Misuse of amendments

We have had the occasion to examine the first eight amendments to the Constitution in two of my previous articles (January 2 and 9). The ninth amendment which would have made the injunctions of Islam the supreme law of the land and the source of guidance for legislation was passed by the Senate in July 1986, and sent on to the National Assembly where it remained for nearly two years.

General Ziaul Haq dissolved the assembly before it could act on this bill. Thus, the amendment never did materialize. It would come back to life later in the form of the fifteenth amendment, which we will discuss next Sunday.

The tenth amendment (March 1987) need not detain us, for it merely reduced the working days of the National Assembly and the Senate from 160 to 130 each year.

The eleventh amendment, which would have restored the 20 seats reserved for women in the National Assembly, was introduced in the Senate on December 31, 1989, but the movers withdrew it nearly 20 months later (August 23, 1992). Thus, this amendment too failed to materialize.

Apart from increasing the compensation of judges, the twelfth amendment (July 1991) was intended to discourage terrorism and to provide for expeditious trial of persons accused of "heinous," "brutal," or "sensational," crimes and those "shocking to public morality" (to be specified later in appropriate laws).

A new article, 212B, authorized the federal government to establish special courts, as many as it might deem necessary, and determine their territorial jurisdictions.

A judge hearing these cases must be one qualified to be a high court judge, appointed after consultation with the chief justice concerned. He would hold office during the currency of this article. The government would also establish an appropriate number of "supreme appellate courts" to hear appeals.

Each of these "supreme" courts would consist of a judge of the Supreme Court of Pakistan and two high court judges. The court of first instance and the appellate court must, each, settle a case within thirty days of its first hearing.

No other court (meaning any of the provincial high courts or the Supreme Court) was to interfere with the proceedings or decisions of these special courts. Critics of Prime Minister Nawaz Sharif's political inclinations labelled this amendment as a "black law" and as "murder" of democracy.

These characterizations were, to a degree, propagandistic. Inasmuch as it had authorized no abridgment of the normal courtroom procedure, the amendment in itself was perfunctory.

It did not confer upon the government any authority that it did not have before. Article 175 of the Constitution had already authorized, besides the Supreme Court and the provincial high courts, "such other courts as may be established by law" with such jurisdiction as might be conferred upon them under the Constitution or "any other law."

A heavy dent in the body of individual rights was made by the Terrorist Affected Areas (special courts) Ordinance that had been issued a little earlier (July 11, 1991), which the twelfth amendment did not specifically, or even implicitly, protect.

It permitted the government to designate any part of the country as a terrorist-affected area. But it did not spell out the criteria to be followed for such designation.

Any police officer, even a sub-inspector, could kill persons and destroy private property in a place where he suspected any terrorist activity to be under way or in contemplation.

The procedure authorized by the ordinance was the more alarming. The accused could be tried in his absence, the identity of the witnesses against him withheld, and the trial held in camera.

He would be presumed guilty if he had been at a place where, and when, firearms were used to resist the police. If, for instance, shots were fired from a house, not only the person who had fired them (if he could be located), but all others present in the house at that time might be prosecuted and presumed guilty unless they could prove otherwise.

Even a person suspected of intending to commit a scheduled offence could be arrested and hauled up before a special court. The government remained free to classify any act as "heinous," "brutal," or "shocking," and any area as terrorist affected on the basis of subjective evaluation, impression, or even a whim. Parts of this ordinance were clearly repugnant to the Constitution.

Recall the assurances in Article 8 that any law that is inconsistent with the rights specified in chapter 1of part II is void to the extent of the inconsistency, and the admonition that "the state shall not make any law which takes away or abridges the rights so conferred."

It is true nevertheless that several of the rights are subject to "reasonable" restriction under the law. But the spirit of the Constitution requires that governments must make sure that the restrictions meet the test of reasonableness.

Common sense will tell us that in order to be "reasonable," the restriction must be of the kind without which valid laws or purposes of the state cannot be made effective. This ordinance did not meet that test, for it was not shown that terrorist acts could not have been dealt with under the existing law and procedure.

Moving along to the thirteenth amendment (April 1997), we see that it was designed to divest the president of the discretionary authority he had received under the Constitutional Order 14 of 1985 and the eighth amendment.

