Tag Archives: Parliament

Nawaz Sharif: A Statesman or a Compulsive Liar?

It was the afternoon of March 25, 2010. We were waiting for the session convening notification from presidency since the summary requisitioning the Joint session of the parliament had gone to the President at around 11:30 am earlier in the day. Normally it takes only couple of hours that the summary is approved by the President, faxed to the Speaker’s chamber / Secretary to the National Assembly who acts as the presiding officer for the Joint Parliamentary Session.

Why we were waiting for this important fascimile from president’s office was, this joint session had to be a historical one. After more than three decades, the spirit of provincial autonomy and sovereignty of the Parliament had to come back through a parliamentary committee’s recommended Constitutional Reforms Package. This package was to be passed by two third majority of the Houses separately. The reason everyone wa so sure of this much awaited development, to happen on March 25 was that every political player openly expressed its satisfaction over the constitutional package, which so surely appeared as the first ever consensus constitutional amendment document after the 1973 constitution itself.
Continuously in touch my source in the National Assembly, who appeared to be quite bored of my repeated phone calls, I stuck myself to TV Screen and laptop.When finally I contacted Speaker’s chamber directly at around 4:45 pm, for my entrance pass for the historic joint session, I got a rather unexpected answer. The official at the other end of phone line informed me that there’s was no summary for “tomorrow’s joint session” and asked me where did I get the news from, for any such session?

WHAT? Now I was sure there’s something going on in Islamabad, which none of us would be expecting. The summary was moved this morning, and was not only confirmed by our source in PM secretariat, but also couple of senior journalists who cover Parliament since long. We were, unofficially though, confirmed by all these sources that the summary has been faxed to the Presidency at around 11 – 11:30 am. And now Speaker’s Chamber tells us there was no plan for holding the session! What it could be? Despite my repeated attempts to call PML-N mid-level leadership, I could not get them. Confused and disappointed I tried to focus on what I was writing. And heck. There was the ticker going under the newscaster telling that the Session was postponed!

Whatever had happened must be disastrous, I thought. Pakhtunkhwah? But no, only this late morning, an internal meeting of PML-N had unanimously decided to vote for Pakhtunkhwah, according to a private news channel. Then what? The riddle soon was solved by Mian Nawaz Sharif, the Quaid of Muslim League Nawaz who held a press conference at 6 pm only to tell people that his party did not agree with the constitutional amendments the Committee for Constitutional Reforms (CCR) had come up with.

Little did he care for the questions he was evading, that arose from this sudden U-turn. The bizarreness of his pretexts to go back on his own words was so obvious and ugly that one was left wondering about how opportunist Pakistan’s politics had become! Thanks to the frequently coming boots, with the pet food they bring for shortsighted politicians, who are now completely unable to think beyond their petty personal interest.

What I did not understand from Mian sahib’s long face and sore argument, is not one point. Its a whole host of factors that come in.

ONE: He said he and his party did not agree with the constitutional reforms package in toto. The question arises, why couldn’t he and his party members tell this simple fact to the media and the Committee itself? They had consented in letter and spirit less than twenty hours ago and even till 11 am on the day of the press conference. Its a matter of common sense that the Prime Minister had not moved the session requisition summary to the President for the joint session, without taking into confidence biggest opposition party!

TWO: Mian sahib totally evaded the question on the name of Pakhtunkhwah and tilted the controversy towards the mechanism of Judges’ appointment issue. His own party members had on record told the media hours earlier, that the CCR had reached the consensus on Judges’ appointment issue.

THREE: Throughout the day on March 25, prior to the press conference, Islamabad’s offices were echoing with different kinds of news about the internal meeting of PML-N discussing the name of Pakhtunkhwah. There was absolutely no question about the judicial appointments that came to any discussion anywhere. Does that mean Mina Nawaz Sharif was lying with the people when he said in the Press Conference that the only major disagreement was on judicial appointments?

