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DAWN - Opinion; 12 January, 2004

January 12, 2004

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The power to dismiss

By Hussain H. Zaidi

The latest addition to the Constitution, the seventeenth amendment, has several politico-legal implications. The amendment, vide Article 270-AA, validates the proclamation of emergency on October 14, 1999 by General Musharraf, all orders and laws he made as chief executive and president, and amendments to the constitution under the Legal framework Order (LFO).

It means parliament has validated the dismissal of elected federal and provincial legislatures and governments, in fact subversion of the Constitution, and meekly accepted that an authority other than the parliament itself can amend the Constitution!

This brings Article 270-AA in conflict with several other constitutional provisions particularly Articles 6, 238, 239, 141 and 142. Article 6 describes an attempt to abrogate or subvert the Constitution as an act of high treason. The article protects the supremacy of the Constitution, and any constitutional provision that is at variance with it runs counter to the very idea of constitutionalism.

Articles 238 and 239 deal with the procedure to amend the constitution. Under these articles, only parliament is competent to amend the constitution. Paradoxically, the seventeenth amendment has not made any change in the Constitution amendment procedure but at the same time put its seal on constitutional amendments made in contravention of that procedure. This is but a serious legal anomaly.

Under Articles 141 and 142, parliament alone is competent to make laws on federal subjects. In addition, since Pakistan has parliamentary form of government, the executive is responsible to parliament for all its acts of omission and commission. Thus the role of the parliament is not only to make laws but also to keep a check on the executive. This makes parliament the apex institution in the system under the Constitution.

However, by putting its stamp on all General Musharraf-made amendments, the parliament has belittled its own stature. If a popularly elected legislature has only to rubber-stamp the legislative and executive acts of a non-elected person, it constitutes not only a constitutional aberration but also questions the very purpose of that legislature itself.

Of all the amendments made by General Musharraf under the LFO, Article 58(2b) is the most important. Like its resurrection, the birth of the article was the handiwork of a military ruler. During its first life, which spanned 12 years, the article was used to dismiss four parliaments and elected governments. This made Pakistan a classic case of political instability and uncertainty. Frequent change of governments made continuity of policies almost impossible, which adversely affected the economy.

By vesting in him the power to dissolve the National Assembly in his discretion, the article makes president's office enormously powerful. The president may not actually dismiss the National Assembly, but the very threat of dismissal is enough to make the prime minister and his cabinet meekly submit to the former.

This is against the very idea of parliamentary democracy where executive powers are exercised by the prime minister and his cabinet, who are directly responsible to parliament, and the president is merely a titular head acting on the advice of the cabinet. By validating the revival of Article 58(2b), the seventeenth amendment has defaced the Constitution: Now it is neither presidential nor parliamentary but a hotchpotch of the two.

The ruling party and its allies are making much of the insertion of a new clause - clause 3 - in Article 58. The new clause makes it mandatory for the president to refer the dismissal of the National Assembly to the Supreme Court whose decision about the validity of the dismissal shall be final. The ruling party maintains that the clause 3 will serve as an effective check against arbitrary dismissal of the National Assembly. But is it so? In the past as well superior courts had the power to review the dismissal of the National Assembly under Article 58(2b).

However, of the four assemblies that were sacked under the article, only one was restored by the apex court despite the fact that the dismissal was done on more or less the same grounds. And even when the National Assembly was restored, the political process could not go on smoothly: The president during the intervening period had manipulated the political situation in such a manner that the reinstated prime minister, Mian Nawaz Sharif, was forced to quit and the National Assembly was dissolved in a couple of months.

This shows that even if the National Assembly and the government are reinstated by the Supreme Court, a powerful president backed by a strong establishment can undo the good work done by the judiciary. Moreover, given our personality-oriented political culture, the president and a reinstated PM will find it difficult to re-establish good working relations. All this will add to political uncertainty.

Those who do not learn from history, in the words of a modern philosopher, are condemned to repeat it. By carrying out the seventeenth amendment the parliament has signed its own death warrant just as the parliament of 1985 did when it passed the eighth amendment ratifying all legislative and executive acts of the then military ruler.

