Qualified democracy for Pakistan

THE Aristotelian belief that democracy bears in it the germs of tyranny was surely proven true in the context of Pakistan in October, 1999, when the country’s democratically elected prime minister was made short shrift of by the military and sent to jail.

However, today the picture has changed. Theoretically, we stand a little closer perhaps to the ‘necessitarian’ position of Machiavelli’s ‘The Prince’: 9/11 and, subsequently, the war on terror decreed, in more compelling terms than October 12, 1999, that we accept the wisdom of having an authoritarian order which would address America’s and our own security demands more effectively than any other. The terrorist attack on the Lok Sabha in Delhi, followed by the massing of Indian troops on our border, simply served to further compound that constraint.

In other words, if state necessity had been invoked by Gen. Musharraf to justify his takeover, historical necessity seemed to endorse his stand. Perhaps we should take it, then, that conditions are such, even now, as to necessitate what is being enacted before us: the improbable spectacle of an autocracy aspiring to realize itself as a democracy.

Of course, there is a slight paradox here. Whereas those in power will, obviously, be more than content with the approximation of a democratic order, civil society is, in all probability, looking for the real thing. Needless to say, the irony is at the expense of the country’s politicians who, while fully aware of its precise nature, appear, nevertheless, to be putting all they have into the electoral exercise. And why not? Even a fraction of political power, indeed a semblance of it, is, or so the conventional wisdom goes, better than no power at all.

Also, our politicians are, evidently, striving to avoid repeating the tactical error of 1985. That was when a number of political parties boycotted the partyless polls of Zia’s time, thus having to bear with the Muslim League’s hold on national affairs for three years. It is understandable that the political parties should be concerned about their survival.

Even so, the question arises as to why, since democracy, is not really on offer today, we are being put through the present national charade. Merely to satisfy form? Along with the scrupulous West? A bill moved some days ago in US Congress seeking to make American aid to Pakistan conditional upon its ‘good behaviour’ in terms of holding of “free and fair” elections, would certainly seem to suggest as much. The stance of the head of the EU observers’ team to the effect that the EU would be satisfied if elections in Pakistan led to the emergence of a parliament with a modicum of authority, appears to be pointing in the same direction.

Yet why, in that case, two sets of standards — one for Europe and the US and a different one for Pakistan? Why are we to be fobbed off with an anomalous, custom-made democratic order which, besides being militarized, allows for a prejudging of choice? Being based on the deterministic premise of ‘quality’ leadership, it is, in effect, more about a kind of aristocracy than democracy? There should be no room for elitism in a democratic dispensation. But it appears that we are going to go ahead on the strength of a presidential fiat, with electing a ‘qualified’ parliament.

One suspects that, somewhere, a communication breakdown of sorts has taken place between the rulers and the ruled. That, at any rate, was the impression conveyed during the question-and-answer session which followed the televized announcement, by Gen. Musharraf, of the Legal Framework Order of 2002. This session formed an important part of the proceedings televized on that occasion. It is worth considering on account of the insights it provided into the country’s emerging political scenario.

Press reports in the wake of the announcement of the LFO suggested that Gen. Musharraf had, while making public his intention to ‘constitutionally’ arrogate wide-ranging powers to himself, all but won the day. But the situation would, in fact, seem to have been slightly more complex. The president did indeed convey his intent but to an oddly bewildered and incredulous gathering of media persons.

The question-and-answer routine that followed was ample testimony of this. There was a perceptible gap — and this should give us pause — between the two types of discourse at play. This was a gap not just between the wholly divergent mindsets of a military president, on the one hand, and representatives of civil society, on the other, but also between two radically distinct worldviews: the one rigid, arbitrary and monistic, the other tentative, democratic and pluralistic.

Though Gen. Musharraf may not exactly have been painted into a corner on the occasion, he was patently on the defensive when fielding questions. This certainly seemed to have been the case when he was confronted with some particularly awkward questions. these pertained to the simultaneous retention by him of the hats of COAS and president and, more pertinently, without any thought of future recourse to parliamentary ratification.

This does not augur well for us. It bespeaks — especially in the light of the negative reactions to the LFO on the part of the majority of Pakistan’s political parties — a chronic malaise, together with the possibility of a dangerous widening of the already existing civil-military divide in the country.