FOUR: In the Press Conference and after wards, Mian Nawaz Sharif kept saying that “the intent of making this committee was mala fide because we wanted to scrap the 17th amendment and the government linked it to other issues, only to delay”. May I remind Mian sahib that the Terms of Reference for the Committee were finalized with mutual consent, which was sought by the Speaker through Leaders of Opposition in national Assembly and the Senate. Secondly, why Mian sahib always choose to be dishonest with people so blatantly? Total scrap of 17th amendment was never in discussion. In fact, it was quite clear what all the parties unanimously agree to keep / remove from the 17th amendment. This amendment has many usefull clauses on which no sane person can disagree. These include reserved seats for women and minorities and voting age of 18 years among many others.

Mian sahib’s selective amnesia doesn’t even allow him to recall that most of Pakistan’s problems emanate from center’s refusal to grant provinces their rights. When he says that scrap of 17th amendment was simple just because it affects him and only him personally, but the provincial autonomy is too complex to discuss because it has no bearing on his person but has far reaching effects on people?

So, may we deduce that Mian sahib was lying to the people when he said that Committee’s linking with overall constitutional amendment was mala fide?

FIVE: Mian sahib in his landmark press conference (for which historian is never going to be able to forgive him if he doesn’t rectify it by immediate action), also said that he had major disagreement on judicial appointments. He was however, not able to tell, what those differences were, and why he did not voice those differences when he gave a go-ahead to the requisitioning of the Joint Session few hours ago? Was he lying to the nation?

SIX: Mian sahib told the media in the press conference that the government has taken out his party’s recommendations from the final document. He could not specify those recommendations niether could his party members in March 26 meeting of the Committee. Was he again, lying to the nation?

SEVEN: In March 26 meeting of the Committee, the members from other parties took PML-N to task and demanded what their reservations were, and why those reservations were not presented to the COmmittee before making them public through the Press Conference. The PML-N members had no answer. A feeble voice from Ahsan Iqbal told that the reservation was about the name of Pakhtunkhwah. Oh well. But Mian sahib in his press conference said it was due to judges appointment!

Are the people gone nuts or the PML-N and its leadership is insulting people by telling as many lies as they can?

EIGHT: Why PML-N thinks that it can override the decision of people’s representatives from the province under discussion? ANP being the overwhelmingly largest supported party in Pakhtunkhwah, had been able to complete the process of consultation at provincial level and brought the decision of the people of Pakhtunkhwah, to the CCR much earlier than March 25 press conference. What moral grounds Punjab’s PML-N has to defy so shamelessly the wishes of the people of Pakhtunkhwah? Is it because Mian sahib’s son in law comes from the non-Pakhtun area of Pakhtunkhwah? Or is it because Mian sahib’s right hand and prominent member of CCR Sardar Mehtab Abbasi is also against the name Pakhtunkhwah? Is the Royal Son In Law more important than the majority of Pakhtunkwah Province?

Is Mian sahib that entangled in personal politics in addition to being a compulsive liar?

NINE: This biggest achievement of current parliament having come up with a consensus document for constitutional reforms, was to give a huge moral boost to the President who had to address the joint session right after the announcement of the package. Was that the reason of Mian sahib’s sudden change of mind? This further is confirmed by March 26 statements of PML-N party leaders who have been asking for presidential address as soon as possible, in accordance with the constitution which asks for presidential address in the beginning of every parliamentary year. is it smart politics?

Is Mian Sahib still not able to learn from his frictional politics of 1990s?

TEN: Mian sahib had been extremely concerned about the Charter of Democracy and President Zardari’s “going back on his words” and “not keeping promises” – whereas one is at loss on making out the details of what promises Mian sahib has been talking about? If it was Judges’ issue, it was resolved as early as March 2009. What other promises he always rants about?

But keeping it aside for a moment, lets come to the charter of democracy. People would be interested to learn, which clauses of the Charter are not being observed by which party? PML-N has been insisting on the mechanism of judges’ appointment in total departure from not only the charter but from all democratic norms of Parliament’s sovereignty and the constitutional guarantee of the separation of powers. Whose agenda is he serving?

ELEVEN: And last but not the least. Mian Nawaz Sharif was much bothered about the constitutional amendment introduced by Pervez Musharraf, but is not moved an inch on the black laws introduced by General Zia ul Haq, the most ferocious of the dictators of Pakistan whose doings have assisted Musharraf in making of the Pakistan what it is today.

