The system that failed

EVERY so often I find someone arguing that the present disarray in our government and politics will not go away unless we adopt a presidential system. But no one has spelled out the relevant specifics and told us what kind of a presidential system he is commending. We did once have such a system, and I propose to recall its principal features to provide a frame of reference, or a point of departure, for further thinking.

The 1962 Constitution that Ayub Khan had bestowed upon us vested the executive authority of the Republic in the president. He appointed such ministers as he might want to have without reference to the legislature, and they served during his pleasure. He allocated the central government’s work to divisions, approved its rules of business, and specified the manner in which his orders and instructions were to be carried out.

He could appoint from amongst members of the National Assembly a number of persons (as many as the number of government divisions) as parliamentary secretaries to perform such functions as he might assign to them. Since his ministers could not be members of the Assembly (because of the required separation of powers), these parliamentary secretaries could serve as his agents in the legislature, for they remained its voting members.

The president was to be elected by 80,000 members of “basic democracies” (rural and urban local councils). The ordinary citizens of Pakistan were thus excluded from participation in his election. He could be removed from office for reasons of physical or mental incapacity, or for wilful violation of the Constitution or gross misconduct. The initial move for his removal or impeachment must be endorsed by at least one third of the total membership of the National Assembly. It must have the support of three quarters of the Assembly’s members to succeed. If one half of them did not vote for it, those who had initiated the move would lose their seats in the National Assembly forthwith. (Enough to scare those who might contemplate his removal.)

Strangely enough, the Constitution did not specifically vest the legislative power of the Republic in the National Assembly. This may have been the case because, as we will see shortly, it gave the president extensive control over legislation and authority to issue instruments having the force of law. It did not prescribe any specific number of days, or the times, for which the assembly must meet. The Speaker could call it to session at the request of one third of its membership, and the president could summon and prorogue it from time to time.

The Assembly was not empowered to override the president’s veto. If he declined assent to a bill it had passed, and if it passed the bill again, in its original version or with amendments, with a two-thirds majority of its total membership, it would resubmit the bill to him. If he still did not like it, he could submit it to a referendum to be conducted among the members of the Electoral College (80,000 “basic democrats”). It would become law only if it passed that hurdle.

The Assembly could not take up and pass legislation that would require, for its implementation, expenditure of public funds without the president’s prior approval. Thus the Constitution, in effect, deprived it of the authority to legislate on its own initiative, in that it is hard to imagine a law that would require no public funds whatsoever for its execution.

The president could make and promulgate any number of ordinances, having the force of law, at times when the National Assembly was not in session. An ordinance so made could remain in effect for as long as six months if the Assembly had not been called to session during that time, and for 42 days after its first meeting following the promulgation of the said ordinance. The president could also promulgate ordinances, as he might deem fit, while a proclamation of emergency he had issued remained in force even if the National Assembly was in session at the time. The Assembly would not have the power to annul them.

The Constitution allowed the president to dissolve the National Assembly at any time, except during the last 120 days of its term or when proceedings for his own removal from office had been initiated but not yet concluded. He was not required to give his reasons for dissolving the Assembly.

Apart from making laws that would bring about societal improvement, it is the normal function of a legislature to levy taxes and authorize the purposes for which their proceeds are to be spent. But, amazing though it may be, the Constitution of 1962 did not assign this function, and the corresponding authority, to the National Assembly of Pakistan.

Expenses related to the offices of the president, his ministers and parliamentary secretaries, speaker and members of the National Assembly, judges of the Supreme Court, and several other presidential appointees, plus service charges on the national debt, were to be charged upon the Central Consolidated Fund without needing legislative approval. Also exempted from that necessity were demands not shown in the annual budget as new expenditures. “Recurring expenditures” were not subject to the Assembly’s approval except in relation to an excess of more than 10 per cent over the amount approved for the same purpose the previous year. The Assembly might accept, reject, or reduce demands for new expenditures. But it could not appropriate funds for projects of its own choosing.

