectify various distortions in the 1973 Constitution, which was brought in by the late Zulfiquar Ali Bhutto when the was the Prime Minister till he was overthrown in 1977, arrested and got executed by Gen.Zia-ul-Haq. These amendments, in effect, will restore the powers of the Prime Minister as they were intended to be by Z.A.Bhutto under the 1973 Constitution and reverse the process of strengthening the position of the President at the expense of that of the Prime Minister by successive military dictators in order to impose their will on the civilian Prime Ministers whom they inducted into power in order to give a civilian façade to the military dictatorship.
A new article 90 in the Bill seeks to restore the authority of the Prime Minister by providing for the exercise of the executive authority of the federation “in the name of the president by the federal government consisting of the prime minister and federal ministers, which shall act through the prime minister, who shall be the chief executive of the federation”. Thus, all executive powers will be exercised by the Prime Minister in the name of the President. According to the amendment, the President would continue to be the Supreme Commander of the Armed Forces, but “the President shall, on advice of the Prime Minister” appoint the Chairman, Joint Chiefs of Staff Committee and the three services chiefs. The President will not have any discretionary powers to decide who will head the Armed Forces.
How effective will be the exercise by the Prime Minister of the power to recommend who should head the Armed Forces would depend upon how willingly the Chief of the Army Staff (COAS) goes along with the recommendation of the Prime Minister. Nawaz Sharif, as Prime Minister, had similar powers in 1999, but those powers could not protect him from the wrath of the Army in October,1999, when he advised the then President Mohammad Rafique Tarar to dismiss Gen.Pervez Musharraf as the COAS and appoint in his place Lt.Gen.Ziauddin, the then Director-General of the Inter-Services Intelligence (ISI), as the COAS. Tarar issued the orders when Musharraf had not yet returned to Pakistan after a visit to Sri Lanka. A group of Lts.General loyal to Musharraf and opposed to Ziauddin, an enginner, taking over as the COAS, refused to comply with the orders of the President issued on the recommendation of the Prime Minister. They dismissed and arrested both the Prime Minister and the ISI chief and paved the way for Musharraf to take over as the Chief Executive on his return to Karachi from Colombo. The judiciary endorsed their action under the so-called doctrine of necessity.
Thus, what has always determined the course of democracy in Pakistan is not what is written in the Constitution, but what the Army thought of the actions and decisions of the President and the Prime Minister. When it was unhappy with their actions and decisions, the Army has bulldozed its way into intervention to seize power irrespective of the Constitution. Constitutional provisions and laws have been allowed by the Army to operate only so long as they suited the Army.
Since the 1973 Constitution came into force, the Army has intervened twice directly and thrice indirectly. The direct interventions were in 1977 when Z.A.Bhutto was arrested, got tried and executed by Zia and in 1999 when Nawaz Sharif was arrested, tried and banished to Saudi Arabia by Musharraf.
The indirect interventions were in 1990 when the Army instigated the then President Ghulam Ishaq Khan to dismiss Benazir Bhutto, in 1993 when the Army instigated Ghulam Ishaq Khan to have Nawz eased out and in 1996 when the Army instigated the then President Farooq Leghari to dismiss Benazir. Pakistan’s political leaders paved the way for the politicization of the Army by inciting it to act against their political opponents whom they were not able to confront politically. Thus, Nawaz incited the Army and the President to act against Benazir in 1990 and 1996 and Benazir incited them to have Nawaz eased out in 1993. The Pakistan Army might not have become politically as interventionist as it has been but for the country’s opportunistic politicians who had no qualms in encouraging the Army to intervene when it suited their partisan political interests.
The new Constitution Amendment Bill seeks to make it difficult, if not impossible, for the Army to intervene in future directly or indirectly. To rule out direct military intervention, the Bill seeks to amend Article 6 of the Constitution to include suspension of the Constitution and putting it in abeyance among acts of high treason which no court shall validate. Zia and Musharraf were able to intervene directly, dismiss an elected Prime Minister and dissolve the National Assembly because there was no provision in the Constitution against it and a compliant judiciary validated their actions post-facto.
Theoretically, this cannot happen now and the Army cannot intervene directly. But, what would happen if an Army chief not only dismisses the Prime Minister and dissolves the National Assembly, but also suspends or abrogates the Constitution?