Mian sahib was quite passionate about the 17th amendment, and that too, its clause which deals with the presidential power of dissolving the assemblies and the clause that bars third time premiership. But the 8th amendment never occurred to him as the one introduced by a dictator. Why? Is it because that doesn’t hit him personally but hammers the people at large?

Why Mian Nawaz Sharif is doing such a blatantly personal politics? Painting himself as a pious statesmen? Putting himself at highest moral pedestal to point finger on other leaders of this country?

Is Mian Sahib a statesman or a compulsive liar? Why he should not be altogether shunned by the people?


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Filed under My Diaries

Pause, Sirs, and Ponder

This article was written by Pakistan's finest analyst, Mr. I. A. Rehman, for Dawn, published on December 24, 2009


The fact that in its response to the Supreme Court judgment of Dec 16 the nation is divided cannot be denied, and prudence demands that the causes of this division should not be brushed aside without careful scrutiny.

A large section of society believes that Pakistan has become a corruption-free entity and a judicially controlled democracy while a none-too-small section feels deeply hurt. Much can be said for and against both sides.

The hailers are largely guided by their desire to wipe off the shame of becoming one of the most corrupt states in the world. They appear full of zeal for righteousness. However, they will do their cause enormous harm if they fall for the universally repudiated view that the ends always justify the means. The people of Pakistan paid a heavy price for taking this route when they welcomed the usurpation of power by Ayub Khan, Ziaul Haq and Pervez Musharraf.

The wailers are largely moved by the apparent setback to their group. They think the law has been used for a political purpose. They have strong memories of the Tamizuddin and Nusrat Bhutto cases and the judgment against Zulfikar Ali Bhutto. They could be wrong. However, they will do themselves enormous harm if they appear to be defending corrupt persons or practices.

Somewhere between the two extremes stand those who wish to make sure that good intentions do not lead to the dreaded hell. Some of them have a longer record of denouncing corrupt rulers and condemning the NRO than the born-yesterday anti-vice squad. They believe the NRO was a bad law, that it should not have been made, that no one claiming public support should have sought to benefit from it and that those who made this obnoxious law as well as its beneficiaries should pay for their lapses.

According to them the Supreme Court verdict has two parts: one dealing with the NRO, the other with broader themes. They have no quarrel with the first part. They only want to have their fears of the long-term implications of some of the assumptions underlying the court order duly and properly addressed.

The NRO was such an easy target that a single shot (Articles 4, 8 and 25 of the constitution) was enough to demolish it. A fusillade from heavy cannons (Articles 62 (f), 63 (i and p), 89, 175, and 227) has created problems.

The clauses of Articles 62 and 63 cited now constitute part of Ziaul Haq’s arbitrary amendments. They have never been debated by a representative assembly and have been consistently denounced by democratic opinion. It has often been said that the legislatures have not touched them. But this argument should be examined in the context of the circumstances in which the post-Zia assemblies have been elected and the conditions under which the democratic regimes have been allowed to function. Invoking Ziaul Haq’s interpolations in the 1973 constitution, whose revival in its original form is the battle cry of all democratic parties, is like quoting a PCO judge’s ruling before today’s independent judiciary.

Further, reference has again been made to the 'salient features of the constitution, i.e., independence of the judiciary, federalism, parliamentary form of government blended with Islamic provisions' and 'no change in the basic features of the constitution is possible through amendment'. The argument was last heard in May 2000 when 12 judges of the Supreme Court had not only upheld the Pervez Musharraf coup of October 1999 but also allowed him the power to amend the constitution.

Now, the debate over certain parts of a national constitution being outside parliament’s authority to amend them has been going on in Pakistan, India and Bangladesh for over 40 years (Indian Supreme Court verdicts of 1967, 1973 and 1975; Pakistan Supreme Court verdicts of 1963, 1997 and 2000). Professor Conrad, the German scholar who has done much to promote this principle, has succinctly put it thus: 'Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.'

An essential question is: are courts the sole forum for determining the basic or fundamental or salient features of a constitution? In many countries (including Canada, Germany and India) the provisions that cannot be routinely amended by parliament are identified in the constitution itself. This is an issue that calls for a thorough debate.

