THE Charter of Democracy, signed by Ms Benazir Bhutto and Mr Nawaz Sharif on May 14, 2006, called for ‘undiluted democracy’, independence of the judiciary, rule of law, a politically neutral public service and the military’s subordination to civilian authority.

It is being treated as if it were Ms Bhutto and Mr Sharif’s covenant with God and man. I have re-read its full text and found it to be lofty in places but frivolous in others.

Presenting themselves as ‘elected leaders’, the signatories (Bhutto and Sharif) begin with lavish praise for their patriotism, unbounded love for the Pakistani people, the services they have rendered and sacrifices they have made for their cause. Then in an extended and eloquent statement (which I shall summarise in sedate language), they condemn the military dictators who have, through neglect of the people and their own self-aggrandisement, impoverished Pakistan in every sphere of life. A general breakdown of law and order and the resulting insecurity have immobilised the country.

Military rule has advisedly wrecked political institutions. Its passion for centralised control, lust for power and its persistent denial of provincial autonomy have loosened the bonds of unity to the point where the federation is about to fall apart.

Military rulers, the charter says, have usurped the people’s sovereignty and their right to be governed by their chosen representatives. Democracy is an imperative of the country’s good order, progress and even survival. When they (Bhutto and Sharif) come to power, they will right all the wrongs that the perversity of military dictators has perpetrated.

The signatories propose ways of improving the country’s political system. They would restore the 1973 Constitution as it existed before General Musharraf’s coup. In other words, they would retain the distortions and mischief that General Ziaul Haq introduced. I see no justification for this omission. It would have been more sensible to advocate a return to the original version of the constitution, for the subsequent amendments were mostly needless; some of them even pernicious.

Ms Bhutto and Mr Sharif also wanted to make some changes of their own. They would abolish the Concurrent List of functions in the constitution to make way for greater provincial autonomy. They would repeal the provisions for the joint electorate (and thus reinstate the ‘two-nation’ theory). They would empower the prime minister to appoint provincial governors, chiefs of the three armed services and chairman of the joint chiefs. There were other useful proposals which I shall skip because I need space to address an issue in relation to which the charter invites scrutiny.There was a time when the president appointed judges of the Supreme Court on the advice of the prime minister. Subsequently, he appointed them in consultation with the chief justice. The charter proposes an extremely cumbersome procedure.

Nominations for filling a vacancy will initially be generated through the deliberations of a commission consisting of the following members: a judge (presumably the chief justice or the next most senior judge of the Supreme Court) who has never taken oath of office under a Provisional Constitutional Order (PCO) to be chairman; a provincial chief justice or the next most senior judge who has not taken such an oath (for vacancies in his court); representatives of the national and provincial bar associations and provincial high court bar associations (latter for provincial high court vacancies); president of the Supreme Court Bar Association; federal law minister; attorney-general of Pakistan.

This commission of five or six individuals will send the prime minister three names for each vacancy. He will choose one of them and forward it to a joint parliamentary committee for confirmation (approval) of his nominee. This committee will consist of an equal number of members from the treasury and opposition benches. It will hold open public hearings on the nominee’s merits and, after it has finally come to a decision, convey it to the prime minister. If approved, the nominee may then be appointed.

Needless to say, this is bound to be a long and slow process. Participation of a joint parliamentary committee and the requirement of open hearings on the candidate’s merits are almost certain to politicise it and perhaps even open it to corruption. There are Senate hearings to confirm (or reject) the president’s nominees to posts in the federal judiciary, cabinet and the diplomatic service in the United States. That has been the American practice for 200 or more years. But even then it can take a long time for the nominee to be cleared or rejected. It can also be a harrying experience for him.

It is hard to figure out what the authors of the charter had in mind. They claimed to cherish independence of the judiciary. But there is no apparent connection between this objective and the participation of bar association representatives, politicians, and civil society spokesmen in the process of appointing judges. They did not call for the same kind of scrutiny when the army chief, a cabinet minister or an ambassador was to be appointed.

Consider also that while, on the one hand, they would enhance the prime minister’s authority in appointing provincial governors and chiefs of the military services, they sought to circumscribe his role in the appointment of judges. One might get the impression that Ms Bhutto and Mr Sharif were moved to target the higher judiciary by spite or some kind of vindictiveness. (I have no idea why they should have felt that way — if they did).

It is noteworthy also that the charter proposes to diminish the Supreme Court and the high courts as institutions. It wants to limit them to hearing ‘regular’ civil and criminal cases, take away their power of judicial review (determining constitutionality of laws and government acts) and assign this role to a federal constitutional court that its authors would set up if they had their way.

The charter proposes also to curb the chief justice’s ‘arbitrary’ power to assign cases to various judges and transfer judges from one bench to another. It would assign this function to a panel consisting of him and two other most senior judges, who would together decide these matters.

The Charter of Democracy provides a credible analysis of Pakistan’s troubles and contains numerous wholesome suggestions. But its disquisition on the judiciary can be ignored. That the attitude of Mr Nawaz Sharif towards the Supreme Court has undergone a complete reversal since March 9, 2007, is an intriguing event, but we cannot discuss it today.

