The Objectives Resolution adopted by the Constituent Assembly in 1949 and acknowledged as the grund norm of constitution-making in Pakistan contained an express commitment that the ‘independence of the judiciary shall be fully secured’.

These words formed part of the preamble to all subsequent constitutions including the present one. This commitment was further reinforced when the resolution was made an enforceable part of the constitution through Article 2-A.

As a practical step towards the achievement of the objectives of the judiciary’s independence, the Constitution of 1973 explicitly stated in Article 175-3 that the judiciary shall be progressively separated from the executive within three years. (This deadline was later extended to 14 years but that too expired decades ago.)

This provision, requiring the separation of the judiciary from the executive, gave specific meaning and content to the concept of securing independence of the judiciary. The Supreme Court held that according to the consensus of jurists, the independence of the judiciary meant that this body is independent of the executive and the legislature and has jurisdiction directly or by way of review over all issues of judicial nature. Thus directions for placing subordinate courts and services of judicial officers under the administrative control of respective high courts were issued and the constitutional mandate was made effective in respect of the subordinate judiciary.

Unfortunately, the recently introduced and much trumpeted ‘constitutional package’, insofar as it seeks to amend provisions of the constitution related to the judiciary, attempts to destroy the very concept of its independence instead of the avowed commitment to strengthen it. With what intention was a document purporting to place the judiciary under executive control for all times to come prepared?

The desire to bring about reforms in the judiciary is well-intentioned. After all it must be conceded that the performance of the judiciary has not always been entirely enviable. However, reforms could have been enacted through a serious application of mind by finding a viable solution according to the spirit of the constitution. Instead, what we have is an attempt to create a judiciary whose appointment and tenure is placed under effective executive control. It is also denuded of the authority to enforce fundamental rights of citizens. It needs to be realised that the constitution is a living document expected to survive for times to come. The government should therefore look ahead.

Here we shall examine the different provisions relating to the judiciary contained in the proposed package. Some solutions to existing problems are also offered.

Judicial Appointments: Under the existing provisions of the constitution though appointment to the superior courts are technically made by the president (on the advice of the prime minister) the constitution itself mandates him to consult judicial functionaries before effecting such appointments. In the first instance, a judge of the high court can only be appointed in consultation with the Chief Justice of Pakistan, the governor of the provinces and the chief justice of the concerned high court. The constitutions of 1956 and 1962 contained similar provisions and this was also the practice in pre-Partition days. It is, therefore, a complete fallacy to assume that such appointments were ever intended to be in the exclusive domain of the executive.

One may add that as a matter of practice fresh appointments in the high courts are made by way of additional judges for a limited duration (normally a year) and while the executive does contribute to the initial selection process at the stage of a regular appointment on permanent basis, which largely depends on the performance of the selectee, the recommendations of the chief justice as a matter of propriety are generally honoured.

The practice of appointing additional judges in the first instance is generally approved which provides an opportunity to rectify a wrong selection and also enables an appointee to opt out if he finds it difficult to adjust to a judicial office.

As a matter of well entrenched convention, having acquired the force of law, the senior most serving judge is almost invariably appointed the chief justice of that court and there have only been two cases of deviations from this practice in the Supreme Court in Pakistan’s 60-year history which gave rise to considerable public criticism. In one case, the legality of the appointment was questioned before the court which held that the convention had acquired the force of law and the appointment made in its deviation was unconstitutional. Without commenting on the merits of the decision, it is obvious that the convention is followed only to insulate the judiciary from executive pressures and there could be no justification for abandoning it now.

While the independence of the judiciary from the executive is spelt out in the constitution, its independence from legislative supervision and control is also clearly implied. Lord Denning spoke of this principle (which generally applies to all parliamentary democracies) in his book The Family Story. He wrote: “The keynote of the rule of law in England has been the independence of judges. It is the only respect in which we make any real separation of powers. There is no real separation between the executive and legislative powers because a minister who exercises executive powers also directs a great deal of legislative power of parliament but the judicial power is truly separate”.

Considering that we have a written constitution which requires each organ of the state to act within its elected sphere and guarantees justiceable fundamental rights to citizens, the concept of supremacy of the constitution and not that of the parliament has been recognised. The court has the authority to strike down any law made by parliament in transgression of the authority conferred upon it by the constitution or in violation of constitutionally guaranteed rights of the citizens. It is, therefore, impossible to hold the courts subordinate to the parliament under our constitutional system.

It is equally interesting to note that even in Britain, where the theory of sovereignty of parliament ruled the legal system for generations, it has been recently abandoned. In the case of X. Ltd. and another v/s. Morgan Grampiani Ltd. and others (1990 2 AER 1) decided by the House of Lords in 1990 Lord Bridge laid down the following rule in clear terms “the maintenance of rule of law is in every way as important as the democratic franchise”.

