The Eighth Amendment

General Ziaul Haq's ravaging of Pakistan's Constitution was spread over seven years and done through as many as twenty-four presidential orders, the most extensive of them being "Revival of the Constitution Order" (presidential order 14 of March 17, 1985 referred to below simply as presidential order 14), which altered 60 Articles, excluded five, and added a few. The Eighth Amendment took out some of this disfigurement, but most of it has remained and become part of the Constitution.

Some of the more significant changes this order introduced may be noted. It added Article 2A to make the Objectives Resolution a substantive part of the Constitution. It amended Article 41 to enable Ziaul Haq to become president for a term of five years, Article 48 to enhance his powers, and Article 50 to make him a part of parliament.

It added a clause to Article 58 to authorize the president to dissolve the National Assembly if and when he concluded that a fresh appeal to the electorate had become necessary. Drastic changes in Articles 90 to 100 vested the executive authority of the federation in him and strengthened his office vis-a-vis that of the prime minister.

Amendments to Articles 101, 213, 242, and 243 allowed the president to appoint, in his discretion, persons to the posts of provincial governor, chief election commissioner, chairman of the federal public service commission, and chairman of the joint chiefs committee, respectively. Article 152A provided for the establishment of a National Security Council (omitted in the 8th Amendment), and the amended Article 200 extended the period of time for which a judge from one high court might be transferred to another, providing further that in case such a judge declined the transfer he would be deemed to have tendered his resignation.

Turning now to the Eighth Amendment itself, we should first note that it had resulted from a deal that the politicians made with Ziaul Haq under duress: he would not lift martial law unless they made the concessions he demanded. In return he would withdraw some of the more pernicious provisions that the Presidential Order 14 had planted in the Constitution.

Amended Article 48 required the president to act on the advice of the cabinet or the prime minister. His option to take the advice of an "appropriate minister" (inserted by P.O. 14) was now removed. Thus, he could no longer ignore the prime minister, or play individual ministers against him. The same Article allowed him to act in his discretion with regard to certain matters. Presidential Order 14 had added the incredible provision that he himself would be the sole and final judge of what matters the Constitution had placed within his discretionary authority. The Eighth Amendment deleted this absurdity.

Article 58 deals with the dissolution of the National Assembly. In its original version it required the president to dissolve the Assembly when so advised by the prime minister. A new clause (2-a) authorized him to dissolve the National Assembly if, following a successful vote of no-confidence against the prime minister, it had transpired that no other member of the Assembly could muster majority support. Clause 2-b was added to authorize him to dissolve the National Assembly if, in his opinion, a situation had arisen in which the government could not be carried on in accordance with the Constitution and an appeal to the electorate had become necessary. This is the clause for which the Eighth Amendment is deplored the most.

In its original version, Article 90 had named the prime minister as the chief executive of the federation. Presidential order 14 vested executive authority in the president who would exercise it, directly or through officers subordinate to him, according to the Constitution. The Eighth Amendment softened the blow a little bit by adding that the president could not exercise functions that belonged to the provincial governments or to other authorities. Moreover, parliament could by law assign functions to authorities other than the president.

Article 91 originally required the president to call upon a member of the National Assembly, who had been elected to be the prime minister, to assume that office. Presidential order 14 changed this to authorize the president to appoint (in his discretion) as prime minister a member of the National Assembly who in his opinion was likely to have majority support. The Eighth Amendment allowed this procedure to remain in effect until March 20, 1990, after which the procedure originally stipulated would become operative.

Presidential order 14 had authorized the president to dismiss the prime minister if he thought the latter had lost majority support in the National Assembly. The Eighth Amendment, once again, softened the blow by adding that the president could do so only if the prime minister had failed to get a vote of confidence in the National Assembly called to session for this purpose.

Article 101, clause (1) required the president to appoint provincial governors "in consultation with the prime minister," instead of doing so simply in his discretion as he was allowed to do under P.O. 14. Article 152A, added by the same order to provide for the establishment of a National Security Council, was omitted under the Eighth Amendment. Article 270A was added to validate the proclamations, orders, ordinances, and regulations that Ziaul Haq had issued beginning July 5, 1977, and to protect some of his designated measures from subsequent repeal. (Note that Article 270 had earlier done the same for Yahya Khan's doings.)

