Trifling with basic law

THE establishment has unleashed two troupes, one to confuse and confound the political parties in particular and the people in general, and the other to oversee migration of legislators and good candidates to the ruling group. The activities of both reveal the extent of political degeneration authoritarian regimes have fostered.

While discussing the briefing of the cabinet on the constitutional provisions relating to the election president, official spokesmen have tried to give the impression that the government is simply following the dictates of the Constitution and that they are innocent of any attempt to manipulate re-election of the incumbent head of state. The reality is otherwise.

That the federal cabinet needed to be informed of the provisions of the constitution relating to the election of the president and the National Assembly caused no surprise. Nobody expects the honourable members of the cabinet to take the trouble of familiarising themselves with the state’s basic law, or any law for that matter. One however wonders whether the presentation by the country’s most experienced constitutional innovator was complete and comprehensive.

It is true that under the Constitution, as it stands today, the election of the president should be held between September 15 and November 15, 2007, and that election to the National Assembly, if it completes the term on November 15, 2007, should be held between November 15, 2007, and January 15, 2008. However, two important points need to be noted. First, the present arrangement does not enjoy the sanctity attached to a democratically adopted constitution, as it was deliberately created by the regime vide the Legal Framework Order 2002. Secondly, even now it is wrong to presume that no alternative to the election of the president by the existing assemblies is possible.

Before August 21, 2002, identical provisions applied to the election of the president and the National Assembly, that is, both were to be elected within a period of two months prior to the expiry of their terms. If this scheme had not been interfered with, the election of both the president and the National Assembly could have been held between September 15 and November 15, 2007. A general parliamentary election could have been held in October and the president could have been elected by newly elected legislatures at the beginning of November 2007.

The Legal Framework Order left the timing of the presidential election unaltered but amended Article 224 of the Constitution to the effect that parliamentary elections would be held within two months after the expiry of the National Assembly’s term. The reason advanced for this change was that it was not fair to reduce the term of the national and provincial assemblies. Nobody was convinced of the bona fides of the regime in entertaining respect for the life of the assemblies, particularly in view of the history of dismissals of elected assemblies by usurpers of state authority, if one may be allowed to employ an expression used by the Supreme Court.

There is no doubt now that this change was motivated by a desire to keep open the possibility of the president’s election by the electoral college that came into being as a result of the 2002 general elections. Thus the government has manoeuvred a situation which was not warranted by any state interest, and it now wants to exploit this as an immutable constitutional obligation.

That the election of the president by the existing assemblies is not unavoidable, as the official spokespersons are resolutely arguing, can easily be shown if the regime is amenable to the suggestion that democratic propriety demands that the president be elected by an electoral college comprising legislators elected in a fresh general election. All that is required is that the prime minister may recommend dissolution of the National Assembly a couple of months before the expiry of its term (and the chief ministers may follow suit).

The Constitution requires that in the event of the dissolution of the assemblies (as against their demise on the expiry of their term), a general election will be held within 90 days. This election can be held and new legislatures constituted before the presidential election is held. The Constitution also provides for overcoming difficulties in keeping to the election deadlines. If the election of the president falls due at a time when the assemblies stand dissolved, such election shall be held within 30 days of the general election.

The extension of the present incumbent’s term by a month or so, so as to allow newly elected representatives of the people to elect the head of the state, will be far less unwelcome to the people than his election by an electoral college comprising legislators whose bondage to the presidency has been evident throughout the past four years.

There is nothing unusual about calling a general election earlier than it is due. Political leaders in all democracies are free to go to the electorate whenever they consider it necessary. Almost always an early election is favoured by prime ministers if they consider the circumstances to be favourable to their parties’ return to power or if they fear that the situation might become unfavourable to them if elections were not brought forward from the appointed time.

The present situation demands this course in wider national interest and not merely because the opposition has been crying for it. The coming general election will have meaning only if it offers a fair chance of the country’s return to the path of democratic governance. It is possible that the leaders of the regime do not share this public aspiration and in that case they are unlikely to be amenable to the sane advice. But if they have even the slightest regard for the people’s wishes and the obvious need for establishing a legitimate state authority, they should stop pretending allegiance to the letter of the Constitution and abide by its spirit.

In the din of argument and counter-argument over the timing of the presidential election the bar to General Musharraf’s candidature has been ignored. Before Article 41 of the Constitution, which deals with the election of the president, began to be fiddled with by military rulers, it had six clauses in which the eligibility of presidential candidates, the composition of the electoral college and timing of the general election had been laid down.

General Ziaul Haq added a Clause 7 to justify his assumption of presidency in terms of the Constitution. The purpose of this clause was to confirm that in consequence of the referendum of 1984 General Ziaul Haq would become president on the day of the first meeting of the Parliament elected in 1985 from that day and that the bar in Article 43 (1) shall not apply to him (the suspended provision of the constitution barred General Zia from combining the offices of the president and the Chief of Army Staff).

