NSC — whose security?

THE main discussion of the government’s constitutional proposals is likely to centre on the National Security Council and the revival of Article 58 (2) (b), which gives the president discretionary powers to dissolve the National Assembly. This power is now being widened to include the power to dismiss the prime minister without dissolving the National Assembly.

In my list of assembly dismissals, constitutional deviations and abrogations of the Constitution, I had omitted to remember the first episode relating to the dismissal of Dr. Khan Sahib’s Congress ministry in 1947. But, it may be said in retrospect that this was a sui generis case, for obvious reasons. However, if one is permitted to argue, Dr. Khan Sahib should have been invited to resign and a fresh election held. It would have set a good precedent.

Will the formation of an NSC provide for constitutional stability? It may be said at the outset that all seven dismissals of elected assemblies, and four military takeovers since 1956 were the brain-child of one or two dominant power holders at the time. The Quaid’s decision in the case of Dr Khan Sahib’s ministry was his own. Governor-General Ghulam Mohammad’s dismissal of the first Constitutional Assembly was his reportedly in consultation with Chief Justice Munir. The abrogation of the 1956 Constitution in the coup of 1958 was the joint handiwork of President Iskander Mirza and army chief Ayub Khan. The dismissal of Ayub’s Constitution of 1962 and his own abdication, though influenced by his bad health and unpopularity, was eased by General Yahya’s over-willingness to acquire supreme power in 1969. Yahya was eased out by the guile of his erstwhile comrade, Z.A. Bhutto, backed by the muscle of General Gul Hassan.

Z.A. Bhutto’s 1973 Constitution — our near-consensus Basic Law — was disfigured by Bhutto within hours of its passing, by the stealthy imposition of an emergency under the constitution and suspension of fundamental rights. This and subsequent constitutional amendments by Bhutto created the props for Pakistan’s first genuine civilian dictatorship — based on the rigged box, trappings of imperial power and a Gobbelsian dictionary. Bhutto fell in a coup and subsequently hanged by the ‘weakest and meekest’ of all generals which was one description of General Zia. Zia’s P.O. 14 of 1985 and the 8th Amendment of 1985 that followed was virtually a new constitution built on the debris of the 1973 Basic Law. The 8th Amendment had the merit of being a genuine compromise between an elected assembly and the military ruler. The Benazir Bhutto - Zardari duo obstructed the Constitution not overtly but covertly by putting their own men in key positions in the judiciary and making civil servants do their bidding.

In the eleven years between 1988 and 1999, four dismissals of the prime minister and the National Assembly and three removals of the head of state occurred. In each dismissal the army chief’s imprimatur was obtained. In a sense Nawaz Sharif in his second term was a true prototype Z.A. Bhutto. A second attempt towards naked civilian dictatorship was made through the aborted Shariat Bill and the 14th Amendment.

And now, lo and behold, we have the first instalment of the Musharraf constitutional package to build yet a new structure on the ruins of the 1973 constitutional dispunsation.

What sense can be made out of all this tumult? Is it possible to see a common thread running through these events? Are we not entitled to say ‘Deja vu’ — we have seen it all before and the repetition is boring? Is there no magic wand that will give us the constitutional stability and propriety like that enjoyed by our bete noire — India? Is our day forever to be divided between the corruption and venality of politicians and the straightjacket thinking of brass hats? Is there no escape from this misery?

Gen Zia proposed an NSC in 1985, which was to consist of 11 power holders, of whom five were to be military men, including himself. The council was to be (I think) a decision-making body with an agenda restricted to the issue of a proclamation of emergency under Article 232, and other vital issues such as relating to war and peace and dismissal of elected assemblies.

In the course of intensive negotiations then between President Zia and the elected assembly of 1985 a compromise was stuck of what became Article 58 (2) (b), which gave the president “discretionary” power to dissolve the National Assembly under certain circumstances.

The independent group as well as other pro-government groups of the 1985 assembly members were simply allergic to the very acronym NSC. I was not. My view then was, and remains, that if the NSC were to be a true democratic microsm of our polity consisting of the 12 top power holders, of which only three — the president, chairman of the JCSC and the army chief were military men and the remaining nine slots to include the prime minister, the Chief Justice of Pakistan, the leader of the opposition in the National Assembly, the four chief ministers, the Senate chairman and the National Assembly speaker, such a council would be a safer depository of key decisions affecting the state than a narrow military-dominated cabal or worse a single individual.

