The re-election idea

PRESIDENT Pervez Musharraf’s re-election is more than a question of constitutional validity; it is essentially a political and moral one. For this reason Justice Javed Iqbal’s statement, made to newsmen after being sworn in as acting Chief Election Commissioner on Friday, needs to be examined from the point of view of the impact such a mode of re-election will have on the nation’s destiny. That the existing assemblies which themselves have a life of five years should give the president 10 years as ruler is indeed a great anomaly. This acquires a ludicrous character when one realises that the elected head of state is also the chief of the army staff. This means that beginning from 1999, when the army dislodged an elected government, the army chief will continue to be head of state till his second term expires in 2012. This will exceed the period which Gen Ziaul Haq enjoyed as an absolute ruler (1977-1988). (Both allowed Chaudhry Fazal Elahi and Mr Rafiq Tarar to remain president for brief periods).

The issue before the nation now is not the continuation or otherwise of a certain individual as president but democracy itself. The nation wants democracy as the term is understood the world over, and it is pointless what a general and those around him decide. A full return to democracy means that President Musharraf should shed his uniform and seek re-election as a civilian and contest against other candidates for the president’s office through a transparent process that will stand the test of scrutiny. The insistence that the existing assemblies should re-elect him gives rise to many misgivings. Even if it is granted that the existing assemblies are constitutionally authorised to do so, one cannot but see that the voting will in fact be a test of loyalty for the existing MNAs, senators and MPAs, for those voting against the president are unlikely to get PML tickets for the 2007 elections.

Let the 2007 general election mark a turning point — the beginning of a truly democratic era in which all vestiges of controlled democracy will finally be shed and consigned to the dustbin of history. These relics of the past include Article 58-2b and the National Security Council. Both these devices have made a farce of the concept of the people’s sovereignty, for they make the elected representatives subordinate to the military. Let our generals learn from history. Similar constitutional contrivances crafted by Ayub Khan and Ziaul Haq created structures that did not survive their death or ouster from power. When Ayub quit, he handed over power to army chief Gen Yahya Khan, thus violating his own constitution. When Ziaul Haq died, the office of the prime minister was vacant because he had dismissed Mohammad Khan Junejo and violated the Constitution by fixing an election date beyond the 90-day period as stipulated in Article 58-2b. Later, his own protégé, Mian Nawaz Sharif, did away with this infamous article. The two systems collapsed because the people of Pakistan had no hand in the creation of the two constitutional aberrations meant to serve personal and political expediencies. The 1973 Constitution has survived all vicissitudes because it was enacted by the people’s representatives. Ultimately it is the nation which suffers, for it has to make a new beginning each time a Bonapartist leaves the scene.

Azad Kashmir finances

THE Azad Jammu & Kashmir budget, passed by the state’s legislative assembly within two hours of its presentation on Thursday, has a total outlay of Rs19.93 billion, marginally up from the outgoing year’s Rs17.84 billion. The budget comes barely two weeks before the general election scheduled to be held in the earthquake-ravaged state on July 11, and offers little break from the past in that this, too, is a deficit budget. Islamabad is expected to fill the gap that exists in the state’s income and expenditure by injecting Rs3.158 billion into the AJK finances. The budget has a total of six billion rupees earmarked for development projects; the figure includes much of the five-plus billion rupees reserved for the ADP in the last fiscal year. The sum remained largely unutilised in the aftermath of the devastating October 2005 earthquake, which saw the capital Muzaffarabad and the government structure virtually razed to the ground. Seen against this backdrop, the six billion rupees allocated for the ADP for the next fiscal year is a miserly sum; it is not expected to meet the huge needs the state has in various socio-economic sectors.

The hurried passage of the budget in the legislative assembly was conditioned by fissures appearing in the ruling Muslim Conference, five of whose ministers and several MLAs defected only last month. The forthcoming election is prompting unlikely alliances, such as that between the PPP-Parliamentarians and the Jamaat-i-Islami, to counter the Muslim Conference, the PML and a new entrant in the AJK political arena, the Muttahida Qaumi Movement. It was preoccupation with the pre-election campaigning on the part of the MLAs that diverted their attention from the budgeting process this year, precluding a meaningful debate on it. With the colossal reconstruction and rehabilitation task ahead and little money in the state’s coffers, the incoming government will need a lot of good luck for a smooth sail. However, the saving grace is that the Earthquake Reconstruction and Rehabilitation Authority, overseen by Islamabad and backed by international donors, will carry on with the task of rebuilding and rehabilitation in areas devastated by the October calamity.

