| 05 January 2004 | Monday | 12 Ziqa'ad 1424 |
Seeking a viable solution
A pyrrhic victory
The funniest thing to have been done to the state of Pakistan is the constitutional accord between the government and the MMA. The result is the Constitution (17th amendment) Act. A proper title for the enactment would be the Legal Framework Order (Amendment) Act because it only amends some provisions of the LFO and leaves untouched many of its provisions, which the government insisted formed part of the Constitution.
These provisions of the LFO are:
1. Article 17 in the fundamental rights chapter of the Constitution was amended to lay down that no political party shall promote sectarian, ethnic, regional hatred or animosity, be titled or constituted as a militant group or section, and that every political party shall hold intra-party elections.
2. Article 51 of the Constitution was amended to raise the number of seats in the National Assembly, increase women's seats, reduce the voting age to 18 years, and provide for election to seats reserved for women and non-Muslims.
3. Article 59 of the Constitution was amended to revise the number of seats in the Senate and to provide for election to them.
4. In Article 62 of the Constitution (the NA membership eligibility provisions), clause (b) was substituted.
5. Article 63 of the Constitution was amended to prescribe revised grounds for the disqualification of National Assembly members and the duty of the Chief Election Commissioner in the event of a member's disqualification.
6. Article 63-A of the Constitution was substituted and the procedure for disqualifying a member for defection prescribed.
7. Article 70 of the Constitution was deemed to have been amended to resolve differences between the two houses of parliament through a mediation committee instead of a joint sitting.
8. A new Article (71) was added to the Constitution to prescribe the working of the mediation committee.
9. Article 73 of the Constitution was amended to provide for the Senate's role in the adoption of money bills.
10. In Article 75 references to joint sessions were replaced with references to the mediation committee.
11. Article 101 was amended to the effect that the president was to appoint a governor after consultation with the prime minister and not on his advice.12. Article 106 of the Constitution was amended to lay down a new scheme for provincial assemblies.
13. A new article (140-A) was added to the Constitution which made it mandatory for each province to establish a local government system and devolve authority to the elected representatives of the local governments.
14. Article 199 of the Constitution was amended to limit the period of injunctions issued by High Courts.
15. Article 203 C was amended to replace the expression 'salary' used in relation to judges of the Federal Shariat Court with the word "remuneration."
16. Article 209 of the Constitution was amended to allow the Supreme Judicial Council to act on its own motion too.
17. Article 218 of the Constitution was amended to prescribe the mode of constituting a permanent election commission.
18. Article 224 of the Constitution was amended to provide for the appointment of caretaker cabinets after dissolution of assemblies, and for filling vacancies in assemblies.
19. In Article 260 of the Constitution, 'consultation' was defined as 'discussion and deliberation which shall not be binding on the president.'
20. In Article 270 B of the Constitution, a clause was added to legitimize the elections held under the Conduct of General Elections Order, 2002.
21. A new Article (270-C) was added to the Constitution to protect the consequences of the Oath of Office (Judges) Order, 2000, under which a number of judges left the benches or were dropped.
What is the status of these provisions of the LFO?
Only one answer is possible - all of them have been accepted as valid amendments to the Constitution. It can be said that some of these provisions, such as lowering of the voting age, increase in the strength of assemblies and the senate or reservation of seats for women, enjoyed democratic support or that some others, such as elections to revamped legislatures, related to transactions completed and closed, and it was not in any party's interest to reopen them. But the merit or otherwise of an LFO provision is not the issue at the moment.
The issue is that a number of LFO provisions have been accepted as valid amendments of the Constitution without having been specifically included in the 17th Amendment Act, which inter alia validates the LFO. This will become further evident when we examine the 'new' Article 270 AA.
An examination of the articles of the Constitution amended vide the 17th Amendment act also leads to similarly interesting conclusions. These amendments are:
1. Article 41 (election of the president) has been amended. The 17th amendment adds a proviso to paragraph (b) in clause 7, to the effect that the disqualification incurred by an MNA for holding another office of profit will become operative on Dec 31, 2004. However, there was no paragraph (b) in the Constitution; it was introduced by the LFO. Thus it is the LFO that has been amended and not the Constitution, if one takes the view that the LFO had not become part of the basic law. Incidentally, the amended article excludes Gen. Ziaul Haq's name from this constitutional provision, though it stays (for no reason) in Article 270A. The clause (8) added to the article provides only for endorsement of the present president's election. It can be taken as a transitional provision, and it will soon become a dead letter.
2. In Article 58 a new clause (3) has been added to provide for a reference to the Supreme Court within 15 days of dissolution of the National Assembly under Article 58 (2)(b). Now, the clause (2) (b) of Article 58 was not there in the Constitution in 1999. It was inserted by the LFO. The addition of clause (3) is meaningless unless the revival of clause (2) (b) under the LFO is accepted as a legitimate amendment of the Constitution.
3. An identical amendment has been made to Article 112 (dissolution of a provincial assembly by the governor).
4. Article 152-A (National Security Council) has been deleted. This article did not exist in the Constitution. It was a provision made vide the LFO. Thus the amendment is made to the LFO and not to the Constitution.
5. Article 179 purports to replace the article with a new text. But the text (retiring age of a Supreme Court judge) was already there in the Constitution before it was changed vide the LFO. This amendment erases the change in the Constitution deemed to have been effected by the order of 2002 whereby the judges' retirement age was raised by three years. How does this amendment amount to an amendment of the Constitution unless LFO is accepted as part of the Constitution?
6. The substitution of Article 195 (retirement age of high court judges) is similar to the replacement of Article 179. The new text was already there in the Constitution and if it was not validly amended by the LFO, there was no need for a fresh amendment.
7. Article 268 lists the enactments that cannot be amended or even discussed without the prior approval of the president. Before the LFO was issued 24 laws listed in the Sixth Schedule were thus protected. The LFO added 11 laws to the list. The 17th Amendment Act reduces the protection to provincial local government ordinances and the police order, 2002, to six years. Since the MMA had no problem with election commission order 2002, or the conduct of general elections order 2002 (which revived the joint electorate, and bars non-graduates from contesting elections to assemblies and the Senate), and the qualification to hold public offices order (which bars those who have held the office of PM / CM twice from returning for a third term), these orders have not been touched.
8. Perhaps the most ingenious piece of drafting in the 17th Amendment Act is the substitution of Article 270AA which was inserted by LFO with a new text. The only difference between the texts given in the LFO and in the new Act is, firstly, that the actions taken since 1999 have not only been validated but have also been affirmed by the parliament, and, secondly, that in the latter version the expression "amendments in the Constitution" has been added at four places to the protected, validated and affirmed body of actions taken by Gen. Pervez Musharraf after October 12, 1999.
Not only that. Clause (1) of Article 270AA (new version) explicitly declares that "the amendments made in the Constitution through the Legal Framework Order, 2002, (Chief Executive's Order No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002), and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002) - having been duly made or accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever."
The MMA had vowed not to accept the LFO as a piece of valid constitutional legislation and it ended up by validating the whole of it.
A more plausible procedure, after allowing for all the compromises made under the much-touted government-MMA agreement, would have been to put the entire LFO, as amended, before the parliament. That would not have affected the amendment bill's adoption, but at least all the provisions of the LFO would have been open to debate. The people at large might have been enlightened on the merit or otherwise of the amendments to the Constitution made by the LFO and the 17th amendment bill.
Taking the constitutional package as a whole, it can be seen that both parties to the deal have conceded ground. The government has withdrawn the LFO provision for a National Security Council. The proposed body will now be set up under an Act of Parliament, that is, it will be a statutory institution and not a constitutional one. Changes in its composition or role will not require a constitutional amendment. But the NSC was conceived as an extra-defensive measure to secure the army's veto power. An extraordinarily powerful president, such as the Constitution now sanctions, will perhaps not need the NSC. This was the view taken by Gen. Ziaul Haq when he dropped the NSC provision vide the 8th Amendment.Another concession yielded by the government is withdrawal of the extension in retirement age for judges of superior courts. One can only say that the development is a reminder to the judiciary that favours arbitrarily granted can also be arbitrarily withdrawn, that is, if Gen. Zia's tactics have been forgotten.
Both sides are likely to maintain that Gen. Pervez Musharraf's decision to give up his army post by Dec 31 this year is the most important concession given by the government. Maybe, a strong president does not need the army hat and any speculation about the relationship between the president and a new COAs will run into a host of imponderables.
What the government has gained is plainly much more than what it has foregone. Most importantly it can claim to have resolved the crisis of legitimacy. The parliament has put the seal of ratification on the referendum of 2002 and swallowed over 90 per cent of the LFO.
Unfortunately, the whole wrangle over the LFO and the president's uniform will eventually be seen as a poor reflection on the country's under-developed political mind. The LFO has pushed the system closer to the presidential form than was done by Gen. Zia and this was not considered an issue worth examining. Nor was the need for an independent Election Commission considered. Since negotiations were confined to a few provisions of the LFO, the broader imperatives of a democratic polity as well as the people's expectations of constitutional guarantees for their political and economic rights could be ignored. But then a disempowered people cannot collect the fruits of power-play. It is unlikely that future historians will find kind words for "Deal 2003."
Seeking a viable solution
It is heartening to see that the dastardly incidents of terrorism in Rawalpindi did not deter any of the participants from attending the Saarc summit. The peace process, which has been eagerly pursued, since April 2003, by the two governments and major segments of societies, has created a congenial atmosphere.
The year 2004 is being heralded on a positive note with this summit. It is hoped that both sides would exhibit magnanimity and sagacity to avail this opportunity to have meaningful dialogues in order to resolve all issues including Kashmir.
How should the Kashmir issue be resolved? Several formulas have been proposed, but none has so far been adopted for resolving this most long drawn-out complex issue. If the UN is not inclined to implement its own resolutions on Kashmir, if Chenab Formula is not acceptable to India, if the Livingston's proposals are not workable and if the stated position of the two countries on Kashmir are not acceptable to each other, then the deadlock will continue. We have already suffered disastrous consequences because of this dispute and cannot afford to allow the status quo to prevail endlessly.
"Pakistan comes first", has been the present rulers' favourite slogan, and rightly so. However, this paramount stance should be reflected in the policies of the present government including foreign policy and our relations with India. But when it comes to India, our establishment insists on "Kashmir First". This creates a contradiction in terms and proves to be counter-productive. By insisting on "Kashmir First" no breakthrough could be made in the negotiations between the two countries at Agra in 2001 or thereafter.
India and Pakistan agree that the Kashmir dispute can only be resolved by showing flexibility on the pronounced stand of the two countries and by holding sincere and meaningful dialogue. All agree that war is not the answer. Over the past fifty-five years, the three wars with India and two battles of Siachen in 1987 and Kargil in 1999 could not help resolve the issue. It only resulted in losing half of our country with disastrous consequences both economically, politically and in virtually all other facets.
Equally counter-productive and disastrous is the strategy, since the era of Gen. Zia, of the so-called Jihad on the pretext of keeping the Kashmir issue alive and leaving India bleeding. The activities of the Jihadis in the past two decades have only resulted in further loss of life, places of worship and properties of the Kashmiris with the proliferation of the jihadis, religious militancy and fanaticism in Pakistan.
The so-called jihad could not force India to budge an inch or motivate any country, including our closest allies, to pressure India to resolve the issue peacefully. Nor was the Indian economy or its image damaged in any significant manner. On the contrary, Pakistan was on the verge of being declared a "terrorist state", our economy continued to suffer and religious extremism spread like a plague in Pakistan and brutalized our society.
The Kashmiri leaders, including All Parties Hurriyat Conference, have repeatedly declared that the struggle for liberation of Kashmir is not religious but political. Hence, there was no justification for declaring this struggle as "jihad".
On the other hand the comity of nations including members of the OIC or even the most hitherto dependable states are not prepared to offer more than lip-service for the implementation of the UN resolutions on Kashmir. The UN Secretary-General, Mr. Kofi Annan, openly stated that with the passage of time the UN resolutions on Kashmir have become obsolete and lost its force.
