Pakistani Parliament

The self-styled and inappropriately named “Parliamentary Committee on Constitutional Reforms” has been trying to keep itself in the news lately. It was formed in June last year and given the job of making recommendations to implement the Charter of Democracy. It has been in existence for eight months but is still far from completing its task. Its chairman, Raza Rabbani, recently told a newspaper that although no deadline could be given, efforts would be made to submit the committee’s recommendations to the government by mid-March.

Unlike Rabbani, who was careful not to give a deadline, Gilani has declared that the committee would finalise its task before Zardari’s speech to the joint sitting of parliament, which is due in March. As there are still many important, unresolved and contentious issues (provincial autonomy, renaming of NWFP and the appointment of judges), it is safe to say that the optimism expressed by the government is not based on an emerging convergence of views but is merely a ploy to relieve pressure on Zardari.

Last year, when Zardari fell into serious difficulties for the first time, he signalled that a constitutional package would be ready by the end of December. To convince doubters, he even agreed to transfer the chairmanship of the National Command Authority to the prime minister. But the crucial test is whether Zardari is prepared to give up the power to appoint the army chief. That is the most valuable card he holds in the present state of political uncertainty.

Since his speech at Naudero, Zardari and his acolytes have been railing against the judiciary and the military – holders of “tenure posts.” He lost the ability to influence the judiciary last March when the constitutional chief justice was restored to his office. Giving up the power to make appointments to the post of army chief would deprive Zardari of control over the most powerful institution in the country and make him look very much like a lame duck, even if he remains the PPP leader.

If Zardari had been more secure in the presidency, he might conceivably have given up the power to appoint the army chief. But not in the present situation, when he feels threatened from all sides. Those who have been waiting for the 17th Amendment to go are therefore not likely to get their wish before Zardari’s exit.

That means also that the committee will remain in business for the foreseeable future. It was given a limited mandate by parliament, confined to making recommendations for the implementation of the Charter of Democracy. But it has taken upon itself the highly ambitious task of reforming the Constitution, a job which parliament never assigned to it. Under the rules of procedure adopted by the committee, it gave itself the power to propose constitutional amendments of all kinds “in order to meet the democratic and Islamic aspirations of the people of Pakistan.”

Gilani has another reading of the committee’s remit. He has been saying that its job is to restore the 1973 Constitution to its original form. Even if we take it that Gilani has been using these words in a loose sense – which is what he usually does – and that what he really means is that the Constitution should be brought back into the form it had before Zia’s coup, it would entail a whole lot of amendments.

To name only a few of them, it would mean that the electoral college for election of the president would consist of only the two houses of the federal parliament; that the president’s power to address a joint session of parliament would be repealed; that the Federal Shariat Court would be abolished; that the term of office of the senators would be reduced from six to four years; and that the “Islamic” qualifications for elected office introduced by Zia would be abolished.

Another example of the highly selective manner in which the committee has been “reviewing” the Constitution is that it has not addressed the question of presidential immunity under Article 248. Ahsan Iqbal, who represents the PML-N on the committee, disclosed in a TV interview on Oct 1 last year that his party had proposed the removal of this protection for the president and the governors, which was a legacy of the colonial times and was against the precepts of Islam. After the Supreme Court’s judgment on the NRO, this should have been a question of the highest priority, but we have no news what became of the proposal. The PML-N has also not pressed it. Would Ahsan Iqbal please explain?

The basic problem of the committee is that, in carrying out the much vaunted “review” of the Constitution, its members are guided by no higher purpose than to promote the narrow interests of the political parties to which they belong. The PPP wants to save Zardari’s rule and the PML-N would like the third-term ban for the prime minister to go. Other parties have their own priorities. And they all agree that whatever the performance of the National Assembly, they should be left free to enjoy the perks of office without the sword of Damocles, dissolution, hanging over their heads.

The Constitution no doubt needs to be reformed to rid it of the accretion of deformities and excrescences under the heavy battering it received at the hands of Zia and Musharraf. The amendments made by them were mainly aimed at strengthening the powers of the president at the expense of the prime minister and of parliament. Besides, Zia also attempted to legitimise his rule by “Islamising” the Constitution through such measures as the creation of the Federal Shariat Court, separate electorates and “Islamic” qualifications for elected office. All these amendments, including those dating from Zia’s time, and not just the 17th Amendment, need to be reviewed.

In addition, 37 years after the Constitution was adopted, it would be perfectly in order to carry out an overall review to see what changes are required to improve the functioning of the political system. It will be found that there is plenty of work to do. But it must be carried out not through deal-making behind closed doors, as the committee seems to prefer, but through a transparent process involving public debate and with the aim of accomplishing agreed goals.

A broad consensus already exists on the following:

1. Making the elected institutions more representative and more responsive to public opinion

2. Strengthening the Parliamentary system

3. Separation of powers

4. Provincial autonomy

5. Checks and balances

The National and Provincial Assemblies are presently elected partly, with about two-thirds of the membership directly under the first-past-the-post system (or simple plurality), and the remaining one-third to represent women and the minorities elected indirectly by the directly elected members. The entire membership of the Senate is elected indirectly, mainly by the members of the Provincial Assemblies.

This method is flawed for two reasons. First, because of the system of simple plurality, the larger political parties are over-represented in parliament, while the smaller parties are under-represented and sometimes go unrepresented. Because of the system of indirect election for the reserved seats, this imbalance is reflected also in these seats. As a result, large sections of the electorate who have voted for the smaller parties go unrepresented. Besides, since only those who are in a position to spend large amounts of money can hope to win such elections, members of a small, predatory and corrupt ruling class dominate our political life.