He added, “In our society the rule of law rests upon twin foundations: The sovereignty of the Queen in parliament in making the law and the sovereignty of the Queen’s Court in interpreting and applying the law.” In asserting the above principles their Lordships reversed the observation of the Court of Appeal to the effect that courts were servants of the parliament.

To be continued

AFTER an initial bout of upbeat reporting on Pakistan following the breakthrough February elections, the country’s image in Europe and the United States is once again being badly damaged by infighting between key political leaders, tensions with Afghanistan and a seemingly ramshackle national approach to dealing with insurgents and religious extremists.

Not surprisingly, therefore, the flurry of optimistic articles and arguments about Pakistan’s political and economic prospects has given way to a more sceptical view of the country’s future. Patience with the new democratically-elected leaders has not yet run out completely in either the EU or the US — or indeed within the Nato military alliance. But as was made clear at a recent high-level conference on Pakistan held in Brussels, the government in Islamabad will have to act urgently to restore its credibility if it is to maintain international trust and confidence.

Building democracy and stabilising Pakistan will require a constructive mix of sustained national effort as well as targeted aid, technical assistance and long-term political support from the US and the EU, according to participants at the conference organised by the European Policy Centre, an independent think-tank based in Brussels.

On the domestic front, Islamabad faces the challenge of strengthening its democratic foundations, tackling inflation and high food and fuel prices as well as spreading good governance, underlined Khalid Mahmood, Pakistan’s former ambassador to Poland and Oman who now heads the Institute of Public Policy, Beaconhouse National University in Lahore.

Pakistan’s ‘predatory elite’, constituting less than one per cent of the population, has dominated the state and rigged the market to obtain the benefits of economic growth, Mr Mahmood said. He also added that under-investment in education is one of the most alarming indicators of the economic development experience of Pakistan.

While Washington was a vital partner for Islamabad, the former envoy criticised current US policy towards Pakistan, saying the lion’s share of American assistance had gone to Pakistan’s military sector instead of being spent on education and health. “The hot and cold wars that Pakistan has fought with and for the US have extracted a political, psychological and social price from the people of Pakistan,” he warned.

With the US focused exclusively on links with the army, the EU must provide Pakistan with assistance, tools and support needed to consolidate democracy and the rule of law, Mr. Mahmood said.

The EU’s experience in helping countries like Spain, Portugal, Greece and Poland move from military rule to democracy could be replicated in Pakistan, for instance.

“The EU has expertise in developing know-how in reforming economic and political infrastructure in different countries,” Mr. Mahmood said, adding that such assistance included job training, skill formation, delivery of basic services to people and governance related issues.

Tariff concessions through a so-called ‘GSP Plus’ scheme were also needed to provide Pakistan with a level playing field in the trade sector.

Europe should deploy “sensitive and smart diplomacy” in its dealings with Pakistan and try to increase its current 50m euros a year budget for Pakistan to 500m euros, added Mr. Mahmood. Relations with Pakistan could be a “test of the EU’s profile as the world’s biggest donor, an engine for reforms and a soft power making hard choices,” the ambassador concluded.

Karl Inderfurth, former US Assistant Secretary of State for South Asian affairs who is currently professor at the George Washington University Elliot School of International Affairs, highlighted that Pakistan was living a “democratic moment.” However, political uncertainty, economic fragility and security threats threatened to overshadow the country’s democratic renewal, he warned.

The US focus on President Pervez Musharraf and the military meant that in recent months, Washington had been “on the wrong side of democracy” in Pakistan, Mr Inderfurth told the conference. The US must not try and “micro-manage” Pakistan, he said, while also criticising US aid to the military and lack of focus on health and education.

EU director for Asia, James Moran insisted that post-election, Europe was determined to forge a “new, reinvigorated approach” with Pakistan, given the country’s strategic importance and the challenges its faces in political transition and economic development. The deployment during the elections of up to 130 EU election monitors was an indication of Europe’s rising interest in helping Pakistan’s transition toward democracy, said Mr. Moran.

But the current crisis in the ruling coalition, uncertainty over the role of the parliament and confusion over the status of a president, who while challenged on his political legitimacy, still had the right to dismiss the legislature, were undermining Pakistan’s reputation, warned Mr. Moran. Economic challenges were a further source of concern, he added.

The senior EU official commended the people of Pakistan for giving a clear verdict in favour of democratic rule and moderation and said that the country’s vibrant civil society had also helped ensure the move to democracy.

However, “if the transition to civilian governance and legitimacy is to be effective, political parties now in power will have to earn respect on a number of issues,” he said.

As such, there must be a long-term plan to strengthen governance, the rule of law and social development, with political parties also undergoing reform, elections and reorganisation, Mr. Moran added.

As regards peace deals with tribal leaders, the EU would support efforts in as far as they were designed to isolate militants rather than allowing them safe place and did not involve negotiations with terrorists. “A multi-track approach is required on the border, combining a developmental approach with political reforms while ensuring security,” he underlined, adding that the EU was unlikely to increase its aid to Pakistan ten-fold as suggested by Mr Mahmood but a three-fold increase in EU assistance had already taken place.

