Little to celebrate
Part I
Monday, April 26, 2010
Asif Ezdi
The writer is a former member of the Pakistan Foreign Service.
The 18th Amendment was supposed to have cleansed the Constitution of the distortions and perversions introduced by Musharraf through the 17th Amendment, restore a parliamentary system of government and establish the legislative supremacy of parliament. What it has done instead is the exact opposite. It has introduced some new deformities in the Constitution in order to benefit the current ruling clique, substituted parliamentary rule with primacy of the party heads and provided for further inroads by the executive in the legislative field of parliament.
It does not stop there. By abolishing the Concurrent List, the 18th Amendment also incapacitates the federal government and legislature in several vital areas in which only action at the national level can be effective. This has been done in the name of greater provincial autonomy, although the deletion of the Concurrent List gives no new power to the provinces that they did not have already.
By failing to lay down expressly that the president, as the representative of the unity of the republic, will stand above party politics, the amendment has made it possible for Zardari to continue as de facto head of the government, and made a mockery of the new Article 90 which declares that the prime minister will be the “chief executive” of the country. The parallel with the ridiculously titled “President to Hold Another Office Act” passed by Musharraf in 2004 to validate his holding of the post of army chief simultaneously with that of president is evident. The only difference is that the second office that Zardari will hold besides the presidency is that of party head, not the army chief. But the result is the same. It makes the prime minister a puppet of the man in the Presidency.
Besides, the new Article 63-A on defection virtually empowers the head of the majority party or coalition of parties to dictate who the prime minister will be. Since political parties are no longer obliged under the Constitution to hold intra-party elections, the current practice of hereditary leadership in the parties has now received constitutional blessing.
It is not inconceivable that the law requiring elections in the parties may be held by a pliant judiciary to be unconstitutional after the deletion of Clause 4 of Article 17. The way has thus been cleared for the seamless succession of the next generation of the Zardari-Bhutto clan, the Sharif family and the other illustrious dynasties which dominate Pakistan’s political arena.
A party head, moreover, does not have to meet the qualifications for holding elective office laid down in the Constitution. He could, in theory, even be a non-citizen or someone less than 25 years old, such as Bilawal. More important, he could even be a person who has been convicted of treason or other serious offence such as graft or money-laundering. That means that even if Zardari is found guilty of corruption, which few doubt would happen if the cover of constitutional immunity is taken away, he could still continue as party head and, in that capacity, dictate the choice of the country’s prime minister, if his party has majority support. The period of disqualification on conviction has in any case been reduced under the 18th Amendment from lifelong to five years.
Besides consolidating dynastic control of the country’s political system and strengthening the stranglehold of the exploiting class which enjoys the monopoly of political power and economic fruits, the 18th Amendment has also made Pakistan the safest country in the world for the corrupt politician. Zardari had therefore much to celebrate when he signed the amendment bill into law on April 19. His political allies and other parties also got their piece of the cake. The Sharif brothers can now aspire to any number of terms in their coveted posts and the ANP gets Pakhtunkhwa. Raza Rabbani, the proud author of the amendment bill, also had his moment of glory and repeatedly patted himself on the back for his great achievement.
The people of Pakistan were the only losers in this great charade. For them, these celebrations have a farcical character. They have again been cheated of their right to a democratic system of government, good governance and checks on the rampant corruption that afflicts the country. It was history repeating itself. Like the 8th Amendment, which was meant to concentrate powers in the hands of Zia and prolong his rule, and the 17th Amendment, which did the same for Musharraf, the 18th Amendment too seeks to strengthen and extend the hold of the country’s current rulers on power.
Tellingly, many of the same political stalwarts who voted for the earlier two amendments, among them none other than Gilani, also supported the latest one. Both Zia and Musharraf met a sorry end within a few years after their constitutional coups, but undoing their amendments turned out to be much more difficult. Again, making the present set of rulers answer for their alleged corruption might turn out to be the easy part. Undoing their depredations against the Constitution might be more problematic.
In a recent article in this paper, Azeem Daultana, the PPP’s parliamentary secretary for information, wrote that I have been pointing to the many serious defects of the 18th Amendment “only to be counted as a critic.” He is not the only one to have cast doubts on my motives. Kaira and Ahsan Iqbal, leading lights of the PPP and the PML-N, respectively, have also attacked me in televised discussions on this subject. My sin: spreading “confusion” and trying to “mislead.” The trouble with our politicians is that they are always trying to excel each other in the game of competitive sycophancy to please their bosses. Their answer to rational arguments that they cannot counter is to pour invective against all those who do not agree with them.
In support of the deletion of the Concurrent List, Daultana has cited some “promise” made by the authors of the 1973 Constitution, and Kaira referred to commitments made in the Constitution as adopted originally. This is a myth, as anyone who has taken the trouble of reading the Constitution would know. Neither of them, nor anyone else, has so far divulged who made these promises, and to whom. Nor have they produced a shred of evidence to support their assertion. S M Zafar, a member of the Constitutional Reform Committee who was intimately involved in the drafting of the 1973 Constitution, has stated in his dissenting note that the founders of the Constitution did not make any commitment, expressly or otherwise, to omit the Concurrent List, and that this fact is borne out by historical record, including parliamentary reports.
Another myth is that the abolition of the Concurrent List has given to the provinces some powers which they did not have earlier. The fact is that they already have legislative and executive authority over concurrent subjects. What the abolition of the concurrent list has done is to take away these powers from the federation without giving any new powers to the provinces.
Mr Daultana writes in his article that with a federal and a provincial list in place, a concurrent list is unnecessary and its “prolonged existence” is against the essence of federalism. The first part of his statement is factually incorrect, because there is no provincial list in the 1973 Constitution. As regards the second part, the truth is that many countries with well functioning federal systems have concurrent lists.
(To be continued)