When a person signs his own death warrants, it is obvious that he is not in control of the situation. By the same token, when the parliamentarians enact as fatal a piece of legislation as the seventeenth amendment, it is abundantly clear that they are not their own masters but are dancing to the tune of some other power. The amendment has given legitimacy to that power and all its acts and in the process done great harm to parliamentary democracy.

By supporting the seventeenth amendment, the religious parties alliance, the Muttahida Majlis-i-Amal (MMA) has backpedalled on its stance on the LFO and the supremacy of the parliament. Until it made a pact with the ruling party, the MMA had all along been denouncing the LFO and vowing to safeguard parliamentary democracy. However, seen in the context of the track record of religious parties, the MMA's U-turn is not surprising. The clergy in Pakistan have always supported military regimes and the MMA has shown that it is no exception.

The MMA maintains that it has supported the seventeenth amendment as a quid pro quo for making Musharraf step down as army chief. This, they argue, will promote the cause of democracy. However, this argument lacks substance. Even if General Musharraf takes off his uniform, that will not curtail the role of the army in politics. As a matter of fact, the clergy is not as much against the political role of the army as it is against the person of General Musharraf for his anti- fundamentalism policies.

To sum up, the seventeenth amendment will weaken constitutionalism and parliamentary democracy and increase the powers of the president and the political role of extra-political forces.

Another Disneyland ?

By Anwer Mooraj

One no longer ceases to be amazed at the decisions that are taken on a regular basis by Karachi's city fathers. When a local columnist pointed out that the town nazim, after a trip to Vienna, was actually considering re-introducing trams in Karachi, the committee members were speechless, and there was a hush as dense as the forest.

The old green trams, trundling along their metal veins from Empress Market to Keamari, moored in the slow tides of endless flat-calm afternoons, are a part of Karachi's rich past. They belong to an age when nobody appeared to be in a hurry and people were not programmed for competition.

They provided a wonderful way for the commuter to travel, but they would be completely out of place in a city where minibus drivers, who probably harbour secret ambitions to compete in the Grand Prix at Cannes, practise the art of overtaking in the most congested parts of the city.

Subsequently, when the news broke that the nazim had plans for constructing, within two and a half years at a cost of 200 million dollars, a huge funfair on the lines of Disneyland in Bagh-i-Ibne-Qasim in Clifton, there was a cry of protest from civic minded citizens. Town planners were aghast. Boating Basin, which already suffers from acute traffic congestion, would become one long nightmare for commuters.

However, the city government is apparently carrying on regardless. A month ago the executive district officer of the city government's enterprise and investment promotion department, urged the private investors to fix an affordable entrance fee, so that children from less affluent homes could also enjoy the recreational facilities. That was jolly decent of them

The three firms which have been prequalified, happen to be foreign companies with head offices in the United States, the United Kingdom and Qatar. The project hasn't even taken off and already a representative of the city contracting and trading company of Qatar has thrown a spanner in the works. He pointed out that at the time of inviting an expression of interest, the project was supposed to be on a joint venture basis, but in the terms of reference it had been shown that it would be carried out on a built-operate-and-transfer basis

That is not all. The city government offered only a 20-year lease, asked for five separate guarantees and separate premises for women and children, which was tantamount to constructing two amusement parks. Why does one get the impression that one has seen this sort of thing in print before--dozens of times?

The problem is the nazim and the members of his round table have completely missed the point. There's nothing wrong with having a large funfair. Every big city has at least one. But surely, the proper place for erecting a miniature Coney Island in Karachi, would be somewhere on the highway near the Steel Mill, which could be serviced by a fleet of buses. And not in a part of the city which is already congested.