Lower bandwidth rates

FRIDAY’S decision by the Pakistan Telecommunication Authority to significantly reduce bandwidth rates should give a much-needed boost to an IT sector that is failing to keep pace with regional competitors. Pakistan Telecommunication Company Ltd (PTCL), which currently enjoys a monopoly on bandwidth supply, has been directed to bring its international private leased circuit (IPLC) tariff structure in line with global trends — a move that could offer considerable breathing space to internet service providers (ISPs), the international voice telephony business, the nascent call centre industry and other major players in the field of information technology. Further downward revisions in IPLC costs, which account for a major portion of the operational outlays of user industries, are expected in January 2007.

Expensive bandwidth has to date been a hurdle in the way of a wired Pakistan, hampering both local and foreign investment in the IT sector and preventing small businesses from enhancing productivity through networking and digitalisation. Further downstream, the delights of broadband remain beyond the reach of most home users who must contend with the snail-paced offerings of dial-up networking, tied up telephone lines and PTCL bills inflated by redialling necessitated by lost connections. If ISPs choose to pass on even a fraction of the savings resulting from lower bandwidth rates — and that is inevitable given current market dynamics — far more domestic users may be able to afford digital subscriber line (DSL) connections, at least in major cities. More significantly, lower operating costs may encourage small-scale ISPs to venture further into areas where limited subscriber bases make heavy investment unviable. Dial-up connectivity will of course remain the sole option available to a majority of users, but they too stand to benefit from packages that should become even cheaper in the wake of the move to cut bandwidth rates.

Hasty passage of the budget

IN a record-breaking 12-day debate, the National Assembly passed the budget. This short period shows that no serious consideration was given to the budget documents. In fact, it was impossible for the 347 members of the Assembly to contribute significantly to the budget debate. This was one of the several instances when both the opposition and treasury benches called the present political system a sham democracy and parliament a rubber-stamp assembly.

The greater irony is that under the garb of the budget, the government surreptitiously inserted oppressive amendments to encroach upon the rights of the disadvantaged working classes, without any debate on legislative proposals. Such acts and policies expose the dishonest and mala fide mentality of the ruling party that does not have the moral courage to amend the law in the manner prescribed by Article 70.

Instead, the government took undue advantage of the money bill, in clear violation of the relevant constitutional provisions made by President Musharraf through the Legal Framework Order. The provisions of Article 73 specify the procedure with respect to the money bill in very categorical terms. The National Assembly may ignore or bypass the procedure relating to normal legislation specified under Articles 70 and 71 only if the proposed bill falls within the definition of a money bill. Article 73(2) of the Constitution has specified the regulations, listed below, with regard to the constitution of a money bill:

a. The imposition, abolition, remission, alteration or regulation of any tax;

b. The borrowing of money, or the giving of any guarantee, by the Federal Government, or the amendment of the law relating to the financial obligations of that Government;

c. The custody of the Federal Consolidated Fund, the payment of moneys into, or the issue of moneys from, that fund;

d. The imposition of a charge upon the Federal Consolidated Fund, or the abolition or alteration of any such charge;

e. The receipt of moneys on account of the Public Account of the Federation, the custody or issue of such moneys;

f. The audit of the accounts of the Federal Government or a provincial Government;

g. Any matter incidental to any of the matters specified in the preceding paragraphs. In view of such a categorical definition, subjects such as labour, criminal, factory and old-age benefit and shops and establishments laws, or any matter relating to the working hours and conditions of labourers, do not fall under the definition of the money bill. As such, no enactment or amendment to the same can be provided for or made part of the budget/finance bill.

Besides the opposition members, particularly Mr Aitzaz Ahsan, Qazi Hussain Ahmed and Mehmood Khan Achakzai, a large number of politicians on the treasury benches protested against these unconstitutional and illegal aspects of the money bill and called upon Speaker Chaudhry Amir Hussain to give a ruling to delete such provisions from the bill. Unfortunately, the speaker ignored these demands, and allowed the passage of the bill with all its unconstitutional and illegal components.

The government may argue that under Article-73(4), the speaker has the power to decide whether or not the bill is a money bill. It is an established principle of law that every authority enjoying discretionary powers in any matter is obliged to use the same in a judicious manner. The speaker has no authority or power to give any ruling on this issue in an arbitrary manner on the basis of his whims or in consideration of any matter other than the Constitution. The provisions of Article 73(2) are so clear that they leave no room for ambiguity on the issue of what constitutes the money bill.

Consequently, the speaker has no option or authority to give an opinion that may violate such explicit provisions of the article. In fact, an opinion voiced by the speaker that is repugnant to the aforesaid provisions of Article 72(2) would constitute a clear abuse of his discretion, in violation of the Constitution, and this could disqualify him from his office.

