Option before the president

MUCH has happened since October, 1999, when the National Security Council approved a strategy for the ‘reconstruction’ of the institutions of state, including ‘political structures and systems’ which are the subject of the reform package announced by the National Reconstruction Bureau. That reformatory agenda was rooted in the state of nation as perceived then, and in the priorities fixed at that time.

It could be assumed at that time that major reforms were not only possible but desirable, even if support by mainstream political parties, and other elements of civil society was not unanimous. These assumptions were valid in 1999. This is how things looked to most of us in October, 1999. Meanwhile, the world has been transformed. The context of whatever we do in the year 2002 has radically changed. As a consequence of what had been going on in our neighbourhood in the recent past, we are again caught up in the jaws of the nutcracker of global politics, a situation that is otherwise described as being a frontline state.

Some of our old friends, armed with sticks and carrots, have renewed their acquaintance with us, while one of our neighbours, armed only with sticks, would like to threaten us into submission, if not abject surrender. Taking advantage of what is being seen as an opportunity, some other countries, institutions and agencies would also like to dictate to us their conditionalities. To put it bluntly: we are being blackmailed.

So, what do we do? Surely, there are quite a few things that we can do and we certainly would, but, first, a reminder of things that we cannot change or influence — not yet, if ever. These are: the priorities of the US foreign policy, and the manner of its implementation; the future course of war on terrorism; the powerful anti-Pakistan lobby in Washington and elsewhere; the perception in the West that Pakistan is, and has been, a sanctuary for a large number of Muslim terrorists who are the cutting edge, literally, of the incongruity between the West and the Muslim societies; India’s perception of its role and place in South Asia and beyond, and of its national interest in Kashmir; the policies of international agencies, and their conditionalities; and our dependence on foreign loans and grants.

This forbidding list of external factors that we can do nothing about, leaves us entirely to ourselves. In other words, we have no other option but to build, through consensus and reconciliation, internal strength and synergy, and strengthen the national will to face external threats and pressures. This is what we can do, and this is what we must do, for a house divided is a house nearly destroyed. This is the general context in which our national policies have to be placed and judged.

Now, the present concerns. The decision to hold elections, the first step towards building internal strength, is a move in the right direction. But one is not sure whether the impending exercise for the ‘establishment of sustainable democracy’ would enhance our internal strengths or, instead, intensify the internal weaknesses and conflicts. The uncertainty is for two reasons: first, the controversy over the constitutional and electoral framework that would regulate the rebirth of an elected administration and, subsequently, its operational parameters; second, the political climate, marked by hostility, that is likely to prevail on the eve of elections.

The controversy on the package of reforms, announced only a few months ahead of the elections, is not conducive to national harmony. It can, however, be contained, even completely avoided, by having a more focused and consensual view of reforms. The main objective of the package being ‘sustainable democracy,’ it is understandable that the National Reconstruction Bureau (NRB) considers repeated ‘derailment’ of democratic governments as the main problem that needs to be tackled in any constitutional reform. The main cause of derailment, as correctly identified by the NRB, is a tendency of the elected governments to degenerate into autocratic and personalized governance that erodes their popularity and moral authority, leading to their dismissal.

One would agree, wholeheartedly, that this, indeed, is the main cause of our messy politics, and should be taken care of before the next government is installed. More importantly, there is national consensus on the need for constitutional provisions to check and discourage autocratic and personalized rule. If we keep the focus only on this aspect of the package of reforms we can come up with significant proposals that would have almost unanimous support. Most of the causes and solutions, relevant to this aspect of reforms, have already been identified by the NRB.

The powers that can be used to strengthen autocratic rule include the power to appoint, especially: judges of the superior courts, expecting them to support, condone or justify the excesses committed by the government; provincial governors, expecting them, where needed, to destabilize a ‘disobedient’ provincial administration; the Chief Election Commissioner and Commissioners, expecting them to cooperate in ‘managing’ elections; the Auditor General of Pakistan, expecting him to overlook financial misdemeanours at high places; the Governor State Bank, expecting him not to resist financial mismanagement; service chiefs, expecting them to support their benefactor in a situation of conflict between the president and the prime minister.

The solution is simple. No single individual or a few individuals, operating under the cover of confidentiality and away from the gaze of public scrutiny, should have the authority to make the appointments that are crucial to democratic governance, and the rule of law. Appointments to the posts enumerated here, except those of the service chiefs, should be made by the president with the consent of the Senate. For obvious reasons this will not be a proper course in the case of service chiefs. Their appointments should be made by the president on the basis of seniority. In a case where the president has reasons to deviate form this principle, he may do so with the consent of the prime minister.

