Balance of power
by
Javed Hafiz |
PAKISTAN is supposedly a parliamentary democracy but levers of power are still there in the presidency. This contradiction crept into the constitution as a result of amendments by successive military rulers. Both the leading political parties had vowed to undo this dichotomy when they signed the Charter of Democracy in London in 2006.
The main bone of contention is the 17th amendment, which contains presidential powers, in particular. It would be useful to know the background of the 17th amendment as well as its content. In 1985 president Zia ul Haq decided to give a civilian face to his martial law. Mohammad Khan Junejo was nominated as prime minister. President Zia, however, did not want to give all the powers to civilians. Junejo, on the other hand, wanted to take the credit for lifting of the martial law. Under a compromise solution, the martial law was lifted while the president extracted the power to dissolve the assemblies through the infamous clause inserted in the 1973 constitution as 58-2(b).
However, the main cause of this problem goes further back to 1973 when prime minister Zulfiqar Ali Bhutto monopolised all powers unto himself and converted Fazal Elahi Choudhry into a “rubber stamp president”. He saw to it that all the presidential orders had to bear the counter-signatures of the prime minister. Zia was, through insertion of 58-2(b), trying to correct the balance, but in the process, made the prime minister weak. Since then the distribution of powers between the president and the prime minister has been a perennial problem in Pakistan and the 1973 constitution has lost its parliamentary character.
When Nawaz Sharif became prime minister in 1996 with a “heavy mandate” he decided to change the eight amendment. So the 13th amendment to the constitution was adopted wherein the presidential powers to dissolve the assemblies were withdrawn. With one strong stroke, Nawaz Sharif drove 58-2(b) out of the constitutional boundary line. Then came General Pervez Musharraf and the scenario changed again. The 1973 constitution was held in abeyance. The Legal Framework Order (LFO) of 2002, through which the constitution was revived, restored article 58-2(b). The subsequent 17th amendment simply added sub-clause (3) to this article which obliged the president to refer the case of dissolution to the Supreme Court before taking a decision.
Through the Charter of Democracy, often quoted by Nawaz Sharif, the leaders had undertaken to undo the negative impact of the 17th amendment. In an interview with GEO TV, before becoming the president, Asif Ali Zardari had said that the PPP president would order the repeal of 58-2(b) on the very first day in office. After his election, in his maiden speech to parliament, President Zardari said, “I call upon parliament to form an all-parties committee to revisit the 17th amendment and article 58-2(b)”.
The use of the word “revisit” rather than repeal was widely noted. Zardari was clearly trying to retract his steps, true to his history. Readers may recall that some months ago, in a piece about Zardari, I had said that he would very much like to be a strong president.
The 17th amendment was a package. It lowered the voter’s age from 21 to 18 years and gave more representation to women in assemblies. These are not contentious issues and various parties would like to retain them. The bone of contention is 58-2(b) and the president’s powers to appoint service chiefs, chief justice of Pakistan and the chief election commissioner. In the original 1973 constitution, the president was bound by the advice of the prime minister on these appointments. Readers will recall that General Zia ul Haq was appointed army chief by prime minister ZA Bhutto and not by president Fazal Elahi Chaudhry. Later, in the article the words “on the advice of” were replaced by “in consultation with” which meant that the president was no longer bound by the prime ministerial advice.
Despite popular demand, the PPP government is in no hurry to quash the presidential powers. Instead of taking a lead in this matter, it now says it would go with the consensus. In the current acrimonious political atmosphere such a consensus would appear elusive. Any constitutional amendment needs two-thirds support in both houses. No political party can muster this support on its own. The general assessment here is that the government would use delaying tactics while trying to give the impression that it does not oppose the popular demand.
National interest demands that a compromise solution be found. No future president should be as strong and powerful as Zia ul Haq, Ghulam Ishaq Khan and Farooq Leghari to send assemblies packing without providing solid justification. And no future president should be as powerless as Fazal Elahi Choudhry or Rafiq Tarar. Remember someone with a sense of humour, which is never in short supply in Pakistan, had written on the walls of the presidency – Fazal Elahi Ko Riha Karo (set Fazal Elahi free)!
A study of the UK, Canada, Australia and New Zealand parliamentary systems shows that the heads of state are not powerless rubber stamps while the prime ministers call the shots.
These systems have enough checks and balances to ensure that neither of the two misuses the powers. Can the Pakistani leadership, government and opposition, find the golden mean?
Javed Hafiz is a former ambassador to the Sultanate of Oman. |
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