The Amendment seeks to rule out indirect intervention by the Army through the President by abolishing the powers of the President to dismiss the Prime Minister and dissolve the National Assembly except when the Prime Minister loses the confidence of the National Assembly and no other person enjoys the confidence of the Assembly to form a new Government. The power of the President to dismiss the Prime Minister and to dissolve the National Assembly was introduced by Zia before he ordered elections in 1985 and inducted Mohammad Khan Junejo as the Prime Minister. He dismissed Junejo under this power and dissolved the National Assembly in 1988 due to differences with Junejo over the Afghan policy and the latter’s insistence on releasing to the public the report of the committee which had enquired into the explosions at the Ojehri camp of the Army in which the arms and ammunition, including Stinger missiles, given by the US to the ISI for issue to the Afghan Mujahideen were stored. The explosions took place when a US team was to inspect the stocks following allegations of misuse of the stocks by the ISI and diversion of some of the missiles to Iran.
The power to dismiss was retained by Ghulam Ishaq Khan and Leghari, but Nawaz got it abolished when his party secured a two-thirds majority in the 1996 elections. Musharraf re-introduced it. He used to argue that the Army was forced to intervene directly in 1977 and 1999 because the Constitution did not provide any way of dealing with an arbitrary and unpopular Prime Minister, who managed to retain his support in the National Assembly. He strongly argued in favour of retaining the power of the President to dismiss an arbitrary and unpopular Prime Minister, but only on the recommendation of the National Security Council, which would be chaired by the President.
Now, this power is being sought to be abolished without providing a safety valve for action against an arbitrary and unpopular Prime Minister, who retains the confidence of the National Assembly. In other democracies, in similar situations, the pressure of political and public opinion acts as a safety valve. Only in the case of the arbitrary dismissal of Chief Justice Iftikhar Mohammad Chaudhury by Musharraf did political and public opinion assert itself. Otherwise, Pakistan does not have a history of such assertion.
When the Army directly intervened and dismissed an arbitrary and unpopular Z.A.Bhutto in 1977 and an equally arbitrary and unpopular Nawaz in 1999, a helpless public opinion hailed the Army’s actions as deliverance The absence of a safety valve against an arbitrary and unpopular Prime Minister could again lead to the Army’s intervention in future with the support of the public. In Pakistan, the romanticisation of democratic traditions is confined to the elite. For the common man, the Army and the political class are equally evil. When caught between a looming military dictatorship and an arbitrary political ruler, they choose whoever can provide them immediate relief. Public memory in Pakistan and about Pakistan is short. We tend to forget how the people of Balochistan and the North-West Frontier Province (NWFP) celebrated in 1977 when the Army threw out Z.A.Bhutto and how people all over Pakistan celebrated in 1999 when the Army threw out Nawaz and installed Musharraf as the ruler.
All lovers of democracy should welcome the Constitutional Amendment despite its imperfections. It would definitely strengthen the chances of the revival of democracy in Pakistan provided the political parties and the Army play the game according to the new rules. Even if one assumes that the political leaders have learnt their lessons and will now play the game according to the amended Constitution, will the Army do so? The Army thinks that it knows better than the political class what is good for the country. For the last 60 years or so, the Army has convinced itself that it has a legitimate political role to play--direct or indirect-- and is determined to play it should circumstances warrant it--Constitution or no Constitution.
Look at Gen.Ashfaq Pervez Kayani, the COAS. When he took over as the COAS, he said the Army’s place was in the barracks and withdrew all army officers exercising non-military functions. He has again come out of the barracks and has been playing an increasingly active and assertive role in decision-making--whether it be in respect of national security or foreign policy or relations with India. So long as the Army’s mindset that it is not only the defender of national security from external and internal threats, but also the guardian of the interests of the people persists, democracy in Pakistan will continue to be on the sufferance of the Army. The US cannot escape its share of the responsibility for the persistence of this mindset and for the repeated failures of democratic experiments in Pakistan. Kayani would not have acquired the kind of image that he has acquired without the blessings of the US.
B. Raman is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai.
Salient points of the Constitution (18th) Amendment Bill (as reported by the Dawn)
Here are the main features of the amendments.
