Why not a well thought out constitution?

A few years ago, I had argued in my book Governance, Economic Policy and reform in Pakistan, that the framers of our constitution were unduly enamored of Westminster-style democracy and hence adopt it without adequate thought and debate. Excessive power is concentrate in the hands of the prime minister in the Westminster system. This is dangerous in countries with limited institutional development such as Pakistan. It is more dangerous in this era of powerful economic states, where the state can tax, print money and borrow domestically and overseas on behalf of the people. We have seen in Pakistan how ruthless leader use economic largesse of the state to buy short term political favors only to saddle the people with long term costs.
Four elections have been conducted under this constitution since the last martial law. The current major parties and their leaders have been given two chances each and both have not acquitted themselves well. The prime minister of the day, and his or her relatives, always assume more power than is good for the country. The incumbent government runs roughshod over parliament, provincial governments, and even the financial system. All governments have robbed the financial system directly and indirectly. The exchequer remains perennially poor because of the spendthrift mature of government and the manner in which the politically powerful refuse to pay any taxes. The country, its economy, its institutions, and its cities are all crying out for attention from the government in terms of legislation, management of resources and provision of services -- but all in vain.

The prime minister makes all executive and judicial appointments, buys legislators and any opposition elements by means of unlimited cabinet expansions, numerous public sector jobs or contracts. The resources of the state both current and future, are at the disposal of the prime minister to do with as he or she pleases with no check from any quarter. The rumors of corruption have increased exponentially with each succeeding government. There are no innate rights of the citizen for we have no bill of rights. The supremacy of voter is limited by the fact that any whatever the voter is able to eke out of the system is only made possible by being on the correct side of the executive and its minions. All voters, therefore, would like to be with the winning side. The key leaders in every locality are co-opted in the corruption of the system.
The leader of the house needs no skill for running the government since the power that he or she has gained has not resulted from exhibiting the ability to run a government. What is needed is the political wheeling and dealing that enables duration of power. As a result, we have seen the average education of the cabinet declining sharply. With this decline has come the general decline in professionalism. It is not surprising now to find those at the helm of affairs in the bureaucracy and in key public sector institutions qualifying only because do their friendship or relationship with the incumbent of the day. The lack of professionalism is leading to a situation where their burden on the exchequer is large. Money is diverted to these institutions away from other useful causes -- education, health, urban uplift etc. The suspicion that the resources of the nation are all flowing into private coffers of the leaders has increased with each succeeding government.

Is it a wonder that Karachi burns to the oblivion of our leaders? The Fundamentalists are subverting the modernization of the country so necessary to Pakistan taking its rightful place in the new globalized world! An invisible government is rumored to be in place shattering all confidence in the country. Is it not clear to anyone who looks carefully at the situation that for responsible government, we must amend our constitutional arrangements? Should not the concentration of power in the hands of the prime minister be reduced? Do we not need incentives as well as checks and balances to induce suitably qualified people to enter, and perform appropriately, when in public service? Could some of our problems not have arisen from out ready acceptance of the constitutional arrangements of our colonial masters?

It is interesting to note that England Under Tony Blair has been debating constitutional and government reform intensely. This has led to a growing desire in Britain to for a reform of their constitutional arrangements. The Economist noted a few years back that "the [British] constitution is antiquated and anti-democratic. Britain’s government is over-centralized and insufficiently accountable."

The British constitution was based on two fundamental principles: the absolute sovereignty of parliament and the rule of the law. There is an inherent contradiction in this description. A truly sovereign parliament would be unconstrained even by the rule of law which is would be free to change at any time... and party discipline in the commons has meant that, most of the time, real sovereignty has rested, with the cabinet. A leading authority claims, "the Creation of quangos and independent government agencies, instead of devolving managerial power as intended has merely stuffed the public administration with political appointees, and has so tangled lines of accountability that it is now almost impossible to pin the responsibility on anyone when something goes wrong".

The British constitution is unwritten and based on a number of historical precedents, conventions and institutions that check the power of the cabinet and prime minister. All the changes now proposed by the reformers-- written constitution, bill of rights, devolved assemblies, proportional representation, an elected second chamber-- are directed at a single goal: dispersing power through Britain’s political system. A recent poll conducted by the Rowntree foundation shows that Britons favor a written constitution that limits the powers of the government by a bill of rights, and a government that is more open and subject to direct democracy. In this poll, 79% favored a written constitution, 79 % wanted a bill of rights, 81% wanted a freedom of information act, and 77% percent wanted a more frequent use of referendums.