What makes the Disneyland saga look a little ridiculous is that it has come hard on the heels of the 29-billion development package for Karachi, that has completely ignored the 1,200 villages spread across the coastal area from Mubarrak village in Keamari Town to Ibrahim Hyderi in Bin Qasim Town. The poor villagers don't have the basic amenities like electricity, drinking water and a hospital, and have to rely on the few NGOs which the government manages to harass from time to time

What the city desperately needs is a. strong provincial government with proper powers, managed by a council elected by the people to run its own affairs. And not a bunch of pen pushers appointed by the federal government. Or, perhaps, a person like Ralph Nader, who speaks his mind on both political and social issues.. Why do the citizens of Karachi have to continue to suffer administrators imposed on them from Islamabad, who don't care a jot about the local people or their problems?

It would be interesting to hear what Ralph Nader had to say on this issue. "In a democracy, the highest office is the office of citizen." So said supreme court justice Felix Frankfurter. And now a report from Class Day, Harvard University, in 1981.

Ralph Nader stands hunched over the podium. A hushed assemblage of parents, students, professors and university administrators listen intently as one of Harvard's own returns to speak his mind to an institution so large and overconfident, he jokes, that "one can become engulfed by waves of ethnocentrism."

For this army of Harvard graduates about to enter the moral narcosis of the Reagan years, Nader issues a provocative challenge: "How many of you want to become leaders in the achievement of greater justice on earth? If not, why not? Could it be that the nation is suffering from an excess of leadership? Or is it more likely that our times reflect a massive escape from leadership responsibilities? With so much human activity conducted within and between larger and larger private and public bureaucracies, is it any wonder that the 'I only work here' syndrome has become an epidemic?"

For Harvard students. the message is essentially the same: Citizenship matters. "Can you imagine what would happen if people would turn off the TV and spend just ten hours a week exercising their citizenship?" an incredulous Nader proposes. His is a continuous campaign for citizenship, a call for the Americans to dare to use the democratic freedoms that people in other countries are literally dying for.

If we do not perform our civic duties, who can? The fibre of a just society in pursuit of happiness is a thinking, active citizenry. That means you." By demonstrating that an individual armed with facts, fortitude and creative zeal can actually achieve important reforms, Nader insists on the possibilities of democratic citizenship in a society dominated by institutional giants - multinational corporations, government bureaucracies, labour unions, bar associations and universities. .

If the very idea sounds somewhat naive and implausible, that reaction is, in a sense, precisely his point: "We don't grow up learning how to be a citizen," Nader told the Boston Globe in 1989. There should be citizen training clinics." Active citizenship is not just good for the country, Nader argues, it's good for the soul. It's fun. This is food for thought, and certainly something we should mull over.

Email: a-mooraj@cyber.net.pk

Soros' role in Georgia

By Gwynne Dyer

"Doing good may be noble, but fighting evil can be fun," wrote billionaire financier George Soros in 1989, and he's been at it ever since. He had considerable influence on events in Eastern Europe during the fall of Communism in 1989-91, he had a bigger role in the overthrow of Serbian dictator Slobodan Milosevic in 2000, and his Open Society Foundation was central in organising last November's 'rose revolution' in Georgia.

Last Sunday Soros' candidate, Mikhail Saakashvili, won the Georgian presidency by a landslide - but did the Georgians really have a choice in the matter?

The mass protests against Eduard Shevardnadze, the ex-Communist autocrat who had ruled Georgia since 1993, only began after he blatantly rigged parliamentary elections in November, but Open Society was at work long before that. It flew Georgian opposition leaders to Belgrade almost a year ago to learn how the Serbs had made their revolution, and last summer Soros' foundation paid for members of Otpor (Resistance), the Serbian movement that overthrew Milosevic, to run training courses in civil disobedience in Georgia for thousands of students.

When the November election came around, it all went according to the script, from the roses and the placards saying 'Enough' carried by Saakashvili's National Movement supporters to the dramatic invasion of the parliament building as Shevardnadze was trying to swear in the newly 'elected' members of parliament. "All the demonstrators knew the tactics of the revolution in Belgrade by heart," National Movement general secretary Ivane Merabishvili told the 'Washington Post' in November. "Everyone knew what to do. This was a copy of that revolution, only louder."