Unlike Gen. Zia, Gen. Musharraf seems to have set an unhealthy trend in Pakistan’s politics by making his various policies and constitutional amendments virtually irreversible and by placing himself, in effect, above the country’s Basic Law. It might be useful, in this context, to consider what Rousseau has to say in his ‘Social Contract’ (Ch. X). “... I call him who usurps ... authority a tyrant, and him who usurps the sovereign power a despot. The tyrant is he who thrusts himself in contrary to the laws to govern in accordance with the laws; the despot is he who sets himself above the laws themselves. Thus the tyrant cannot be a despot, but the despot is always a tyrant.”

However, to give the president the benefit of the doubt regarding his LFO, it would appear that he has erred as a result of a blinkered view of the dictates of larger national interest. His concern about constitutional safeguards, which would ensure prime ministerial rectitude and efficiency and protect the state from further cataclysms, has been at the back of the formulation of this extraordinary ‘legal’ document. Even if it has become skewed, allowing for needless military involvement at the highest administrative level in the country in the shape of an NSC and registering an imbalance of power in favour of the president, Gen. Musharraf, doubtless, means well.

It is for this reason that the response of the US State Department to the LFO has been guardedly critical rather than openly condemnatory. But there should be no doubt in our minds as to the nature of the US response. It has not been positive. It is not supportive of a perpetuation of military interventionism in Pakistan’s state affairs. Despite the occasional ‘carrot’ which President Bush might extend to Gen. Musharraf, the State Department has spoken, in no uncertain terms, of the need for free elections in Pakistan followed by a forward movement, “consistent with existing constitutional requirements”, towards “full democratic, civilian rule.”

Whether we heed this advice or ignore it is our internal affair. But it would be in Gen. Musharraf’s interest not to take on his own constituency, all those, in civil society, who applauded him when he toppled and took over from Nawaz Sharif and are today watching him with dismay from the sidelines.

Democracy as an afterthought

TO promote democracy in the Islamic world while pursuing other strategic goals requires a sense of balance, nowhere trickier to calibrate than in Pakistan. The State Department’s effort to get that balance right last week was pretty much undone by President Bush, who in an off-the-cuff comment conveyed a sense that democracy in the South Asian country isn’t all that important to him.

It was the kind of remark that carries weight not only in Pakistan but in every other part of the world — Palestine, Zimbabwe, Egypt — where the United States claims to care about political liberty.

The catalyst for last week’s comments was a series of constitutional changes announced by Gen. Pervez Musharraf, changes that reaffirmed his intention to maintain power for at least another five years despite his promise after his 1999 coup to rule only so long as “absolutely necessary to pave the way for true democracy to flourish in the country.”

State Department spokesman Philip Reeker, hardly throwing bombs at the US ally, restated the US faith that Musharraf “wants to develop strong democratic institutions.” But, Reeker admonished, “we are concerned that his recent decisions could make it more difficult to build strong democratic institutions in Pakistan.”

This mild reproof sounds like a spanking compared with the comments of Bush, who was asked Thursday about the rewriting of Pakistan’s constitution. “My reaction about President Musharraf, he’s still tight with us on the war against terror, and that’s what I appreciate,” Mr. Bush said. “He’s a — he understands that we’ve got to keep al-Qaeda on the run, and that by keeping him on the run, it’s more likely we will bring him to justice. And I appreciate his strong support.”

Then the president added: “Obviously, to the extent that our friends promote democracy, it’s important. We will continue to work with our friends and allies to promote democracy.”

—The Washington Post

LFO: chinks and flaws

THE nature of constitutional amendments imposed by the regime through the Legal Framework Order and their apparent objectives have greatly strengthened the argument against arbitrary changes in the basic law. These changes not only lack legitimacy; they will push the state into a new phase of authoritarian rule and turmoil.

Without prejudice to the exception to the order, the democratic opinion has taken, the document needs to be read carefully to understand its authors’ mind and assess the impact of the constitutional drafting. Initial criticism of the order has been focused on some major issues, such as the proposed creation of the National Security Council as the repository of national sovereignty and the concentration of power in the hands of the president. However, a plain reading of the order arouses doubts about quite a few points that may appear minor in the present state of the debate but which are unlikely to be ignored by students of constitutional law.

Under Section 3(1) of the LFO the Chief Executive and the COAS has made 29 changes in the Constitution of 1973. Under the next sub-section [Section 3 (2)] he has acquired the power to further amend the Constitution if “there is any necessity” or “any difficulty arises in giving effect to any of the provisions of this order (LFO 2002).” Why has this sub-section been inserted? As it is, the CE is amending the Constitution without any restraint. What then is the need for further acquiring such authority under the LFO? The reference to the removal of difficulties is understandable as this provision is generally made at any time of transition.