If the constitution in Britain is in need of reform, is it not a signal for us that we made a mistake? Are these not questions that we should like the Britons be debating hotly in our country.


There is a large body of literature on constitutional design that we should learn from. The constitution is the fundamental framework within which all civic, social, economic and political activity takes place.

Economists contend that they have a particular advantage in writing the constitution. This is based on the following precept:
While the constitution needs to vest state power in state institutions, it must be sensitive to the need for maximizing the freedoms of citizens while curbing the powers of those in charge of state institutions and making these institutions work for the common weal.

This can only be done if the constitution openly recognizes that all humans are selfish and if given a chance will abuse power and privilege. A viable constitution must therefore be strict enough to deter such abusive behavior. Even the American founding fathers had learnt that the constitution must written in a manner that diffuses power through the system and build in checks and balances that will ensure that no one individual can concentrate all state power within herself.
In Pakistan, we have not made a successful transition to democracy. Although we have had elections, the results can hardly be considered to be satisfactory since our elected representatives remain the same old faces that have been thriving through democracy and dictatorship. The oligarchy in Pakistan has ensured that some member of their family remains in power no matter which form of government prevails. No fresh bloods, nor any new ideas, have been allowed to enter the election process.

The level of politics remains much the same. The political parties are little more than alliances of the oligarchy that have been formed for the sole purpose of retaining power in some form or the other. Issues and ideas are not discussed on any political platform nor is a division in the Assembly or among the parties along ideological or rational lines. Votes both inside and outside the legislatures are being bought. Allegiances continue to be switched not because a major issue of public interest is involved but only because of narrow self interest. Cabinet and other positions are not being awarded according to merit or the ability of the individual to perform. These positions are rewards to be handed out by the government. The politicians appear to lack an understanding of the central concept of democracy that they have been elected for a reason to run the country on behalf of the people as their representatives. The only purpose that the politicians appear to have is to make as large a personal fortune for themselves as possible. This is certainly not democracy.

Elections are an integral part of democracy but by themselves they are not sufficient to bring about democracy. However, elections are but one element of democracy. Elections alone will not enforce responsible government. To ensure responsible, representative government that a country needs, constitutional and other legal provisions need to be put in place in the context of an institutional framework that will enforce these provisions. It must be remembered that democracy is the name given to a system where people elect representatives for the running of their affairs within a defined legal and constitutional framework. The framework must, however, be clearly defined, and continuously evolved, to induce responsible behavior. Moreover, there must be a clear willingness on the part of the people to enforce the rules that have been laid down.

It should be remembered that the mere aping of Westminster is not enough to ensure democracy. English parliamentary democracy evolved over a period of a few hundred years and had its own share of growing pains as is evidenced by the long struggles for the various reforms of parliament. It is deeply rooted in the English tradition which evolved alongside the parliamentary form of government. For example, crossing party lines in England is a matter of considerable social censure and voter approbation. Consequently, the framers of our constitution did us a considerable harm in merely copying Westminster without additional safeguards. A more careful scrutiny of the American constitution would have done them some good in terms of framing a constitution. If we had to adopt a constitution wholesale, we would have done better to adopt the American constitution since it has been designed with numerous built in checks and balances and safeguards.
We have to arrive at a system of representative government where individuals best suited to, and most capable of, representing the interests of the people are elected. Moreover, we have to ensure that when elected, these representatives will act in a manner most suitable to the interests of the people. Consequently, rules have to be put in place that will allow
capable people to come forward, and induce them to behave in a manner consistent with their mandate.

If we do this, then we would have democracy. Some such suggestions that could easily be adopted are (though by no means is this a complete list):

1. Limit government patronage positions. The size of the cabinet and other positions that the government can dole out to the legislature should be limited by constitution. Experience has shown that the government uses its ability to expand the cabinet only to purchase votes. The creation of another minister’s position should require considerable parliamentary review as it requires expenditure of resources.

2. Key institutions must be autonomous: the legislature, regulatory bodies, watchdog institutions and the judiciary must be totally independent of the executive. This independence must be jealously guarded and maintained by independent boards to prevent capture by the executive. The Prime Minister or the president must not be the sole appointing authority for all key positions of responsibility in such autonomous agencies.