So your inner cynic starts to tell you that this was a fake revolution - especially since the US government recently started hedging its bet on Shevardnadze, whom it had hitherto backed as a reliably anti-Russian leader. The questions multiply: was Soros just a pawn of the Bush administration? Was the 'rose revolution' just part of the US strategy for dominating the countries through which a $3 billion pipeline will carry oil from the Caspian oilfields to the Turkish port of Ceyhan? Can it ever be legitimate for foreigners to train the citizens of a country in the techniques for overthrowing their own government?

Washington's support for Shevardnadze's overthrow certainly had nothing to do with its love of democracy, which was not much in evidence when Azerbaijan, just east of Georgia and another pipeline country, held even more outrageously rigged elections in October. For the Bush administration, the goal is to freeze Russia out of the new oil bonanza in the Caspian and Caucasus countries, all former Soviet fiefdoms, and Shevardnadze's crime was to be too accommodating to the Russians.

Shevardnadze was not a pawn of Moscow's - Georgia in recent years has been the largest per-capita recipient of US aid after Israel, and American advisers have been training the Georgian army - but he did see the need to maintain good relations with Russia. That's only common sense, since the country will never be whole again unless Moscow permits it.

Abkhazia and South Ossetia, two ethnic-minority provinces that broke away from Georgia during the 1992-93 civil war, both have Russian military bases on their territory and in practice are Moscow's hostages for Georgia's good behaviour.

But when Shevardnadze signed a deal last year with the Russian gas giant Gazprom, Washington went ballistic. Bush's energy adviser Steven Mann flew in to warn Shevardnadze not to go ahead with the deal, Mikhail Saakashvili denounced it - and Shevardnadze signed it anyway.

So no illusions about America's motives for opposing him - but on the other hand, most Georgians really did want to be rid of Shevardnadze. Under his corrupt and incompetent rule the country has descended into poverty and despair: about one-fifth of its five million people have gone abroad in the past decade, mostly to seek work in Russia. The November elections demonstrated that his gang could not be voted out by legal means. What recourse was left but revolution?

What George Soros supplied was instruction in a technique for removing Shevardnadze without bloodshed. Non-violent democratic revolutions have become a global phenomenon with great potential for good in the past two decades, from South Korea and East Germany to Indonesia and Serbia, but the autocrats are not stupid. They have learned that the best way to discredit these popular movements is to provoke them into violence, so protesters must be trained in the tactics and disciplines of non-violent protest if their democratic revolution is to succeed. That is what Soros provides.

It is not illegitimate for outsiders to help, because the enterprise cannot possibly succeed unless the local people are truly determined to claim their rights. And Soros is no agent of the Bush administration: he is helping to fund the anti-Bush activist organisation Move On in this electoral year in the US.

As he wrote in 'Atlantic Monthly' last November, "The supremacist ideology of the Bush administration stands in opposition to the principles of an open society, which recognise that people have different views and that nobody is in possession of the ultimate truth."- Copyright

Management of water

By Prof. Dr. Asadullah Kazi

Pakistan is an agricultural country. Agriculture contributes to 25 per cent of its Gross Domestic Product, and agricultural exports constitute 70 per cent of the total exports.

Despite the increased use of water by non-agricultural sectors, irrigation continues to be the main user on a global scale. The world, on an average, puts 65 per cent of its water resources to agricultural use, while in Pakistan 95 per cent of the surface water resources are consumed by the agricultural sector.

The flow of the Indus river and its western tributaries, the Jhelum and Chenab constitute the main source of surface water in the country. The headwaters of all these rivers originate outside the international boundaries of Pakistan. Records dating back to 1922 show that the inflow of water available annually, at the Rim stations, over a period of the last 81 years, ranges between 95.99 and 186.79, with an average of 138.12 million acre feet (MAF).

The flow is highly erratic. Nevertheless, it can be shown that in 80 per cent of the recorded years, the inflow is in excess of 124 MAF of water. Besides this, the flow is also generated from areas downstream of the Rim stations. But, for simplicity, it is assumed that there are neither appreciable river losses, nor any additional inflow of water downstream of the Rim stations.

