DAWN - Opinion; November 08, 2008

Published November 8, 2008

Expelling an MP

By A.G. Noorani


WITH the restoration of parliamentary democracy in Pakistan, issues relating to the powers of parliament as well as those of the provincial assemblies are certain to arise now and then, depending on political vicissitudes.

Article 66(2) of the Constitution of Pakistan says that the powers and privileges of parliament “shall be such as may from time to time be defined by law”.

Parliament has the power to codify its privileges. But, “until so defined, shall be such as were” enjoyed by the National Assembly “immediately before” the constitution came into force. That takes us to a twilight zone between 1958 and 1973.

The Constitution of Pakistan of 1956 is relevant. Article 56(5) said that the privileges of the National Assembly and its members “may be determined by law”. Such a law was, indeed, passed and it would seem that it holds the field today — the Constituent Assembly (Proceedings and Privileges) Act, 1955. Section 4(5) of the Act, however, says that the privileges and powers of the assembly and its members (except the very few it mentioned on freedom of speech) shall be those of the House of Commons of the British parliament at the commencement of this Act; that was Aug 6, 1955 since under Article 226 of the 1956 Constitution all existing laws continued in force, so did the Act of 1955.

The position in India is exactly the same. Article 105 of the Indian constitution confers on both houses of parliament the powers and privileges which the House of Commons enjoyed when the constitution came into force on Jan 26, 1950. One ignores the cosmetic amendments in 1976 and 1979 to remove the reference to the House of Commons which were there from 1950–1976. So, we have still to turn to Erskine May’s Parliamentary Practice to ascertain the privileges of our parliament and its members. Codification is the best way out. Australia enacted such a code recently.

Precisely what is the scope of these vague powers and privileges? Do they enable parliament and its MPs to override the citizens’ fundamental rights? Shockingly, in 1958 the Supreme Court of India ruled that they did. In 1965 this was overruled. The citizens’ right to personal liberty prevails over the privileges as does the court’s power of judicial review.

In 1993 the Supreme Court of India cited a judgment of the Supreme Court of Pakistan on the restoration of the Balochistan Assembly. The Supreme Court of Pakistan, likewise, cites judgments of the apex court of India.

A very important issue of privileges has risen in India recently which can affect the basics of parliamentary democracy — the power to expel a member. The Supreme Court ruled, by a 4-1 majority, on Jan 10, 2007 that each house has the power to expel a member. It also defined the court’s power of judicial review within certain conditions — mala fides, illegality, violations of principles of natural justice on fundamental rights.

But the case proceeded on the basis of expulsion for misconduct as MPs. Since the misconduct was committed as MPs — receiving cash to ask questions — there was no need or occasion for the court to decide whether the power of expulsion can be exercised for conduct unrelated to membership of the legislature.

The (East) Punjab Assembly’s expulsion of the former chief minister, Capt Amarinder Singh, on Sept 10, has raised important questions of constitutional law and propriety. He was expelled after a special committee of the assembly censured him allegedly for corruption and irregularities in granting exemptions while transferring 32.1 acres to a private developer.

Amarinder Singh moved the Punjab and Haryana High Court and later the Supreme Court which, doubtless, will clarify the law. The issue which arises is whether the legislature can pronounce judgment in a criminal or civil case and expel a member — bypassing the courts of law. It affects the powers of legislatures in India and Pakistan, alike.

While they do not adopt the doctrine of separation of powers in an extreme form as the US constitution does, the doctrine is respected by both India and Pakistan in the main. The courts will look with grave disquiet at usurpation of judicial power by the legislature just as the legislature objects to courts encroaching on the legislative field.

The law laid down by the Supreme Court of India in Mrs Indira Gandhi’s election case in 1975 invalidates expulsion for offences triable by courts of law. Pakistan’s courts cite Indian cases.

Justice Y.V. Chandrachud said, “The political usefulness of the doctrine of separation of powers is now widely recognised though a satisfactory definition of the three functions is difficult to evolve. But the function of the parliament is to make laws, not to decide cases. The British parliament in its unquestioned supremacy could enact a legislation for the settlement of a dispute or it could, with impunity, legislate for the boiling of the Bishop of Rochestor’s cook. The Indian parliament will not direct that an accused in a pending case shall stand acquitted or that a suit shall stand decreed. Primarily India, in some parts, often did it.”

The reason for the restraint is not that the Indian constitution recognises any rigid separation of powers. Plainly, it does not. The reason is that the concentration of powers in any one organ may, by upsetting the fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged.

