The parliamentary form of government is founded on a system of checks and balances, which is acutely missing in Pakistan. This is at the heart of many of the nation’s woes
S IFTIKHAR MURSHED
[dropcap]I[/dropcap]n Pakistan it is suddenly the season of mass rallies and prolonged sit-ins accompanied by violence which no other civilized country would allow. The current fad of every politician is to disturb the tranquility of the early autumn nights by screaming inanities from the top of containers.
The imbecility, like a deadly virus, has contaminated the entire political landscape. The resultant instability over the last few months has been consequential and the entire nation has suffered enormously.
The challenges confronting the country are formidable and should jolt the political leadership to stop playing their silly games. But the lust for power is overwhelming and has blinded them to the hideous ground realities. Pakistan has been a victim of its own follies.
Since its birth in 1947, durable political stability has eluded the country. “The fault”, as Cassius tells Brutus in Shakespeare’s Julius Caesar, “is not in our stars, but in ourselves” – in Pakistan it is in its leaders.
India was far more fortunate. Nehru, the founding father of the country lived for 17 years after its independence. When he died on May 27, 1964 the spontaneous outpouring of nationwide grief was described by the media in Nehru’s own words on Gandhi’s assassination: “The light has gone out of our lives and there is darkness everywhere.”
The ‘light’ insofar as Pakistan was concerned was extinguished a mere 13 months after its emergence with the death of Jinnah. September 11, 1948 was Pakistan’s 9/11 from which it has never recovered. Within six months of the Quaid’s passing the constituent assembly passed the Objectives Resolution and Islam became the state religion.
Shortly afterwards the country’s first law minister, Jogendra Nath Mandal (1904-1968), a scheduled caste Hindu, resigned and migrated to India. The novelist Upton Sinclair (1878-1968) had once warned, “When fascism comes to America, it will be wrapped in the flag and carrying the cross.” This was the impact of the Objectives Resolution on Pakistan. With its adoption, Jinnah’s historic presidential address to the constituent assembly in which he boldly affirmed that religion had “nothing to do with the business of the state” faded from memory.
A timely warning came with the ‘Report of the Court of Inquiry into the Punjab Disturbances of 1953’ co-authored by Chief Justice Muhammad Munir and Justice MR Kayani. The two judges skilfully grilled the leading clerics of the country and asked them to define Islam. Their report laid bare the hypocrisy: “Keeping in view the several definitions given by the ulema, need we make any comment except that no two learned divines are agreed on this fundamental.”
The clerics were equally vague about their concept of an Islamic state. The Munir report therefore observed: “What is then the Islamic state of which everybody talks about and nobody thinks? The ulema were divided in their opinions when they were asked to cite some precedent of an Islamic state in Muslim history…Most of them relied on the form of government during the Islamic republic from 632 to 661 AD, a period of less than thirty years.”
Unfortunately the 387-page report which was presented to the government on April 10, 1954 was merely filed away. Its concluding portion is particularly relevant: “The sublime faith called Islam will live even if our leaders are not there to enforce it…our politicians should understand that if Divine commands cannot make or keep a man a Musalman, their statutes will not” – nor will an ‘Islamic state’.
These words had no impact and were forgotten. In 1985 General Ziaul Haq issued presidential order No. 14 through which Article 2-A was inserted in the constitution and the Objectives Resolution became a substantive part of the basic law.
The utter contempt with which the supreme law of the land was amended merely through an ordinance promulgated by a usurping dictator has never evoked any stern reaction. Even worse, it was left intact in the 18th Amendment of the constitution.
Thus the use of religious formulations in the political discourse of the country was again given the stamp of approval. This has been exploited by every politician including the container-top gladiators, Imran Khan and Tahirul Qadri. The PTI chief, for instance, has said that the ‘the third umpire’ he keeps referring to is God and that his end objective is the establishment of an Islamic welfare state.
On the question of an Islamic state, an eminent Muslim scholar and jurist of South Asia has observed that “it has no sanction in the Quran and hadith. Secondly, it never existed in history…Lastly, the concept is totalitarian. It robs the people of their right to rule and vests it in an un-elected clergy. They decide what is Islamic and what is not.”
The concept is incompatible with the parliamentary form of government which the political leaders of Pakistan pretend to champion. It was in this spirit that the parliamentary committee on constitutional reforms held 77 meetings under the chairmanship of Senator Raza Rabbani and the outcome was The Constitution (Eighteenth Amendment) Act 2010. This was described as ‘historic’ and the claim was advanced that it had restored the 1973 constitution and had thereby permanently established parliamentary democracy.
Scholars do not share this assessment. For instance the reputed Mumbai-based constitutional expert AG Noorani, who was frequently consulted by the former presidents and prime ministers of India, commented: “Pakistan needed a new carpet. The 18th amendment is a patchwork quilt and some of the patches are likely to cause sores in the future.”
The reason is that contrary to popular belief, the 1973 constitution did not put in place a parliamentary system of government. It was tailor-made to suit the needs of Zulfikar Ali Bhutto and established a prime ministerial dictatorship. This was what prompted Mian Mahmud Ali Kasuri to resign as chairman of the constitution committee and law minister in October 1972.
The parliamentary form of government is founded on a system of checks and balances. It envisages a head of state with sufficient powers to restrain an autocratic head of government, yet not so powerful as to be able to undermine the system, and a prime minister powerful enough to keep an over-ambitious president in check.
This is embodied in the conventions of the parliamentary system and is recognized in the UK, Canada, Australia, New Zealand and India where the head of state has the right: (i) to be consulted; (ii) to demand information; (iii) to select a prime minister in the event of a hung parliament; (iv) the discretion to dissolve parliament; and (v) as a last resort to dismiss the prime minister.
But the 18th Amendment has restored dictatorial powers to the prime minister and this is what lies at the heart of the ongoing political turmoil in Pakistan. Imran Khan is perfectly right in saying that Nawaz Sharif has become the absolute monarch of the country and only members of the ‘royal family’ and their cronies are managing the affairs of the state. The end result is corruption, nepotism and atrocious governance.
The cricketer-turned-politician is again right in insisting on change. But the new Pakistan that he keeps talking about must entail much more than a mere change of faces at the helm. The transformation has to be structural if a genuine parliamentary form of government is to be established.
This will require four initial steps: (i) the president has to be given the powers envisaged in the 1956 constitution as in other parliamentary democracies; (ii) the anti-defection clause (Article 63-A) must be rescinded. This is a constitutional aberration and exists only in India, Sri Lanka and Pakistan; (iii) the executive must not have legislative powers in the form of the promulgation of ordinances. This has been described by legal experts as “a gross constitutional obscenity” and is prevalent only in Pakistan (Article 89), India (Article 123) and Bangladesh; and (iv) Article 2-A should be abrogated so that the Objectives Resolution is no longer a substantive part of the 1973 constitution because religion “is not the business of the state.”
If Imran Khan can bring this about he will be remembered as one of the greatest statesmen of South Asia. But he will first have to transform himself and stop talking nonsense from the top of containers.-The News International