In any case the issue before the Supreme Court was not an amendment to the constitution that would have attracted the basic features theory. The issue before it was an ordinary presidential ordinance. And for laws and ordinances that conflict with the constitution clear remedies are available.

By invoking Article 227 in the present case the Supreme Court seems to have put Islamic injunctions in command of the whole constitution. Quite a few lawyers argue that this amounts to overruling the court’s judgments in the Hakim Khan (1992) and Kaneez Fatima (1993) cases.

The position as far as a lay writer can understand is this: the power to strike down a law for being repugnant to Islamic injunctions lies with the Federal Shariat Court and no other court. Article 227 only allows the Council of Islamic Ideology to recommend changes in laws on the ground of repugnancy to Islam. The article does not empower any forum to strike down any law. When 17 judges of the highest court invest Article 227 with the power to nullify a law it could amount to constitution-making. It is necessary to dispel the fears that the courts could start striking down any law they consider violative of Islamic injunctions.

Besides, the matter is not one of law alone, it is essentially political. The 'salient features of the constitution' theory has no answer for conflicts between these features — between a parliamentary form of government and Islamic injunctions, for instance. And what will happen to the independence of the judiciary if one accepts the view propounded by many Islamic scholars that in an Islamic order the ameer is the head of all state organs — the executive, the legislature and the judiciary?

One cannot forget the case started by Mr Kaikaus, a former Supreme Court judge, in a Shariat appellate bench but which was dismissed by the Federal Shariat Court on a technical ground. He appealed to the bench but withdrew his plea because he did not think the judges on it were Muslims! Mr Kaikaus had branded the parliamentary form of government, the system of elections, and the existence of political parties as un-Islamic! Fears of many such cases coming up are not groundless. The people of Pakistan have every right to ask whether Ziaul Haq’s agenda has been revived.


Filed under Selection

NROs, Honestly!

NRO collage

These are very interesting times in Pakistan. There are accusers, there are victims, there are spectators, there is a mediator, and there is a decider. All of them, not so clean. But all of them set against the victim for something all of them are the culprits – Corruption! The civil society mainly comprising educated urban middle class is taking a position relatively simplistic, but at higher grounds morally. The media is caught up in their own game, which is mainly catering their business interests and strongly rooted right wing elements within its ranks. Political parties are grasping the opportunity to depose present set up to take its place sooner than they had anticipated. The DECIDER is a bit vengeful, and a bit obliged to the right wingers for their support during former's bad days. So, the whole mesh can be deciphered in one sentence: the accusers are joined by the mediators and deciders to bridle the horses of the victim! This all being purely political, tends to catch on popular morality and sentiment of the have-nots. The spectators, thus, is rolling eyes on whatever is fed to them.

All this mess has translated into an embarrassing situation for those who are at slightly better footings to understand the designs of the infamous. In their bid to decipher the code of this political chess for the masses, they are generally being mistaken as pro-corrupt and favouring corruption. At the risk of being taken as defending them, I'm inclined to record here that all the respectable people who are expressing discontent over the recent NRO verdict, need to be heard for the sake of reason. Whereas the corruption remains a recognized scourge, which has not only almost dissolved the roots of good governance in the country, but has widened the gap between haves and have-nots to an un-bridgeable level. Fighting this malaise should be at the core of any package to deal with over all governance, efficient service delivery to the citizens and economic uplift. Without addressing corruption and misappropriation of public money, no reform agenda can be meaningful and would produce results. 

Having said that, let me also note here that corruption unfortunately, remains a common denominator among all the political and non-political actors. The army, the secret agencies, the lawyers, the judiciary, the political parties (including self righteous religious parties), the business class, the agricultural elite, the professionals including doctors and teachers (we have very high profile personalities from academia who are accused of plagiarism), civil bureaucracy, the society in general at all possible levels – corruption in all shapes, forms, intensities and quantities is there. Some say, this endemic is in our "ghutti" (very small dosage of edible, preferably honey, given to the new born as a tradition in sub continent, thought to have lasting effect on child's future life). When we were born in 1947 as a, probably, NATION, we started our journey towards stability toddling on with highest recorded rate of corruption. The fake Claim documents that most of the newly born Pakistani citizens submitted to the Evacuee Trust, became the Ghutti for this nascent country. 