The legislature legislates. It cannot pronounce a declaratory judgment in a particular case, civil or criminal. Justice K.K. Mathew remarked, “A sovereign in any system of civilised jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a firman has no relevance when we are considering how a pre-sovereign — the holder of the amending power — in a country governed by a Constitution should function. Such a sovereign can express ‘himself’ only by passing a particular kind of law, and not through sporadic acts.”

This is a question which, one hopes, the supreme courts of India and Pakistan will decide finally.

The writer is a lawyer and an author.

Reliving our nightmares

By F.S. Aijazuddin


WE have been colonised by every power that matters — the Mughals and the British, military regimes and pseudo-parliamentary governments.

We must now prepare ourselves for a long period of occupation by the international financial institutions.

The Mughals gave us imperial cohesion and a land revenue system; in return we gave them absolute power to rule uninterruptedly for 350 years. The British over a hundred years gave us English, a judicial system, the steel framework of a bureaucracy, and nabobs like Warren Hastings; in return we surrendered to them our liberty and our natural resources.

Over 33 years military regimes have given us authoritarian rule, botched attempts at reforming government, and assurances that democracy could be delivered only by midwives in khaki; in return we gave them our obedience and our blind trust.

For the remaining 28 years, we gave pseudo-parliamentarians our votes; in return they have given us empty promises and left us with even emptier coffers. Now we look to the neo-colonialist IFIs for financial succour. We want them to lend us billions of dollars and provide a semblance of solvency; in return, we may have to pledge ourselves to a long sentence of fiscal servitude.

An apprehension has been nurtured in the minds of our public that an approach to the IMF will be akin to the surrender at the Dhaka racecourse in December 1971. We recovered from that ignominy, just as France did from its capitulation to Germany at Compiegne in 1940. More recently, in the 1990s, Brazil and Mexico recovered from their economic crises. We too should be able to emerge from our present maelstrom. It is often easier to weather a storm when one is already within the eye of it.

Let us examine our relationship with the IMF before we pass judgement on it, or on ourselves. The IMF provides a range of loans (euphemistically described as ‘facilities’) that can be either on concessional terms or at market-related interest rates. The first category includes the poverty reduction and growth facility (PRGF) and the exogenous shocks facility (ESF), i.e. those factors that are outside a country’s control. The period of such facilities can be between five to 10 years and carries a sweetheart rate of interest of 0.5 per cent per annum.

The second category includes stand-by arrangements (SBAs) and the extended fund facility (EFF). These are shorter in duration. The SBA is for 12-24 months and the EFF usually lasts three years. Because of this they carry higher, market-responsive rates of interest.

Currently, Pakistan has availed a PRGF loan of $1.033bn, sanctioned by the IMF in December 2001, out of which $861m has been drawn down. Before the facility could expire in December 2004, our financial health had so improved that we wrote to the IMF on Nov 12, 2004 informing it that “we have decided not to draw the tenth and final tranche under the PRGF” so that “these resources would become available for other countries in need of concessional support from the Fund”. Greater love hath no man than that he should forgo his IMF tranche in favour of a needier debtor, even though he might have to use that very bowl to beg again one day, as we are doing.

To be fair to ourselves, we are not chronic beggars, habitually parked outside the IMF’s doorstep. Over the period 1958-2000, we drew down less than half the $6.2bn we had been originally sanctioned. In 2000-2001, following the post-Chagai nuclear sanctions, we drew down the full SBA of $465m requested by us. Between 2001 and 2004, we availed all but the last tranche of the PRGF facility, of which $787m is still outstanding. The last instalment is due in 2014.

Today, we have begun discussions with the IMF for financing under a concessional SBA. This, in IMF’s parlance, “stipulates the specific policies and measures a country has agreed to implement to resolve its balance of payments problem. The economic programme underlying an arrangement is formulated by the country in consultation with IMF, and is presented to the Fund’s Executive Board in a ‘Letter of Intent’. Once an arrangement is approved by the Board, the loan is released in phased instalments as the programme is implemented.”

The IMF announced that while discussions were ongoing, as of Oct 22, the amount of financing under SBA had not been determined. Meanwhile, the IMF has said that we can avail of the more expensive emergency fund mechanism (EMF), because it is quick-disbursing and does not involve adherence to performance criteria. We will be in the company of such other emergency-afflicted countries as Bangladesh (floods), Haiti (hurricane), Turkey (earthquake) and the Maldives (tsunami).