Nor could it levy new taxes or make changes in the existing ones. It could not authorize borrowing or place any financial obligation upon the government without the president’s concurrence. The Constitution required the placement of a sum of money not less than 10 per cent of the government’s total expenditures as a “contingency” fund to be used by the president in his discretion to meet unanticipated, and unnamed, needs.

The president, acting in his discretion and without reference to the legislature, appointed the heads of the armed services, chief justice of the Supreme Court, chairman and members of the Central Public Service Commission, the attorney general, comptroller and auditor general, chief election commissioner, chairman and members of the Advisory Council of Islamic Ideology. He also appointed the provincial governors who, in the discharge of their functions, were to follow his directions. He approved the postings of persons belonging to an “All Pakistan Service” (Civil Service of Pakistan, Police Service of Pakistan, etc.), and holding positions connected with the affairs of the centre.

This Constitution disenfranchised citizens except for choosing local councillors (40,000 in each of the two provinces), who in turn elected the president, and members of the central and provincial legislatures. The present advocates of a presidential system do not necessarily want to restore this abominable usurpation of the people’s right to be governed by their chosen representatives. We shall, therefore, disregard it and limit ourselves to a brief comment on the president’s authority and powers as outlined above.

The ideas of the separation of powers and checks and balances, which distinguish a presidential from a parliamentary system, did not get more than a perfunctory recognition in the Constitution of 1962. In order to have a frame of comparative reference, let us take a quick look at the salient features of the American presidential system. Legislative power vests unequivocally in Congress. It may adopt any number of bills that its own members may have introduced at the president’s request or on their own initiative. The president may veto a bill, but a two-thirds majority in each house of Congress can override his veto. Congress levies taxes and authorizes expenditures. The president proposes a budget for the next fiscal year but Congress is free to appropriate more or less than what he has requested, and allocate funds for purposes of its own choosing.

Congress may impeach and try the president for grave misdemeanours and send him home, but he cannot dissolve Congress. Normally, he does not even summon or prorogue it. Congress is authorized to oversee the administration’s performance in executing the laws it has made. Presidential appointments to higher posts in the judiciary, executive departments, and the diplomatic service cannot take effect until confirmed by the Senate.

It should be apparent that the National Assembly of Pakistan under the 1962 Constitution was not a legislature in the normal sense of that term. As we have seen above, it was not free to make laws, levy taxes, or allocate funds without the president’s consent. It could not oversee the administration’s performance. The president’s ministers were free to address the house but they were not required to be present on the floor to answer questions or respond to criticism. The “representative institutions” Ayub Khan allowed us were wanting not only in the mode by which they came into being but also with reference to the authority they were permitted.

Those who advocate a presidential system for Pakistan do so in the hope of doing away with “horse trading,” defections, intrigues, and the resulting political instability witnessed during our more recent parliamentary regimes. They believe these vices will disappear if the chief executive has a fixed term of office and need not, therefore, bend to fickle and covetous politicians.

At this point we may ask what exactly these advocates have in mind for us. If they want to give us anything like the American presidential system, the chief executive in our present political culture may have security of tenure, but he will not be allowed to govern. Our assembly men and senators will hassle and harass him, his ministers, and higher civil servants every step of the way, demand all kinds of favours, before they authorize his budget and accept his legislative proposals. On the other hand, if our political engineers wish to return us to the Constitution of 1962, then evidently they consider us as deserving of nothing better than a presidential dictatorship.

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

Economy alone won’t do

A brief comment on Gen Musharraf’s six years in power with which most people would tend to agree is: economically a success, administratively a failure and politically an unmitigated disaster.

On foreign policy, a judgment must wait while the outcome of its two fateful ingredients — the war on terror and settlement on Kashmir — remains uncertain and seems long in coming.

Unlike the military dictators who came before him, Musharraf, at the very start, decided to take control of the country’s politics rather than stay out of it, at least outwardly. This decision, inevitably, made him an ally of the malcontents of Nawaz Sharif’s government whom he had ousted and imprisoned. He, thus, consciously forfeited his right to be neutral and even- handed in party politics and yet mould it the way he liked. Subsequent events, however, seem to have made politics a millstone around his neck.