But this does not necessarily mean, we accept it as the odd order of our lives. We need to fight, as already said, this menace in most stern manner. We have come up as one of the most proud nations who have sacrificed lives and soaked the soil of our motherland with our blood. All for the sake of democracy. We have been fighting frequently invading dictators. People of Pakistan have been winning these wars against dictators proudly since last 62 years of our country's existence. The present victory in terms of winning a democratically elected government is a fruit of people's consistent struggle and sacrifices. Now, when we got it, we need to monitor it carefully in order for it to get strengthened and meaningfully responsive to people's needs. But maturity demands a deeper look into the circumstance our system has gotten in. It is very unfortunate that democracy had to put a common denominator a bit backwards on the list of things to do. NRO had to be taken in order to get rid of a dictator. 

But lets just touch upon various other NROs, which were never written, but were hatched very successfully in the corridors of power for vested interests.Accountability's idea first came to the fertile mind of General Zia ul Haq. And his Ehtasaab obviously meant that of PPP. God's sun witnessed PPP leaders either fleeing the country or languishing in jails and torture cells after brief trials under military and civil courts. This was the time when ehtasaab (accountability) became best tool for intiqaam (revenge), and the tradition went on with no tapering. 

When PPP made government in 1988, a parliamentary Committee, Public Accounts Committee unveiled several dozen names of big politicians who had taken hefty loans and written them off.  The list still exists in the National Assembly record, which is now under the custody of PML-N's Chaudhry Nisar Ali Khan, who gave a landmark statement just yesterday that corruption is as important an issue as is terrorism. I hope media would be responsible enough to urge him to unveil that list once again and hand it over to the worthy Supreme Court. It would be easier for the apex court then, to take on the process of anti-corruption it has taken on.

When Farooq Leghari got rid of Benazir's second government, he very generously made different cases of corruption against BB and Zardari. His interim cabinet tried to make different laws in order to catalyse the process of EHTASAAB. According to Mr. Najam Sethi, the then cabinet member who took care of ehtasaab process, states that a law was proposed by Fakhruddin G. Ibrahim under which the loans defaulters would not be able to contest election. When the list of loans defaulters was submitted by the State Bank, it transpired that loan defaulters were almost all came from Muslim League. Not a single loan was taken by Benazir. Leghari's scheme failed, BB could not come under it, but his only hope, Nawaz Sharif came under it hugely, who threatened to boycott the elections if the list is not taken back. This became another unwritten NRO.  Nawaz Sharif was able to grab power once again under this NRO!

Musharraf came to power after a bloodless coup d'tat in 1999 deposing elected government of Nawaz Sharif. He was arrested and put behind the bars. But something happened and he left the country with bag, baggage and family. This constituted yet another un-written NRO. The deal was sealed, Nawaz Sharif was given what he wanted, lif and enough money to survive. So much so that he was able to set up a steal mill in Jaddah that became a gold mine for him later. Also, we saw a report in Time magazine according to which world's four richest Generals were Pakistanis. One of them being a former Director General ISI, who was labelled by us as a Shaheed for dying with General Zia, in an air crash. If we rely on the memory of Najam Sethi, there was no denial from concerned Generals, or from Army as institution in question.

Now, come to this written NRO, termed infamous, notorious and black law by our very righteous, sagacious and moral media brigade, was issued by Musharraf in October 2007. In all our passion for fighting corruption and getting the culprits face law, we totally forgot that PPP leaders who were "benefited" by NRO were already languishing in jails. Most elongated time was served by the now president Asif Ali Zardari, the one we hate most. Although, we would like him, and all culprits of corruption to face law and get punished, but still, we need to be a bit fair as well. Even if all the cases put together, and even if all the cases are proved against Zardari or other accused leaders, 8 years is life imprisonment. Some of the people have already served more than this term, in jails, that too, in solitary confinement. The question here arises, why should present government not resign after such allegations? The counter question is, why the accusations should be taken as proved crime? If it is made moral question, are these allegations two days old? If not, then this government came into being while the accusations were there. If moral question was not raised during elections, why it has become prime question at this point in time? Why is the recent NRO verdict taken as "proof of corruption"? It certainly does not speak of someone being proven corrupt, all it says is that an Ordinance (called NRO) should not exist because according to court it is repugnant to the spirit of the Constitution of Pakistan. The fall out of this verdict is to be seen. President has a constitutionally granted impunity while other leaders (predominantly from MQM) would face the cases when re-opened. 