I would prefer an NSC to be a constitutional body brought into being by the next assembly and authorized to take decisions in a transparent manner, its scope of operation defined and limited specifically to the subjects mentioned earlier.

Let us examine two critical situations, one external and the other internal. If a nuclear weapon were ever to be used in a war, should the decision rest solely with the president / army chief or the prime minister or an NSC consisting of 12 of the most important power holders in the state?

The chances are that a broad-based NSC would exercise restraint in the matter of first use of a nuclear weapon — which, incidentally, is our current declared military doctrine (one wonders on what authority this doctrine has become part of state policy). War is too serious a matter, as Churchill famously declared, to be left to the generals. Such an issue cannot be decided by parliament. An NSC appears to be the appropriate body.

The nuclear doctrine of the military should have the imprimatur of the NSC.

The second critical situation relates to the dismissal of the prime minister under the proposed 58(5) or the dissolution of the assembly under 58 (2) (b). The framers of the present set of constitutional proposals appear to have forgotten that the “discretion” of the president under judicial interpretation is no longer unfettered; it is subject to scrutiny by the superior courts.

A dismissal of the prime minister or an assembly by the president in exercise of his ‘discretionary’ powers too is justiciable. What usually follows is a long wrangle in the courts, which in the end sullies the president, the Supreme Court and the assembly. There are only losers and no winners in this situation. Have we not seen this sickening spectacle several times before?

Would it not be more democratic and better if the dismissals under Article 58 are made subject to approval of the NSC rather than the ‘discretion’ of the president?

A personal recall: During the 8th Amendment bargaining in 1985, President Zia was inclined to make the NSC more broad-based and give up his discretionary powers under Article 58(2) (b) if an NSC was accepted. The assembly members did not agree; this in my view was a tragic mistake, which is about to be repeated. It is time we gave up our allergy to the NSC and gave this key institution its rightful place in our constitutional scheme of things, as is the case in the United States and India.

The writer is a former member of the National Assembly.

Elections before new systems

THE first parcel of constitutional amendments issued by the National Reconstruction Bureau proposes to reduce the term of the National Assembly from five years to four and that of the Senate from six to four — only the president remains at five. The wisdom or justification of it the NRB doesn’t explain. Perhaps there isn’t any. The political parties then, quite justifiably, look for a personal or factional motive.

No expert on federalism (the Bureau claims to have consulted many world-wide) could have suggested this amendment, for the first rule of good governance — federal or any other — is not to disturb what is working. It is such like amendments which, it seems, persuaded all the politicians to unite to object to the whole package though the parts of it, like the enlarged membership of the assemblies, most among them would have welcomed.

If this question must be opened, the terms of the president, Senate, NA and provincial assemblies all alike should be curtailed to three years. That is the maximum period our people are inclined to put up with a government irrespective of its being political or military. The alternating governments of Benazir Bhutto and Nawaz Sharif between 1988 and 1999 confirm this phenomenon. The patience of the people with the incompetence and shenanigans of the people in power runs out much earlier than five or even four years. Perhaps the presidents (Ghulam Ishaq Khan and Farooq Leghari) would not have acted to dissolve the NA and dismiss the prime ministers were their terms to end in a few more months.

The elections at three-year intervals, besides obviating the necessity, or hazard, of presidential dismissal or military coup, would enable the people to exercise their right of franchise more frequently and prudently. they would prefer waiting for the elections to get rid of the erring party or individuals in power rather than sulk, jam wheels or pull shutters down. The citizens who come of age would also be waiting less to use their vote.

The only drawback in holding frequent elections is the expense and turmoil they inevitably involve. Both can be controlled. In an age of mass media, television and radio channels, processions and meetings should not be necessary. They are staged more to impress or intimidate rather than to explain programmes. The money saved can be used by the parties and candidates to buy advertisement space in newspapers or time on radio and TV. The media should be made accessible to all candidates irrespective of their views or affiliations. Electioneering thus would become civilized and peaceful.

The present government is no exception to the three-year term rule being enunciated here. though still short by three months, a deep sense of weariness among the people is already visible. The safeguard for the government is that at present there is no dismissing authority. The elections, fairly held, even though they will keep many leaders out and keep the president in without contest, would still dispel the disillusionment.