The ragtag of a party that grew around the former Nawaz ministers Chaudhry Shujaat, Sheikh Rashid and Ejazul Haq at its centre had neither ideas nor principles and, to boot, the political thinking of the three ran wholly contrary to that of Gen Musharraf. They were the “spiritual allies”, or so they thought, of the orthodoxy represented by Jamaat-i-Islami and Jamiat Ulema-i-Islam and also the inheritors of Ziaul Haq’s Islamic legacy. Musharraf, on the other hand, intended to model Pakistan on the lines of Kamal Ataturk’s Turkey. The ministers ultimately prevailed driving a moderate, secular Musharraf, out of sheer expediency, into an alliance with those political forces that spawned extremism.

Musharraf’s disenchantment with the ever domineering religious leaders and the influence exerted from the fringes by some professional and progressive members of his government Shaukat Aziz, Khurshid Mahmud Kasuri, Humayun Akhtar and Jahangir Tarin and a few others may have strained that alliance to breaking point, but the hard core of orthodoxy in the ruling circles has remained intact though under a soft veneer.

Speaking to the Sikh yatris at Nankana Sahib the other day, Ejazul Haq and Chaudhri Pervaiz Elahi renewed their resolve to stick to the path of religiosity blazed by Ziaul Haq. To the people here and the world at large Zia is known for sowing the seeds of religious strife not just in his own country but in the whole region. That strife has grown into become terrorism that Musharraf is now fighting against. Working in Musharraf’s government but following Zia’s policy is obviously a contradiction both in thinking and behaviour.

Whether the alliance with the religious parties is finally abandoned or resurrected at some future date out of political necessity, the damage it has done to Pakistan politics and society is enormous and not wholly reversible. The old parties with mass following — the mainstream, nationalist, religious and all — have lost their bearings and many new and small ones are born making it doubtful whether the parliamentary system will be able to dig roots in the country, for it can thrive with only two or three parties countrywide.

As in political manoeuvres so it has been in governance. Zafrullah Jamali’s government pandered to the extremists and touched a new low in maladministration. He failed altogether to help or placate the smaller provinces, more particularly his own. Minor insurgencies and bush fires of discontent rage all over Balochistan. Every government since independence has had to contend with perennial troubles there, now flaring now subsiding in the land dominated by the Marri, Mengal and Bugti tribes. It is symptomatic of the brewing political disaster that the trouble has now spread to the tranquil, sparsely-populated Nushki plateau and the coast beyond.

But the real high-point of the disaster is that parliament and the provincial assemblies, though expanded and enriched, are not working. Question hour is traditionally the most interesting time in parliament. It exposes scandals and is used by the opposition to embarrass the government and to amuse the galleries. If this hour ever took place in the present parliament it was dull and inconsequential.

The economy of the county is in a better shape than its politics or administration because Musharraf resisted meddling with the professional managers. About politics and administration, Musharraf thought he understood the complexities of both much better than the politicians and the civil servants. He subjected the political and administrative institutions to experiments born of his whims and heaped humiliation on the politicians and civil servants. He let good professionals like Shaukat Aziz, Ishrat Hussain and Hafeez Sheikh reform and run the economy but in making political and administrative reforms he sidelined every politician and administrator of calibre and integrity.

Instead, he chose to go by the advice of a retired army colleague who had the gift of the gab aplenty but little knowledge and relied entirely on one civil servant who was there not for his breadth of experience or commitment to good governance but because of personal loyalty. Both combined to play havoc with the established public institutions and services. In these six years, peace, order and ethics have all fallen victim to dysfunctional politics and a failing administration. A good economy cannot long survive a bad governance. If the economy, too, goes that way the state itself might one day collapse. The message that goes out to Musharraf, therefore, is not to hold on to his past to deny the country a better future. The whole kit and caboodle of his creation cannot last until election year. Musharraf may have won the battle in the courts and also at the polls, but it should be obvious to him that he has lost the battle in the hearts of the people.