But the reference to any further necessity to amend the Constitution raises doubts. No time-frame has been given for further amendments. They may be made before Oct 10, when the election is scheduled to take place, and they could be made after Oct 10 and indeed till the date the Chief Executive’s office is abolished (upon the arrival of a prime minister). If this means, as the text of the provision suggests, that even after the election has been held, after the National Assembly has met, after a prime minister has been designated, and so long as the Chief Executive’s office has not been vacated, the power to amend the Constitution could be exercised, it is a matter constitutional experts may like to examine.

From a lawyman’s point of view, any amendment to the Constitution after the election on October 10 will have even less of legitimacy than those carried out now. The danger is that such amendments may be motivated by considerations arising from the result of the election or the composition of the parliament. It may be a minor point, but it is perhaps worth making, that whatever power to amend the Constitution is unilaterally claimed by the Chief Executive, the exercise of this power after the election will make the transition still more unclean.

The LFO does not add the graduation condition to the eligibility criterion for candidates for election to legislatures, whereas in the package of proposed amendments released on June 26 a clause to this effect had been included twice for insertion in Article 62.

Thus, the graduation condition now figures only in the Chief Executive’s Conduct of General Elections (Amendment) Order of June 21, 2002. Can that condition stand without the protection of the LFO? That the election order is protected by the LFO does not matter. Will the condition survive the revival of the Constitution, because then the question whether a subsidiary legislation could impose a condition on candidates which is not provided for in the Constitution will not be as fruitless an academic exercise as it may seem at the moment.

Section 4 of the order also attracts notice. It says that the Chief Executive will fix the day on which the 1973 Constitution will stand revived. However, the entire Constitution may not be revived on a particular day and the Chief Executive may withhold the revival of some provisions of the Constitution till another day or other days.

The provision follows the precedent made by Gen. Ziaul Haq. (No other precedents are available because the military rulers preceding Gen Zia — Generals Ayub Khan and Yahya Khan — had not held in abeyance the constitutions existing before their take-over). Under the Revival of Constitution Order (President’s Order 14) of March 1985, Gen. Zia had retained with himself the power to appoint the day for the revival of the Constitution.

A notification said that March 10, 1985, had been fixed as the day when the 1973 Constitution as amended would stand revived, except for Article 6, Articles 8 to 28, clause (2) and 2 (a) of Article 101, Article 199, Articles 213 to 216, and Article 270-A. Another order issued on December 12, 1985, said these articles would be revived on the day the proclamation of martial law of July 5, 1977, was revoked. Eventually the Proclamation of July 5, 1977, was withdrawn on December 30, 1985, and the suspended provisions revived.

The result of reviving the Constitution in instalments in 1985 was that even after a large part of the Constitution had been revived on March 10, 1985, the fundamental rights chapter remained in abeyance and the writ jurisdiction of high courts remained suspended for over eight months. The relevant parts of the Constitution were not revived until the Eighth Amendment had been forced on the National Assembly.

Naturally, a question arises as to what provisions of the Constitution will now be kept in abeyance? Will there be a repeat round of bargaining with the National Assembly to be elected on Oct 10?

A minor point relates to the convening of the provincial assemblies. Section 2 of the LFO assigns the prerogative to convene the first meeting of each provincial assembly to the president. Why?

Throughout our constitutional history, the power to summon a provincial assembly and to prorogue it has vested in the governor (Article 62(2) of the government of India Act of 1935 as adapted in Pakistan, Article 73(1) of the constitution of 1956, Article 73(1) of the 1962 constitution, Article 109(2) of the Interim Constitution of 1972, and Article 109 (a & b) of the 1973 Constitution). The very suggestion that a newly elected provincial assembly cannot meet till it is summoned by the president, which means the federal executive, is repugnant to the concept of a federation and the privileges of the federating units.

The apparent reason for giving the power to convene the first meeting of a provincial assembly to the president is that this assembly will be convened before the revival of the Constitution and when Article 109 will not be in the field. But this problem could have been solved by replacing ‘president’ with ‘governor’ in the LFO itself. The authors of the LFO could afford to show sensitivity to the feelings of the federating units that are already smarting under grave apprehensions and misgivings about their autonomous status.

Some attention may be paid to Article 63-A, the defection clause. The limitation of defection as a result of voting against the party mandate to three grounds (election of PM/CM, no-confidence move, the budget) is an improvement on the provision made by the Nawaz Sharif government. However, the situation where a sizable body of parliamentarians may break away from a party, on issues of principle and good conscience, has again been ignored. Perhaps, the regime does not want to see the flock at present being gathered getting scattered after the polls.