In addition to these, there are three other concerns that need to be addressed: how to check a prime minister, with a ‘heavy mandate’, from bulldozing an amendment to the Constitution to acquire more power for himself; how to deny the unfair advantage of incumbency in general elections; and, what to do with a prime minister if his continuation in office is not in the national interest.

In the first case (amendment to the Constitution) the process should be made more deliberative by providing for a broader spectrum of support for change. The amending bill should not only be passed by a two-thirds majority in the National Assembly and the Senate, but should also be supported by a resolution, passed by a simple majority, by each of the four provincial assemblies. This is also consistent with the spirit of federalism.

The second matter of concern (advantage of incumbency) has been resolved by the NRB through the proposed amendment to Article 224 providing for a caretaker government to hold general elections. However, the composition of the caretaker set-up needs to be given a credible and acceptable form.

The third and the perennial problem relates to the removal of a prime minister. On this subject the formulation by the NRB, as an amendment to Article 91, provides for the removal of the prime minister and appointment of another member of the National Assembly as the next prime minister, under precisely defined circumstances. It is a good formulation, and solves the problem neatly, except that the problem of a wayward prime minister having been solved, there is no need to provide for the dissolution of the National Assembly as well.

These, then, are the amendments that need to be made before the installation of the next government to prevent autocratic and personalized governance, and to ensure sustainable democracy. The other proposals, too many and too controversial, can wait for the election of the new legislature, that would be installed in no more than three months. For the time being, the main objective would have been achieved with broad national consensus.

Finally, the question of political climate on the eve of elections. Given the existing state of hostility between the government and the two major political parties, what could be the likely shape of things during and after the elections? It is reasonable to assume that the elections held in the present state of controversy, confusion and mistrust, would lead to erosion of national integrity in ways that could be most unexpected, as they were in 1971. What can be predicted with absolute certainty is that it would nullify the objective of ‘national cohesion’ which was an important, perhaps the most important, part of the seven-point agenda announced on the October 14, 1999.

To analyse the situation in more specific terms, let us war-game the elections that would be held without there being national reconciliation. Four possible scenarios could emerge in relation to the parties that, on the basis of past electoral record, are the major political parties, and are now in a state of not very benign neglect.

The four possibilities are: one, the two parties may not participate in the elections; two, the elections may be ‘managed’ to make them less important in the future parliament; three, they may not emerge as the most significant force even without the elections being managed; four, either of the two parties or the two together may emerge with a clear majority. Each of these possible scenarios, presents a no-win situation.

Let us consider each of the four possibilities separately. One, if the two major parties do not participate in the elections, the winners won’t have any moral legitimacy, and the election process will lose its meaning and credibility. Two, if the two major parties are to be prevented from emerging as winners, the elections shall have to be rigged and that, of course, is out of the question. Three, if the two major parties together do fail to win a majority of seats, while they have their horns locked with the government, the election results would be hard to explain, and the genuine winners would look like usurpers.

Four, if the two major parties win most of the seats, while in a state of confrontation with the government, there will be a situation of conflict between the president and the parliament from day one. Regarding the last possibility, it could be said that there need not be a state of confrontation between the president and the parliament as the president, after having held fair and free elections, would come to terms with its results. That, indeed, is a possibility, but if there has to be a reconciliation then, why not now?

Such being the possibilities, reconciliation before the elections is in the best national interests. If the time available now for such an exercise is too short, elections may be postponed for a month or two, to arrive at a national consensus and reconciliation which is much more vital today than anything else.

It is important for the president to consider for a while the thought that this nation with divided polity, impoverished economy, wounded pride, and under stress of apprehensions, desperately awaits a healer, and the destiny has offered him the mantle of healer. He must accept it, and not let the nation sulk and wither in anger or in anguish.

E-mail: tvo@isb.comsats.net.pk

How to restore the rule of law

TWENTYFOUR-year-old daughter of the Governor of Florida and niece of President George Bush of the United States has been convicted of contempt of court and sent to jail for three days by a local court in Florida. The charge against her was that she attempted to purchase from a chemist sleeping tablets for which she had produced a forged medical prescription.

She was produced in the court and after requisite proceedings was directed to be admitted in a drug treatment centre but she disobeyed the order of the court and refused to have herself admitted in the rehabilitation centre. Consequently she was convicted and sentenced to jail for three days for violating and disobeying the order of the court.