General Musharraf had to replace this clause with one to suit himself. But while the beginning of General Ziaul Haq’s tenure under the Constitution was mentioned in the Constitution itself, in General Musharraf’s case the start of his term was a matter of his own choice. His term as president began when he chose to relinquish the office of chief executive “on such day as he may determine” and also provided that on December 31, 2004, he would come under the provision of Article 63 (1) (d) which barred him from holding any other office of profit.

It may also be useful to recall how the parliament was used to enable General Musharraf to wriggle out of his commitment to fold up his uniform by December 31, 2004. The 17th Amendment had added a proviso to Article 41 (7) (b) to the effect that on and from December 31, 2004, “paragraph (d) of clause (1) of Article 63 shall be operative.” The provision meant from December 31, 2004, the disqualification clause would apply to General Musharraf if he did not by then shed his uniform.

A few weeks before the deadline the President to Hold Another Office Act was enacted and came into force on December 31, 2004. According to this Act “it is necessary that the President, in addition to his holding the office of President, may hold another office in the service of Pakistan.”

Extra-constitutional changes in the basic law and adoption of laws that militate against the democratic essence of the Constitution are defended by the establishment’s apologists as measures sanctioned by the Supreme Court. The argument is patently untenable for a variety of reasons. First, the sweeping alterations in the Constitution made vide the LFO of 2002 were never endorsed by the apex court.

Secondly, the authority conceded to General Musharraf to amend the Constitution was not absolute and could not imply validation of any amendment to the basic law. And, above all, judicial rulings are not interchangeable with constitutional injunctions and the process of their reversal does not involve the effort or the numbers required for a constitutional amendment.

What this discussion demonstrates is the difficulty official spokesmen have in hiding behind texts that do not enjoy the sanctity attached to a democratic constitution and which have been quite arbitrarily thrust into the basic law by extra-constitutional means. That those in power wish to perpetuate the regime because they see no effective challenge is fairly widely understood and it is not necessary to insult the people’s commonsense by arguing that everything is being done in accordance with the Constitution.

An unfortunate aspect of the present controversy is that official spokespersons are not content with abandonment of reason and appear determined to have little truck with good sense either. One spokesperson says that present assemblies can elect the president 10 times and if the opposition doesn’t accept this, they should be taken to a school for training in interpretation of the Constitution. How can the present assemblies elect a president 10 times?

Either the presidency should fall vacant nine times during the remaining part of the present assemblies’ tenure or their tenure may be extended to 40 or 50 years! What fancy! Another spokesperson declares that the opposition leaders will not only accept a president in uniform for another five years but will also lick his boots. One is used to dissemination of banalities by the establishment but the idea of its purveying vulgarity did not occur earlier.

As for the doings of the other troupe, one of the leaders of PPP-Patriots has said it all — they are waiting for the general’s word whether to retain their present label or to merge themselves with the establishment’s senior surrogate. The people are no longer amused.

Nepal’s long walk to democracy

THE year 2006 saw the sun setting on Nepal’s 238-year old monarchy. At the end of a 10-year conflict between the army and the anti-king Maoists, Nepal once again finds itself on the threshold of parliamentary democracy. The dramatic transformation of the political landscape in our neighbourhood is an epoch-making development.

The Maoists carried on a people’s movement for 10 years, creating conditions of anarchy and civil war that claimed more than 12,000 lives with thousands of people being displaced.

The violent struggle finally culminated in success for the rebels when it joined the seven-party alliance spearheading a pro-democracy campaign in April 2006. This soon developed into a mass movement. The pro-democracy upsurge led to violent demonstrations throughout the country. Protest rallies, demonstrations and general strikes paralysed the whole country. The army failed to quell the movement.

The hectic pace of changes and the unprecedented public fervour for democratic change was reminiscent of the East European era when the Berlin Wall fell. The struggle continued relentlessly, and ultimately, the monarchy had to relent.

Although discontent had been long in the making, the pro-democracy movement started after King Gyanendra dismissed the cabinet and dissolved parliament in 2002. He blamed political parties and the government for their failure to contain the insurgency and to deliver on promises. The Maoist alliance with political parties strengthened the pro-democracy demonstrations and proved decisive in the outcome of the struggle that saw the king capitulate to the people’s demand in 2006.

Parliament was restored and the time-tested elderly statesman Girija Prasad Koirala was appointed prime minister with a mandate to hold fresh elections. Koirala introduced historic changes through the existing parliament. Last May, parliament agreed unanimously to curtail the powers of the king and took a number of steps to render his role ceremonial by adopting a nine-point declaration.

