Why not a well thought out constitution?

Sridhar wrote``I feel like i am talking to a school kid!``
I am amazed that you we cannot discuss without hurling insults! Why?

He also noted that
``And, who is going to bring the said reforms? The Army? You need to first elect leaders who feel they are answerable to the common man. Such elected leaders wil then formulate policies to bring about the needed reforms in judiciary, civil structure etc. Army is not going to bring such changes.``

I might add that reforms are never brought about by anyone. Reforms mean that the current ruling group have to give up something and they will not unless the time and the mood of the ocutnry requires it. The army or for that matter the upper class will never shange unless they are required to. That will only happen when people and civil society require those changes.

By discussing such ideas widely and creatign some form of ownership, we put pressure on our future leaders-whether from army or not

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to take these reform ideas seriously.

Think about it. In discussions with Americans we are careful about throwing imsults. Yet among ourselves we are childishly insulting. Why? Because the American culture does not accept it.

Its such tyranny with the country, people and their institutions that democracy has been hijacking since its birth. Its a miracle that without any strong political party and leaders, Pakistan survived all through the hard times and still going same. Its Pakistan`s hard luck that it couldnt get any strong political base since beginning, and those who were popular among people were sidelined by power-hungers.
Started from Ayub to Musharraf, its crystal clear that Pakistan doesnt need anyone from Forces to rule the country and that its not thier business to take over every now and then wheneve they want. If at one hand they have controls over the decisions, likes and dislikes for political parties/leaders then why not just staying out of power controlling the puppet parties.
At this point, I`d also point out PML and religious parties who are always hand in hand with army to demolish the democratic and elected governments and denying their own purpose of being.
The credit goes to Zulfiqar Bhutto for a constitution accepted by all the parties and prominent political figures regardless of any baseless allegations/boycotts and credit goes to Zia for destroying it according to his own wishes. It should be noted that change in constitution by an elected government and by a dictator is like two banks of river, opposite.
I hope that atleast we would learn some lesson from neighbour countries otherwise, chulu-bher paani me doob marney ka muqaam hai.

Mr. Labyrinth

Maleeha Lodhi is a woman until the last news arrived. Anyone who sees bright prospects with current constitution must have had a sex change operation

re: this article
As many other writers from Pak, this writer is clueless about a lot of things.
What are we discussing here? That Pak should have a different kind of constitution? Why did the previous one not work? The answer is simple: because it was used as a tissue paper by many parties concerned. Army did not respect it, the feudalistic leaders did not think it was important. Zia tampered with it and included the Islamic clause into it. In short, if the people do not respect a constitution, it does not matter what kind of constitution u have.


The author says: ``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,...``.
Pray, tell us how Pak is to have an independent judiciary?
Supreme court interprets and safeguards the rights enshrined in the constitution. When Nawaz Sharief was the PM, his goons invaded the Supreme Court to settle a dispute. Many other times, the freedom of the court has been tampered with in Pak. When such is the situation, how does it matter what kind of constitution Pak has?

``Elections are an integral part of democracy but by themselves they are not sufficient to bring about democracy.``
This is utter nonsense.
Regular, fair elections are an important feature of any democrazy. This is the first thing Pak needs to bring about a ``true democrazy``. This has not happened so far in Pak.
The fact is , Paki elite do not seem to want to be subservient to the people, which is what democrazy is all about. In any form of democrazy (Parliamentary or Presidential), the ultimate power lies with the people. The manner in which the leaders are chosen (through elections) may differ but the ultimate power is with the people. One can do nothing about it. In India, some may not like to see Lalloo Yadav as a cabinet minister but he has earned it and there is nothing one can do about it.
Paki elite have not given the democrazy a breathing space that it needs to flourish. Army has subverted the process when it has suited it. Feudals who were elected democratically have proved to be bad leaders but then they could have been discarded by the same process by which they were elected. For eg. NS was elected last time around by 2/3 rds majority but was dismissed by the Army when he crossed swords with Mushy. So, who was the ultimate power here? Army or the PM? People of course applauded when Mushy overthrew NS, forgetting completely that democrazy has been subverted in the process.