The Eighth Amendment and the Presidential Order 14 of 1985 became the subjects of an intense debate in the spring of 1989. Prime Minister Benazir Bhutto and several other political leaders, including Maulana Fazlur Rahman, favoured its repeal. But eventually they concluded that it could not be done.

The advocates of Islamization were pleased with these two instruments of constitutional change in that they had made the Objectives Resolution a substantive part of the Constitution, established the Shariat Court, and added numerous Islamic provisions. Writing in a Lahore newspaper on February 3, 1989, the late Mr Khalid Ishaque, an eminent jurist, lavished fulsome praise on the amendment and the order under reference for their contribution to Islamization. The president's authority to dismiss the National Assembly was nothing to worry about, he said, because his action in this regard would be "justiciable," and the courts could reverse it if it had been taken without good reason.

Mr Mohammad Yaqub Ali Khan, a former chief justice of Pakistan, dismissed Mr Ishaque's argument as something that surpassed his comprehension, and denounced Ziaul Haq's package of amendments as a self-serving subversion of the fundamental premises underlying the 1973 Constitution. The Shariat Court, he maintained, had been designed to work as the general's "handmaiden." Its judges were his appointees, whose terms and tenure he determined, and who served during his pleasure.

He hoped eventually to obtain from them a 'fatwa," declaring the entire apparatus of western democracy (adult franchise, political parties, elections, parliament, etc.) to be repugnant to Islam. That done, he would want, with their blessing, to "assume the office of Amir-ul-Momineen, and rule the country by issuing decrees and commands."

He went on to argue that the above changes in the Constitution remained invalid, because they had been made by a "usurper" who, as the Supreme Court had held in the Asma Jilani case, "cannot become the source of a new legal order."

Writing at about the same time (March 1989), Mr S.M. Zafar supported parts of the amendment that had expanded the presidential electoral college and increased the number of seats in the Senate. He would repeal the provision authorizing the president to dissolve the National Assembly, rewrite Article 270A (validating Ziaul Haq's orders, etc.), and reformulate the president's authority to transfer high court judges to the Shariat Court. He would open the issue of the "balance of power" between the president and the prime minister, and designation of the Objectives Resolution as a substantive part of the Constitution, to further consideration and debate.

It deserves to be noted here that the prime minister's primacy, and the president's role as a symbolic head of state, as provided for in the original version of the Constitution, had resulted from a consensus that representatives of the country's major political parties, participating in a committee Mr Bhutto had established, reached on October 20, 1972. Signatories to this accord included, besides the PPP spokesmen, Arbab Sikandar Khalil, Ghaus Bakhsh Bizenjo, and Ghulam Farooq (NAP), Maulana Mufti Mahmood (JUI), Sardar Shaukat Hayat (PML-Council), Abdul Qayyum Khan (PML-Q), Maulana Shah Ahmad Noorani (JUP), Professor Ghafoor Ahmad (JI), and Sher Baz Mazari (Ind.).

Ziaul Haq's heavy tilting of the "balance of power" in favour of the president may then be seen as repudiation of a national covenant.

The notion of "checks and balances," currently much in vogue, belongs more appropriately in a presidential system that makes for a separation of powers. It is not equally relevant to a parliamentary system wherein the powers are fused in a legislature that is supreme or, if you will, "sovereign."

It should be clear that an organ of government that is supreme cannot be controlled by another organ of the same government. The prime minister and his cabinet are agents of parliament. Restraint upon them must come from within the parliament itself. Additional restraint can, and does, come from organs of civil society

I am not aware of any effective ways by which the Queen can restrain the British prime minister. She can offer him counsel which he may or may not accept. She can veto a bill that parliament has passed, but she hasn't done so in recent memory. In any case, parliament can override her veto.

