Sanitising the constitution

Published in The News International on April 09, 2010:

The 18th Amendment Bill is being widely hailed for repealing some of the distortions introduced in the Constitution in previous years under military rule and for returning the parliamentary form of democracy closer to its truer shade in Pakistan. A multi-partisan consultative process has enabled a consensus over a set of provisions amongst political actors, who came to the negotiating table with diverse ideologies and motivations. Commendations are, therefore, due to the team that led the process. However, there are many caveats in relation to the way forward. Significant as it may be, the amendment is not a panacea for the country’s ailing governance. It is critical that the quantum of changes in the structure of the state envisaged through the amendment and the imperatives that these create for follow-up actions needed for transforming the style of governance, are appreciated. I have attempted to flag six points in this regard.
First, with the 18th Amendment, the pendulum of power will move from the presidency towards the prime minister, as it should indeed be the case in a parliamentary system of government. However, it would be critical to ensure that there are institutional checks on the prime minister’s powers. As ‘fusion of powers’ is characteristic of parliamentary systems—in the sense that the executive, which consists of the prime minister and the cabinet, are drawn from the legislature—the need for institutional checks and balances becomes all the more important. We must also recall the generic weaknesses of the parliamentary form of government and examine if/how they are impacting our parliamentary system. Although the latter is widely recognized as being both responsive and responsible, some internationally recognized weaknesses of the parliamentary form of government should be brought to bear. The parliamentary system runs best in a two party-system. However, when no party commands an absolute majority and when coalitions are formed—as is presently the case in Pakistan—governments are seen fire-fighting most of the time. Lack of the needed far-sighted and consistent stance on many policies is, therefore, not just a limitation of capacity within Pakistan’s system and shortsighted motivations of its policymakers, but also a limitation of its parliamentary system—a weakness the pendulum swing cannot address. There are many dire imperatives for ensuring consistency in policy direction in Pakistan, particularly from a national security standpoint—a point I have attempted to highlight in these columns on April 3. Now that the sword is no longer hanging on the parliament, it should turn its attention to these substantive issues and the constraints implicit in party antagonism and tenuous coalitions. It is imperative to create space for a working relationship within the current political and democratic dispensation that can work in the interest of the state and its people.

Secondly, the government appears to accord high priority to provincial autonomy on its agenda. After pronouncing the Balochistan package, carving Gilgit-Baltistan as a separate province and negotiating the National Finance Commission Award, the 18th Amendment Bill has abolished the Concurrent List and has revitalized the Council of Common Interests. The government uses the jargon ‘participatory federalism’ for its policy stance in this area. There is no denying that provincial autonomy can be the foundation of a strong federation and the government’s policy, in principle, is the correct stance. However, attention should be paid to reservations being mooted with regard to the implications of this for governance at the provincial level, in view of their limited capacity, at least in two of the provinces. The cost of making drastic changes in the functioning of the state without appropriate analysis and evidence has already been evidenced in the devolution debacle. Drastic changes in federal-provincial relationships can be exploited by non-bona fide entities in today’s environment with an adverse fall-out on the functioning of provincial administrations at a time when terror, ethnic strife and ideological differences have been whipped-up to unprecedented levels. In some provinces, the risk related to blurring of the difference between autonomy and mutiny cannot be ignored anymore. The impact of waning federal oversight on collusive behaviors in the provinces also merits careful analysis. The government must, therefore, develop a phased, incremental and prudent approach towards provincial autonomy.

Additionally, abolition of the Concurrent List in toto will limit opportunities for legislation of a normative nature—particularly norms which relate to the fundamental ethos of the Federation. Similarly, domestic legislation as a follow-up to international commitments need not be a provincial prerogative, where capacity constraints can cause delays and duplications would be inevitable. The Charter of Child Rights bill—currently in the pipeline—illustrates both the cases. The ten year-overdue domestic legislation as a follow-up to the United Nations Convention on the Rights of the Child is both normative in nature and in compliance with an international norm; it can be federally enacted and have the same meaning for each of the provinces.

In the third place, the 18th Amendment Bill attempts to address some of the processes that have the potential to make governance ‘participatory’ and ‘efficient’. The former is evident in the stipulated procedures for appointment of superior court judges and the chief election commissioner and the latter in the provisions, which limit the size of the cabinet and the number of advisors. Whilst these changes are welcome, there are many other things that need to be initialized as a follow-up to improve governance. The civil service reform agenda awaits implementation. The accountability law, the pulse of good governance, is on the backburner; the competition commission law is on hold; the National Anticorruption Strategy has remained shelved; opportunities to use e-governance to promote transparency in governance remain untapped; conflict of interest within the policymaking ranks continues to be pervasive and administrative norms within the bureaucracy have been unchanged. Holistic reform in these areas should now be the next step.

Fourthly, the bill introduces free and compulsory education up to the age of 16 years. This is a significant step towards recognizing the right of a child to education. But this stance has implications for resource allocations and institutional frameworks. The government currently does not have the structures to enable that. With education predominantly in the hands of the private sector, a quantum shift is needed on the policy stance towards ‘purchasing services’ from the private sector. This has implications in turn for regulatory capacity of the government with resource requirements being a corollary. Admirable as it may be, this commitment will have to be followed up with some serious reorganizing in-house. In the same vein, however, health has not been regarded as a right, which is disappointing and the expectation that the amendment would pay heed to social rights holistically has not been fulfilled.

In the fifth place, with regard to renaming the NWFP, the connotations of the new name vis-à-vis the events surrounding partition of the sub-continent should be brought to bear. It is unfortunate that this move is inadvertently sowing the seeds of discord in the province with calls for the creation of another province echoing loud even before the bill is debated.

Finally, in relation to high treason, the expanded definitions will hopefully block ad hoc adventurism in the future. I wish there could also be constitutional mechanisms to label those that sacrifice vital interests of the state on altars of personal interests as committing high treason as well.

To conclude, the bill is indeed an achievement in terms of having sanitized the constitution; but as far as governance is concerned, there is a long way to go. Lasting solutions demand integrity and unwavering resolve in an environment where the strong tide of political point-scoring and short-sighted public policy orientation will risk rocking the boat at every stage.

The author is the founding president of the NGO think-tank, Heartfile. e-mail: