On constitutional changes

By Humayun Akhtar Khan

Since Pakistan came into existence there has been a tussle between politicians and generals. When they get into power, generals seek legitimacy and the politicians seek more power. Together, they shred the constitution to pieces. The generals must remember that no matter what the causes of their takeovers, they may never be able to secure legitimacy. The politicians should remember that no amendments to the Constitution can protect them from their inadequacies and shortcomings.

We seem to be going through another effort to amend our Constitution. We have a problem with the powers of the president. Agreed, that in a parliamentary form of democracy the chief executive should be the prime minister. What we should ensure is that, as in a true parliamentary system, the prime minister, the cabinet and parliament are all empowered, and not just the prime minister.

The most notorious section of our Constitution at present seems to be Article 58(2)(b). Although it should not be there, a number of coups have been avoided and the democratic process has resulted from Article 58(2)(b). For the time being we need a safety valve in the shape of 58(2)(b). The judicial review we have in the 17th Amendment is not appropriate. We politicians should try and resolve our problems politically.

The president’s power under this section should remain, but with adequate political checks. One check may be the president’s being obligated to seek a vote of confidence in the newly elected National Assembly resulting from the exercise of that power, failing which he or she should be stripped of power.

We have the very important issue of provincial autonomy. Nobody can disagree with the concept but a few fundamental questions arise. Is it not true that our provinces now are more autonomous than the Indian states? Is the abolition of the concurrent list the only way more autonomy may be given to the provinces? Or is the main problem the present structure of the federation, where Punjab constitutes over 60 per cent of the population? As the federation stands today, when Pakistan grows, Punjab grows at a faster rate than the rest of the country, and thus becomes still richer.

The creation of new provinces should not be based on ethnic or linguistic reasons. Their capitals should be reachable by the populations easily. The current balance in the Senate should not be distorted, meaning that the balance Punjab, Balochistan, Sindh and NWFP have in the Senate at present should be retained after the creation of any new provinces. This criterion can only be met if we split the existing provinces in equal numbers. The process to create a new province should be simplified in the Constitution.

Creation of more provinces in Pakistan will strengthen the federation as it exists today. These provinces should be given direct control of more sources of revenue. At present a major chunk of the combined revenues of the federal and provincial governments are collected by the federal government. Almost three- fourths of all provincial expenditures are met through resource transfers from the federal government in accordance with the NFC awards. More autonomy may also be given to the provinces by making their share in their natural resources more equitable, and by giving them adequate employment quotas in all government services.

The Constitution as it existed on Oct 12, 1999, should be restored, but the amendments relating to joint electorate, the reserved seats for religious minorities and women, the lowering of the voting age and the increase in the number of seats in parliament should be retained. The term of the National Assembly should be reduced to four years.

The concurrent list is a list of areas where both the provinces and the federal government can legislate. In case of a conflict, the federal legislation currently prevails. We seem to believe that abolition of the concurrent list and reduction of the federal legislative list is the means for more provincial autonomy. No one seems to have done any homework on the implications of such a move for the federation as it now exists. It may entail a major dismantling of the federal structure and major enhancement of the capacity of the provincial governments. The federation may cease to function and become redundant.

We should reduce the federal legislative list somewhat and add these items to the concurrent list. The existing concurrent list should be retained. However, in the concurrent list we should have two sections. One section should be laws and areas where the federal legislation will prevail. The other should be laws and areas where provincial legislation will prevail in case of a conflict. This will give adequate autonomy to the provinces without jeopardising the federal structure.

The concept of a judicial commission making initial recommendations is fine. Parliamentary scrutiny in the end is done in many countries. The prime minister should have some say too. The Charter of Democracy’s clause of three recommendations of the judicial commission to be sent to the prime minister, who then forwards one to the parliamentary committee, seems appropriate.

The appointment of the chief justices of the provincial and supreme courts should be made by the prime minister. These should not only be based on lengths of service but also on competence and reputation. The appointments must also come before the parliamentary committee, which having equal representation of the opposition and the treasury, should be able to block them with a two-thirds majority. Similarly, the appointments of the head of the accountability organisation or the chief election commissioner again should be made in a similar fashion as the appointment of the chief justices.

Our first-past-the-post electoral system is biased towards the larger political parties of the country. As in the case of reserved seats for women and religious minorities in the national and provincial assemblies, a new category of technocrats should be added to the list of reserved seats. All the reserved seats should depend on the actual percentage of votes a particular political party is able to get in an election, and not on the number of members it is able to get elected. A serious problem in Pakistan is the non-existence of adequate capacities within the ranks of political parties to govern once they get into power. The addition of the category of technocrats in the legislatures would give the political parties an improved capacity to govern. Also, the minorities still remain unrepresented in the Senate, for which provisions should be made in the Constitution.

Most legislation in Pakistan is done through ordinances, which essentially is a legacy of our colonial past. In the presence of elected bodies no country in the world permits the issuance of ordinances. If we look at the history of our legislation, no ordinance, apart from the NRO, has subsequently been removed or significantly changed by an assembly. If we want to empower our assemblies, we must get rid of the power of the executive to issue ordinances.

The last local-governments system had a lot of positive points. The system had its teething troubles, though. Revenue and law-and-order functions should be taken away from these local bodies. Other powers should remain intact. The process for the election of nazims, naib nazims and reserved seats for district/tehsil councils should be simplified, so that it is less prone to malpractices.

With respect to the status of Fata, the options are for the territory to continue as it is, administratively and politically; to become part of our existing provinces; to become a new province; or to be given special status like Gilgit-Baltistan. Obviously, the people of Fata must be consulted in what they want for themselves. My recommendation would be for them to be given that status which Gilgtit-Baltistan has received.

Years of mismanagement, political manipulation and corruption have made Pakistan’s civil services incapable of providing effective governance. The last regime’s devolution plan led to further confusion. Reforms of the civil service should be prioritised for it to become a more effective and accountable institution. The recommendations of the National Commission on Government Reforms, which was set up by the last government in 2006 and which presented a report to the prime minister in May 2008, could be the starting point for the debate to reform the civil services.

The 18th Amendment, a good effort, is necessary, but certainly not sufficient. If we really want to strengthen democracy, let us start delivering to the people and let us learn to protect the interests of the state rather than our own. What happened in Washington should be an eye-opener: only two years after the election, the red carpet was rolled out for our army chief, with politicians nowhere to be seen. Such is the level of vacuums we create, which of course take no time being filled.