There is no law of God or man that says we cannot fabricate some kind of a hybrid. But as long as we have, or want to have, a parliamentary system, such as the one practised in India, all talk of striking a balance between the powers of the prime minister and those of the president is misdirected and misplaced.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA. E-Mail: anwarsyed@cox.net

Rallies without a purpose

The opposition is holding public rallies in the hope of dislodging the government before elections. Why should President Musharraf be prompting his supporters to do likewise when he wants the government to stay in office till the elections is difficult to comprehend.

The president has let it be known that the elections would not be held before October 2007, or if Chaudhry Shujaat and Arbab Rahim had their way, a year later - in 2008. It is too early in the day to go to the hustings.

Why should the religious groups in the opposition be protesting on the streets or observing black days when they too like the government do not want elections to be held before 2007 is another enigma. It is hard to imagine Gen Musharraf quitting and the National Assembly remaining in existence - for that is what the MMA wants. After all, Musharraf had not acquired the power to dissolve the assembly for nothing.

If his own continuance in office is threatened it would present to the president a kind of tempting situation "in which the government of the federation cannot be carried on in accordance with the provisions of the Constitution" as is envisaged in article 58(2) (b), and he would dissolve the National Assembly. This discretionary power of the president has been restored in the Constitution through the 17th Amendment passed with the cooperation of the MMA while the other parties opposed it.

The dissolution of the national or provincial assemblies not being an aim of the religious parties nor in their interest, the agitation can only cause public nuisance or, at best, disrupt economic activity. Judging by the size of the audiences their meetings have so far attracted, the agitation cannot be seen reaching a crescendo where Musharraf is compelled to depart and, if he has to, leave the assemblies behind.

The likelihood, therefore, is that somewhere along the way the MMA would either give in or reach yet another compact with the government. It is, perhaps, for this reason that the PPP and Nawaz Muslim League are hesitant to take the plunge though their declared aim is elections now and not three years later.

The MMA and the other parties in the opposition, nevertheless, have a purpose in holding public meetings or marches. Their leaders can regale the crowds with scandals - real and rumoured - that surround the ministers or arouse passions against the government in a situation such as at present when unemployment and crime are endemic and prices soaring.

The government, or the parties in power, do not have this advantage. The people would not gather to hear of its plans and achievements which in any case they have to hear all the time on the radio and TV. The essential difference is that while the opposition can hold out promises for the future which it may never be called upon to fulfil, the government has to defend the present with all its shortcomings which are plenty and apparent on the surface. It is an unequal contest in mustering and regaling crowds which no government can ever win.

The opposition meetings may cause worry to the government but do not tax its resources. The task of organizing meetings for the ministers or government's other partymen invariably falls on the shoulders of the public officials and the financial burden has to be borne by the transporters and revenue collectors. It has been a common feature of all regimes and so it is now.

Gen Musharraf's Gujrat meeting was not the first nor the worst on this score. Forty years ago Field Marshal Ayub Khan launched his election campaign at Peshawar against Ms. Fatima Jinnah from the platform of a faction of the Muslim league just as Musharraf has done now at Gujrat. Rattled by the spontaneous ovation she had received from delirious crowds on her campaign trail, Ayub desired his inaugural meeting to be the biggest ever.

The people were bussed in and special trains ran to bring them from all parts of the province (then a part of West Pakistan) to Peshawar. After much deliberation, government managers of the campaign put the number at a million. It was more of a bedlam than a meeting. Ayub was barely audible.

He won but could never recover from his victory. All his good works were clouded by rigged crowds and polls.

The president Musharraf's first public meeting at Gujrat should also be his last. He and his government will be judged by the state of the economy and peace in the country and not by his ability to herd and harangue the people. A free, diverse and competing media, as it exists today, in any case, has made mass meetings unnecessary.

A way out of Iraq

It's not a rhetorical question, but one that goes deeply into our notions of who we are and how we wish to be seen - militarily, diplomatically, politically and morally.

I wrote recently (and disapprovingly) of the views of Yaron Brook, president of the Ayn Rand Institute, who thought America's problem in Iraq is too much squeamishness - a moral cowardice that prevents us from going after insurgents and the Iraqis (including family members) who give them sanctuary.