3. Confirmation of appointments by parliament. Ministerial, judicial and senior civilian appointments must be reviewed by the senate or open committee to ensure the fitness of a candidate for the position. Such a review process will ensure that the candidate is competent to handle the job and has had occasion to develop some thoughts and ideas that are in the public interest, and that the candidate has a moral character that conducive to the job i.e., he will not be preoccupied only with rent seeking activities. The review will also reveal the ability of our representatives to research issues of policy importance.

4. Definition of a political party: The term political party must be properly defined to prevent just any one from forming a party in his or her living room. Clearly a party must have distributed program, a minimum membership that shows national character, well-defined internal governance structures including the completion of periodic elections and open party conventions. Perhaps a requirement of a minimum voter support by some registration process would show that the party has broad support. At election time all parties should be required to pledge rather a large deposit which would be forfeit if a certain number of its candidates have not been successful in elections. Of course this would place some hardship on a party if it had membership mainly of the poor and dispossessed. But one has to only see that the current system too has ruled out the poor and dispossessed because election remains a game for the rich because of the prize of rents that the successful candidate collects.

5. Public information on candidates and parties: All candidates and all parties should be required to maintain open accounts for life. Their tax returns and any direct and indirect financial interests should at all times be public information. This is the case in the US and a very good system.
Candidates, especially the successful ones, must show an acceptable distance from any business interests that they might have. Recall that The US Secretary of State, Baker, had to give up some share of a Bank that he had inherited from his grandfather years ago because of a possible conflict of interest. We should also require equally tough laws to constrain the avarice of our candidates.

6. Ensuring the role of the opposition. Much of the antagonism in our politics arises from the monopoly on power and patronage by the party in power. There is no reason to base democracy on such antagonism merely because it evolved in that manner in England. It is easy to conceive of ways in which the two parties can be forced to cooperate and also limit the monopoly on patronage, which is so obviously corrupting. For example, on key appointments and committees, the constitution could require either an agreement or going back to the vote or a referendum.

7. Public debates: The country must be weaned away from street politicking to more mature, issue oriented media politics. State-owned media is obviously open to manipulation. As a means to strengthen democracy, the media should immediately be privatized and a healthy competition free of government intervention should be allowed in this sector.

8. Watchdogs of democracy: In a well functioning democracy the main watchdog as well as a guardian of democracy is an independent judiciary. As a consequence, the first step should be a reform that ensures the independence of the judiciary. If such independence is to be attained, we have to have some form of lifetime appointments to the Supreme Court or a proviso that there can be no government appointment after retirement from the Supreme Court. The carrots of offices like the ombudsman or the Chief Election Commissioner for retired judges have to be seen merely as mechanisms to subvert the independence of the judiciary.

In addition the election commission should work as an independent entity. Along with the office of the ombudsman, it should be required to present an annual report on the state of democracy, containing:
a. Issues related to the election process and democracy

b. The role of the parliament in legislating and watching over the executive; and

c. The conduct of the MNA’s and other politicians. The report must present analyses of individual MNA’s behaviour (eg. their attendance and voting records). A minimum attendance requirement for MNA’s should be enacted. They have sought a job and must now perform in it.

The private sector, too should play a role in watching over the democratic process signifying its stake in democracy. It could establish a standing committee for the review of democracy which would be funded and fully backed by the various professional and interest groups in the country but run independently of those groups. This committee could function as an independent watchdog for the democratic process.

9. Reform of government institutions: Democracy cannot be achieved merely by means of casting of votes and imposing an elected government. The institutions of government such as the civil service, police, and judiciary, should be reformed to be more responsive to the needs of the people. These services are the prime responsibility of the government and they should be well run and cost effective. As much as possible such a reform should be based on the notion of decentralized government and a government that lacks the ability to bestow political and financial favors.

10. Term limits. Many countries have experimented with mandating term limits for offices to ensure that new people and new ideas are always allowed entry into the system. In Pakistan where the electorate is virtually owned by politicians through certain feudal traditions, such a measure might be very useful to ensuring that turnover among politicians.

Ideas such as this need to be seriously considered to design a constitution that is in keeping with the sound principles of inducing good leadership to come forth. As usual it is my fervent hope that there will be vigorous debate on constitutional reform. Unless we do that, we are ensuring once again such reform to be secretly put in place by some bureaucrats and politicians who wish to retain power.