So, why shed crocodile tears now and then. This is kind of peculiar habit with the educated class of Pak (including the author). If majority of the people in Pak really want democrazy, they can start by kicking Mushy`s A$$ until he goes back to the barracks and takes his Army with it.
This, of course won`t happen and Pak will never have a true democrazy (where the power rests with the people). So, all discussion about democrazy in Pak in this or any other forum is just academic.
Sridhar

re: American versus British constitution
India chose the British model, made modifications to suit its needs and also liberally borrowed ideas from the American and the French constitution, with the result Indian Constitution is the bulkiest one in the world, with the added feature of Directive Principles that some others lack.
The main thing is to draw a constitution to suit a country`s needs. Since Pak and India came out of the same situation and one has a flourishing democrazy and the other, a dictatorship masquerading as a democrazy, it would have been good if the author of this article had drawn some lessons from this fact.
Why is there no democrazy in Pak while India has it? Perhaps answer to this question could also offer solution to Pak`s problems.
Pak did not copy the British model. It was just thrust on it. I find author`s following statement rather amusing:
``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``.
Let Pakis not delude themselves. Britain is in a different league. It has a functioning democrazy for many centuries now. Pakis do not even have a democrazy! They need to draw whatever conclusions they need to based on their own experiences and not based on what British are saying. Is this writer a moron or what!

``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.``
And, who is going to bring the said reforms? The Army? You need to first elect leaders who feel they are answerable to the common man. Such elected leaders wil then formulate policies to bring about the needed reforms in judiciary, civil structure etc. Army is not going to bring such changes.
I feel like i am talking to a school kid!
Sridhar

My comments: I`ll try to be brief ..

I think a crucial flaw in the arguments presented by this writer: the american constitution example misses a crucial point, while Pakistan may be perceived to be a quasi presidential system that is not the case, in the US system civilian oversight plays a big role in government, and more importantly you have a powerful upper house which protects the rights of the states against the rue of the majority. Pakistan does not have that, the senate has limited powers and although that has changed thanks to Musharrafs intorduction of pasisng the finance bill through the senate, the senate being indirectly elected is essentially a place for loyalists or rich people.

A rule of thumb in Pakistan, whenever you have indirect elections, you create an electoral college which is easy to manipulate and prone to horse trading. At all times direct elections should be preferred. Another rule of thumb is that the solution to Pakistan`s poltical classes tendency to rig elections is to remove executive appointments of the CEC, another suggestion is to have more elections and reduce the terms of the government. The standard term should only be 4 years and the provinces should not have elections at the same time, so half way through each term two of the provinces should be in an election cycle. And so should a direct election to the senate through a PR system be every 3 years.

Other important points: Devolve power to the provinces leaving with the federal government ONLY, Defence, communication, Foreign Affairs and fiannce, give the provinces taxation and collection powers over all taxes except income, customs, sales, and turn over.

Merge the Tribal areas with NWFP and create a 5th province out of the Northern areas, Chitral and Kohistan.

All non elected appointments should be senate ratifiable.

Also create shadow cabinets in the provinces so as to give the opposition room to develop alternative policies, and transfer PAC`s to the opposition. At all times respect the popular mandate that means you invite the largest party to form the government even if it may not win a vote of confidence.

While I appreciate the anecdote about Maliha and the comments on the American consitution, this comment has little to do with the article.

There are specific proposals here that draw upon the constitutional literature that need discussion.

All good consitutions are based on the notion that ``power corrupts.`` Consitutions are supposed to limit unbridled power. That is why the US consitution stresses serparation and puts in place other checks on the executive.

The length of the document is irrelevant. The article does point to fundamental flaws in our consitution which need to be addressed. Merely shifting the power from the president to teh PM will not do. No one person must combine all three function. We have known this principle sicne Montesqieu. I think Mr. Bhutto who pushed through our constitution ignored it. In keeping with that traditon, the generals too are ignoring the need to seperate hte 3 organs of the state.

The proposals presented here will do just that separate the three functions and make the executive less powerful.

TO # 1. The only way to get rid of the Khaki is to develop alternaive ideas. Right now the poor quality of the debate is civil society makes them think that all knowledge resides in the National Defense College.

