IT is all to the good that on Jan 15 Prime Minister Yousuf Raza Gilani said that a committee had been set up to go into the issues raised by the proposal to repeal the 17th Amendment. One hopes that this committee will consider the issue of the sweeping powers which the 17th Amendment gave to the president.

On Sept 20 last year, President Asif Ali Zardari promised, in his maiden address to both houses of parliament, to review the 17th Amendment. He proposed a committee to “revisit” that amendment. Use of the word 'revisit' rather than 'repeal' was widely noted. The actual context is important. “As the democratically elected President of Pakistan, I call upon the parliament to form an All Parties Committee to revisit the 17th Amendment and Article 58-2(b).” He added, “Never before in the history of the country has a president stood here and given [up] his powers.”

When the president met the PML-N chief Mian Nawaz Sharif at a dinner he had hosted on Nov 8, Mr Sharif reminded him, of his promise to shed his powers. Scrapping the 17th Amendment was a key point in the Charter of Democracy signed by the late PPP chairperson Ms Benazir Bhutto and Mr Sharif in 2006. The PML-N seems all set to table a bill to repeal the 17th Amendment.

However, if Mian Sahib's aim is to restore “a true parliamentary system” in Pakistan, mere repeal of the 17th Amendment would be an error as grave as his repeal, without more, of the equally hated Eighth Amendment by the 13th Amendment in 1997. The net result was not the restoration of parliamentary democracy but the elevation of the prime minister as an all powerful chief executive unhindered by presidential oversight. Mr Nawaz Sharif did not mind that. It is unlikely that President Zardari would acquiesce in his being reduced to a rubberstamp.

The root of the problem lies in Zulfikar Ali Bhutto's 1973 Constitution. It made the prime minister all powerful and reduced the president to a cipher. He was shorn of discretion on dissolution of the National Assembly (Article 58) and the power to dismiss a wayward prime minister (Article 48[1] ). All the orders of the president had to bear “the counter-signature of the prime minister” (Article 48[3]).

The cabinet system was undermined by empowering the prime minister to act directly (Article 90[2]). He became “the Chief Executive of the Federation” (Article 90[1]. A pliable Fazal Ilahi Chaudhry was elected president. Such features are not to be found in the constitution of any parliamentary democracy anywhere in the world. Are they to be reinstated by the repeal of the 17th Amendment?

Ziaul Haq suspended the constitution when he staged a coup in 1977. On March 2, 1985 came the Revival of the Constitution of 1973 Order. On March 23, Mohammed Khan Junejo was nominated prime minister. He secured a unanimous enactment of the notorious Eighth Amendment to the constitution by the Majlis-i-Shura on Nov 9, 1985 as a

compromise with Zia. It made concessions to the president in order to pave the way for the Proclamation of Withdrawal of Martial Law.

The presidential order of March 1985 conferred on the president the power to hold a referendum on “any matter of national importance” even without or contrary to the advice of the prime minister. The Eighth Amendment retained this. It also empowered the president by Article 58-2(b), to dissolve the Assembly of his own sweet will if, in his opinion, “a situation has arisen in which government of the federation cannot be carried on in accordance with the provisions of the constitution and an appeal to the electorate is necessary” and appoint a caretaker government of his choice after sacking an elected government (Article 48[5]).

The Legal Framework Order made on Aug 21, 2002 revived the 1973 Constitution but with 29 amendments. One of them restored Article 58-2(b). The 17th Amendment of 2003 simply added clause (3) to Article 58 to obligate the president “in case of dissolution of the National Assembly” to refer the matter to the Supreme Court.

A proper restoration of the parliamentary system therefore involves much more than removal of dross. It requires pruning of the original 1973 Constitution as well. This requires an all-party and truly national non-partisan effort.

The parliamentary system rests on recognised conventions, though they have not been codified in a single document. Under the conventions of the parliamentary system, recognised in the United Kingdom, Canada, Australia and New Zealand, the head of state has the following rights (1) to be consulted; (2) to demand information; (3) to select the prime minister if the elections yield a hung parliament in which no party has a clear majority; (4) the discretion to dissolve a house; and (5) albeit in the last resort, to dismiss the prime minister. These add up to a president and a prime minister each powerful enough to prevent the subversion of the constitution by the other, but not powerful enough to be able to subvert it himself.

The joint select committee of the Australian parliament on the republic referendum yielded in August 1999 its Advisory Report on Constitution Alteration (Establishment of Republic) Bill 1999, and Presidential Nominations Committee Bill, 1999. Para 4.10 of the report spelt out the president's “reserve powers” explicitly “It is generally accepted that there are probably only four such powers; namely, the power to appoint a prime minister, the power to dismiss a prime minister, the power to refuse to dissolve parliament and the power to force a dissolution of parliament.”

None of them is an absolute power. Each is subject to limitations as clear as the power itself. The conventions can be codified in an instrument of instructions annexed to the 1973 Constitution once it is properly pruned.

The writer is a lawyer and an author.