Civil-Military Relations: Off Again On Again in Pakistan’s Political Governance

Photo Credit - ISPR
Photo Credit – ISPR

Syed Sharfuddin

The controversial disqualification of an elected Prime Minister by a five-member panel of Pakistan Supreme Court on 28 July 2017 on charges of corruption and perjury has revived the debate in Pakistan’s political circles and social media on the status-quo of civil-military relations and its implications for the future of democracy in Pakistan.

In an established democracy a discussion on civil-military relations is unthinkable since military establishment is not an equal partner of civil administration in wielding political power. Being a state institution, it is subordinate to the political organs of the government. However, in Pakistan where the armed forces have played an active role in the country’s politics since the first martial law in 1958, this debate is not only necessary but also healthy to settle the question of which comes first, the military establishment or civilian administration in the governance of the country.

Historically, Pakistani military coups have been justified by pro-military actors, including the then judiciary on grounds that civilian administrations failed to carry out their electoral mandate of governing the country properly, leading to instability and causing grave threat to the survival of the country as an independent sovereign state. Thus, the doctrine of necessity was born and remained a strong instrument to justify military intervention in political matters. Pro-democracy circles, on the other hand, reject this thesis on the grounds that if democracy is not allowed to take roots in a society still recovering from the mistakes of its past military rulers how can a democratic culture be promoted and nurtured to bring maturity in political parties and produce leaders who will deliver successful elected mandates. Theirs is a democracy argument which takes inspiration from people power and advocates that political parties learn from their mistakes and move on to do better provided they are freely left to do so.

After the end of General Musharraf’s rule, the 2008 elections resulted in the full restoration of civilian democratic government in Pakistan. It was then assumed that the country had come away from the shadow of military take-overs and wholeheartedly embraced democracy based on fundamental freedoms, the rule of law and independence of the judiciary. The ruling Pakistan Peoples’ Party (PPP) completed five years of its electoral term in parliament although it faced political challenges and had to swallow the humiliation of its elected Prime Minister resigning from his office. The PPP government was criticised by the then opposition for closing its eyes on rampant corruption and letting the former dictator leave Pakistan despite many court cases against him. The PPP kept the military establishment busy but it survived its term without a major crisis. The PPP lost the 2013 general elections making way for the Pakistan Muslim League (N) to form the next government.

The personal distrust harboured by the new Prime Minister (Nawaz Sharif) about the military leadership did not augur well for improving confidence between the new civilian government and military establishment. Mr Sharif’s friendly overtures to India to improve the climate of peace in the region did not please the military establishment which considered these premature until India ceased to sponsor terrorism inside Pakistan and made a genuine effort to cool off tensions along the Line of Control in Kashmir. The military was also frustrated with the lack of political will on the part of the civilian government to improve governance, control law and order and take pro-active steps to end corruption. Halfway in the term, the PML(N) faced political agitations from Imran Khan, head of Pakistan Tehreek-e-Insaf party which emerged as the third major political force in Pakistan after PPP and PML (N) following the 2013 elections, and from Tahirul Qadri, head of a Muslim Sufi organisation Minhajul Quran International, as well as head of Pakistan Awami Tehreek (PAT). Qadri is a dual citizen of Canada and Pakistan. He shows up in Pakistan only at the time of protests and then returns to Canada. This has led his critics to say that his visits have been sponsored by the military establishment to keep PNL(N) on the edge. Imran Khan and Tahirul Qadri accused PML(N) of massive corruption and demanded the resignation of the then Prime Minister and his brother, the Chief Minister of Punjab. In 2014-2015 they attempted a complete shut-down of the capital Islamabad for many days and tried to bring down the government of Nawaz Sharif on the model of Tahrir Square rallies but PML(N) survived because PPP and Awami National Party (ANP) did not support an extra-election change of government by public agitation.