Nepal moved forward towards a new era of peace and democracy with the signing of a landmark agreement in November after months of intense negotiations to formally end the conflict. Maoist rebels renounced their decade-long armed insurgency. The agreement provided that the Maoist rebels would join the government and lay down their arms to join the political mainstream. The rebel leader Prachanda acknowledged that “Our experiences have shown we could not achieve our goals through armed revolution so we have chosen the path of negotiation and formed an alliance with the political parties to meet the aspirations of the people longing for peace.” He also said, “We have come up with a new vision to establish a new Nepal and in some ways we have already achieved some parts of it. But greater challenges lie ahead.”

According to the deal, parliament would be dissolved and a transitional assembly formed with 330 seats of which 75 would go to the Nepali Congress and 83 to the Maoist rebels. The Communist Party would also get a similar number of seats with the balance going to the other five parties that now constitute the coalition government. The peace plan also provided for the formation of a 23-member cabinet with participation of all parties, including the Maoists, with each party nominating four ministers.

The rebels also agreed to place their arms and troops under UN supervision. The Maoist parallel government structure would be dissolved once the transitional constitution came into effect — and the Maoist made good on that promise this month. The agreement provided that the weapons of the Maoists and an equal number of arms owned by the Nepal army would be locked up under UN supervision. The Maoists claim a fighting force of 35,000 as against 90,000 soldiers of the Nepal army. The UN has identified seven cantonments for confining the weapons.

Last month, the parliament through a proclamation endorsed earlier recommendations that curtailed the political powers of King Gyanendra and took away his control of the army. The army has been placed under an elected civilian government. The parliament also decided to make laws relating to the succession to the throne, a privilege hitherto enjoyed by the king. In short King Gyanendra has been stripped of most of his powers, position and privileges. A new constitution is to be drawn up by a newly elected parliament in June — and this could decide to altogether abolish the monarchy.

Nepal has been declared a secular democracy and a new national anthem making no mention of the king has been approved. Nepal’s current national anthem lauds the monarchy with the opening lines — “May glory crown you, courageous sovereign”. It has been replaced with “we are Nepali, the only garland with hundreds of flowers…”

Also, the royal families will have to pay taxes like ordinary citizens. The official name of the government has been changed from His Majesty’s Government to the Government of Nepal. On January 15, the Maoists joined the new parliament and thus the “terrorists” became lawmakers. They have been given 83 seats in the 330-member House.

The Maoist association with the political process is a landmark development. This has not only ended the insurgency and instability in the region but is sure to quicken the pace of democracy.

Nepal’s status as a Hindu kingdom has ended. The significance of this change is realised in the backdrop of the fact that the monarchy in Nepal was more than two-centuries old and the king was regarded as the direct descendant of the Hindu god Vishnu.

The Nepal situation calls for an in-depth analysis of the April 2006 uprising which culminated in the triumphant victory for the people. The Maoist’s new role and their legitimisation will have an effect on regional politics. Separatist and communist movements such as the Naxalites in the northwest Indian states will receive a moral boost and this could alter the course of their struggle too.

The lesson of the episode for us is that the wishes of the masses can neither be stifled by force nor delayed indefinitely. In either situation they will emerge victorious, but the time lag would impose dire costs and consequences on the reluctant authority.

The writer is a former ambassador.

Infected by affluenza

LET’S stop the pretending: Blatcherism has been an inexcusable missed opportunity to take Britain in a completely different direction (towards Denmark rather than America) and it has significantly contributed to our spiralling rate of mental illness.

I have discovered that citizens of English-speaking nations are twice as likely to suffer mental illness as ones from mainland western Europe.

Specifically, my analysis reveals that over a 12-month period nearly one-quarter (23 per cent) of English speakers suffered, compared with 11.5 per cent of mainland western Europeans.

What explains such a massive difference? It is extremely unlikely to be genes — English-speakers largely come from the same gene pool as Europeans. Indeed, the World Health Organisation study of mental illness in 15 nations, on which my analysis is based, strongly implies that genes play little or no part in explaining national differences in mental illness, and that among developed nations economic inequality is highly significant.

The US is by some margin the most mentally ill nation, with 26.4 per cent having suffered in those 12 months. This is six times the prevalence of Shanghai or Nigeria, a huge discrepancy. Again, genes do not explain it — studies show that when Nigerians move to America, within a few generations they develop American prevalences.

It is looking increasingly likely that major flaws in studies of identical twins — on which the genetic case has wholly rested until recently — have led to a large exaggeration of the role of genes. Molecular genetics (direct studies of DNA) has disproved the idea that there are single genes for almost any mental illnesses and may eventually prove that genes play little role at all.

It is selfish capitalism which largely explains the greater prevalence among English-speaking nations. By this I mean a form of political economy that has four core characteristics: judging a business’s success almost exclusively by share price; privatisation of public utilities; minimal regulation of business, suppression of unions and very low taxation for the rich, resulting in massive economic inequality; the ideology that consumption and market forces can meet human needs of almost every kind. America is the apotheosis of selfish capitalism, Denmark of the unselfish variety.