A couple of weeks ago, I was at a dinner featuring the ambassador Dr. Maleeha Lodhi. After her speech, a very heated question and answer session began as a member of the audience disagreed strongly with her optimistic view of democracy’s prospects in Pakistan. He pointed out that the American system, with a very explicit separation of powers, has been extremely successful, while Pakistan’s constitution has failed over the last 50 years to create a stable system. Although this guest did not explicitly say so, it was my impression that he felt Pakistan’s system was inherently flawed, and would never be able to succeed. It is interesting therefore to compare the Constitution of Pakistan and America, as they are quite obviously two very different documents.

America’s constitution dates from 1789, when the former colonies agreed on a strong central government rather than the loose confederation that had existed since the defeat of the British in 1781. It has withstood the test of time, with a mere 17 amendments along with the Bill of Rights having been added since then. There are two things that stand out about the US Constitution. The first is its sparseness. It is a very brief document with powerful ideas expressed in the most compact way possible. For example, the freedom of religion in America rests on the short phrase, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Schoolchildren can easily read and understand the US Constitution, and in fact are made to do so in high school social studies classes. The entire document consists of 7 articles, the Bill of Rights, and 17 short amendments.

The other salient feature of the American document is its clear three-way separation of powers. Three independent branches of government are created. An executive branch is headed by a directly elected President, while all legislation is generated by a separate Congress divided into two houses, and the Federal Courts are filled by judges with lifetime appointments. They get there by being nominated by the President and later confirmed by the Congress. Certainly there is much to admire in this system, but does the wisdom of this arrangement make it foolproof?

Compare the US document to its Pakistani counterpart. Pakistan’s Constitution dates from 1973, and contains over 250 articles with about 15 amendments in less than 30 years. Pakistan has a parliamentary system, in which the dominant coalition in Parliament assumes both executive and legislative power. The leader of that coalition is the Prime Minister. But Pakistan also has the office of the President, who is elected to a five-year term by the votes of the National Assembly and a weighted vote of the Provincial Assemblies. The President has the right to nominate the judges for the Supreme Court, and before the Article was stricken by the last Sharif government, had the power to dismiss the government and order new elections.

One of the flaws of the Pakistani system is this strange role afforded to the President. If the President is supposed to be a symbolic head of state who projects national unity, as occurs in many other nations, then he should not have this degree of political power. But if he is to wield this much power, then the position should be directly elected by the people of Pakistan, and not be the result of backroom deals between MNA’s.

Where the American document is sparse, the Pakistani document spells out all sorts of details of government. One provision specifies which city the Supreme Court may sit in, and another describes how to deal with fractional votes during an election of President. All sorts of rights and obligations are handled with the language of legal statutes in great detail. This begs the question, why?

The answer goes to the heart of what the gentleman was debating about with the ambassador. What the US and Pakistani Constitution betray is the trust each nation places in its own political class. The US document is sparse, because Americans can trust their leaders to subscribe to and fulfill the spirit and intent of the document. The Pakistani version is so cumbersome and legalistic because there is no trust of the political class not to subvert the Constitution’s basic spirit. If the American Congress so desired it could create great havoc. It has a very broad power of impeachment. It can cut off the funds that pay for the electric bill in the White House if it so chooses. The lifetime appointed Supreme Court justices are free to do anything bizarre that strikes that small group of 9. And the President could order the arrest of the Congress (there is no parliamentary immunity in the US system), and defy the orders of the US Supreme Court with impunity. What makes the American system work, even when branches of government are controlled by bitter political enemies, is the inherent goodwill and sense of limit that all in politics subscribe to. President Franklin Roosevelt, at the height of his power and popularity, tried to subvert the Supreme Court in 1937, and was roundly defeated.
Pakistan’s political class cannot be trusted. That is why this unwieldy Constitution was created. Britain has one of the world’s most successful democracies, and has no written constitution at all. It is not Pakistan’s lack of a decent prescription that has prevented it from having political health, but rather its failure to take the medicine.

Samad:

...simple si baat!

...one can have the best of laws on paper...(most of the present laws need only minor tweaking) but where will one find the people (and the institutionts) to implement them?

...there is a group of people in power ( no i won`t mention the colour of their unifrom;)) that will bend, divert, hijack the best written laws to serve its interests...

...until that is fixed...the basic institutions will continue to fumble and wither...

rgds,

t