After the discovery of the Panama Papers in April 2016 which exposed the tax evasion of many world leaders and important business concerns, including the Prime Minister’s family, the pressure on PML (N) for resignation snowballed. PTI and PAT, as well as some other opposition leaders intensified their demand for the Prime Minister to resign. The government ignored their calls because its main rival PPP favoured the democratic course of PML (N) government completing is five-year term in office in principle. However, after the Parliament decided not to take further action against the Prime Minister on the Panama leaks, the matter did not subside and instead became more prominent involving media and civil society to take it to a final conclusion.

The PML (N) government bought rumours that the military establishment was behind the PTI and PAT to pressurise Prime Minister Nawaz Sharif to abandon his soft stance on India, move against home-grown terrorists in his home province of Punjab and take a U turn on his Pro-Saudi position (which would have alienated Iran had it been allowed to be taken) on the Yemen war and the establishment of a Saudi-led Islamic Alliance Force against terrorism.

2016-2017 were the low water mark years in the country’s civil military relations since the restoration of democracy in 2008. In October 2016 an attempt by the government to undermine the armed forces through a leaked minutes of the meeting on security which were reported chapter and verse in a prominent daily of Pakistan (Dawn Leaks). The news story proved to be the last straw on the camel’s back and led to a total breakdown in the relations. In the same month the Supreme Court formed a bench to decide on the petitions filed by PTI and other opposition leaders against the Prime Minster on corruption and tax evasion, as well as application of clause 63 and 64 of the constitution on the eligibility of the Prime Minister under these circumstances. The appointment of a new Chief of Army Staff in November 2016 did not help much in mending these relations.

Many observers called the 28 July 2017 decision of the Supreme Court bench a judicial coup. The bench agreed that giving a ruling on corruption charges was the jurisdiction of the Accountability Court of Islamabad or Rawalpindi. At the same time, the bench recognised that the matter had reached an impasse which the institutions of the state and parliament had failed to resolve. The bench therefore found perjury as the reason for his disqualification which was not in the initial petitions, and asked the National Accountability Bureau to file references in the Accountability Court for further trial. Mr Nawaz Sharif’s party believes that behind his disqualification is the hidden hand of the military which did not find in him a friendly ally willing to take on board their views on many aspects of the government’s security and foreign policy they did not feel comfortable with, especially in the light of the poor governance record of the federal government and failure of Mr Sharif to come clean on allegations of corruption, money laundering and tax evasion.

This brings Pakistan to the key question of how it can fine-tune a perfect balance in the civil military relations where each side could cohabit amicably while also satisfying the constitutional requirement of making the armed forces an institution under the full command and control of the civilian government. It is a hard nut to crack because the civilian administration needs the armed forces in non combatant roles to clean up its mess partly created by bad governance and partly because there is too much of it in maintenance of law and order, disaster preparation and mitigation and committing resources to lead the fight against terrorism.

The problem faced by Pakistan is not peculiar to this country. For a number of reasons, part historical and part cultural, there are many African and Asian countries where the armed forces function as a paramount institution of the state almost at par with the ruling civilian administration. Examples of such countries include Turkey, Indonesia, Egypt, Sudan, Nigeria, the Gambia, Uganda and Pakistan. When a civilian leader is strong and holds the moral high ground the armed forces follow him and comply with the policies of the civilian government (e.g. Turkey, Uganda and Nigeria). Where a civilian leader is weak, indecisive and himself questionable on moral or financial propriety the armed forces feel embarrassed and resist his policies especially if they see these as running against their, as well as the country’s security and stability. Examples of such countries include Egypt. Pakistan unfortunately has often found itself in the latter category. The PML (N) leadership is seen very much by the armed forces through this lense even if facts on the ground are different.

Uganda solved the problem of civil military relations in 2005 by officially recognising the armed forces as a political interest group and assigning them constitutionally protected political representation in Uganda’s parliament. This is ideally not desirable in a mature democracy, but Museveni, a military-turned-civilian President, realised that this was the only way to satisfy a mammoth force which often regarded civilian administrations as untrustworthy, whether by their inefficiency, tendency toward ease and corruption or the very nature of politics where everything is based on expediency rather than principles. Museveni also did a clever thing. He got the Commonwealth to endorse this role by inviting them to observe Uganda’s first multi-party elections in 2006 under a constitution which sanctioned a legislative role for the armed forces in the politics of the country.