The Supreme Court too seemed to have been conscious of the endurance threshold of the masses when it gave three years to General Musharraf to hold elections. The Supreme Court of 1977 did not impose such a limit. Its general exhortation had no effect on a foxy Zia and the country was left to suffer the interminable pain and degradation of that omission.

By his own admission at the relevant time, General Musharraf did not seek power but was driven by circumstances to take it, and all he wished to do was to put an end to Nawaz Sharif’s corruption and ambition. Authorized by the Supreme Court to amend the Constitution to facilitate this limited task without his asking for it, he is engaged in creating an administrative and legal upheaval. The constitutional amendment essential to his favourite devolution plan however is nowhere yet in sight. The centre where all the power resides and the federal and concurrent lists of subjects remain undiminished.

The only effect the so-called devolution exercise has had so far is to make the provinces a post office for the transmission of orders and funds from the centre to the districts. The NRB’s “strategy and plan” for “sustainable federal democracy” throughout refers to the flow of political and administrative powers to the districts through the provinces. In the process, the provinces which are political and ethnic entities have become weaker rather than autonomous, and the management of the districts which are merely geographical units has been destroyed.

President Musharraf has lit, at intervals, a number of bush fires which are now merging into a raging inferno of discontent. He has neither reformed the procedures to throw up honest men of merit nor has he strengthened the institutions. His reliance all along has been on clerics and consultants who advised him to change the course of history and “repair the fabric of society” rather than bring about peace and sanity.

The new class of public leaders his advisers tried to spawn has deprived him of impartiality in politics without giving him electoral strength. The clerics have extracted from him unjust laws and declarations and yet deny their blessings to him. Special bureaus and tribunals may have yielded quick results but the normal machiner for controlling crime and dispensing justice has further weakened. Mob rule resulting in stoning to death on streets and in judicial custody, gang rapes and sodomy reveal an abominable scale of lawlessness unheard of before.

The only expectation of the people on the advent of an army rule is safety and justice. The constitutional and economic matters lie in the domain of experts who are common to all regimes. Whatever the Musharraf government does is rejected by the majority of politicians without a second thought. Less strident among them have gone to the court of law — as by challenging the laws on academic qualification of the legislators and regulation of political activity. The courts seem to revel in the limelight of political adjudication while thousands upon thousands of cases of ordinary litigants await hearing for years extending into generations.

Such is the degree of estrangement that even Rafiq Tarar, after continuing as president for two years under the present army regime, is now showing up with the image of a martyr to the acclaim of his Lahore circle. He could have indeed been a hero had he intervened to avert the fateful clash in October 1999 when the moment required it.

The constitutional plan of the president is bound to be challenged both on the streets and in the courts on a massive scale. Its unfortunate outcome could be the postponement of elections. The need of the moment is to save the elections rather than create new “systems and structures.”

The political issues are best settled in legislatures, not in courts. Thursday’s judicial verdict on the legislators’ academic qualification may be legal but it has strengthened neither democracy nor the judiciary. Its political consequences can be harmful and far-reaching.

Capitalism and conscience

The central conceit of President Bush’s Wall Street speech this week was that the run of corporate scandals is primarily a moral issue. “There’s no capitalism without conscience; there is no wealth without character,” Mr. Bush lectured. “We need men and women of character, who know the difference between ambition and destructive greed.”

There is no harm in this rhetoric, but it is naive to suppose that business can be regulated by some kind of national honor code. The United States, however much Mr. Bush may deplore it, is a land of moral relativism, leading the political scientist Alan Wolfe of Boston College to conclude that the Ten Commandments have become the Ten Suggestions, and that Americans have added an 11th to the old list: Thou shalt be tolerant. In a nation as dynamic and diverse as this one, it is hard to define a moral consensus, let alone enforce one. And this is especially true in business. When an American firm raises capital from Japanese pension funds and Belgian dentists, when it operates subsidiaries in China and Chile, when it employs people of all faiths and cultures, and when it competes globally, it will be hard-pressed to reflect “the values of our country,” as Mr. Bush proposed.

There is one objective that companies can unite around, and that is to make money. This is not a criticism: The basis of our market system is that, by maximizing profits, firms also maximize the collective good. There are some boundaries that should not be crossed in the pursuit of revenue, but these are defined by law, not personal morality. Ethicists have little to say about what constitutes monopolistic behavior or whether off-balance-sheet partnerships should be consolidated. This is what lawyers do.