No influence was used by the Governor of Florida to save his daughter from jail sentence nor were any steps taken by President George Bush to pressure or influence the court. The judge also did not take into consideration the social status of the contemnor. The Judge did not oblige the dignitaries for any favours and did justice according to the law and treated her at an equal level along with other citizens, demonstrating and proving that all are equal in the eyes of law.

In the past also serving US president Bill Clinton was summoned by the court on the complaint of an ordinary citizen in connection with a scandal. During the hearing the president admitted in public of having improper relationship with Monica Lewinsky and was fined for speaking a lie as initially he had denied the allegation. The president accepted the decision of the court with grace and did not file appeal against it. He did not claim that because of his position, he was above the law and could not be summoned by the court.

Recently presidential elections were held in the United States and there was a dispute in connection with the counting of votes in Florida state and the matter was referred to the Supreme Court. It was finally decided that George Bush had won. His opponent Al-Gore stated that he did not agree with the decision but accepted the court decision with grace and congratulated George Bush on his winning the election.

Such is the respect for judiciary in the United States. In fact there is respect for all the institutions which are functioning independently within the parameters and the limits of the authority as provided under the law. That is why their system of governance is successful. But with other countries their relationship is bilateral in nature and would last as long as it serves its purpose and interest. America can have friendly relations with those countries where there is no democracy and where democratic institutions are not allowed to function independently. It has good relations with countries where there is monarchy or military dictatorship. Such relations will continue as long as it suits its interest.

We have very friendly relations with America and in fact we are its ally and partner in international coalition against terrorism. But we would not like to follow their traditions like independent functioning of democratic institutions including judiciary.

I have mentioned a few examples to show how independent are the courts in America. They impart justice without any fear or favour or discrimination and treat all citizens alike. Even the US presidents submit to the jurisdiction of the court. There is no doubt about the fact that only that country can survive any kind of crisis, where there is rule of law and respect for the courts. Only then will the courts be able to ensure that other democratic institutions also function independently. If judiciary is unable to do justice according to the law, then only God can save the system and the country.

In Pakistan there was a contempt case against a serving prime minister on the ground that he had criticized and ridiculed the Supreme Court. The case was decided by the Supreme Court while the same prime minister was still in office. It held that for contempt, surrounding circumstances are to be considered, meaning thereby that contempt could be provoked and on that ground could be condoned and in fact it was so condoned.

In another similar case, when there was an attack on the Supreme Court by the party men of the government, while the police stood there smiling and not preventing the attack as some ministers were leading the mob, the Supreme Court held that the allegation was not proved and did not rely on the video films made by BBC, CNN and the camera system fixed in the Supreme Court. This decision was announced while still the same government was in power. Later when the military took over the Supreme Court modified the decision in review and a few party workers at lower level were convicted without touching the ministers. Of course this had to be done within permissible limits.

Recently, a new and very interesting development has taken place. Pakistan Bar Council, Supreme Court Bar Association, Lahore High Court Bar Association and Lahore Bar Association have jointly reacted to the statement of the Chief Justice of Pakistan in which he had stated that he has been giving decisions according to his conscience and without any pressure from the government. They have claimed that the statement of the Chief Justice is in conflict with his judicial decisions in the cases in which the government is a party and the bar associations appeared against the government in their representative capacities. The Bar Associations have resolved that they would never take the appeals to the Supreme Court in the cases in which the government is a party.

I think this is a great blow to the integrity and independence of the judiciary, in which the members of the Bar who appear in the Supreme Court day in and day out, have expressed no confidence in the superior judiciary. Under the present rule if the president goes abroad then the chief justice of the Supreme Court becomes acting president providing a meeting point at apex level between the government and the judiciary.

If this is so then how the man in the street would have any trust in our judicial system. Impartiality is the key word for the judiciary and it has to act according to law and promote the rule of law in a transparent manner. In any society when the people feel that there is no rule of law and consequently justice is denied, then even law-abiding persons revolt and take the law in their own hands.

Consequently there is lawlessness and anarchy in which the writ of law stands completely eroded. Damage is done within the institution and can be stopped only when institutional interest is not sacrificed at the altar of personal interest.

One cannot legalize, what is illegal, on the ground of the law of necessity because it is unlawful and unnatural. One may allow violation of the Constitution as a deviation or departure and justify it. But for how long will this continue? There is no substitute for the supremacy of the Constitution and the rule of law. The need of the hour is to restore the Constitution and hold the elections to re-establish the rule of law.