Article 78 of the Ugandan Constitution which was amended in 2005 states that “ (1) Parliament shall consist of— (a) members directly elected to represent constituencies; (b) one woman representative for every district; (c) such numbers of representatives of the army, youth, workers, persons with disabilities and other groups as Parliament may determine; and (d) the Vice President and Ministers, who, if not already elected members of Parliament, shall be ex officio members of Parliament without the right to vote on any issue requiring a vote in Parliament. (2) Upon the expiration of a period of ten years after the commencement of this Constitution and thereafter, every five years, Parliament shall review the representation under clause (1)(b) and (c) of this article for the purposes of retaining, increasing or abolishing any such representation and any other matter incidental to it. (3) The representatives referred to in clause (1)(a) of this article shall be elected on the basis of universal adult suffrage and by secret ballot. (4) Parliament shall, by law, prescribe the procedure for elections of representatives referred to in clause (1)(b) and (c) of this article.

Uganda has successfully completed 10 years without any major rift between the civilian and military establishments, although it can be said that the credit for this goes more to the longevity of the Ugandan President than the system itself. Nevertheless, the amendment has worked for Uganda and although clause (1)(b) and (c) of this article has become due for a review, a constitutional commission has not been established yet to review this sub-clause.

If Pakistan takes the Ugandan example as something that could work for itself, the armed forces would not need to set up a separate camp such as a political wing in the GHQ or a separate media operation like the ISPR to monitor what the civilian administrations are up to in regard to making security and foreign policies, as well as other policies such as visas policy for foreign nationals, monetary policy and media and communication. The representatives of the armed forces in Parliament would be in a secure and recognised position to observe proceedings, join committees, debate issues and vote in the legislative business. They would be free to vote as independent members or vote with a political party to play their role in the country’s good governance. 

A beginning toward this has already been made by the Supreme Court bench perhaps without the realisation that it was setting up a precedent for other things to follow when it included two Brigadier-level representatives of MI and ISI in the joint investigation team to probe the disqualified PM and his family against allegations of corruption. Supporters of the JIT justified this inclusion on the grounds that this will ensure that JIT was not under any political pressure form the government and would do its job in a neutral and non-partisan manner. The same logic can be extended to bring a constitutional amendment through which representatives of the armed forces could be elected against a quota of seats reserved for the armed forces. The candidates filing papers for these seats will be retired or about to retire military officers above the rank of Brigadier and would be elected by the people after their nominations have been jointly cleared by the military establishment and the election commission.

This arrangement, if enacted, will bring the required balance and confidence in the military establishment and civilian administration and crate a democratic process within the political system to resolve misunderstandings and reach consensus without upsetting the fancy apple cart of democratic governance which takes so much time, money and effort to organise every five years. A glimpse of what the future in-house consultations may look like with this type of composition can be seen in the way the former Interior Minister has walked his course vis-a-vis his other cabinet colleagues. For the sake of strengthening democracy and ending the circular argument of “we are better than you” by both protagonists, this practical arrangement is worth giving a serious try.

London: 19 August 2017

Disqualification of Prime Minister Sharif. A Case of Judicial Chutzpah

order

By: Syed Sharfuddin

On 28 July 2017 a five-member bench of the Supreme Court of Pakistan announced its final verdict in the widely publicised hearing of the case on corruption-in-high-office involving the Prime Minister of Pakistan Mian Mohammad Nawaz Sharif and his immediate family members (Panama Case).

Earlier, one of the judges on the Panama Panel had said that this will be a verdict to remember for a long time in the history of Pakistan. Unfortunately, this mother of all judgements will indeed be remembered for a long time but for all the wrong reasons and will raise questions about the level of sophistication of the judiciary and the type of orders judges issue in protecting the rule of law and independence of the judiciary in a transitional democracy that is Pakistan.