One sentence from that column contained this thought of mine: "Even those of us who thought President Bush made a hideous moral and military blunder in launching the war are largely sympathetic to the way he is conducting the aftermath - not because it is particularly successful but because we can't think of anything better."

Well, a number of people surveying the wreckage of our Iraq policy think the better option is simply to leave. One of the more articulate expressions of that view is an article by Naomi Klein in the Jan. 10 issue of the Nation magazine. Her point of departure is the so-called Pottery Barn rule invoked by Secretary of State Colin Powell in his prewar advice to President Bush: "You break it, you own it."

Klein acknowledges that we've broken Iraq, but she argues that our continued presence there doesn't fix anything and only makes it worse. We don't need to "own" the country, she says, only acknowledge the breakage, pay for it and leave.

Just leave. It sounds so simple - so evocative of the advice Vermont Sen. George Aiken offered another president presiding over a quagmire called Vietnam: Just declare victory and go home.

Why not now? Politically, it would require a concession - confession? - that the whole thing was a mistake.

President Bush seems incapable of reaching or articulating such a conclusion - unless forced to do so by a public outcry reminiscent of the Vietnam era and a diminishing ability to attract young people into the armed forces. More than 1,300 American troops have died in this war. What would walking away do to their families and to military morale?

What would we say to the British, the Australians and the others in the coalition who have suffered political damage and lost lives in support of our war? What friend or foe could ever again take seriously an American commitment? Even Israel might start to doubt our reliability.

What of the moral considerations? Our walking away, with or without a declaration of victory, would be a death sentence to those Iraqis who worked with us in furtherance of our announced mission to deliver democracy to Iraq.

And what, finally, of the "you break it, you own it" imperative (which Pottery Barn says is not its policy)?

We can argue all day that Saddam Hussein was a tyrant whose defeat and humiliation should evoke no sympathy from us. But he did have a functioning country.

There was a government in place. People went to work and to the market and to school in relative safety. Can anyone really believe that the U.S.-spawned anarchy has left the Iraqi people better off? We broke it. Do we have the moral right to walk away with the shards scattered across the floor? Do these rejoinders demolish the argument for just leaving?

Klein doesn't think so. Our continuing presence, she argues, is a magnet for violence against the Iraqis, and our plans for elections seem calculated to spark "the civil war needed to justify an ongoing presence for US troops." Our "staying the course" doesn't begin to fix what we broke, but rather continues the breakage.

Is it time for Americans to walk away?

A surprising number of readers of this column think it is. And two have independently come up with a pretext for doing so right away. Walter Gordon in Delaware and Christina Warren in California both argue for sending either all or a substantial portion of our Iraq-based troops and resources to the tsunami-devastated region around the Indian Ocean.

It would get us out of Iraq and, given that the stricken area is largely Muslim, might go a long way toward defeating the notion that we are anti-Islam. -Dawn/Washington Post Service

Priority of judicial reforms

On December 3 the Chief Justice of Pakistan made a landmark speech at the Sind High Court Bar Association's (SHCBA's) annual dinner in which he called for drastic measures that are needed to improve the judicial system. While doing so, the Chief Justice focused on the need for the dispensation of speedy justice to the litigants.

The Chief Justice was right in emphasizing that the continuation of the judicial system of Pakistan in its present form will not serve the public purposes that have to be addressed by the judiciary as an institution. But in the same breath he went on to solicit practical support from the lawyers' community in such an undertaking and in the implementation of judicial reforms. He called on the lawyers to come forward with suggestions for possible steps for improving or rather reforming the judicial system so that justice is done without delay in all cases.

In pursuance of his theme the Chief Justice went on to specify two major issues on which the present system needs to be confronted: the first is quick dispensation of justice and the other is expeditious disposal of cases. Elaborating, he spoke about removing the problems of the litigant public as being 'our ultimate goal' and that 'paper justice is no justice'.

