Wednesday, May 5, 2010

Pakistan's 18 th Constitutional Amendment

Volume 27 - Issue 10 :: May. 08-21, 2010
from the publishers of THE HINDU • Contents

Act of Transition

in Islamabad

A YEAR and a half after he negotiated his way into Aiwan-e-Sadar (the President’s House) from Zardari House as the “custodian” of the Bhutto legacy, Pakistan President Asif Ali Zardari has made his own place in the nation’s tumultuous political history – courtesy the 18th Amendment, which restores parliamentary democracy and the federal structure envisaged by the 1973 Constitution.

A Pakistan President surrendering power caught the imagination of the domestic and international media as well as the public to such an extent that the Constitutional Reforms package – which has suggested close to 100 amendments as part of a mega exercise to overhaul the country’s structure of governance – has become almost synonymous with Zardari transferring powers from the presidency to Parliament.

And, he does not hide his intent. Addressing the joint session of Parliament on April 5 after the 18th Amendment Bill was tabled, Zardari said: “By standing in their shadows [former Prime Ministers Zulfiqar Ali Bhutto and Benazir Bhutto] today and empowering Parliament, I hope to walk into the annals of history.” And he did just that when he put his signature to the Bill and made it a law on April 19.

After he pushed for the early passage of the Bill, king-sized posters of Zardari appeared at vantage points in Islamabad; the Bhutto father-daughter duo was relegated to the background in them in a clear attempt by Zardari to step out of the shadows of the country’s first family. He could now command respect – however reluctant – that neither the Bhutto legacy nor the status of President fetched him.

But, now that the euphoria over the removal of the vestiges of military rule and the transition from a presidential to a parliamentary form of government has died down, the question that is being asked is whether Zardari has been actually weakened. At the individual level, the answer is a clear no since Zardari remains the power centre for the ruling Pakistan People’s Party (PPP). He is its co-chairman and his writ runs in party circles.

Which is why former Prime Minister Nawaz Sharif’s Pakistan Muslim League (PML-N) has been making a lot of noise about Zardari’s dual role. Its leaders feel that the President could undermine the constitutional reforms by using his position as PPP co-chairman in order to control the government. The 18th Amendment Act has, in fact, strengthened Zardari’s hand over the PPP parliamentary party as it is now he, and not the leader of the parliamentary party, who will declare the defection of a legislator if he or she votes against the party line in the legislature.

While this scenario is specific to the present ruling arrangement, another law has also attracted a lot of interest in recent times. Ali Khan of Washburn University School of Law maintains that the abolition of Article 58(2)(b) is an exercise in futility. This Article allows the President to dissolve the National Assembly if “a situation has arisen in which the government of the Federation cannot be carried on in accordance with the provisions of the Constitution....”

Article 58(2)(b) was once abolished and later reinstated. Introduced by President Gen. Zia-ul-Haq, it was abolished by Nawaz Sharif in the late 1990s and was brought back by Gen. Pervez Musharraf. In between, it was used thrice by civilian Presidents to dissolve the National Assembly and dismiss Benazir Bhutto’s democratically elected governments in 1990 and 1997, and Nawaz Sharif’s in 1993. Besides, Article 58(2)(b) disables the President, not the Army chief. According to Prof. Ali, military takeovers have occurred not because of loopholes in the Article, but in violation of the Constitution.

This view is shared by Hasham Baber of the Awami National Party (ANP), a constituent of the ruling coalition at the Centre. He points out that amendments to Article 6, which describes subversion of the Constitution as “high treason”, has made military intervention difficult as now it cannot be validated by any court. He concedes that “unless democracy takes roots in Pakistan and the military is cut down”, there will be no foolproof safeguard against an Army takeover.

Herein lies the irony. In the name of democracy, bitter political opponents buried their differences and put their collective weight behind reforms that included abolition of Article 17(4) – which made it necessary for every political party to hold intra-party elections to elect its office-bearers and party leaders. Though some members individually protested against this amendment when it was put to vote, the dynastic nature of the leadership of most dominant political parties saw it sail through.

Prima facie, the reason for abolishing this provision was that it was introduced by Gen. Musharraf to control parties and the Constitution cannot micro-manage party functioning. If that is the case, argues Kashmala Tariq of Pakistan Muslim League - Quaid (Like-Minded Group), a breakaway group of the PML-Q, then why was Article 17(3) retained? “Doesn’t asking every political party to account for the source of its funds amount to micro-management? All the major political parties – be it the PPP, the ANP, the PML (both N and Q) – have become family ventures and each has a new generation waiting in the wings. So the very champions of democracy ganged up to remove a clause that would have allowed democratic practices to take root,” she says.

Dichotomy in attitude

A poster of President Asif Ali Zardari and Prime Minister Yousuf Raza Gilani outside the Parliament building in Islamabad on April 5.

Most party leaders concede guilt. While PML-Q secretary-general Mushahid Hussain lamented the dichotomy in the attitude of the ruling elite, which condemns military dictatorship but condones the lack of democracy within its own political outfits, Hasham Baber insists that Pakistan’s democracy is too immature to deal with the pulls and pressures of intra-party squabbles. “It needs to evolve, and these reforms cannot be an end but the beginning of a process,” he says. Academics and civil society activists insist that the ruling elite – be it political or military – should develop a culture for the respect of law.

As Ali Khan put it: “Law cannot do anything if the culture of the ruling elite is lawless. Law works only when there is a will to respect the law. I don’t see how respect for law can be generated by merely making amendments to the Constitution. Constitutional amendments are great national events, particularly when they are made in the aftermath of a dictatorship. Pakistanis have a right to celebrate the change. Euphoria is a burst of energy, not a commitment to the rule of law. Whether the ruling elites have indeed changed for the better is an open question.”

Only time will tell how effective the 18th Amendment is in keeping the military at bay. It is an open secret that the Army still has the upper hand on matters of foreign policy – particularly relations with India and Afghanistan – and the “establishment” remains a feared entity that makes radical votaries of democracy ever watchful of their steps and mindful of their shadows.