The verdict immediately disqualified the Prime Minister from remaining a member of the National Assembly of Pakistan and from keeping the office of Head of Government not on charges of corruption which the court asked the country’s National Accountability Bureau to fast track through filing specific references in the Accountability Court of Islamabad, but on account of Mr Sharif failing to disclose a receivable asset of insignificant monetary value in his Asset Declaration Form submitted to the Election Commission of Pakistan for the 2013 General Election. This has nothing to do with the Panama leaks and is a decision which can be applied to all members of the National Assembly equally and the honourable court can order similar disqualification for them if their solemn declarations are found to be incorrect or missing any entries.

In Pakistan where corruption is rampant and unfortunately has become an acceptable social evil from the rich to the poor, and where everyone knows someone who has climbed rags to riches or riches to mega riches status from illegal money, it is unimaginable that only Mr Sharif’s ‘crime’ is so grave that would cost him his job. If he committed perjury by withholding information, which still needs to be debated whether withholding information in a standard form is the same as lying with intent, do we know for sure that all other elected representatives, including some of the petitioners among them, filled out correct asset declaration forms in the 2013 elections.

If the judges were compelled to apply this principle so strictly, they could have in disqualifying Mr Sharif also asked the National Accountability Bureau to scrutinise the 2013 forms of all MNAs. This ‘public good’ aspect completely escaped the honourable judges and quietly landed in the missed opportunities basket of the supreme court.

One would imagine that the judges know well about corruption-in-high office in the country where many big guns have built a reputation on that very ill. But probably they do not really live here. Consider this sentence from a quote in their earlier judgement of 20 April 2017 which is repeated again in the judgement of 28 July 2017 at the end of paragraph 9. “We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.”

How old is the judiciary of Pakistan? 80 years? Yet the honourable judges are talking about building up their jurisprudence in centuries in their sweat, toil and blood. And in these 80 years one cannot but smile at the repeated collusion of the judiciary with past military regimes in justifying these under the much flogged doctrine of necessity. Yet the judgement is set in the background of Don Giovanni’s Godfather and talks about protecting due process for centuries. Are these British judges or Pakistani judges? Can someone please clarify.

But that is not the point. The point is that for most part of the April and July’s judgment the judges have placed emphasis on preserving the integrity of national institutions and reiterated that disqualifying a person without due process is not their call. After affirming that the court would not dispense with due process, and after instructing the National Accountability Bureau to file specific references against the Prime Minister and his immediate family members in the Accountability Court of Islamabad, the judges surprisingly contradict themselves in paragraph 13 and 15 by proceeding to disqualify the Prime Minister without due process.

The issue on which the disqualification is based could be debated either way as being sufficiently grave to call for a drastic action, i.e. disqualification, or not important enough in the larger context of the case, given the events of 2007 and Mr Sharif’s exile during the time of General Musharraf’s military rule when it was important for him to find a way to travel internationally without requiring lengthy visa processing time.

This omission in declaration was not a material factor to have a major impact on the full judgement on the Panama case and yet it turned out to be the only less convincing reason for the disqualification of the Prime Minister disposed of in two paragraphs in the entire judgement.

The Supreme Court decision against Mr Sharif is also procedurally flawed. The Joint Investigation Team (JIT) was formed after two senior judges had spoken their clear mind about the accused and written their verdict, and three had deferred their decision. This half disclosure of the verdict which some have called 40% decision, created an unavoidable prejudice in the mind of the investigators and made it difficult for the JIT to find anything other than what went against Mr Sharif and his co-accused family members.

The manner in which the JIT members were head-hunted by the court administration after the judgement of 20 April 2017 gave the impression that Mr Sharif’s goose was cooked but required some more seasoning before it was served. The old adage was proved right that the more you dig the more you find the dirt. This is what JIT did. Although the additional investigation conducted by the JIT could not uncover any seedy scandals of perverted sex, family feuds, pub crawling or casino hunting involving the Sharifs, it did find a lot of Aqamas for them in a Gulf State every Pakistani loves to visit. One of the petitioners in the case Mr Siraj-ul-Haq, Ameer Jamat-e-Islami Pakistan could probably explain it better what else is meant by Sadiq and Ameen if a person holding a high office in Pakistan has none of these major vices in his character.