Given their domestic priorities, Pakistan’s new leaders may not have the time or energy to focus on perceptions of the country in Europe and the US. However, while many European and American policymakers continue to harbour goodwill and patience towards Pakistan for the moment, these are precious commodities that could be exhausted in the medium term.

The writer is Dawn’s correspondent in Brussels.

ON June 17, the PPP-led coalition government broke new ground by bringing the defence budget for debate in the parliament. Unlike previous years when military expenditure (MILEX) was listed as a one-liner in the central budget, the Rs295.30bn estimated budget for 2008-09 (as well as the Rs276.18bn revised budget for 2007) provides service wise break-up under different heads, such as personnel, operations, physical assets and civil works.

The PPP senator and leader of the house, Raza Rabbani, proudly asserted on the floor of the Senate that “it is the first step towards the supremacy of parliament”. Is it?

A satisfactory answer requires placing the issue in its historical context. Since independence from British colonial rule in 1947, military expenditure has been a virtual black box. The tradition of official secrecy inherited from colonial rule was reinforced in the formative years.

The newly independent state was immediately trapped in a ‘security dilemma’ with a larger, militarily more powerful neighbouring India. Not surprisingly, the founding elites prioritised the defence of the state’s territorial borders over the development of its people.

In this militarised political economy, the logic of transparency quickly gave way to the illogic of ‘secrecy equals security.’ For instance, as early as Dec 20, 1948, when an MLA from East Bengal, Prof. Raj Kumar Chakraverty, asked for the disclosure of the annual budgetary allocation for ‘defence’ of Kashmir and other borders, the then defence minister (and prime minister), Liaquat Ali Khan retorted: “In the interests of the State, the information cannot be given.”

Once the military gained more power vis-à-vis civilian politicians, especially with Gen Ayub Khan’s elevation to the office of the defence minister in 1954, even formal civilian control was abolished and MILEX became an exclusive military domain. During the short-lived period of formal civilian rule from 1972-1977, the exact details of MILEX remained out of bounds for legislators. The story was not much different under civilian rule in the 1990s.

The budgeting process was devoid of any meaningful civilian input: the three services headquarters prepared the estimates and submitted them to the ministry of defence. From there, it went through the standard bureaucratic motions and parliament eventually rubberstamped it.

So yes, the 2008 budget heralds change. But why now? On the civilian side, it made imminent political sense. The PPP and PML-N had committed in the Charter of Democracy to placing MILEX before the elected parliament for debate and approval. They are not entirely wrong in claiming credit for making history. But this is indeed just a baby step in a long journey. Parliament still does not wield the authority to properly scrutinise and rationalise MILEX.

Meaningful accountability is likely to remain elusive unless parliament has access to a line by line itemised budget over which it can exercise sovereign financial control. The ongoing parliamentary debate is virtually akin to the case of the drunken man looking for his car keys under the lamp post.

But even so, why would the military agree to parliamentary scrutiny? Is it because of a real change in its organisational ethos from insubordination towards subordination to civilian authority? Or is it a move driven by cold corporate expediency? The answer is no and yes. Like any self-interested organisation, the Pakistani military has extricated itself from civilian politics because the costs of remaining in power outweighed its benefits.

Viewed in that perspective, the military has thrown a ‘teaser’ at the parliament. For a few more lines in the budget, it has created the illusion of transparency at a time when its credibility has plummeted to a new low, and perhaps potentially silenced critics in a civil society deeply disaffected with its political autonomy and influence.

This is not to imply that the change is insignificant from a democratic standpoint. Institutional decisions can often have unintended effects, especially decisions made at critical junctures (or openings for institutional change) such as democratic transitions. These effects can get ‘locked’ in the shape of institutional practices by generating ‘increasing returns’ for powerful actors.

Put simply, parliamentary debate over even a quasi-itemised MILEX is likely to create a momentum towards greater transparency that may not be easy to reverse. With each passing year, legislators could ask for more and more information. Many have already demanded that next year’s defence budget should be more detailed.

Over time, the process of parliamentary oversight and control over the military budget might gradually assume a ‘taken for granted’ quality both for the military and civilians. Of course, alternative outcomes are not completely closed. For instance, the military can retaliate against deeper civilian scrutiny into MILEX to protect its institutional interests.

In other words, the military retains the right to take off its pound of flesh from the body politic as and when it deems necessary. Which outcome prevails will ultimately depend on both the longevity and quality of our latest tryst with democracy. If democracy survives, and civilian elites rule within the bounds of the constitution, the likelihood of democratic-parliamentary supremacy over the military will only increase.

If on the other hand, civilians do not govern democratically and/or lose legitimacy on account of their performance in power, the praetorian military will have yet another opportunity to upend the democratic transition.

The writer, a PhD candidate in Political Science at Columbia University, is currently doing research in Pakistan.

as2552@columbia.edu