The subsurface water is also an important source of water. It is estimated that 55 MAF of subsurface water can be safely extracted from the ground. On an average, the surface and subsurface components add up approximately to 193 MAF of water per year. There is very little that we can do to increase the amount of the available water. This is fixed by the hydrological cycle, which is governed by natural processes.

Keeping aside the issue of subsurface water, there is a heated debate going on in Pakistan, while arguing how to manage the surface water. We must remember that there are three main surface water storage reservoirs in Pakistan. The combined live storage capacity of these reservoirs namely, the Tarbela, Mangla and Chashma is 15.7 MAF of water, which is 11 per cent of the average inflow of the western rivers.

It may, however, be noted that, subsequent to the construction of the Tarbela Dam in 1976, on an average, 35.27 MAF of water has been discharged annually in the past 27 years, downstream of the Kotri barrage in Sindh. There are complaints that the amount of surface water, sanctioned for canal intakes, totalling 114.35 MAF, as per the Water Apportionment Accord of 1991, is falling short of its yearly allocations and that this is seriously affecting the agricultural output of crops in the country.

Rightly so, because nearly 65 per cent of the total surface water inflow, at the Rim stations, occurs from early June to late August; and unfortunately, this period does not coincide with the main crop sowing season in the country.

Even if we assume that the yearly allocations are met, the total quantity of water, including the average discharge of water downstream of the Kotri barrage, adds up to 149.62 MAF. This is 11.5 MAF more than the average inflow of water, at the Rim stations, indicating that there is a net shortage of water in the country. In a broader context, the volume of available water, at the canal heads, since the establishment of Pakistan, has increased steadily from 64 MAF in 1947 to approximately 105 MAF in the post-Tarbela dam era. During the same period the canal commanded cultivated area has also increased considerably.

It must be pointed out that the average yearly flow downstream of the Kotri barrage is more erratic than the one at the Rim stations. The former, in the post-Tarbela period, ranges between 0.74 to 91.81 MAF. It can be shown that in four out of five years, the flow of water is more than 14 MAF per year.

In other words, only once in five years the flow of water is less than 14 MAF. If we add to this, the agreed share of 114.35 MAF of water, at the canal heads, the total comes up to 128.35 MAF, which is approximately 10 MAF less than the average inflow (138.12 MAF) at the Rim stations.

Based on the above argument, it may be concluded that in most of the years, more surface water is available than what is currently used. Besides there is plenty of subsurface water (55 MAF) that should also be included in an overall estimate of the water available in the country. There is no harm in putting the surplus surface and subsurface water to use for irrigating more land, particularly during the periods of the lowest inflow, at the Rim stations, from December to February, in the Rabi season.

Part of the surplus water can be supplied to areas where more water is required principally for sowing in the early Kharif season, and the rest be supplied to about seven million acre of the available arable and virgin canal commandable land.

All this depends upon whether the available water is properly controlled and regulated. Every effort should be made to salvage the available water through better management practices which include improvement in delivery system, crop patterns and application methods. Additionally, more water can be incorporated in the system through artificial means, such as cloud seeding in the lower catchment and controlled glacial melting in the upper catchment of the Indus basin.

In any case, an appropriate amount of water must be reserved for fulfilling the ecological requirements of the Indus delta. Efforts must be made to check the landward transgression of the Arabian Sea. Any development activity aimed at enhancing the availability of water must also consider the well-being of the displaced people and those living in the downtrodden areas affected by the after-effects of the construction of barrages and dams in the country.

Water can also be saved by reducing the system losses in our irrigation system, which account for approximately 65 per cent of the water available at the canal heads. Furthermore, the water over and above the average inflow, at the Rim stations, can be stored preferably in high "inflow to capacity" ratio of new carry-over reservoir(s). This will help in meeting the growing foodgrain needs of the increasing population, which is expected to cross the 200 million mark by the year 2020. More water will also be needed, in the future, for industrial development and domestic purposes. The writer is vice-chancellor of Isra University, Sindh.