The idea of a mediation committee to reconcile differences between the two houses of parliament over a legislative measure does not seem to have been adequately considered. The relevant amendments propose that if a bill is passed by one house and does not get the approval of the other house, a mediation committee comprising members from both houses will produce a text “which is likely to be passed by both houses.” The bill thus revised will then be debated by each of the two houses. The amendment is silent about two possibilities. First, what will happen if the mediation committee fails to agree on a text that will win the support of five of its members from each house? (The committee will have eight members from each house and its recommendation must be backed by a majority of the members from each house — at least five of them.) Second, what will happen if a bill approved by the committee and also by one house fails in the second house? There is no suggestion, nor is this possible, that the decision of the mediation committee shall be binding on parliament. Parliamentary committees have possibilities of facilitating legislation but they cannot replace the legislatures.

Besides, such committees acquire the necessary expertise and the desired status only after a long period of convention-making process. In any case, the reasons for tampering with the system of holding joint sessions of the two houses of parliament are as unclear as the need for a mediation committee in view of the fact that there is no known history of intra-house differences obstructing legislative work.

Incidentally, the LFO does not bear the number usually allotted to the Chief Executive’s orders. This is presumably due to the fact that the establishment did not know as to how many orders might be issued between the finalization of the LFO and its promulgation. Likewise, the gazette extraordinary does not give the date of the notification and only August 2002 is mentioned. It can be presumed that the order took effect on August 21, the day it was issued. Such matters, however, cannot be left to presumption. The day a piece of legislation is supposed to be made is the date in the gazette and it may be different from the date newspapers become aware of the notification.

In constitutional and legal instruments even the use or omission of commas matters. Authorities that take their task of drafting legislative / constitutional instruments with due seriousness try to avoid any possibility of confusion in interpretation caused by seemingly inconsequential lapses in drafting or even in printing.

A controversial ordinance

AS a member of parliament, I am ashamed that the very first effort to cleanse our politics has been defeated by the MPs themselves. They have been criticizing for years the nexus between criminals, bureaucrats and politicians. But when it came to action they have united to stall it.

Nearly, all political parties have opposed the election commission’s (EC) order to make it obligatory for the contestants to disclose their assets and their criminal past at the time of filing their nomination papers. This was on the Supreme Court’s directive.

I am not surprised over the reaction of leaders like Mulayam Singh Yadav of the Samajwadi Party. They wallow in the dirt of politics and their sights are limited to winning an election, not how they do it. But I did not think that he would go to the extent of running down the president, the highest authority in the country, for having returned the government’s ordinance meant to undo the commission’s order.

Mulayam Singh has attacked the “so-called intellectuals” for not knowing the reality on the ground. A bit of that reality has come to light from an official statement in UP that some hard-core criminals, who contested on the Samajwadi Party ticket in the last assembly election, are absconding. True, the “so-called intellectuals” can never come up to the expectations of Mulayam Singh Yadav and his likes and who equate reality on the ground with mafias and moneybags.

What has surprised me is the support of the communists to the ordinance. I expected better standards from them. At stake is not the authority of MPs but their reputation. The general impression is that politicians are corrupt and mixed up with criminals. By opposing the EC’s directive they have only strengthened the impression. They have also proved that when the question of politicians arises there is no difference between left and right.

I believe that the prime minister was in favour of modifying the ordinance to meet the president’s suggestion that candidates should divulge their assets before seeking election. But Attorney-General Soli Sorabjee had his way. He reportedly told the prime minister that if the ordinance was modified, the president could take it as a new one and again send it back. Subsequently, the attorney-general went to Rashtrapati Bhawan to assure the president that the modification he had suggested would be incorporated in the bill before it was introduced in parliament. If this is the case, what is the harm in modifying the ordinance right now?

In fact, the attorney-general has been unfair to the public because the ordinance has retained clause 33 (a) of the draft bill: “Notwithstanding anything contained in any judgment,” no candidate shall be liable to disclose any such information in respect of his election...” This denies a citizen the fundamental right to know which is guaranteed under Article 19. The Supreme Court has held in a number of cases that the right to information is derived from the concept of freedom of speech in Article 19.

What should an average person infer from the ordinance and the cabinet’s re-endorsement so as to bind the president to sign it? Probably no single task has tarnished the image of politicians so much as this ordinance. Imagine the common man’s disappointment. He has been told over and over again that elections will be free and fair. When all parties unanimously resolve that their candidate will not disclose the assets before getting elected, they throw down the gauntlet to the voters. Why shouldn’t all candidates come clean on their assets and criminal background, if any?