The writer is a former Chief Justice of Pakistan.

Bitter truth

CAN IT be that thousands of children living in the capital city of the strongest, and one of the richest, nations on earth are going hungry this summer? It can. That is the bitter truth about the state of poverty in Washington, D.C., in the 21st century.

Today there are children in the District of Columbia whose only consistent meal is the one they receive in federally funded summer feeding programs. These children still go hungry because they don’t get enough to eat at home.

They are the kids who show up for summer programs at 8 a.m. with only the clothes on their backs and hunger pangs. It is a state of affairs that should shame the city and nation. We take note of this condition, reported in last week’s Washington Post, because this may be the summer when more of the city’s impoverished children will receive an afternoon meal and an added bonus of some food to take home for the weekend. If that happens, however, it won’t be the result of action by the world’s most powerful nation. Thanks, instead, should be directed to local anti-hunger activists, to Washington Wizards owner Abe Pollin and to D.C. officials who have been scrambling to fill both the gaps in social services and hungry young stomachs.

After learning about the hunger situation and the likelihood of even more children going unfed because of cutbacks in summer school slots that provide free meals, Mr. Pollin pledged to raise $3 million to supply an extra weekday meal and some food for the weekend. As a result of the Abe Pollin donations, food is getting to summer programs that operate independent of the city.

And now, after a late start, the city is also working with Mr. Pollin and anti-hunger programs to coordinate the distribution of food to both city-sponsored summer programs and those not overseen by city agencies throughout the District of Columbia.— The Washington Post

Need for proper debt management

A DRAFT fiscal responsibility and debt limitation law has been prepared and is at present going through the process of public consultations pursuant to the policy commitment made by the finance minister last year. The need for such a law can hardly be overemphasized.

The purpose of the proposed law is to: (i) ensure medium and long term macro-economic stability; (ii) eliminate the revenue deficit; and (iii) reduce public debt to a prudent level, by effective public debt management. The proposed law is intended to not only take care of the present colossal debt problem but also to safeguard the future generations by espousing the principle of inter-generational equity in our fiscal and financial transactions.

To establish a financially prudent regime, the framers of the Constitution sought to circumscribe the borrowing and guaranteeing by the federal government. Article 166 of the Constitution provides: “The executive authority of the Federation extends to borrowing upon the security of the Federal Consolidated Fund within such limits, if any, as may from time to time be fixed by Act of Majlis-i-Shoora (Parliament), and to the giving of guarantees within such limits, if any, as may be so fixed.”

The parliament, whose primary responsibility it was, has not to date enacted any law limiting the borrowing or guaranteeing by the federal government. Therefore, the enactment of the proposed Fiscal Responsibility and Debt Limitation Law, besides satisfying a critical need, would go a long way in fulfilling the constitutional obligation.

The proposed law is in line with the current international trend of converting the current policy-based fiscal responsibility system into a rule-based regime. In the 1990s, legal restraint on government fiscal operations became something of an international trend. This trend was started in the mid-1980s by the United States, which promulgated the Balanced Budget and Emerging Deficit Control Act requiring the federal government to reduce its deficit to zero within a stipulated timeframe.

The European Union following in the footsteps of the United States also introduced self-imposed restrictions on fiscal operations. The Stability and Growth Pact, which was part of the Maastricht Treaty, declared that there should be a limit of three per cent of the total fiscal deficit to GDP ratio and a limit of 60 per cent of the public debt to GDP ratio.

The proposed law, while taking into account the various legislations on the subject, has developed its own features based on Pakistan’s own circumstances and requirements. The salient features of the proposed law are as follows:

The proposed Fiscal Responsibility and Debt Limitation Law would be a federal law and, as such, apply only to fiscal operations of and borrowing and guaranteeing by the federal government. But to the extent that the targets sought to be achieved thereunder would be based on consolidated accounts of the federal government and the provincial governments, it would be imperative for the law to be extended to the provinces.

The foundation of the proposed law is based upon the principles of sound fiscal and debt management. These principles are intended to provide continuous and consistent guidelines to the government to achieve the objectives of the law. The principles are: 1. To eliminate revenue deficit to nil not later than June 30, 2007 and thereafter maintaining a surplus. 2. To minimize the public debt to 60 per cent of the estimated Gross Domestic Product (GDP) by June 30, 2012. 3. To reduce the total public debt by not less than two and a half per cent of the GDP in every financial year, provided that the social and poverty related expenditures are not reduced below four percent of the GDP. 4. To not issue new guarantees, including those on rupee lending, bonds, rates of return, output purchase agreements and all other claims and commitments that may be prescribed from time to time for any amount exceeding 2 per cent of the GDP.