The Chief Justice also talked about the hackneyed and oft- repeated reasons submitted by counsels and lawyers from both sides for seeking an adjournment of court hearing on behalf of litigants, and observed that matters that could be decided in a matter of days take decades, thus frustrating all initiatives for change and improvement. The crux of the Chief Justice's speech was the emphasis he laid on the words that 'substantial justice should be done in the first instance' as against mere procedural justice.

These are indeed excellent thoughts which the Chief Justice thought fit to share with the senior members of the Sindh High Court Bar Association which indeed is a most appropriate forum for broaching the subject of judicial reforms. However, these lofty ideas and objectives are not being heard for the first time.

In fact, they also make one feel that it may well be in the nature of a routine lip-service that may not be taken seriously in quarters that really matter. One gets this feeling because earlier Chief Justices have also been saying things of a similar nature but nothing substantial really took place in terms of desirable improvements.

Furthermore, there is indeed an inherent contradiction in the seeking of the advice of lawyers and counsels in matters relating to speedy as well as substantial justice. In fact, the lawyers themselves are at the receiving end of the judicial system because their clients are more often than not in search of compromises as against the seeking of decisions that could well go against them.

The legal profession has its own limitations as it is not only competitive but also extremely over-crowded and consequently lawyers find that they are at the mercy of their clients. Therefore appealing to lawyers on matters relating to judicial reforms is really not going to help.

The most important factor in achieving speedy and qualitative dispensation of justice is the quality of judges at various levels. The High Courts have over the years become the exclusive preserve of practising lawyers. Hardly any one from the services or other disciplines makes it to the higher judiciary. Even so very few outstanding lawyers in the past have made themselves available for elevation to the bench.

What is needed, therefore, is the creation of an All Pakistan Judicial Service for attracting the best judicial talent available in the country and they should go through the judicial mill from junior or middle levels upwards. Naturally, things cannot wait for the creation of such a service. In the shorter run it may be necessary to bring in judges from the provincial judicial service who may be relied on to deliver speedy and substantive justice in keeping with the norm of their service.

But the provincial judicial services in the provinces are not the only source of talent for manning the judicial positions. Under the local government system, the district magistrates and the executive magistracy as a whole have been bundled out without realizing how much trained talent has thereby been rendered redundant and wasted in the process.

The officers of the District Management Group (DMG) and the provincial civil services and in particular those who have worked as sub-divisional and ilaqa magistrates and those who have worked for years as district magistrates may well be the answer to the problem of how to radically improve the personnel situation in the judiciary. Bringing them into the judicial fold will indeed speed up the judicial process and ensure justice to the people of this country.

Needless to say, the erstwhile ICS/CSP which was the predecessor of the DMG have contributed a sizable number of outstanding judges of the High Courts and the Supreme Court. In this connection, one can recall great names such as Justice G.B. Constantine, Justice A.R. Cornelius, Justice M.R. Kayani, Justice S.A. Rahman, Justice Shafiur Rahman, Justice K.M.A. Samdani, and Justice Saad Saood Jan. Ideas on judicial reforms can be many and varied but the crux of the matter is the implementation of the approved ones.

Here, one would like to know what a convenient instrument for implementation available to the Chief Justice and his brother judges, namely the permanent Law and Justice Commission of Pakistan, is doing or has done. The Chief Justice happens to be the ex-officio chairman of the commission.

One would naturally like to know as to what progress the Commission has made in all these years in pushing forward a programme in respect of judicial reforms. The permanent Law Commission has been at work for years and not much is know about the progress it has made in making recommendations for overcoming the problems that the Chief Justice enumerated in his address of December 3.

If no progress has been made in all these years then surely the people have a right to know as to what has stood in the way of judicial reforms. The important questions that arise are as to what has been the attitude of the powerful ministries and departments, the provincial governments, the police and of course the plethora of new departments that have come about in recent times.

The most important question is as to how much have the federal finance ministry and the provincial finance departments facilitated the path of judicial reform by placing adequate funds at the disposal of the judiciary for reforms and improvements. Only if all these facts are listed out and revealed will it be possible to size up things.