THE CONSTITUTION OF PAKISTAN, PARTS I & II:Changing the Constitution

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Lesson 9

THE CONSTITUTION OF PAKISTAN, PARTS I & II

Note: In this handout for students, the text of two short essays originally written in 1999 and published in

book form along with other essays in 2001 are being provided in order to define the contemporary and

contextual framework which immediately preceded the change of government in October 1999.

This handout contains proposals made in 1999 for specific amendments to the Constitution some of which

were actually given effect through the LFO 2002 and the 17th Amendment 2003 but many of which still

remain only in the form of proposals. By reviewing these suggestions, students will hopefully be able to

formulate their own opinions on the advisability of the proposals e.g. the proposal to make voting a

compulsory duty for all adults i.e. all citizens above 18 years of age.

The text below has been published in the book titled: "Storms and Rainbows" by Javed Jabbar published by

Summit Media and Royal Book Company, BG-5, Rex Centre, Zebunnissa Street, Karachi 74400, Tel:

5684244, 5653418, e-mail: royalbook@hotmail.com.

Changing the Constitution

The 1973 Constitution in certain respects is an admirable document. It accurately reflects our basic

aspirations to be a federal, parliamentary democracy in which the overwhelming majority of the people are

Muslim. Part II, the section on fundamental rights and principles of policy, expresses universal norms and

rights. Yet, even in its original form, the Constitution enabled Prime Ministerial dictatorship. It deprived the

Presidency of even symbolic dignity. On the other extreme, after arbitrary amendments, the Constitution

gave the Presidency a sword of Damocles to hang over elected assemblies. Both extremities also weakened

the judiciary.

Seen over the years in which the Constitution has endured, its flaws have become more apparent with each

amendment made to it. In an age that demands optimal decentralization, devolution and deconcentration of

power, the Constitution has been used to achieve the exact opposite. Central executive authority in 1999 has

become unbridled and rapacious. A Rs. 400 billion scheme (the new housing programme) can be launched

without being processed through the National Economic Council, the constitutionally mandated body under

Article 156.

The physical and verbal attack on the Supreme Court committed by the ruling party in November 1997 was a

perversely appropriate expression of the way in which the executive has subverted the independence and

sanctity of the judiciary in both civilian and martial law regimes.

The Constitution has become the slave of an elected group which, with only 16 per cent of the vote, becomes

a two-third majority in the National Assembly. The country lies helpless in the clutches of an elected coterie

and its un-elected cabal.

With the publication of its founding manifesto in September 1998, the Millat Party proposed 21 significant

Constitutional reforms. The central aim of these proposed reforms is to decentralise power to the local

community level and the provinces; strengthen federalism; introduce proportional representation; ensure

substantially increased participation by women, low-income groups, professional specialists, and minorities in

the legislatures; restore the joint electorate while guaranteeing minimal representation for the minorities;

guarantee the autonomy of electronic media, the election commission and the accountability commission;

secure the independence of the judiciary and give the Senate financial powers.

In this essay, this writer in a personal capacity puts forward suggestions for additional amendments in order

to facilitate public debate. In an era of rapid and complex change we are being governed by a Constitution

that has become outmoded and mutilated. It does not reflect the critically important needs that have

emerged in the past two decades.

To recommend a number of Constitutional amendments and changes in laws and rules is like creating a wish-

list. The question arises: how and when can they be implementedand by who? As history shows, time and

circumstance sometimes stimulate swift and entirely unexpected changes. The purpose of specifying

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amendments is to stress their relevance and urgency.

The mechanisms and conditions by which the

amendments can actually be made is a separate issue.

The numbering of Constitutional amendments is, in microcosm, an illustration of the contradictions to which

the document has been subjected. Z.A. Bhutto's Government (December 20, 1971-July 4, 1977) enacted

seven amendments in less than four years.

