A flawed charter?

The Parliamentary Committee on Constitutional Reform (PCCR) was set up in June in response to the demand for constitutional amendments agreed in the Charter of Democracy (CoD). The principal constitutional changes called for in the Charter were the restoration of the powers of the prime minister as they existed before the military coup of 1999, the repeal of the president’s power to dissolve the National Assembly and the removal of the third-term ban for the prime minister. Another major demand in the Charter, which has been somewhat obscured in the heated discussion on the question of the president’s powers, was the abolition of the Concurrent List.

The Charter was signed at a time when the leaders of the PPP and PML-N were out of power and in exile and Musharraf was firmly in the saddle. Now that Musharraf has been deposed, the PPP’s two-term prime minister is no more and the PPP leader is in the Presidency, the party’s priorities have changed. While paying lip service to the Charter, the PPP, and especially its co-chairman, have been trying to stall progress on the implementation of the Charter. The establishment of the PCCR was in fact part of these delaying tactics.

The root of the problem lies in Article 248 of the Constitution, which gives immunity to the president from criminal proceedings. After the parliamentary elections in 2008, Zardari had the option, as the leader of the largest party, to become either president or prime minister. He chose to become president because this office gives immunity from prosecution for corruption. If the president did not enjoy this privilege under the Constitution, Zardari would no doubt have become prime minister and the CoD would have been quickly implemented, at least as far as the restoration of the prime minister’s powers is concerned.

After the Supreme Court judgment nullifying the NRO, Zardari needs this protection more than ever to avoid having to face the accountability courts. He also fancies himself as being under threat from the military and is not willing to part with the power to appoint the army chief. In Zardari’s way of thinking, this is one of the few remaining cards he still has in his hands. So if you have been waiting for the repeal of the 17th Amendment, don’t hold your breath for it.

It must be said at the same time that the Charter of Democracy is hardly the panacea for our constitutional problems that the PML-N makes it out to be. It was prepared in a hurry by two exiled political leaders who did not have the benefit of consultation with a broader spectrum of opinion. Among its more obvious flaws are the proposed new procedure for the appointment of judges of the superior judiciary and the provision for a constitutional court.

The Charter also suffers from some not-so-obvious flaws, such as the proposed abolition of Article 58(2)(b). The abolition would certainly guarantee a five-year term of office to our parliamentarians in which they would be free to enjoy the perks and powers of their office without being held accountable till the next election. But it would deprive the country of a much-needed safety valve to defuse political crises involving confrontation or deadlock between different institutions of state or in other serious emergencies.

It is arguable that if the president had had the power to dissolve the National Assembly during the anti-Bhutto agitation following the parliamentary elections in March 1977, the military coup led by Zia would not have taken place and the country would have been spared much of the havoc that his dictatorship wreaked on the country.

True, the power to dissolve the National Assembly is liable to misuse. But the answer lies in placing political checks on its use. This could be achieved by introducing the requirement that a president who dissolves the National Assembly would need to get a vote of confidence from the newly elected house, failing which he would lose his office; or that a fresh election to the office of president would be held after the new house has been elected.

The most serious flaw in the Charter of Democracy is the call for the abolition of the Concurrent List. It is clear that little serious thought was given to the profound implications of this step by the two great leaders who signed the Charter. The abolition of the Concurrent List would not add an iota to the powers of the provincial governments, but it would dismantle large parts of the federal government and deprive the federation of legislative power in many areas in which only nationwide action can be effective.

To take just one example, if the Concurrent List is abolished, there will be no single accountability law. Each province would have to enact its own legislation to fight corruption by holders of public office and set up its own independent accountability commission. This would be a blessing for the corrupt, but can hardly be good for the country. If the aim is to strengthen provincial autonomy, the answer would lie in transferring some powers from the federal list to the Concurrent List, not in abolishing the latter.

While Nawaz Sharif can hardly finish a sentence without swearing by the Charter of Democracy, Gilani has been speaking of implementing the Charter and restoring the 1973 Constitution in its original shape in the same breath, as if the two mean the same thing.

To add to the confusion, the PCCR has taken upon itself the job of a wholesale review of the Constitution without any mandate from the parliament. The resolutions adopted last April by the National Assembly and the Senate under which the committee was established only authorised it to make recommendations “for the implementation of the Charter of Democracy.”

However, under the rules of procedure adopted by it, the committee improperly gave itself also the power to propose constitutional amendments of all kinds “keeping in view the 17th Amendment, Charter of Democracy and provincial autonomy.” The committee did not stop there. It now claims the authority to propose amendments for a full overhaul of the Constitution. In our history we have known enough military coups. This must be the first coup by a parliamentary committee.

The members of the PCCR no doubt take themselves and their job very seriously, but they also go about it in a very cavalier manner. On Jan 6 they summarily turned down a proposal for electing members of parliament on the basis of proportional representation, without bothering to seriously look at its merits. Their reasons are not difficult to make out.

The present first-past-the-post system gives undue advantage to the larger political parties and the political dynasties of the country. If the proportional system were adopted, a more truly representative legislature would emerge but about half of the present membership of the parliament would not be sitting there. Only a few days earlier, the committee had just as quickly turned down a proposal to delete the “Islamic” disqualification clauses introduced by Zia.

Amending the Constitution is serious business which requires thorough study and careful thought. But our political leaders, government and parliamentarians treat it as part of political gamesmanship.

Zardari claims he is willing to surrender the powers transferred to the president under the 17th Amendment, but is actually working against it. Gilani is probably genuinely in favour of its repeal, but not even his ordinary party members pay him any heed, to say nothing of the ministers who owe their offices and loyalties to Zardari. And the members of the parliamentary committee are self-importantly but fitfully trying to overhaul the Constitution without having any mandate for the task. If anyone does not know what directionless drift in politics looks like, he should take a glance at the constitutional reform debate in Pakistan.