Perhaps acknowledging this unfortunate reality, only recently, Pakistan has rightly shown remarkable flexibility by not insisting on the rhetorical demands for the implementation of these resolutions. This realistic and prudent statement of Gen. Pervez Musharraf earned him appreciation not only from India but also from important international players who matter including the US, European Union, Russia and China.
Another undeniable ground reality is that neither India nor Pakistan can physically force each other to surrender the part of Kashmir under their control. The third option i.e. independent state of Kashmir is also unacceptable to both India and Pakistan. In view of these incontrovertible realities, both India and Pakistan shall have to show flexibility on their respective stated positions. A viable solution could perhaps be to accept the Line of Control, with some adjustments, as the international border.
India has at least tacitly accepted this position, despite its claim to have annexed the state of Jammu & Kashmir as part of the Indian Union under its Constitution. Nevertheless, the writ of India has always been restricted to the part of Kashmir under its occupation. Secondly, whenever India alleges intrusion by any terrorist or jihadis, it always uses the term "Across the border terrorism" instead of "across the LoC". This amounts to imply the acceptance of the LoC by India as international border.
To remove the prevailing devastating deadlock, it would be in the best interest of the people of Pakistan, India and Kashmir, that both Pakistan and India formally accept the Line of Control as the international border for all practical purposes, at least for the time being. This is precisely the spirit and objective of the Simla agreement of 1972.
This acknowledgement must however be followed by a treaty between India and Pakistan, containing firm and sincere commitments (a) that both the countries would desist from, discourage and prevent aggressive actions, policies or propaganda against each other and militancy or terrorism in any form, may it be at the hands of the armed forces or jihadi/religious fanatic organizations; and (b) the border between the two countries and between the two Kashmirs should be opened to the people at large with free access, free trade, exchange of cultural activities, academics, intellectual groups, sports events, free access to the electronic and print media, etc.
Such bold decisions cannot be implemented without mobilizing public opinion. A heated controversy over the Geneva Accord was ably resolved by the then Prime Minister Junejo, who had invited all the political parties to the Round Table Conference, in which consensus was achieved on this issue. If the present regime, for its own survival, can convince the MMA to support the Seventeenth Amendment to the Constitution, then to save the people of Kashmir and Pakistan from further miseries, it should also strive for a consensus on the Kashmir issue.
Maulana Fazlur Rehman, Leader of the most important component of the MMA, has during his recent visit to India supported the proposal to accept the LoC as the international border. Following the healthy precedent of the late Mr. Junejo, the present rulers should also invite all political parties in the parliament to a round table conference for arriving at a consensus on the Kashmir issue.
The writer is a former federal minister of Pakistan.
A pyrrhic victory
Last week local newspapers displayed a buoyant, beaming prime minister being heartily congratulated by his supporters. He has reason to be pleased.
The MMA, who had been dilly dallying for over a year, had finally decided to join the loyalists who were anxious to make the LFO a part of the Constitution. What surprised everybody, however, was the speed with which the document was pushed through the two houses of parliament.
President Musharraf has won a vote of confidence, though with 93 absentees and 58 abstentions in the national assembly, and 43 absentees in the senate, this could hardly be described as an overwhelmingly popular verdict. The greatest dissent came predictably from Punjab, where the PPP has a strong following and the Nawaz Sharif faction of the Muslim League has its roots. Nobody was therefore surprised when 110 MPAs decided to boycott the proceedings.
Now that the controversial seventeenth amendment has been passed, and the dust has settled on the ramparts of Islamabad, it would be interesting to see this latest development in the context of the continuing struggle for the establishment of a democratic system and the restoration of the 1973 Constitution, shorn of all the controversial amendments.
It is now widely believed that there had always been a tacit and arcane understanding between the MMA leadership and the president, that the former would throw in its lot with the establishment whenever the need arose.
In order to enable the alliance of religious parties to project an aura of fierce independence, it was not only necessary for them to adopt the posture of a responsible opposition party, but to be also seen as the leader in the fight against the usurpation of democratic values. And so they indulged in a great deal of shadow boxing, threatening mass demonstrations and violence on the streets. But the show of force never materialized, and the ARD members continued to be suspicious of their motives.