Repeal the Legal Framework Order of 2002, along with its amendments, as having been issued without lawful authority, as well as the 17th Amendment of 2003 based on it.
Amend Article 1 to rename the NWFP as Khyber Pakhtunkhwa.
Amend Article 6 to include suspension of the Constitution and putting it in abeyance among acts of high treason which no court will validate.
New article 10A to confer right to fair trial.
New article 19A to give every citizen the right to access to information in all matters of public importance.
Article 25A to make the state provide free and compulsory education to all children aged five to 16 years.
President to act on the prime minister’s advice to dissolve the National Assembly, set a date for the general election and appoint a caretaker government.
Repeal Article 58(2)B empowering the president to dissolve the National Assembly.
Amend Article 59 to increase Senate seats to 104 from the present 100 with one representing non-Muslim minorities from each province.
Amend Article 61 to increase working days of Senate in a parliamentary year to 110 from 90.
Amend Article 70 and omit Article 71 to do away with provisions for the constitution of a mediation committee in case of difference between the two houses on a bill and revert to calling a joint sitting of parliament in such an event.
Amend Article 89 to bar promulgation of an ordinance when either of the two houses is in session, rather than only the National Assembly, and restrict re-promulgation to only one time and that too in compliance with a resolution of either house.
New article 90 to substitute previous one to provide for exercise of the executive authority of the federation “in the name of the president by the federal government consisting of the prime minister and federal ministers, which shall act through the prime minister, who shall be the chief executive of the federation”. Abolish the concurrent legislative list and some subjects in the federal list 1 included in federal list.
Amend Article 92 to restrict the strength of the federal cabinet, after the next election, to 11 per cent of total members of parliament and of the provincial cabinets to 15 members or 11 per cent of an assembly, whichever is higher, and of advisers of the prime minister or chief minister to a maximum of five.
Amend Article 101 to provide for a provincial governor to be the resident and voter of the same province.
Amend Article 104 to provide for a speaker of a provincial assembly to be acting governor.
Amend Article 127 to increase working days of provincial assemblies to 100 days from 70 days.
Amend Articles 153 and 154 to provide for the Council of Common Interests to consist of the prime minister, provincial chief ministers and three members from the federal government to be nominated by the prime minister, have a permanent secretariat and meet at least once in 90 days.
Amend Article 157 to bind the federal government to consult a province’s government before deciding on the construction of a hydro-electric power station there.
Amend Article 160 to provide for the share of provinces in each NFC award not being less than given them in the previous award.
Amend Article 167 to authorise provinces to raise domestic and international loans or give guarantees on the security of the provincial consolidated fund within limits and conditions specified by the National Economic Council.
Amend Articles 168 and 171 to set auditor-general’s tenure at four years and to provide that the auditor-general’s reports will come to both houses of parliament.
Amend Article 175 to provide that, subject to existing commitments, mineral and oil and natural gas within a province or its adjacent territorial waters “shall vest jointly and equally in that province and the federal government”.
New article 175A to provide for the constitution of a seven-member judicial commission — for naming judges for appointment to superior courts to be confirmed by a parliamentary committee — consisting of the chief justice (chairman) and two senior-most judges of the Supreme court, a former chief justice or judge of the same court to be nominated by the chief justice, federal minister for law and justice, the attorney-general and a senior advocate of the Supreme Court to be nominated by the Pakistan Bar Council for two years.
Amend Article 213 to provide for the prime minister to send, in consultation with the leader of opposition in the National Assembly, three names to a parliamentary committee for confirmation of one of them as the chief election commissioner and in case of difference, both of them to send separate lists.
Amend Article 232 to provide for declaration of emergency after a resolution passed by the assembly of that province and that if the president declares emergency “on his own”, the proclamation to be presented before both houses of parliament for approval within 10 days.
Amend Article 242 to provide for appointment of the chairman of the Federal Public Service Commission by the president on the advice of the prime minister and of the chairman of a provincial commission by the governor concerned on chief minister’s advice.
New article 243 to provide for appointment of chairman of the joint chiefs of staff committee and chiefs of staff of the army, navy and air force by the president on the advice of the prime minister.