Moreover, NRO beneficiaries from PPP were the same when they were elected to public offices in 2008. People who voted for them knew almost everything that our media keeps telling us now. We should indeed start our crusade against corruption, why not with the people, who have neither been tried in any court nor been accused publicly to make them equally responsible for this crime. Why not taking care of those un-written NROs that have always been saved of coming to people's eyes? So that those who are very sure of their practical impunity, should get it loud and clear that they can't fool people any more. These professional loan defaulters have taken the benefit of NRO, in that if the NRO was not there, there would not have elections or coming back of Nawaz Sharif to the country. 

Politics, they say, is the art of possible. You have to make it possible for yourself to be in the game, play your turn and make the score. Here, "be in the game" would mean be able to contest elections; "play your turn" is making your government and making score is prevail on policy and legislation in order to serve the constituent in accordance with the announced manifesto of your party. If you fail the test, you certainly are an ineffective politician who fails the survival of fittest test. PPP tried to make it possible for not only itself, but other major players also. This could only happen if negotiation table is set and the usurper is made to sit on it in front of you. You try to see his cards to make your move. This is how practical politics takes a course different from the business of clergy. The sooner we realize this, the better the democracy will be served in our country. Governance is not going to be assured by penalizing the already penalized. The beauty of democracy is that it filters down unworthy people, only if it is given a chance. 