The government can depart from these principles on grounds of unforeseen demand on the finances of the government owing to national security or natural calamity which are required to be determined by the National Assembly.

The federal government is required to maintain transparency in its performance, lay before the National Assembly in each financial year the following five economic policy statements: (i) medium-term budgetary statement included in the annual budget statement (ABS); (ii) annual fiscal policy statement included in the ABS; (iii) annual debt policy statement included in the ABS; (iv) mid-year economic report by the end of February; and (v) annual state of the economy report by the end of June. The economic policy statements shall incorporate to the fullest extent possible all government decisions which have a material effect on the economic situation of the country, except those that have been excluded for specified reasons by the finance minister.

A debt policy coordination office (DPCO) is proposed to be established to serve as a secretariat to achieve the objectives of this law. The Office shall prepare a ten year debt reduction path which will be followed by the government and against which the performance of the government will be monitored and analyzed by the DPCO. The DPCO shall submit its annual reports to the cabinet after the approval of the finance minister.

Where the government fails to meet the target of debt to the GDP over a period of two years, it would be required to take necessary measures to return to the debt reduction path given by the DPCO by the end of the next two years. However, this shall not apply to the expenditures charged upon the federal consolidated fund under Article 81 of the Constitution. Furthermore, the social and poverty related expenditures shall not be reduced from four per cent of the GDP for that year.

All the economic policy statements laid before the National Assembly under the proposed law shall be accompanied by a statement of the finance minister and secretary finance comprising the integrity of the disclosures contained therein and consistency with the requirements of the law.

The proposed fiscal responsibility and debt limitation Law would not apply to the provinces, which enjoy legal, fiscal, and financial independence. The borrowing and guaranteeing by the provincial governments is sought to be circumscribed by Article 167 of the Constitution in the same way as the borrowing and guaranteeing by the federal government. Accordingly, provinces will have to enact their own fiscal responsibility and debt limitation laws similar to the federal legislation.

A coordinated effort in this regard among the federation and the provinces on a voluntary basis would be most desirable. Otherwise, the federal government may, in order to comply with its own law, be compelled to impose conditionality on the provinces to enact such a law while making loans to them. As long as the provinces are dependent on the federal government for loans, the federal government could also exercise administrative control over the provinces through the imposition of financial conditionality. For example, it could withhold its consent or impose conditions while granting consent to provincial governments to raise loans in case any federal loans are still outstanding.

The administrative control could be exercised government to government. At the provincial level, the provincial government’s consent is required for the introduction of a money bill. Thus there is a measure of administrative control over the legislative procedure in so far as the imposition, abolition, remission, alteration or regulation of any tax, the borrowing of money or the giving of guarantee by the provinces is concerned. Needless to say, the best fiscally and financially prudent regime would be an extended federal law adopted or supported by provincial legislations.

The Constitution envisages the delimitation of loans and guarantees by both the federal government and the provincial governments. However, no limit on borrowing or guaranteeing has been placed by or prescribed under any federal or provincial legislation to date. Furthermore, there is no clearly discernible policy or procedure for negotiating and contracting foreign loans and other financial obligations.

Consequently, there is no legal management system in place for the regulation of debt or the management of contracts creating external indebtedness. There are no specific policies, procedures or guidelines for incurring, monitoring or discharging debt. Therefore, there is need to build a legal, regulatory and policy framework for proper debt management. There is also the need for developing a specialized professional service pool to negotiate and manage financial contracts.

For starters, it would be expedient for the federal government to: (a) promulgate a fiscal responsibility legislation in order to preclude indiscriminate borrowing and guaranteeing by the government and its agencies; and (b) prescribe policy-based procedures for negotiating and contracting foreign loans and other financial obligations pursuant to the said law. This could then be followed by a similar exercise by the provincial governments.

The draft of the proposed fiscal responsibility and debt Limitation law has been put on the finance ministry’s website and also circulated, for comments and suggestions, to various governmental and non-governmental organizations, including economic, legal and political institutions, and last but not least the media. The finance minister and his team members are participating in various seminars around the country to consult experts and the public at large. One only hopes that the people will come forward with constructive comments and suggestions and make this a meaningful exercise.

The writer is adviser to finance minister of Pakistan. The views expressed in this article are his own and do not in any way reflect those of the government.