It shifted the "balance of power" in favour of the prime minister back to where it had been situated in the original version of the 1973 Constitution. It removed clause (2b) in Article 58 to take away his authority to dissolve the National Assembly if, in his judgment, a situation had arisen in which the government of the federation could not be carried on in accordance with the Constitution.

Changes in Articles 101 and 243 withdrew his authority to appoint provincial governors and the services' chiefs as he might deem fit, and made him dependent upon the prime minister's advice in these matters. Amended Article 112 took away a governor's authority to dissolve the provincial legislature except on the advice of the chief minister.

Mr Nawaz Sharif may have sponsored this amendment to buttress his office against a domineering and interfering president. He had suffered the humiliation of dismissal once already (1993), and he had witnessed Benazir Bhutto's anguish in a similar situation twice (1990 and 1996) as a result of the president's resort to Article 58 (2-b).

In none of these instances had the assembly done anything unseemly enough to merit dismissal. Nor had a situation arisen in which the government could not be carried on in accordance with the Constitution. In each case he had dissolved the assembly to remove a prime minister who would not do his bidding.

As I said in my article on the eighth amendment last Sunday, the prime minister's elevated station, established by the Constitution in its original version, resulted from an accord to which all of the major political parties at the time had subscribed. The eighth amendment repudiated this national covenant.

At the beginning of his second term in office Mr Nawaz Sharif saw an opportunity to right that wrong. The elections on February 3, 1997 had returned him and his party to power with a two-thirds majority in parliament, sufficient to pass constitutional amendments.

It is surely a perversion of the parliamentary system for the president to be able to dismiss a prime minister who commands majority support in the house. It is not surprising then that the thirteenth amendment was greeted with a great deal of enthusiasm in all political quarters.

It was passed in both houses of parliament on the same day. The motion to suspend the rules passed without opposition, dispensing with the normal requirement of referring the bill to an appropriate committee and waiting for its report.

No objections were voiced during the brief debate and the bill sailed though each house without any negative vote. Benazir Bhutto went and sat in the visitors' gallery to witness the proceedings in the Senate and to demonstrate her support for the bill.

Back in the National Assembly she called the bill's passage a historic event and offered her "heartiest congratulations" to both Prime Minister Nawaz Sharif and the parliament itself for having brought it about.

Ilahi Bakhsh Soomro, speaker of the National Assembly, called it a "momentous decision," and added that the day of the bill's passage marked the "beginning of real democracy in the country."

Mir Hazar Khan Bajrani believed the amendment had removed the "sword of Damocles" that had been hanging over parliament. Hasil Bizenjo said the nation and parliament had been liberated, and Asfandyar Wali was pleased beyond words.

Ghulam Mustafa Jatoi and Kunwar Khalid Younus applauded the amendment as a liberating measure. It would be no exaggeration to say that for the most part the Pakistani politicians saw the amendment as heralding the restoration of democracy. But the enthusiasm voiced by Ms Bhutto and other politicians was destined to be short-lived. As events unfolded, it became clear that Mr Sharif was not content with primacy; he wanted supremacy. He developed differences with President Farooq Leghari and forced him to step down. (December 2, 1998).

A bunch of tough guys in his party, led by some of his ministers, assaulted the Supreme Court, and crashed into the chambers of Sajjad Ali Shah, the chief justice, in the vain attempt to intimidate him.

The National Accountability Bureau, presumably with Mr Nawaz Sharif's connivance, if not at his direction, filed numerous criminal cases (some of them bogus and unsustainable) against Benazir Bhutto, her husband (Asif Ali Zardari), and several other PPP notables, which General Musharraf was happy to inherit and keep unsettled.

The day of any real restoration of democracy, halt to arbitrariness and lawlessness in dealing with rivals and critics, did not dawn in Pakistan with the adoption of the thirteenth amendment.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA.

Email: anwarsyed@cox.net.

Keeping the two apart

The distinction between party and government has been fast blurring in Pakistan. It may vanish altogether if Chaudhry Shujaat Hussain, and lesser functionaries of his Muslim League, have their way.