The real test of Mr. Bush’s speech, therefore, is what he said about changing the rules that drive business behavior. And what he said was limited. He focused mainly on tougher penalties for white-collar criminals plus extra resources to pursue them. But he offered less on both scores than reformers in the Senate.

Mr. Bush proposed doubling the penalty for mail and wire fraud; Republicans and Democrats on the Senate Judiciary Committee have voted unanimously to create a new crime of securities fraud. Mr. Bush proposed increasing the budget of the Securities and Exchange Commission by $100 million. But the Senate reformers _ again, coming from both parties _ want three times that increase, so that the SEC can expand its enforcement division and bring salaries up to parity with other financial regulators at the Federal Reserve and Treasury.

In other areas, the president’s proposals were still weaker. He exhorted shareholders to do a better job of overseeing companies but said nothing about lowering the legal barriers to shareholders who seek to make their voices heard.

Mr. Bush’s advisers have read the polls, which show much-greater enthusiasm for holding bigwigs accountable than for obscure audit overhaul. They remain reluctant to back the tough reforms that are inevitably unpopular with the accounting lobby.

Despite Mr. Bush’s exhortation Tuesday to clean up corporate America, the administration has put out a statement critical of the best vehicle for achieving this objective, which is the Senate’s reform package. The administration needs to close this gap between rhetoric and policy. —The Washington Post

America’s relations with the Arabs

EVEN by the terribly low standards of his other speeches, George W. Bush’s June 24 speech to the world about the Middle East was a startling example of how an execrable combination of muddled thought, words with no actual meaning in the real world of living, breathing human beings, preachy and racist injunctions against the Palestinians, an incredible blindness — a delusional blindness — to the realities of an ongoing Israeli invasion and conquest against all the laws of war and peace, all of it wrapped in the smug accents of a moralistic, stiff-necked and ignorant judge who has arrogated to himself divine privileges, now sits astride US foreign policy.

And this, it is important to remember, from a man who virtually stole an election he did not win, and whose record as Governor of Texas includes the worst pollution, scandalous corruption, the highest rates of imprisonment and capital punishment in the world. So this dubiously endowed man of few gifts except the blind pursuit of money and power has the capability to condemn the Palestinians not just to the tender mercies of war criminal Sharon but to the dire consequences of his own empty condemnations.

Flanked by three of the most venal politicians in the world (Powell, Rumsfeld, and Rice), he pronounced his speech with the halting accents of a mediocre elocution student and thereby allowed Sharon to kill or injure many more Palestinians in a US endorsed illegal military occupation.

It wasn’t only that Bush’s speech lacked any historical awareness of what he was proposing, but that its capacity for extended harm was so great. It was as if Sharon had written the speech, amalgamating the disproportionate American obsession with terrorism to Sharon’s determination to eliminate Palestinian national life under the rubric of terrorism and Jewish supremacy on “the land of Israel.” For the rest, Bush’s perfunctory concessions to a “provisional” Palestinian state (whatever that may be, perhaps analogous to a provisional pregnancy?) and his casual remarks about alleviating the difficulties of Palestinian life brought nothing to this new pronouncement of his that warranted the widespread — I would go so far as to say comically — positive reaction elicited from the Arab leadership, Yasser Arafat leading the pack so far as enthusiasm is concerned.

Over fifty years of Arab and Palestinian dealings with the United States have ended in the rubbish bin, so that Bush and his advisers could convince themselves and much of the electorate that they had a God-given mission to exterminate terrorism, which meant essentially all the enemies of Israel. A quick survey of those fifty years shows dramatically that neither a defiant Arab attitude nor a submissive one has made any changes in US perceptions of its interest in the Middle East, which remain the quick and cheap supply of oil and the protection of Israel as the two main aspects of its regional dominance. From Abdel Nasser to Bashar, Abdullah and Mubarak, Arab policy, however, has undergone a 180 degree turn, with more or less the same results. First there was a defiant Arab alignment in the post-independence years inspired by the anti-imperialist, anti-cold war philosophy of Bandung and Nasserism. That ended catastrophically in 1967.

Thereafter led by Egypt under Sadat, the shift took place that brought cooperation between the US and the Arabs under the totally delusional rubric that the US controls 99 per cent of the cards. What remained of inter-Arab cooperation slowly withered away from its high point in the 1973 war and the oil embargo, to an Arab cold war pitting various states against each other. Sometimes, as in Kuwait and Lebanon, small weak states became the battleground, but for all intents and purposes the official mindset of the Arab state system came to think exclusively in terms of the United States as the pivotal focus for Arab policy.