General Ziaul Haq's misleadingly named "eighth amendment" actually represents 69 amendments made in

1979, 1980, 1981 and largely in March, 1985. The ninth amendment bill (to make the Qur'aan and Shariah

the supreme law) never went beyond the stage of a private member's bill in the Senate. The twelfth

amendment (1991, to create special courts for three years) lapsed in 1994. The fifteenth amendment (the

Shariah Bill) has not yet been taken up by the Senate. The sixteenth amendment extending the job quota

system for a further four decades was enforced in August 1999.

Thus, depending on how the count is done, the Constitution has already been amended about 81 times in 26

years. As for how many times the Constitution is violated, no count can be kept because violations occur

every day at different locations, most often by governments themselves. Herewith a set of proposals for

further amendments to the Constitution and to related statutes.

Non-partisan caretakers: If we are to avoid deepening the present crisis, the provision for a non-partisan

caretaker government becomes the most immediate priority. In a parliamentary system, the government of

the majority party elected in the previous polls has the constitutional right to continue in office, right up to

the holding of the next elections and transfer of power to the incoming government, as in the case of the

United Kingdom and India. However, every country has its own peculiar dynamics. In the historical absence

from our political field of the norms of restraint and balance, an incumbent government that is also a

competitor in the polls is unacceptable.

The conduct of the Muslim League in the1990 caretaker government and in the Punjab local bodies polls in

May and December 1998, shows conclusively that there is absolutely no chance of holding free and fair

elections under a Muslim League government.

For general purposes as well, in view of our record of partisanship, it is essential that a new Constitutional

amendment be made to appoint a truly neutral caretaker government. The Bangladesh model is worthy of

emulation. Formulated in 1991 to facilitate the transition from the ousted Government of President Ershad

to a new parliamentary system, the Bangladesh model provides for a caretaker government to be headed by

the previous chief justice of the Supreme Court and the appointment of entirely non-political individuals to

cabinet office. The provision has already been successfully applied in two elections.

Compulsory enrolment in voters' lists, compulsory attendance at polling stations and compulsory

voting: Through this provision alone does democracy become a genuinely representative process for all adult

citizens of a country. This measure has been implemented with success in countries as diverse as Greece,

Belgium, Singapore and Australia. Those who do not vote in Singapore, for example, pay a fine of about US$

50. Turnout is about 95 per cent plus.

This measure would increase three-fold the turn-out of voters in the 1997 elections which was as low as 37

per cent, and in which the Muslim League obtained only 16 per cent and acquired a misleadingly bogus

"heavy mandate." To accommodate all voters, polling could be staggered over different days as happens in

several countries. Compulsory voting is also an apt expression of good citizenship because it is the duty of

every citizen to make a practical contribution to the country's political process and progress.

We have a Parliament without meaningful participation. The leadership treats the legislature as an occasional

convenience to be visited only on occasions such as budget day or when a bill has a particular personal or

party interest to it. There is a need to introduce a set of checks and balances that will also serve as indicators

of parliamentary participation and performance.

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Amendments to ensure accountability of the ruling party should include: A weekly "Prime Minister's

Question Hour" to guarantee that the chief executive of the government will be personally present in both

houses of Parliament at least once every week for at least 60 minutes to directly answer questions put to him

alone by the leader of the opposition. As in several Central American and Latin American countries, there

should be prior approval by Parliament of planned overseas visits by the Prime Minister in order to

drastically curtail the large number of ceremonial, non-productive overseas junkets. Majority parties held

captive by leaderships are liable to rubber-stamp anything they are commanded to do. But just the increased

exposure of plans and objectives of overseas visits will help discourage frivolous and wasteful travel.

In most sittings, of Parliament even a ruling party like the present one with a two-third majority has difficulty

in ensuring a quorum. To avoid such ills, an amendment should be made to ensure that if an elected

representative misses three consecutive sittings of a session other than for serious health reasons, he should

be liable for a heavy fine and/or suspension of membership and/or termination of membership. Instead of

termination of membership leading to a by-election in which the same ousted member may be re-elected, a

strong disincentive can be introduced to the effect that, after a fine and termination of the sitting member's

membership, the candidate who secured the second highest votes in the constituency will automatically be

given the seat, in place of the original winner who has not shown interest in regular attendance of the House.