Filed under Politics

The Octagon of Governance

Published on March 4, 2007

Amid various international country ranking reports where Pakistan is fast approaching the victory stand of corruption, terrorism, lack of accountability, transparency and rule of law despite being a front line state in war against terror, one is inclined to see the larger canvas of overall governance in the country.
The term governance is being increasingly used in the latest development literature, among development professionals and political analysts all over the world. The gospel of governance, in simple terms, is the way where certain decisions are taken (or not taken) and implemented (or not implemented) to manage a society’s political, economic and social affairs. The onus of all the evils of a society is conveniently put on bad governance. Major donors and international financial institutions are basing their loaning and aid strategies in developing countries on the demand from the respective governments for a broader reform agenda ensuring good governance. In the presence of these “chaperons” for good governance, one can still see all the elements that contribute to the worst form of governance in the entire developing generally and in Pakistan particularly.
It becomes imperative to have a closer look at the term and its components in order to discern Pakistan’s performance on this pitch. Good governance, as the Governance Matters Report 2005 of our financial Vatican – the World Bank – warns us, has eight important elements: accountability, transparency, participation, responsiveness, effectiveness & efficiency, inclusiveness, stability and last but not least, rule of law. A steady performance and progress on these eight indicators would make the octagon of governance look balanced and poised.
Accountability – a self explanatory but largely misunderstood and abused term in Pakistan’s context – is a measure of the degree to which people are able to participate in selecting their government, have freedoms of expression and association alongside a free media. The need of making public officials and people’s representatives answerable for government behavior to the entity from which they derive authority can not be overemphasized. In countries with established democratic ethos and strong egalitarian roots, the accountability is ensured by audit covenants at one level and broadly elected legislatures and narrowly conceived committees etc at another. In Pakistan a simulation of democracy is doing the trick. Pakistan’s percentile rank (0 to 100) for accountability in governance among world’s largest populated twenty countries was 12.6 in 2005. Pakistan was fourth country from bottom, while China and Vietnam stood at the base of accountability pyramid. In South Asia, Pakistan was ranked second last among eight countries in 2005. The least accountable governance was carried by Afghanistan.
Transparency, correlated to accountability explains the accessibility of general public to information and government rules, regulations, procedures and decisions. The difficulty with ensuring transparency is that public access to information might very easily be restricted by the same authority that is responsible for providing that information. So, it is crucial to give the freedom of information a legal and legislative cover. Pakistan, having a scarcely envisioned Freedom of Information Act (which never saw itself explored by the parliamentarians on the floor of the House), is not displaying a pleasing picture on this front. With a country average of 16.1, Pakistan stands at the third least transparent country in its governance practices, rules, regulations etc. among South Asian countries closely beating Bangladesh and Afghanistan with country averages of 15.2 and 10.3 respectively. Maldives secures its place as the most transparent country with very tight regulatory framework among eight South Asian countries having a country average for transparency at 66.2 in 2005.
As far as government effectiveness is concerned, it’s a bit tricky to comprehend the concept and its relevance to good governance. As per definition accepted by most international governance assessment institutions, it measures the quality of civil and public service and degree to which both these services are independent from political pressures. It also gauges the quality of policy formulation and process of its implementation along with credibility of government’s commitment to such policies. Pakistan stands at fifth position among eight South Asian countries having a country average for effectiveness of 34 as opposed to Bhutan at number one with 64.6, India at number three with country average of 51.7, Nepal at number seven with 14.3 and Afghanistan at number eight with country average of 9.1. It demonstrates a devious kaleidoscope of political activity related to government effectiveness. Countries like Bhutan and Maldives may show higher averages of government effectiveness on account of being governed by autocracy and / or oligarchy, which leaves little space for non-state actors to dissent government’s actions. Countries with stronger democratic values may show a mid level average like that of India where government’s effectiveness indicators may confront a potent civil society interference. Countries like Nepal for example may show a major diversion and stay at the bottom as far as effectiveness stats are concerned, in the presence of a strong people’s opposition to autocracy. That explains Pakistan’s comparatively higher average compared to other indicators!
Rule of law, an important cornerstone of governance in any country is the measure of the level of social agents’ confidence in and abiding by the rules of society in particular, the value of writ enforcement, the police, the judiciary and the likelihood of crime and violence (we may use the word terrorism complying with emerging international linguistics). Pakistan ranks sixth among eight South Asian countries with a country average at 24.2 compared with Bhutan at number one with 64.7, Maldives at number two at 60, India at number three with an average of 56.4, Sri Lanka at number four with 54.1, Nepal at number five with 25.1, Bangladesh with 19.8 and Afghanistan with 1.4 at numbers seven and eight respectively. A country with greater value for democracy and people’s voices may display foreign and domestic policies with greater mass acceptance. A factor that minimizes people’s concerns resultantly less violent attitudes, more people-friendly policies, greater political and social freedom and social safety nets. All contributing to a just and equitable society thus leading to rule of law.
Conceptually and rationally, all these elements of governance support and reinforce each other. Accountability is related to citizens participation in decision making processes, which in turn is linked to transparency, information openness, government responsiveness to people’s needs and concerns, government efficiency and predictable decision making of autonomous government agencies. Similarly, the transparency and accessibility can not be ensured with out legal frameworks to balance people’s right to information against governments’ right to confidentiality along side a wide institutional acceptance to accountability. Finally, a democratic system facilitates governments to take informed decisions, incorporate people’s interests and voices in policy formulation, a free media to act as autonomous watchdog that props predictable outcome of governance. It, therefore, appears to be an unmistakable reality that the flag of good governance can only be unfurled under the bright sunlight of democratic system. The octagon has to be perfectly figured if soft image of Pakistan is to be popularized!


Filed under Politics

Two Courts, Why Not?