With the first Gulf War (there is soon to be a second) and the end of the cold war, America remained as the only superpower, which instead of prompting a radical reappraisal of Arab policy drove the various states into a deeper individual or rather bilateral embrace of the US whose reaction in effect was to take them for granted. Arab summits became less occasions for putting forth credible positions than for derisory contempt.

It was soon realized by US policy-makers that Arab leaders barely represented their own countries, much less the whole Arab world; and, in addition, one didn’t have to be a genius to remark that various bilateral agreements between Arab leaders and the US were more important to their regimes’ security than to the United States. This is not even to mention the petty jealousies and animosities that virtually emasculated the Arab people as a power to be reckoned with in the modern world. No wonder then that today’s Palestinian suffering the horrors of Israeli occupation is just as likely to blame “the Arabs” as he is the Israelis.

By the early 1980’s all parts of the Arab world were ready to make peace with Israel as a way of ensuring US good faith towards them, as for example, the Fez Plan of 1982 which stipulated peace with Israel in return for withdrawal from all the occupied territory. The March 2002 Arab summit replayed the same scene for the second time, this time as farce it should be added, and with equally negligible effect. And it is precisely from that time two decades ago that the US policy on Palestine completely changed its bases, for the worse. As former CIA senior analyst Kathleen Christison points out in an excellent study published in the US bi-weekly Counterpunch (May 16-31,2002), the old land-for peace formula was given up by the Reagan administration, then more enthusiastically by Clinton’s, just ironically at the same time that Arab policy generally and Palestinian policy in particular had concentrated their energies on placating the US on as many fronts as possible. By November 1988, the PLO had officially abandoned “liberation” and at the Algiers meeting of the PNC (which I attended as a member) voted for partition and co-existence for the two states; in December of that year, Yasser Arafat publicly renounced terrorism and a PLO-US dialogue was begun in Tunis.

To the best of my knowledge, the US never called on the Palestinian Authority (nor any other Arab regime) to establish democratic procedures.

No serious resistance to occupation was developed under Arafat, and he continued to allow bands of militants, other PLO factions, and security forces to run rampant across the civil landscape. A great deal of illicit money was made, as the general population lost over 50 per cent of it’s pre-Oslo livelihood.

The intifada changed everything, as did Barak’s tenure which prepared the way for Sharon’s re-entry on to the scene. And still Arab policy was to placate the US. A small sign of this is the change in Arab discourse in the United States. Abdullah of Jordan stopped criticizing Israel completely on American TV, referring always to the need for “the two sides” to stop “the violence.” Similar language was heard from various other Arab spokesmen from major countries, which was to say that Palestine had become a nuisance to be contained rather than an injustice to be righted.

We have so long been in the position of being passive objects of Israeli and Arab policy that we do not adequately appreciate how important, and indeed how urgent it is for Palestinians now to take an independent foundational step of their own, to try to establish a new self-making process that creates legitimacy and the possibility of a better polity for ourselves than now exists. All the cabinet shuffles and projected elections that have been announced so far are ridiculous games played with the fragments and ruins of Oslo. For Arafat and his assembly to start planning democracy is like trying to put together the pieces of a shattered glass.

Fortunately, however, the new Palestinian National Initiative announced two weeks ago by its authors Ibrahim Dakkak, Mostafa Barghouti, and Haidar Abdel Shafi answers exactly to this need, which springs from the failure both of the PLO and groups like Hamas to provide a way forward that doesn’t depend (ludicrously in my opinion) on American and Israeli goodwill. The Initiative provides for a vision of peace with justice, co-existence and, extremely important, secular social democracy for our people that is unique in Palestinian history. Only a group of independent people well grounded in civil society, untainted by collaboration or corruption, can possibly furnish the outlines of the new legitimacy we need. We need a real constitution, not a basic law toyed with by Arafat; we need truly representative democracy that only Palestinians can provide for themselves through a founding assembly. This is the only positive step that can reverse the process of dehumanization that has infected so many sectors of the Arab world. Otherwise we shall sink in our suffering and continue to endure the awful tribulations of Israeli collective punishment.— Copyright Edward W. Said