Like the draft bill, the ordinance does not face the question of assets squarely. The elected candidate will submit the statement to the presiding officers of two houses and state legislatures. Any contravention will not come before the court but the privileges committee of the house. This is, indeed, an anti-climax. People are laughing at this because political parties have found an easy way out for the corrupt in their ranks.

The Supreme Court was, however, clear on the subject. In a judgment on May 2, it directed the EC to ask candidates contesting parliament or assembly election to compulsorily furnish details of their criminal antecedents, if any, and to allow voters to know about candidates before making their choice. The court spelled out five points: one, whether the candidate was convicted, acquitted or discharged in any criminal offence. If convicted, whether he or she had been sentenced, imprisoned or fined. Two, whether the candidate was accused of any offence punishable with imprisonment for two years or more. Three, candidates and their spouses should declare their assets (immovable, movable, bank balances, etc.). Four, disclosure of liabilities — whether there were any dues to any public financial institution or government body. Five, the candidate’s educational qualifications.

Some of us, who met the president to request him to return the ordinance, did not press for educational qualifications. He included them on his own in the elucidations he sought from the government. We believe no candidate should be disqualified because he is illiterate. Lakhs of people in India are so poor that they cannot afford schooling. To declare them ineligible because they have no educational qualification is elitist. Lack of literacy is a fault of successive governments, which never implemented the constitutional guarantee of free education for all children up to the age of 14.

The worst thing that the government has done by issuing the ordinance is to stop the electoral process, which has a strategic role in a democracy. Once again the ordinance will be challenged in the court and once again the court will have to go over the same exercise. Suppose it were to reject the ordinance or the act which the Vajpayee government is determined to get through parliament? What would the political parties do then? Would they have a confrontation with the judiciary? The judgment is under Article 19, a fundamental right. Are political parties contemplating an amendment to the constitution to bypass the Supreme Court’s judgment? At least, the Congress is beginning to distance itself from the ordinance. President Sonia Gandhi’s statement is categorically against the ordinance.

During my tenure in the Rajya Sabha, now five years old, I have found that the disclosure of assets is a touchy subject. At the time of discussion on the jurisdiction of ombudsman in the standing committee of home affairs, there was an uproar on the proposal that MPs would be under him. They wanted to be guided by the house alone. The proposal was rejected straightaway.

I agree with the contention that returning officers should have no authority to reject any candidate’s paper on grounds of a false statement of assets or criminal antecedents. If this was allowed, the nomination papers of many would be rejected because of personal vendetta leaders have towards one another. A state ruled by one party can play havoc with the nominations of the opposition. The veracity of the statement filed by a candidate can be a basis for an election petition. In the same way, “convictions” as a result of offences relating to trade union activity or demonstration cannot be treated as “conviction.” Such “convictions” should not debar a candidate from contesting an election because they are not the heinous crimes which the voters detest.

The real dilemma is not political, but moral. The Mulayam Singh Yadavs cannot appreciate it. Their way of functioning is different. Their thinking is peculiar. The president has put the finger on the right spot when he asked us: “How do we bring purity to life?” That is a question Mulayam Singh Yadav will do well to ponder.

The writer is a free-lance columnist based in New Delhi.

Dying behind closed doors

WHEN a federal judge in Michigan ruled earlier this year that the Justice Department’s policy of blanketing its post-9/11 immigration cases in secrecy could not be squared with the open government practised in this country, we offered a modest suggestion: Don’t appeal.

The government, however, pushed on. In the months since, a second district court — this one in New Jersey — has issued a similar ruling (which the government also appealed). And now, a unanimous panel of the 6th Circuit Court of Appeals — ruling in the Michigan case, which concerns a man named Rabih Haddad — has also determined that the systematic closure of 9/11-related cases violates the First Amendment.

“The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door,” wrote Judge Damon Keith for the court. “Democracies die behind closed doors.”

No more judges should have to rule on this obnoxious policy; it’s time that the Justice Department got the message. In the wake of the attacks, authorities rounded up large numbers of Arabs and Muslims whose immigration status had been revealed as deficient in the context of the terrorism probe.

Many of these people surely had nothing to do with terrorism. Yet the government slapped on their “special interest” deportation proceedings a particularly rigid set of rules: “no visitors, no family, no press.”

The cases are kept off the books. While they involve no classified information, they officially — at least in public — don’t exist.

—The Washington Post