An exercise of discretion in violation of the Constitution would not deserve the protection, if any, conferred by its provisions. If an act is committed outside the limits prescribed by the Constitution, it cannot be deemed to have been carried out under the Constitution. Hence, the protection given to the proceedings of the National Assembly under Article 69, or any other article of the Constitution, would not be available with regard to such acts of the speaker that are ultra vires to the Constitution.

Yet another glaring breach of the Constitution has been committed by passing the bill because the Senate has been bypassed and denied its right, power and authority under Articles 70 and 71 to legislate on matters which do not fall within the definition of the money bill. It may be noted that with the exception of the money bill/budget, the Constitution requires all other proposals of legislation to be passed by both houses of parliament.

Otherwise, legislation on all other matters including labour and criminal laws is constitutionally required to be passed by the Senate as well. This is the incontrovertible position under the Constitution. Any interpretation to the contrary would make a mockery of the whole process of legislation and the Constitution. If the government is allowed to add different non-fiscal legislative proposals to the bill every year, or if it succeeds in declaring every legislation as a money bill despite the fact that such padded proposals do not fall within the constitutional definition, the Senate will be denied of its basic function and right to legislate, and the very purpose of having the Senate will be defeated. Surely this is not the objective of the present government.

The writer is a former senator

A standard for interrogation

IN the days and weeks after Sept. 11, 2001, senior Bush administration officials decided that harsh interrogation methods were necessary to prevent devastating attacks on the country — and that such methods could be carefully administered and limited to the most urgent cases.

This thinking proved disastrously flawed. Once the administration lifted the strict regulations that long had governed interrogations of foreign detainees, abusive practices spread quickly across the government. Confusion over rules led to the torture not just of senior Al Qaeda leaders but also of common detainees in Afghanistan and Iraq. The damage done to US honour and prestige around the world, and to America’s ability to mobilise support for the fight against Islamic extremism, far outweighed any intelligence gathered.

Many Americans may believe that this lesson has been learned and that US-sanctioned abuse is a thing of the past. Far from it. Yes, Congress last year passed the McCain amendment, which prohibits “cruel, inhuman, or degrading” treatment of all prisoners in US custody. But it has become increasingly clear that the administration has not accepted that ban as the last word. It still has not renounced the right to subject some detainees to practices such as “waterboarding,” or simulated drowning, even though they violate the law.

It has yet to adopt clear standards governing the interrogation and treatment of foreign prisoners, or return to full compliance with such treaties as the Geneva Conventions and the Convention Against Torture. Until this situation changes, there will be more of the lawlessness and simple confusion that have led to hundreds of cases of abuse, and dozens of homicides, in Afghanistan, Iraq, Guantanamo Bay and elsewhere. The administration is seeking to evade the McCain ban in more than one way. The law required that the Army’s standard interrogation manual, overridden in 2002, once again govern all questioning of prisoners held in Defence Department facilities. But the Pentagon has prepared a new manual; Vice President Cheney and Defence Secretary Donald H. Rumsfeld have pushed for it to include a classified annex in which some harsh techniques are again authorized for use against prisoners deemed “enemy combatants.”

The administration is also preparing a new directive on detention that would exclude compliance with Common Article 3 of the Geneva Conventions, which prohibits torture and other cruelty, including “humiliating and degrading treatment.”

Finally, through a presidential signing statement and questionable legal opinions, the administration is reserving the right to continue using waterboarding and other harsh techniques on prisoners held by the CIA. It argues that the president’s power to make war allows him to override congressional restrictions and that waterboarding in some circumstances does not violate the US constitutional prohibition of cruel treatment.

For now, objections from Sen. John McCain and other sponsors of the amendment have caused the administration to delay issuing the new doctrine and manual. The senators are rightly demanding that there be one set of rules for interrogations, and that they be made public. Congress could build on this foundation if it stipulated by law that the Geneva Conventions’ Common Article 3 be applied to all US detention operations — of both the military and the CIA.

Once abuse is entirely banned, there is no reason for the United States not to return to full observance of the Geneva Conventions, and there are many benefits in doing so. Following the Geneva Conventions does not necessarily mean granting prisoner-of-war status, and the many privileges that come with it, to all detainees; Al Qaeda fighters and other terrorists might legally be excluded from POW status following a tribunal hearing. But returning to Geneva could improve the chances that its provisions against inhumane treatment will be respected by other countries, including those that capture American servicemen.

The Convention Against Torture has been ratified by the Senate and should also bind the United States. In a report last month, the U.N. Committee Against Torture, which oversees the convention, spelled out what that would mean. Secret detention of prisoners in CIA facilities, it said, “constitutes, per se, a violation of the Convention”; so does the “rendition” of suspects to other countries where they might be tortured “without any judicial procedure.”

—The Washington Post