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DAWN - Opinion; January 17, 2009

January 17, 2009

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The president’s power

By A. G. Noorani


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.

A war against poverty

By Sadia M. Malik


THE India Today issue of Dec 15, 2008 carries the cover-page title of ‘Declare War on Terror: Why and How We Must Fight Now’.

The title resonates loudly and justifiably with the anger in India in the aftermath of the Mumbai attacks. Clearly, terrorism must be condemned and all of us must put our act together to curb this menace. But we must also bear in mind that there are other challenges along with terrorism that are equally threatening to South Asian livelihoods.

These challenges demand equally urgent attention from our policymakers. Understandably, media coverage responds to urgent developments and day-to-day challenges in the wake of terrorist incidents. Challenges of a long-term nature, such as those that threaten the human security of millions, take a back seat. But when passions are running high, it is well to remember the bigger challenges that are facing the region.

Consider some of these dramatic numbers. How many of us know, for example, that South Asia has one of the highest infant and under-five mortality rates after Sub-Saharan Africa? How many of us know that one out of every three child deaths in the world occurs in South Asia and that two-thirds of the total number of malnourished children in the world live in South Asia (most of them in India) and the number is even higher than in Sub-Saharan Africa (300 million against 206 million in Sub-Saharan Africa)?

Again, how many of us know that South Asia has the highest percentage of underweight, stunted and wasted children under five in the world? And how many of us know that nearly half of total number of maternal deaths in the world occur in South Asia and the percentage of births attended by skilled health personnel in the region is the lowest in the world, even lower than in Sub-Saharan Africa? These numbers are not simply cold statistics, but attest to the urgency of the many risks that human life faces in South Asia.

Other indicators of human development are equally dismal. In the area of education for instance, the 2007 Education for All report published by Unesco reveals that two countries, India and Pakistan, contain one of the highest number of out-of-school children in the world. Although the enrolment rates have improved over time, dropout rates are still high. At the primary level, for instance, 30 per cent of those who do enroll drop out before reaching Grade 5. Around half the total number of illiterate adults in the world lives in South Asia.

Education of course comes later in terms of priorities when the immediate survival of the people is under threat. A great majority of the population in South Asia is still struggling to have access to some of the basic necessities for their survival, such as clean drinking water and sanitation. More than 60 per cent of the population in South Asia as a whole does not have access to improved sanitation. Access to basic health facilities is also extremely low. Whereas other regions of the world have achieved close to universal immunisation of their children against common diseases, we are still far from achieving that.

Within South Asia, India has the lowest child immunisation rate (59 per cent against measles and 55 per cent against DPT). Research shows that the major proportion of under-five deaths that occur in South Asia are due to diarrhoea, malaria and respiratory infections that can easily be prevented through better access to basic health facilities such as clean drinking water and immunisation etc.

The irony is that the region’s dismal performance in the area of human development continues to haunt us even in the backdrop of the market and trade liberalisation policies of the 1990s resulting in a spectacular rate of economic growth. Why have the benefits of the impressive growth that we experienced in the past one decade or so not translated into improvements in the lives of the great majority?

No doubt, official statistics tell us that poverty rates have gone down over the years, yet the rate of improvement has been painfully slow. In fact, South Asia’s share of the total number of the poor increased significantly from 40 per cent in 1993 to 47 per cent in 2004. This is despite the growing recognition of India — the largest country in the region — as a country that has been on a unique trajectory of economic growth unmatched by any other except China.

The latest statistics given in an Indian government report reveal that around 77 per cent of the population in India is living on less than Rs20 per day. The fact remains that despite all the economic growth that we experienced in the past one decade, the region remains one of the poorest, the most malnourished and the most illiterate in the world.

In the absence of any social security arrangements, the bulk of South Asia’s population remains vulnerable to disease, illiteracy, poverty and economic shocks. We must also remember that many of these vulnerabilities serve as a breeding ground for terrorism for many of our poorly educated, vulnerable and unemployed youth. Resolving to act together to fight these human and socio-economic deprivations is therefore central to curbing the sources of violence. So, let us not allow narrow national security discourse to marginalise the essential, greater and potentially more long-term challenge to human life in South Asia.

The writer is director of the Mahbub ul Haq Human Development Centre in Islamabad.