Soon after leaving his 100-day prime ministerial post, Chaudhry Shujaat Hussain announced to the public that henceforth the government would be made to follow the policy and instructions of the Muslim League (Q) of which he is the president.

Most people then took his words as no more than a comforting thought for his friends and cronies whom, although he was no longer the prime minister, Chaudhry Shujaat would still be able to look after.

Since then, his statements and actions indicate that he seriously entertains the notion of supremacy of the party over the government, which is a feature of totalitarian or one-party states.

The number of parties in Pakistan defies a complete and correct count. Even the party he heads is but one of the five or six carrying the same label. Chaudhry Shujaat's Muslim League is not the sole ruling party. It is just a partner in a coalition.

It, therefore, cannot impose its policy or discipline on the government. The other partners will not allow this. A more important and legal point that Chaudhry Shujaat Hussain ignores is that in a parliamentary democracy, policies and laws are enacted by the legislature, and that policies, subject to the law, are made and executed by the cabinet.

The courts are often called upon to adjudicate when either or both come into conflict with the Constitution, or with public interest. Additionally, in the parliamentary structure that General Pervez Musharraf has endowed Pakistan with, the president and the armed forces (through the National Security Council) have also acquired a big say in governmental affairs.

Chaudhry Shujaat's idea is thus up against heavy odds. A political party can influence the laws of the state by its presence in the legislature and also share the executive authority of the government if it is represented in the cabinet.

A party cannot give directions to the administration or its individual members only because it is in power. It would be contrary to the rules under which the government conducts its business. But when it comes to helping people get their due or to prevent the abuse of law or harsh application of executive authority, all parliamentary parties stand on an equal footing.

The statements emanating from the Muslim League (Q) at various levels, however, reveal altogether different designs. At the top is a tendency to preempt the decisions of the cabinet or of the prime minister, and at lower levels to intimidate government officials into complying with the demands of party office-bearers.

Chaudhry Shujaat was the first to announce, and keeps repeating, that general elections will not be held before 2007, and that the assemblies will complete their five-year term for the first time in the country's parliamentary history.

The president of the party, thus, is pre-empting a decision that is for the prime minister to take. It is the prime minister who has to decide when to hold the elections and advise the president to dissolve the assembly.

The president has no option but to comply. The party chiefs in the coalition may be consulted, but the decision would still rest with the prime minister. More recently, Chaudhry Shujaat told the press that the decision to restore the column of religion in passports had deprived the religious parties of the only issue on which they could bring the people out on the streets.

The people are thus made to believe that the discussions in the cabinet on this issue are a mere sham, and that the matter already stands decided by him as an ideologue of the ruling party.

Then he has interpreted the president's conciliation offer in a manner that reduces it to no offer at all. He wants the opposition to support all of General Musharraf's policies and also concede the legality of his presidency without lifting any of the embargoes placed on the top leaders of the PPP and the Muslim League (N), much less give them a share in power.

The least goodwill gesture would be to let the leaders of the two parties return and live in their own country. Quite obviously, it does not suit Chaudhary Shujaat's party that the government should broaden its popular base, which it desperately needs to do if it is to put an end to the gunbattles in Waziristan and Balochistan, and effectively negotiate with India, besides facing many other troubles now raging or looming ahead.

An illustration of the ruling party's attitude from another angle has come from its additional secretary general, Nisar Memon. Going against the thinking of the president and the cabinet, Mr Memon has instructed party workers to start political activity "without any pressure or fear" to get their own councillors and nazims elected to serve the people under the banner of the Muslim League.

In contrast, the decision of the government is to hold the local government elections on a non-party basis and for development projects to be handled by the councils and not by the political parties or their bosses.

Like his party boss, Mr Memon, too, insists that the Muslim League will run the federal and provincial governments, and those (meaning the government functionaries) who do not give a fair deal to the party activists will be shown the door.

Mr Memon should know that law and propriety, and not party affiliations, determine the course of public affairs. As a recent entrant from a staid profession into the razzmatazz of politics, he should be seen to reverse, and not strengthen, the impression that the government exists to promote the interest of only its own party.

In the kind of politics that the army-dominated regime has spawned over the past five years, the hope that one day the government of the country would be able to rise above personal prejudices and party interests is fast fading.