That's the popular view. But there is another possible reason why the MMA capitulated - the belief that the treasury benches put considerable pressure on the MMA to conform, otherwise their ship of state would encounter all kinds of hidden reefs in the NWFP. After all, hasn't there been considerable pressure from the Americans to clamp down on the activities of the tribesmen of the north-west? The upshot of the move is that the religious parties now have an assured tenure in the NWFP and Balochistan.
Mr Jamali must be a greatly relieved man. His major constitutional headache is over. He has succeeded in isolating the MMA from the ARD. He has also watched, with a nervous vigilance, President Musharraf make the appropriate gesture concerning the shedding of his uniform by the end of the current year. And he has also noted, with considerable satisfaction, the exclusion of the National Security Council from the Seventeenth Amendment, even though the treasury benches have enough support to turn it into law, should the need arise.
But unfortunately, the iniquitous Article 58(2)(b) introduced by the retrogressive Zia-ul-Haq in 1985, which has been at the base of political instability, has been retained, much to the chagrin of the ARD, PTI, BNM, PKMAP and the ANP.
All this does endorse the belief that irrespective of who heads the government, an attempt will always be made to impose an unelected person, civilian or military, to sit in judgment over an elected government.
In 1994, there had been six constitutions in Pakistan's brief 46 year history, and the Eighth Amendment, under which the country was then governed, was the seventh in the series. From the moment it sprang into existence, it was a highly controversial document. It was not framed by a representative assembly, and the 'representative' character of the body of legislators that eased the passage of the amendment was, in fact, highly suspect.
Mohammed Khan Junejo, who was the prime minister at the time, finally rubber-stamped the document in the naive belief that it was the only way to avoid the imposition of another martial law. What he didn't realize was that he was inflicting the rule of the obscurantist dictator Zia-ul-Haq, who had managed to convey to the metropolitan stable of parliamentarians who surrounded him, that he was the ultimate repository of wisdom in a land which was constantly being besieged by international conspiracies determined to destabilize the world of Islam.
Ghulam Ishaq Khan, who had lived most of his life in the slipstream of bureaucratic experience, inherited much of the mantle of his predecessor. His supporters, among whom could be found senior bureaucrats and itinerant MNAs, disillusioned with the governments of Benazir Bhutto and Nawaz Sharif, projected him as a nobly despairing figure who believed the destiny of the country was inextricably linked to his continuance as head of state.
He was frequently portrayed as an institutional godfather, chosen by providence to stop people like Benazir Bhutto and Nawaz Sharif from putting their fingers into the national till and corrupting the system. The fact that it made a mockery of the whole democratic process didn't appear to worry anybody, least of all the press. After all, when the Constitution specifically gave the power of dissolution to a president who was indirectly elected, it was a case of putting him above parliament and above the peoples' sovereignty.
Even if it was possible to find arguments to justify such a political anomaly, Ghulam Ishaq Khan could hardly have been considered a good president by any stretch of the imagination. He was essentially mediocre and feebly conventional. His dismissal of the Benazir government the first time round, while intriguing with the Muslim League, was totally uncalled for. And his dismissal of Nawaz Sharif's government, after making all kinds of insidious deals with the PPP, was equally reprehensible, as their lordships pointed out in their historic judgment.
The first move confirmed the belief of the critics in the West that GIK was the incarnation of the retrogressive forces that had ruled Pakistani society since 1947. And the second action smacked of spite, malice and gross pettiness.
President Musharraf is in quite a different category. His outlook is secular, he has a number of achievements to his credit, and he enjoys a reputation for honesty in financial dealings. .He has agreed to become a civilian president, like the late Ayub Khan, subordinating his personal interests to the institutional interests of the presidency and the military He has even agreed to cut himself off from his power base, which is the army, knowing full well the danger inherent in such a move. Only time will tell if the final denouement of the MMA was worth it, or if the constitutional battle was nothing more than a pyrrhic victory.
Email: a-mooraj@ cyber.net.pk