In the manner of popular soap series the ‘final’ judgement of 28 July 2017 does not put any closure on the Panama case. The next episodes will be showing the Sharifs in the Accountability Court in response to the various references the National Accountability Bureau will file in compliance with the court order, and a nominated judge will supervise its implementation. A good western principle of justice is its speedy dispensation but here the court has made it a point to keep the saga alive perhaps to teach a lesson that corruption does not get punished once but comes in instalments.

It is not denying that the past record of Mr Sharif and his submissions to the JIT did not help his case but the verdict was also not perfectly stitched up in both substance and procedure that has made the decision open to question by the Noon team and by future lawyers who may study it as case material.

London
28 July 2017

Yemen Crisis: Who is Involved

Old SanaaMany observers are seeing the ongoing Yemen civil war as a shrewd attempt by Iran to come close to Saudi Arabia’s borders through proxy. They also see the largely GCC-supported military ‘Operation Decisive Storm’ led by Saudi Arabia as an attempt to maintain the power status quo in the region and avoid an AQ & IS advance in Yemen to confront the Shiite-led movement Ansurallah (Houthi). There may be some truth to that analysis but it is not the whole truth. Yemen was ruled by an autocratic President Ali Abdullah Saleh for 33 years who had his own problems with the Houthis. When Ali Abdullah Saleh left power after the ripples of the now extinct Arab Spring reached the shores of Bab El Mandab, the country faced a power vacuum as is often the case with the collapse of authoritarian regimes. Political negotiations which followed Saleh’s departure to write a constitution acceptable to the major stakeholders remained inconclusive. The last straw was the collapse of the National Dialogue Conference initiated in 2013 to work out constitutional arrangements for a government of national unity.

The Houthi movement takes its name from Hussein Badreddin al-Houthi, who launched an uprising in Yemen in 2004. Its present leader is Abdul-Malik al-Houthi. Last September the Houthis captured Sanaa and toppled the widely unpopular transitional government of President Abed Rabbo Mansour Hadi. The peace agreement that was signed for working out a formula for sharing power acceptable to all sides did not hold and fighting broke out in January 2015 resulting in the current civil war.
In the domestic theatre of current fighting, one side is made up of the militias, mostly Sunnis and from the south of Yemen, who are supporting President Hadi who has fled to Saudi Arabia. Fighting against them are most of the Zaydi tribes from the north of Yemen, including the Houthis who are in alliance with Ali Abdullah Saleh and his political party. The Houthi-Saleh coalition is an alliance of convenience. The Houthis have access to vast amounts of weapons, warplanes and firearms purchased during the time of Saleh’s rule. They are also assisted by former military advisers who oppose Hadi. In return, Saleh gets a formidable fighting force full of religious zeal and battlefield prowess from the Houthis to destroy the supporters of Hadi who is an enemy of both Saleh and the Houthis. It is believed that Saleh is not fighting to get back to power himself but he wants protection for his life and the wealth he has amassed during his long rule of Yemen.
In addition to the direct confrontation between the Houthis and Hadi supporters, a secessionist movement is also fomenting in the South of Yemen where a socialist-oriented republic existed between 1967 and the late 1980s. Although no statements have been issued by separatists, the flag of the former People’s Democratic Republic of Yemen has been seen flying in some demonstrations prior to the start of the present conflict.
In the regional theatre of the rising smoke of war, on the one side are Sunni-led GCC countries except Oman who are opposing the advance of the Houthis to take over Yemen by force through an unholy alliance with the supporters of the former ruler. On the other side stands Iran as it benefits indirectly from the advance of the Houthi rebels in the south of Yemen by means of expanding its influence in the Arab region and reaching out to the Shiite-Arab population in the Gulf countries, including Saudi Arabia.
It is noteworthy that to date neither the Chairman of the OIC Summit (Egypt) nor Saudi Arabia which is leading the military strikes against Houthi rebels in Yemen has convened an emergency session of the OIC Foreign Ministers on the situation of Yemen. At the 12th OIC Summit in February 2013 the OIC leaders had mentioned Yemen in their Final Communique commending the achievements of the GCC countries to resolve the crisis in Yemen and achieve a peaceful transition to power.
Instead, the situation in Yemen was discussed at the 22-member Arab Summit in Cairo last week (28 March 2015) which endorsed General Sisi’s suggestion to form a Joint Arab Defence Force to meet the challenges facing the Arab wold.
As long as there is use of force, there is little hope that the GCC or UN brokered talks can bring any lasting settlement for the crisis in Yemen and keep it a united country under a democratic constitution and government of national unity.