EU-US rapprochement in the offing?

European governments are struggling to put relations with Washington back on track ahead of a much-heralded visit by US President George W. Bush to European Union and the Nato headquarters next month.

Calls for stronger transatlantic cooperation are not just emanating from America's traditional allies - Britain, Netherlands, Poland and the Nordic states - but also from Germany and France which opposed the US-led invasion of Iraq.

The new mood is also very much on display in Brussels where EU policymakers have put relations with the US on top of their foreign policy and trade agenda. Reviving transatlantic relations, following the acrimony provoked by differences over the Iraq war, is going to be a long-haul effort, however.

While the talk in European capitals may be of reconciliation and cooperation, the reality is more sombre: the EU and US continue to differ on a range of economic and political issues, including Iraq's reconstruction, securing peace in the Middle East and how best to deal with Iran's nuclear ambitions.

Most importantly, Europeans are no longer willing to accept a walk-on role as junior partners. The new strategic partnership European governments want to forge with Washington is one based on mutual respect, a quality which has been missing in America's dealings with the EU. Washington, however, is not yet ready to play ball.

Still, some progress is being made. The surprise transatlantic agreement to stop squabbling and start negotiating an end to government handouts to Boeing and Airbus, for instance, is good news for world trading nations wary of the inevitable global fallout from yet another damaging trade spat between Europe and America.

Not surprisingly, World Trade Organization chief Supachai Panitchpakdi has commended both EU trade chief Peter Mandelson and outgoing US trade representative Robert Zoellick for choosing the path of negotiation rather than conflict.

WTO involvement in the multi-billion dollar transatlantic clash would not only have put severe strain on the world trade watchdog's dispute settlement machinery but also slowed down already-painful negotiations on the Doha trade liberalization round.

The consensus on both sides of the Atlantic seems to be that a new political partnership between the EU and the US requires a strengthening of economic relations. And as Mandelson pointed out, a "disastrous confrontation" between the two economic giants over Boeing and Airbus would have cast a cloud over President Bush's visit to Europe, making vows of turning over a new leaf in EU-US ties sound hollow.

Despite the new political imperatives, however, the way ahead is not going to be easy. Both Airbus and Boeing may have welcomed the decision to stay clear of WTO litigation, but Mandelson and Zoellick's promise to eliminate government subsidies to the two aircraft manufacturers will not be easy to enforce.

Airbus chief executive Noel Forgeard, for instance, has lost no time in seeking state help for financing the estimated four billion euro development of its planned A 350 long-range airliner.

Given the complex range of issues to be discussed, talks are unlikely to be completed within the three-month deadline set by the two sides. The Mandelson-Zoellick deal is about more than skilful commercial diplomacy, however.

For key policymakers in both Washington and Brussels, the focus is very much on politics as well as business. The aircraft subsidies compromise is part and parcel of efforts by American and European officials to make a fresh start in relations.

President Bush has said improving ties with Europe will take centre-stage during his second term. Both Washington and Brussels are playing up the president's trip to EU and Nato on February 22 as a potent signal that the US wants to mend fences with Europe, replacing years of acrimony, finger-pointing and accusations with sweet talk of common transatlantic values and shared global concerns.

America's apparent change of heart has been warmly welcomed by the EU which is also under new leadership. The new head of the European Commission, Jose Manuel Barroso, is a former Portuguese prime minister who backed the Iraq war and has made no secret of his commitment to forging stronger ties with Washington.

His trade chief Mandelson has also put an upgrading of contacts with America at the top of his trade agenda. Both men have insisted that EU-US relations are "truly unique and irreplaceable." Other members of the new Commission are also much more inclined to view the US with favour than their predecessors at the EU executive.

The mood switch in Brussels is reflected in other EU capitals. Instead of lecturing Washington on the merits of multilateralism and the advantages of "soft" European diplomacy compared to US use of military power, EU leaders have been going out of their way to underline the importance of transatlantic relations.

Even French President Jacques Chirac and German Chancellor Gerhard Schroeder - the two EU leaders most opposed to the Iraq invasion - have adopted more conciliatory attitudes towards the US.