Reading the previous letters of intent signed jointly by our finance minister/adviser on finance and the governor of the State Bank makes one realise how much we have changed, and yet how little. Ten years ago, we were promising action on Wapda and KESC. We undertook to introduce an agricultural tax, to broaden our registered taxpayers base to 1.8 million, and to introduce a host of fiscal measures. We are again parroting those undertakings.

When, in a flush of new-found economic maturity four years ago, we told the IMF that our future financial needs would be met primarily from domestic and international markets, we ticked the number of IMF-specific benchmarks we had been able to attain between 1998 and 2004. Then why should we have gone so horribly wrong yet again?

We should not waste our time finding out. It is too late now to lament over our mistakes. It is time to do something about a future that we have forfeited but have no right to renounce on behalf of future generations of Pakistanis, almost 80 million of whom are still under the age of 20. They deserve to live their dreams and not have to relive our nightmares.

www.fsaijazuddin.pk

Cabinet of curiosities

By Ayesha Azfar


THERE are several names in the recently expanded federal cabinet that raise eyebrows. But none stands out more prominently — or sorely — than that of Senator Israrullah Zehri whose infamous defence in August of anti-women traditions in Balochistan created a national uproar.

The incident that led to Senator Zehri’s controversial remarks was nothing short of grisly. It involved the honour killing of at least two Baloch women believed to have been buried alive, although the police denied the presumed manner of their death after carrying out a post-mortem on the recovered bodies.

Admittedly, the senator has been given charge of a rather innocuous portfolio — the Ministry of Postal Services — and one sincerely hopes that he sticks to his department and does not start eyeing the still vacant top slot in the Ministry of Women Development. However, why a new portfolio was carved out of the Ministry of Communications to accommodate him, as seems to be the case, is something of a mystery. Unless, of course, it was Prime Minister Gilani and President Zardari’s intention to mollify the senator after the verbal battering he received at the hands of incensed women’s groups, the media and others.

This, probably, was not the case as Mr Zardari, surely, did not have misogynists in mind when he said after the Feb 18 polls that he wanted to take ‘everyone’ on board for a government of consensus.

Perhaps, in light of the highly unexplainable nature of Pakistani politics and its decision-making machinery, it would be a waste of time to look for an answer regarding Senator Zehri’s appointment. But the implications of it cannot be ignored and some basic reflection is in order.

First, what is the message that the administration is sending out to the people when it assigns a ministerial slot to a politician whose views on half the population would be disowned by any self-respecting government? It appears to be a tacit acceptance of a medieval stance that has struck fear in the hearts of women in all the provinces and brought nothing but shame to the country.

As it is, sexist remarks and gestures by our heads of state, past and present, have not escaped international notice. The inclusion in the cabinet of parliamentarians who hold not only conservative but downright barbaric opinions when it comes to the protection of women serves to reinforce the impression that Pakistan does not mean well by its female population.

Second, attempts to mollycoddle parliamentarians taking a dim view of standard human rights norms is very much at odds with efforts to promote women’s empowerment in the country. For instance, what does one make of the recent cabinet approval of a bill to eliminate harassment at the workplace — the brunt of which is borne by women — when there are minds in the ministerial team that are unable to grasp the idea of breathing space being allowed to the ‘other’ sex?

The truth is that legislation to do away with anti-women practices in society can only be effective when politicians themselves are convinced of the need to do so. After much debate in parliament, they may have succeeded in watering down draconian anti-women laws rooted in the Zia era by enacting the Protection of Women Act 2006, but what are they doing to stop girls’ schools from being bombed by Taliban militants in the north? Why aren’t those who preside over unlawful jirgas that sentence women to death in order to ‘protect’ family and tribal honour being caught and tried in a court of law?

The last point relates to the final but perhaps most pressing question of all. How do parliamentarians — and there are many besides Senator Zehri — pledge to follow the law of the land when, at the same time, they uphold archaic tribal traditions that militate against it? How do they condone the violent abuse of human rights on their own turf when their role as legislators in parliament forbids the violation of the constitution and the law?

The answer to this may lie in the crisis of leadership that we face today. It indicates the government’s inability, in fact, unwillingness to evolve a just order with an emphasis on equal opportunity for all — men and women, the rich and the poor. That may well be the reason why we are stuck with Mr Zehri and his ilk in the Senate, the assemblies and the cabinet.

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