The writer is professor emeritus at the University of Massachusetts.

anwarsyed@cox.net

IT may be a bit premature, but only a bit, to write the obituary of the PPP’s coalition with both the PML-N and the MQM. It may survive differences among the partners over the judges’ issue but the stress caused by the appointment of Mr Salman Taseer as Punjab governor and the tussle between the nazim of Karachi and the Sindh government is sure to lead to the coalition’s demise sooner than later.

Hopes had arisen of late that negotiations regarding the PPP’s constitutional package (the contents are not yet known) might accommodate the viewpoints of contending parties by risking the integrity of the superior courts and at the expense of the taxpayer. But beyond risk and expense, it remains a national shame that politicians and lawyers should feel compelled to expand the courts and alter the constitutionally protected terms of the judges to settle a political argument. The government assiduously denies it is a crisis.

It is not possible to entertain similar hopes when egos, patronage and corruption are at play as they currently are in the politics of Punjab and Sindh undermining a coalition which is rooted, everybody knows, in necessity rather than trust.

The appointment of Mr Taseer may be in order under the constitution as it stands after the Seventeenth Amendment. President Musharraf must have consulted Prime Minister Yusuf Raza Gilani beforehand. That may be compliance with the letter of the law. But the understanding between the PPP and PML-N obviously required consultation with the leader of the party whose nominee is the interim chief minister and whose next nominee will be the regular one in the coming weeks. In a politically contrived arrangement, the government should work by respecting the sentiments of its partners and not by the assertion of its legal rights.

Mr Taseer, a politician of diverse interests, has only made matters worse by his bellicose outbursts soon after a hasty inauguration. He promises to make Punjab a bastion of PPP power and the Governor House a venue of festivals for its workers. He was seen flexing his muscle as if preparing to defeat a political adversary rather than seeking to coexist as constitutional head with the chief minister in whom all executive authority vests.

A grateful Taseer in his hour of exhilaration seemed to have forgotten that parties in the coalition were committed to rewrite the constitution as it was before the Seventeenth Amendment. That would reduce the governor once again to the position of a ceremonial head. He will surely then have ample time to hold festivals but wield no real power (the governor has little of it even now) to confront the chief minister especially one as hard-nosed and hard-headed as Shahbaz Sharif. The boot is soon going to be on the other foot. This should be a sobering thought for Mr Taseer.

The governor in a parliamentary set-up does not, and must not, be seen to represent a political force opposed to the chief minister nor should he expect to share power with him. Sindh indeed is being administered in violation of this principle just to make the province governable. It is not an easy situation and one that prevails at the cost of good governance.

Mr Taseer should not be aspiring to follow the Sindh example, for Punjab has no Sindh-like compulsions. The hope should be that in the course of time even in Sindh (through a series of elections uninterrupted by military rule) will emerge parties with influence and representation cutting across the urban-rural divide and in which all ethnic communities repose equal trust.

A good governor can help the administration work better without interfering. It was such a consideration which impelled Mr Jinnah to recall from retirement ‘the utterly impenetrable, calm and tolerant’ Sir George Cunningham to be the governor of the NWFP once again (he was governor for seven years in colonial times) at a time when conflicting political loyalties following the referendum needed a man whom ‘everyone could trust’.

Political turmoil of one kind or the other afflicting all provinces today calls for a governor of Cunningham’s qualities until more broad-based and cohesive parties take hold. The Sindh government for many years now has been running on a precarious power-sharing formula. Very likely this will be the case in Punjab when a regular chief minister takes over. Mr Taseer has queered the pitch. He has betrayed instincts which his later rhetoric won’t wash away.

In Balochistan, almost every legislator has been thrown into a hodgepodge cabinet but still defiant political forces, which keep the province in ferment, cannot be reined in. The same, by and large, is true of the NWFP despite the ANP and PPP working together. Both provinces need to adopt Jinnah’s approach i.e. find governors whom the insurgents — whether Islamists or separatists — too can trust. In the prevailing situation, all parties need to be persuaded to forfeit their claim to the gubernatorial office to make way for men of George Cunningham’s character and calibre. There are some still around.

The kind of row that the Karachi nazim had with the local government minister is sure to occur elsewhere too for the jurisdictions of the district and provincial governments either overlap or are not clearly defined. Pampered by Musharraf, the nazims have become used to a status which not only ministers but even the chief ministers resent while civil servants find themselves between a rock and a hard place. It would not be possible or advisable to adjudicate every dispute arising between the nazims and ministers. And conciliation does not always throw up a just or economical solution.

A full review of the distribution of functions between the district and provincial governments needs to be undertaken. No problem should arise so long as the principle is conceded that the management of civic affairs is best handled by the district government and all regulatory functions are performed by the provincial government.

For infrastructural projects, social services and utilities the functions can be divided between the two on the basis of cost and scope. For example, the production of bulk water can be a provincial function but its distribution the responsibility of local councils.

This review should be carried out by a commission which, for a change, should comprise citizens and administrators and not judges, retired or serving, PCO or non-PCO. We have had enough of them.

kunwaridris@hotmail.com