"I think 2005 should mark a new start in our relations, between the United States and France and between the United States and Europe," French Foreign Minister Michel Barnier said recently.

Relations should be based on "listening to each other, having a more regular dialogue and mutual respect," Barnier said, adding that he planned to visit the United States every three to four months.

Schroeder is also hoping his talks with Bush on February 23 in Germany will inject much-needed harmony into relations between Washington and Berlin. There have been recent diplomatic successes between the two countries.

Germany has expanded its mission in Afghanistan. Berlin and Washington are working together to fight terrorism, resolve the Ukrainian election crisis and move Turkey closer to joining the European Union. But Berlin's strong opposition to the war and its insistence not to commit troops to Iraq have agitated a Bush administration desperate to strengthen coalition forces in a show of international solidarity.

Berlin is also lobbying for a permanent seat on the UN Security Council, which it regards as recognition of Germany's emergence as a world power. The Bush administration hasn't openly supported the effort, and analysts suggest that the United States will vote against it.

Other, wider transatlantic political disagreements are also unlikely to fade. Like Germany and France, many other EU governments also remain reluctant to become too closely involved in the reconstruction of Iraq and oppose an expansion of Nato's modest security forces training operation in the country.

Crucially, differences over how to tackle Iran's nuclear ambitions continue to be a source of transatlantic friction. The EU believes in dialogue with Tehran and, following Iran's pledge last year to suspend uranium enrichment activities, has just resumed trade talks with the country.

Washington is not pleased. The US is also campaigning hard to prevent EU governments from lifting an arms embargo on China, a move expected in the early part of the year.

EU officials insist that the US will only take relations with Europe seriously once the bloc put its own house in order. "We need to show the US that we are serious, as partners not rivals," Mandelson insisted recently.

"I want to see a stronger and more balanced partnership, one in which Europe is more united, more willing to take its role in global leadership and one where the United States is more inclined to share leadership with Europe. We need to find ways to complement each other, not compete in the political arena," Mandelson added.

Other EU officials insist that America must get accustomed to dealing with a stronger, more assertive, more mature and more self-confident Europe. "On a global level, we are both major powers, and as such we have global responsibilities.

Exercising that power and responsibility effectively inevitably means working together," says EU external relations chief Benita Ferrero-Waldner. After having floundered miserably to stop conflicts in the Balkans in the 1990s, EU governments are working hard to handle the challenges of security and stability in their immediate neighbourhood.

A new EU initiative, the "European Neighbourhood policy", is designed to step up the bloc's engagement with countries in the east and south. In return for taking meaningful steps to strengthen the rule of law, good governance, and human rights and democracy, the EU has said it will offer its neighbours new opportunities to share in the EU's single market, closer cooperation on energy and transport links, and a chance to participate in EU programmes.

Europeans are also increasingly proud of the emergence of a genuinely operational European Security and Defence policy, independent of the US-led Nato alliance. European forces have taken over peacekeeping operations in Bosnia from Nato, a sign that the bloc is determined to beef up its military role.

Pushing for Middle East peace is high on the EU's "to do" list for President Bush. EU officials insist that the election of a new Palestinian leadership with the credibility and legitimacy to act as Israel's partner in negotiating peace has opened up new avenues for ending Israeli-Palestinian violence.

Taken together with Israel's plan to withdraw from Gaza, "we have a real opportunity to restart the peace process," says Ferrero-Waldner. Repairing damages to the Atlantic alliance will not be achieved overnight. On both sides, trust has been eroded by bickering over the war in Iraq and Washington's growing penchant for unilateral action.

The European Parliament warned recently that in several policy areas, such as the International Criminal Court and the Kyoto climate protocol, differences in "analysis, diagnosis and policy approach" exist between the EU and the US.

Euro MPs also voiced concern over the "potentially dangerous" impact of the growing US federal budget deficit on the global economy and the balance of international currency markets.

Significantly, also, most Europeans do not seem to share their leaders' enthusiasm for repairing ties with the US. Opinion polls continue to show that a majority of Europeans view America with mistrust and suspicion, fearing that US policies are creating divisions world wide.

As such, while EU governments will lay out the red carpet for the American president, street protests and demonstrations are also expected to greet the US leader.