Published on: May 19, 2008

As the judicial imbroglio thickens the air between two coalition partners, the speculative analyses and predictions keep creeping through the op-ed columns and current affairs talk shows on umpteen TV channels in Pakistan. Whatever the analysts say, however serenity and reason PPP leadership tries to bring to the negotiating table, the fact remains that it’s not the dearth of solutions that is leading to uncertainty in reinstatement of judges, its lack of political commitment to do so. The solutions that have came up so far range from an executive order to a constitutional amendment or the act of Parliament. Considering the significant moves on the part of political movers and shakers, it is becoming all the more necessary to reach an upshot as soon as possible. The more time is spent on proving that every proposed way out has more cons than pros, the easier it would be for the anti democratic forces to draw the conclusion that no solution is possible for this political riddle.
The recent proposal, which was instantly denied by the Prime Minister, was that of establishment of two supreme courts. The idea perceptibly seems to be mala fide and an attempt to appease the lawyer / civil society pressure and placate a presidency that is shamelessly being lactated by the world powers. But at the same time, it deserves a serious thinking and analysis. The two Supreme Courts would mean a judicial system that allows the power of constitutional review to concentrate within a single judicial body. This proposal has a history of being in force in various countries of Western Europe alongside new democracies of Eastern Europe; and has displayed a widely accepted version of constitutional protection and control.
The presence of Constitutional courts gives rise to the anomalies of overlapping jurisdiction of Federal Constitutional Court and the supreme civil court, their absence critically contradicts with the principles of sovereignty of parliament and judicial review especially in democracies like Pakistan and India whose constitution remains a major source of this paradox. In India, where no Constitutional Court exists, the constitution has successfully fought back to be the supreme law of the land; in Pakistan, it still is a political instrument that every regime uses to consolidate its power. This fundamental difference in political cultures of both the countries makes them incomparable as far as judicial system is concerned. The emerging democracies in the European world, on the other hand, might offer an attractive judicial package to be replicated here in the backdrop of fierce battle between the state and the judiciary in Pakistan over last one year – a case much similar to postwar Germany when Bundesverfassungsgericht (Federal Constitutional Court) was established.
The German Constitutional Court had to encounter five branches of specialized courts already well established in the pre-Natzi tradition of German judiciary. The specialized courts had to overcome the failure of their immediate past, whereas, the Constitutional Court was offered a considerable chance of success by the climate of postwar reform. If in Pakistan, the existing Supreme Court takes on the jurisdiction of civil, criminal and administrative cases and a new Federal Constitutional Court is established with the mandate of constitutional interpretation, it is expected to correspond well with the democratic tradition of separation of power and centrality of constitution.
It should, however, be kept in mind that developing a commonly accepted model of cohabitation at the supreme judicial level will be extremely difficult and would require stronger political commitment from parliament, the existing Supreme Court as well as from other power players. The answer to fundamental question of distribution of judicial power between the two courts would largely depend on the intent of establishment of such bi-faceted judicial system that divorces American system of diffused judicial review. If the sole objective is to keep one single individual from heading the apex constitutional court, and limiting his power to civil and criminal suits, the new system may lack vision and design to sustain and might not produce popularly desired results.
The apprehensions of some experts, as reported in media over last few days, about the establishment of Constitutional Court in Pakistan weigh much lesser compared to the positives of it. If established on the following lines, the system can, by design, respond to most of the apprehensions:
1. The Federal Constitutional Court (FCC) should be structurally independent with respect to the Executive Branch and to the Supreme Court
2. The FCC should be mandated to develop the concept of direct applicability of the Constitution (including its guarantees of fundamental rights) and to impose that concept on other segments of the judicial branch.
3. Procedures of the constitutional complaints should be such designed that they should extend the applicability of complaints to all the situation involving conflicts with fundamental rights of individual liberty
4. The FCC, while preserving the last word in the wake of a controversy, should not claim a monopoly over application of the Constitution but, rather, should act as a coordinator of that process.
5. The FCC should be vested with the competence to review ordinary statutes and other legal regulations as well as to annul them in case of unconstitutionality or nonconformity with any international instrument to which Pakistan is a party. Such decisions of the FCC should be universally binding i.e., also binding on all other courts, including Supreme Court.
6. Each court (Higher and Supreme) while resolving an individual case should consider whether the statutory provisions based on which the judgment will be give, are in conformity of the constitution or not. In case of a doubt expressed by the complainant or the judge herself about the constitutionality of such provision, the judge should refer that issue to the FCC as a legal question. The decision of FCC should be binding on the other courts to be applied to the case(s).
7. The FCC’s composition should be such that all the provinces and other federating units are equally represented.
While smoothening public opinion on any set of judicial solutions, we need to keep in mind that present crisis has a hidden opportunity – the opportunity of making our judicial system more relevant to a parliamentary democracy and constitutionalism. Change is sometimes uneasy, but it surely bears the fruit of development. And the key to change is . . . let go of fear!


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