Live uninterrupted, uncensored telecast and broadcast of all the proceedings of both Houses of

Parliament and Provincial legislatures on separate and exclusive radio and TV channels. The people can

monitor the level and quality of participation by their representatives. The volume of public knowledge and

discourse on political and development issues will be expanded.

Publication and broadcast by the media on a monthly/quarterly basis of the attendance and

participation record of all members of Parliament in a manner similar to the way in which the

performance of players in different sports and in different aspects of each sport is tabulated and published on

the sports pages of newspapers.

End the system of counting the weekend holidays of Saturday and Sunday occurring during a session of either

House of Parliament as "working days" in order to increase the number of actual working days of the

legislatures. Currently, a significant percentage of the total working days of Parliament is actually non-working

holidays misleadingly counted as "working days".

A minimal educational level be required for election to Parliament notwithstanding the fact that merely

obtaining a degree is not a guarantee of knowledge or competence but because a degree at least becomes an

additional requirement for election. This would promote the value of educational qualification in the political

sphere.

A six-monthly public notification of the income, assets and liabilities of the members of legislatures along

with similar details of all their family members so as to curb tendencies towards corruption.

A directly elected Senate: An equal number of directly elected senators from all four provinces would

greatly strengthen the principle of federalism and redress the weakness of an indirectly elected forum

representing the federal principle. The relative disadvantage to which the more populous Punjab would be

subjected could, as at present, be rectified by the members of the National Assembly being elected on the

basis of population.

Simultaneous elections: Elections to all legislatures, including the Senate, should be held simultaneously to

end the anomaly by which the timing of elections to one-third of the Senate seats which become vacant every

three years are held with general elections. Simultaneous polls are held in the United States for all federal

legislatures.

Performance audit: Perhaps the most innovative amendment required to the existing Constitution is to

create a mechanism that serves as a 12-monthly "performance audit" of the Federal government and the four

Provincial governments. Traditionally, the passage of the annual budget is supposed to serve as a periodic

test but the budget is a bull-dozer of numbers alone. A new and more precisely focused check and balance

has become vitally necessary. Such an audit should be independent of the majority factor. The present

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Government has used its heavy mandate as a blank cheque issued by the voters to impose unconstitutional

and undemocratic injustices upon the nation. It has created a dangerous precedent that should never be

repeated. If a government fails the proposed audit process twice, it should automatically be subject to

removal from office.

One of the ways to conduct a performance audit of a government could be the adoption of an objectively

formulated, mathematically calculated "Government Performance Index" (GPI) on the lines of the

internationally acknowledged Human Development Index (HDI) and other similar indices.

An interesting new model was created recently by the Mahbub ul Haq Centre for Human Development in

Islamabad with the name of: "Humane Governance Index." (HGI) Details are available in the 1999 report

of the centre on the subject of "The Crisis of Governance."

Viewed through three dimensions of economic, political and civic governance, the HGI uses 17 indicators

ranging from fiscal management to corruption of enforcement of law and order to freedom of expression to

respect for rule of law. Of 58 countries analysed, Pakistan ranks near the bottom at 54. The website of the

Mahbub ul Haq Human Development Centre in Islamabad is: www.un.org.pk/hdc, e-mail address:

kh@hdc.isb.sdnpk.org.

Parallel to a mechanism within the Constitution, an attempt should be made to establish a civil society

mechanism outside Parliament to maintain a rigorous scrutiny of government and Parliament, a scrutiny

that is also independent of the media. The close association of proprietors of certain media, including

newspapers and private radio/TV with the ruling party, distorts the independence and credibility of the media

and reduces the capacity of media to serve as a non-partisan watch-dog over Parliament and government.

A new coalition of forces is needed in Pakistan today, a coming together of sectors, segments and spheres

across conventional divisions. We require a new alignment of cadres, classes and communities to recognize

that the grave perils which face our country demand a matching response of will and vision, of a commitment

to democracy that transcends the stunted Constitution with which we muddle on. Substantive and

comprehensive amendments have become an inescapable imperative to ensure our survival and development

as a progressive nation State.

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