This is not the Great Depression

By Andreas Whittam Smith


THE famous remark by Franklin Roosevelt that “the only thing we have to fear is fear itself” was made in the short speech he gave immediately after being sworn in as the new president of the United States on March 4, 1933.

The phrase reverberated around the world. For the first time radio stations, including the BBC, had broadcast the ceremony. Roosevelt struck a chord because he spoke to the pervasive loss of confidence that was one of the causes of the Great Depression. Three years later, Keynes defined the problem as the paradox of thrift. If individuals prudently reduce their spending during times of recession, then economic activity will decline further and a downward spiral will be created. Facing as we do a similar threat today, President Roosevelt’s words are remembered and repeated.

Do not forget, though, how great are the differences between then and now. When Roosevelt came into office, unemployment in the US was running at about 30 per cent, a proportion three times greater than anything we are likely to experience. Nor were there any welfare payments for people out of work. The Dow Jones index had dropped by 90 per cent since it peaked in the autumn of 1929.

This time the stock market has declined by about 40 per cent since the summer of 2007, though it could fall further American banks were failing on almost a daily basis. The federal government provided no help. No bank was rescued. Ten million depositors lost their savings. As inauguration day approached, the situation continued to deteriorate. By the close of business on the day before Roosevelt became president, 32 states had closed all their banks until further notice, six states had closed most of them and the remaining states were limiting withdrawals to small amounts. In the recession we face, no bank with retail depositors has been allowed to fail. We are not going to go through anything approaching the intensity of the crisis that enveloped Roosevelt as he spoke from the rostrum on the steps of the Capitol.

Roosevelt confronted fear straight away. His defiance stood at the opening of his speech rather than being its conclusion. “So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyses needed efforts to convert retreat into advance.” Then after describing the misery of the people: “the withered leaves of industrial enterprise lie on every side; farmers find no markets for their produce; the savings of many years in thousands of families are gone”, he turned to what he called the money changers.

“The money changers have fled from their high seats in the temple of our civilisation. We may now restore that temple to the ancient truths. The measure of the restoration lies in the extent to which we apply social values more noble than mere monetary profit.”

Today many would say “Amen” to that. Finally, after laying out the broad sweep of the New Deal he came back to the financiers. “In our progress toward a resumption of work we require two safeguards against a return of the evils of the old order: there must be a strict supervision of all banking and credits and investments, so that there will be an end to speculation with other people’s money; and there must be provision for an adequate but sound currency.”

Roosevelt’s avoidance of any pointed reference to bankers or speculators or financiers and his use of the biblical term money changers was probably deliberate. In his biography of Roosevelt, Conrad Black describes this lack of specificity as the beginning of a consistent and inspired policy to channel all the anger and frustration of those terrible times against unnamed forces. In this way he dispersed the country’s rage harmlessly.

Nonetheless the new president’s first task was to attend to the banks. He immediately declared a bank holiday under which the very few that had remained open through the election would close their doors for a short period. This would give time for bank directors to see if they could find means of bolstering their balance sheets. By the time the holiday was over, some had been able to do so. But many remained shut. The situation had been stabilised, albeit at substantial cost.

Then from March 9, Roosevelt began to send a stream of bills to Congress. He started from the programmes initiated by his predecessor, Hoover, the George W. Bush of his day. The major relief effort for the unemployed was given a new name and expanded. A Civilian Conservation Corps was established which hired 250,000 unemployed young men to work on rural local projects.

Mortgage relief was provided for millions of farmers and homeowners. Federal funds were directed into railroads and industry. Congress did the president’s bidding not just because the election had provided a new and decisive mandate. Congress was responsive also because the economic situation was extremely dire. Likewise Barack Obama has recently been authorised to tackle the 2009 recession with despatch and vigour. But whether Congress will be equally cooperative this time remains an open question.

At the same time, however, just as Roosevelt was entering the White House, dramatic changes were taking place in Germany whose consequences would in due course come to dominate the president’s second and third terms. The German parliament building went up in flames on Feb 27, and on March 5, the day after Roosevelt’s inauguration, Hitler emerged victorious from a general election with a 52 per cent share of the vote. The march to the Second World War had begun on Roosevelt’s first day in office. It wasn’t only fear of economic ruin that he would confront, but the terror unleashed by Nazi Germany.

— © The Independent