The system of simple plurality works best where there are only two or three large political parties, as in the United States and Britain. Even in Britain, where a three-party system has grown in recent decades, the simple plurality system is being increasingly questioned. For election to the European Parliament, Britain has already adopted proportional representation. In Pakistan, where there are half-a-dozen major parties and nearly another half-dozen smaller parties, the simple plurality system has produced very skewed results. This is especially true for Balochistan, where there is a multiplicity of political parties.

More and more countries, even some in the English-speaking part of the world with a strong attachment to British parliamentary traditions, have been switching to proportional representation (PR). In Pakistan as well, the shortcomings of the simple plurality system, have been known and the simple solution would be to adopt the PR system. But no serious attention has been given to this matter. This is because the larger parties, which benefit from the continuation of the present unjust system, are represented in the legislatures very much in excess of their real electoral strength. They have been the main obstacle to a reform of the system.

The PR system was seriously considered only once – by the wrong man and for the wrong reasons. Elections announced by Zia for November 1979, later cancelled, were to be on the PR system, in the expectation that under this system the PPP would not be able to secure a majority.

The second main flaw in the present electoral system is that nearly one-third of the National Assembly and the provincial assemblies consisting of the reserved seats are indirectly elected by a very small electoral body. This degrades the process to one of selection by the party bosses who control the allotment of party tickets. Therefore, there is a very heavy representation of relatives and friends of the party leader and their relatives and friends. Those who are indirectly elected owe their seats entirely to the leader and repay their debt by total and unquestioning loyalty to him in the hope that their services would be recognised and they would be rewarded by being given the party ticket in future elections as well.

All the flaws of indirect elections by a small and closed electoral body are also in evidence in the Senate. Besides the suspected role of big money, there is the added problem that (a) the tenure of the Senators exceeds that of their electors; and (b) since the elections take place every three years, nearly half the membership of the Senate at any given time is composed of members who were elected by MPAs who have themselves either completed their tenure or are about to. These Senators can therefore hardly claim to represent any constituency.

Thus, one-half of the present Senate consists of those who were elected in 2006 by the provincial assemblies, which were themselves elected in 2002 and have served their full term. These Senators, who will retire in 2012, still have two more years to go. Similarly, MPAs elected in February 2008 will elect one-half of the Senate membership in March 2012, who would then serve till 2018, ten years after their electors had themselves been elected and five years after they will have ended their term.

Such a body can hardly claim any true representative character. The system of indirect election therefore ought to be scrapped. In its place, a system of PR should be introduced.

The question of the tenure of the two Houses of Parliament also needs to be reviewed. A six-year term for Senators is much too long for an indirectly elected body. There would be some justification for it only if a system of staggered direct elections is adopted. For the National Assembly, a four-year term has often been proposed and there is a lot to be said in its favour. There would be tow main advantages. First, it would make our governments a little more responsive to public opinion and the MNAs a little more heedful of the views of their constituents. Secondly, there would be less pressure for midterm elections and a greater readiness to allow the assemblies to serve their full terms.

To strengthen the parliamentary system, the bare minimum would be to restore to the prime minister the powers of appointment of the Governors, top posts in the military and the judiciary, which the 17th Amendment transferred to the President. In addition, the other changes made by Zia in Articles 90 to 96, which deal with the election of the Prime Minister and his removal through a vote of no confidence, should also be scrapped and the original language of these Articles should be restored. One of the leftovers of the Zia regime is that the president still enjoys the power to require the prime minister to obtain a vote of confidence from the National Assembly. In a fluid political situation, this would enable the president to destabilise a sitting government and replace it with one of his choice. This should not be allowed. Besides, the original Article 96, which provided for a “constructive” vote of no confidence, should be restored. This means that a vote of no confidence would only be passed if a successor is named in the same resolution.

The principle of separation of powers or of “trichotomy” between the three main organs of state has been much talked about recently but the most brazen violation of this principle – the ordinance-making power of the Government – seems to be tolerated. The frequency with which our governments have been issuing ordinances amounts to a usurpation of legislative powers by the executive. What should be an exception has become the rule. This has to be stopped. Law-making should be the exclusive domain of the legislature, as it is in democratically governed countries and the ordinance-making power of the government should be limited to cases when the Assembly stands dissolved.

Provincial autonomy is a goal on which all parties agree. The challenge is to give more powers to the provinces without dismantling the federal government and without taking away from the parliament the power to legislate on matters which can best be dealt with at the federal level, such as the fight against corruption or the control of drugs. This would best be achieved not by scrapping the Concurrent List but by transferring those subjects from the Federal List to the Concurrent List on which the provinces want to have a greater say.

A system of checks and balances is the heart of a democratic system. If we are to transfer all executive powers to the prime minister, as we should, we must also provide a safety valve for emergencies. Article 234 already caters for such contingencies in a province. An appropriate mechanism is needed also at the federal level. Twice in our recent history, we had all-powerful prime ministers who enjoyed large majorities in the Parliament. They were both toppled by military coups d’état (1977 and 1999), which in turn wreaked havoc in the country.

We need to draw a lesson from these two instances and provide for an appropriate safety valve within the Constitution to cope with political emergencies. The president’s power to dissolve the National Assembly in his discretion in certain well-defined situations should therefore be retained. But there should be a check on this power. Article 58 (2) (b) presently provides for a judicial review. This is wrong because it is not the function of the judiciary to adjudicate on a matter which is essentially political. Instead we need a political check, such as a requirement that the president who dissolves a National Assembly would lose office unless he obtains a vote of confidence from the newly elected Assembly within a certain period.

Clearly, a reform of the Constitution is required. But this is too important a matter to be left to a parliamentary committee which was formed only to implement the Charter of Democracy. A wider debate involving parliament, the political parties, the media and the civil society is needed.

By: Asif Ezdi