Selfish capitalism causes mental illness by spawning materialism, or, as I put it, the affluenza virus — placing a high value on money, possessions, appearances (social and physical) and fame. English-speaking nations are more infected with the virus than mainland western European ones. Studies in many nations prove that people who strongly subscribe to virus values are at significantly greater risk of depression, anxiety, substance abuse and personality disorder.

Follow the logic? Selfish capitalism infects populations with affluenza; it fosters mental illness; English-speaking nations are more selfish capitalist — ergo, more prone to illness.

In 1997 we trusted that Blair was only pretending to be Blatcher. Most of us signed up to his selfish capitalist manifesto thinking that it would really be unselfish — that the third way bullshit was really code for this. Alas, it was not.

Yes, there has been much more spent on education and health than the Tories would have done. But private companies now own many of the buildings, and criminal rates of interest and privatisation are the real goal. The only thing about which I am totally convinced is the reduction in child poverty. Otherwise, Blatcher and Thatcher have been indistinguishable.

The net consequence for true Labour voters has been to force us to become more or less severely virus-infected. Above all, the clamping on of nosepegs to vote for these closet selfish capitalists has been incredibly harmful to our mental health, making self-contradictory frauds of too many. Doctors, teachers and public service workers have had to pretend that money is more important than patients or pupils - as it all too manifestly is to Blatcher and his acolytes, personally and politically.

For Brown to get me out on polling day, a major apologia will be required: “I am terribly sorry. I promise not to perpetuate the Nouveau (riche) Labour catastrophe for another day. Like everyone else, I was fooled by Tony.” —Dawn/Guardian Service

State of troubles

PRESIDENT BUSH offered the usual assurances last night about the healthy state of the union, but the state of his presidency has never been worse. He faces a Democratic majority in both chambers of Congress and a public increasingly unhappy about the war in Iraq and disenchanted with his leadership. By the time he delivers next year’s State of the Union address, the primaries will be underway, and Mr Bush’s relevance will be fading. If he is to have a final chance to shape policy, this is it.

For that reason, Mr Bush was probably right to save discussion of foreign policy for the second half of Tuesday night’s speech. At this point, there isn’t much he can do to convince sceptics in Congress or the public about the correctness of his approach in Iraq; the time to craft a policy with more public support and bipartisan agreement passed with Mr Bush’s speech two weeks ago. Mr Bush’s goal was not so much to argue anew for the troop increase but to drive home the point that the “consequences of failure would be grievous and far reaching.” On this, Mr Bush is assuredly correct.

There are more opportunities for bipartisan cooperation domestically, but here what was most significant — and disappointing — was what Mr Bush left off his agenda. Once again, he did not offer a sustained and broad-scale effort to address climate change, instead choosing to treat progress on the issue as just a fortuitous byproduct of his effort to cut gasoline consumption. Similarly, Mr Bush — having tried and failed to reform Social Security, having promised a commission on entitlements in last year’s State of the Union that he never managed to convene — referred only briefly, and without specifics, to the need to tackle the coming explosion in entitlement spending. And at a time when the country could benefit from a serious discussion of the importance of free trade and the parallel need to mitigate the disruptions of globalization, Mr Bush referred just glancingly to trade.

Mr Bush concentrated his pitch on four domestic areas: energy, health care, immigration reform and reauthorization of his signature education measure, the No Child Left Behind Act. —The Washington Post

A retreat on wiretapping?

WHEN the Bush administration announced that it had belatedly put its warrantless wiretapping programmeme under court supervision, its attitude was like that of a traffic officer trying to hurry along bystanders at an accident scene: “Move right along, folks, nothing to look at here.” The administration would like Congress, under its new management, to abandon its efforts to dislodge details about the programme’s operations or to craft legislation to provide a legal framework. Lawmakers don’t seem inclined to simply go away, nor should they.

It may be that the Justice Department has devised what Attorney General Alberto R. Gonzales called a “creative” way to bring the surveillance programme under the procedures of the Foreign Intelligence Surveillance Act (FISA), one that preserves the “speed and agility” that the administration wants while ensuring adequate judicial review, not simply broad-brush, “programmatic” approval for warrantless wiretapping. If so, that would be good news. It’s what we have been saying should happen since the programme was revealed more than a year ago — even as the administration insisted that such a move was neither practically feasible nor legally required.

But there is no way for lawmakers to make a determination about the programme on the basis of information they have and every reason for them to be sceptical of the administration’s assurances, given its previous intransigence. Those who’ve been briefed on the programme have said they still have questions, and they expressed concerns. Rep. Heather A. Wilson said that it “doesn’t have the protections for civil liberties” she believes necessary.

— The Washington Post