Refraining from conducting experiments and deals, President Musharraf should now form a government of neutral and honest men who should plan and conduct the next elections. This proposition is practicable and, perhaps, the only alternative to the impending chaos. It may also redeem Musharraf’s interventionist role in civil affairs which his reforms and accountability were not able to do.

Patent sanity is missing

PATENT laws may be an inventor’s best friend, giving someone with a groundbreaking idea the means to capitalize on it. But on many levels, the US patent system is profoundly flawed.

Too many patents are issued for “innovations” that are obvious, vague or already in wide use. Too many patent holders try to extend their claims to devices and services that weren’t even contemplated when the patents were granted. And it’s a difficult, costly exercise to overturn a questionable patent after it has been awarded.

Compounding the problem, federal courts have been quick to hand patent holders a sledgehammer when their patents have been infringed. The appeals court in Washington takes the position that, except in exceptional circumstances, courts must issue permanent injunctions to stop infringers from using the inventions in dispute.

As a consequence, someone who holds a patent over even a small piece of a product, service or business model could shut an entire operation down - a nice bit of leverage when it comes to negotiating a licensing fee.

—Los Angeles Times

Blair game

IN democratic countries, the true mark of a politician’s triumph is not whether he transforms his own political party. It’s whether he forces the opposition to renovate itself and become tweedledum to mimic his own success as tweedledee.

Thus did British Prime Minister Tony Blair this week earn his place in the Politicians’ Hall of Fame. In electing the flashy, moderate, bike-riding 39-year-old David Cameron as its leader, the opposition Conservative Party decided it would draw its slogan in the next election from the venerable rock band The Who: “Meet the new boss. Same as the old boss.”

Cameron himself underscored his deep desire to be like Tony in his first boffo appearance in the House of Commons on Wednesday. Cameron declared of Blair: “He was the future once.” The line brought down the house, and it made Cameron’s essential point: If Blair won because he was fresh and non-ideological, it was time for British voters to toss out the old model and bring in the new. But they were merely being asked to buy a cooler, updated version of the same product.

The Tories pray that Cameron will end their long horror show. It began when Blair was first elected in 1997, ending 18 years of Conservative rule, most of it under Margaret Thatcher. The Iron Lady disdained tweedledum politics and joined Ronald Reagan in a political revolution on behalf of a radical version of free-market ideology. Thatcher was so committed to individualism that she was once moved to say: “There is no such thing as society.”

The Conservatives dumped Thatcher in 1990, after 11 years in power, for the amiable and less ideological John Major. He hung on for one more election before being routed by Blair. Since then, being a Tory has meant living through one identity crisis after another. Conservatives couldn’t decide if they were losing because they had abandoned the hard, pure Thatcherite faith or because they had held on to it with too much fervour. On some days the Conservatives tried social tolerance, on others immigrant-bashing. It’s been a mess.

Yet Blair himself paid tribute to Thatcherism. (She gets into that Hall of Fame, too.) He junked his Labour Party’s old faith in “the common ownership of the means of production, distribution and exchange,” once enshrined in the party’s constitution as Clause Four. He replaced it with a mushier commitment “to create for each of us the means to realize our true potential and for all of us a community in which power, wealth and opportunity are in the hands of the many, not the few.” Blair talked not about “the Labour Party” but about “New Labour,” a brand as different from the old as Aston Martin or Jaguar is from Vauxhall or Ford.

But he differed from Thatcher in thinking there is such a thing as society (“community” is a quintessentially Blairite word) and in favouring strong, albeit modernized, social services. Blair’s new balance — less social than the old socialism, more social than Thatcherism — has proved impossible to beat. And so the youthful, upper-class Cameron and his followers, known in the British press (I’m not making this up) as “Cameroonians,” decided to beat them by joining them. In accepting his victory, Cameron promised “social action to ensure social justice, and a stronger society.” Society exists after all.

—Dawn/Washington Post Service