Islamabad. 1 April 2015.

Yemen map 1

 

Notes for Presentation by Professor the Hon Gareth Evans AC QC, Former Foreign Minister of Australia to King Prajadhipok Institute, Bangkok, 3 February 2015. Courtesy Global Leadership Forum Website

http://www.g-l-f.org/index.cfm?id=62090&modex=blogid&modexval=19826&blogid=19826#.VO2E_9K8gJI

 

Professor the Hon Gareth Evans

Personal background as academic constitutional lawyer (5 years); Member of Parliament 21 years (18 upper house, 3 lower); Cabinet Minister 13 years (4 major portfolios, domestic and external); President of International Crisis Group 9 years  (addressing, inter alia, conflict prevention/peacebuilding/transition/ stabilization situations). But acknowledge experience does not always equate to wisdom…

Basic Principles

  • One size does not fit all. No two country situations are alike – history, political culture, religious/ethnic/social diversity. Great care needed in applying experience elsewhere.
  • But certain fundamentals of good governance universally applicable:
  • Legitimacy – representativeness: everyone has significant voice in how governed
  • Accountability – governors sense of responsibility to governed; mechanisms
  • Honesty – no corruption in electoral and governing mechanisms
  • Competence – making good policy, delivering effectively

Institutional Legitimacy, Accountability and Honesty

Core themes

  • Assume for present purposes commitment to some form of representative democracy – where government’s legitimacy based on people having significant voice in who governs. If authoritarian model preferred – e.g. ongoing communist party rule, or military rule – my experience of little relevance.
  • But in devising democratic constitutional system, many imperatives – some competing. Crucial issue in institutional design and management is how you balance them:
  • Government  must be elected by majority – but must govern for all, be sensitive to minority rights, interests and opinions
  • Government must govern for whole country (esp defence, foreign affairs, economic management) – but must be sensitive to different local or regional interests, and the principle of subsidiarity (matters should be handled by lowest or least centralized competent authority)
  • Government must be strong enough (and able to govern for long enough) to deliver on policy imperatives – but not be immune from criticism, pressure or accountability
  • Can be room for trade-offs/compromises in institutional design in addressing these competing imperatives. But no room for any trade-off when it comes to
  • Governing in accordance with the rule of law (not the arbitrary rule of individuals, in which like cases not treated alike) – recognizing that the law itself must be sensitive to the needs and interests of the country as a whole, not just those running the government
  • Governing honestly  -  corruption in the operation of the election system, or the carrying out of any government functions, cannot be tolerated: completely at odds with all principles of democratic governance

Experience/Thoughts

  1. Parliamentary systems (viz. where executive government is determined by the majority vote of elected members, rather than directly elected or appointed) are generally to be preferred to presidential systems

-  avoids paralysis between executive and legislature (cf. US now)

-    better chance of  leader being seen to represent whole country cf. particular region or group   (cf Afghanistan under Karzai)

2.  The best systems of parliamentary government, in my experience, start with electoral rules designed to produce strong and stable governments, but supplement this with necessary checks and balances on how they exercise that power.

3.  It is an illusion to think there is some perfect or ideal electoral system which can simultaneously ensure that the composition of the parliament perfectly reflects voter choices (which proportional representation [PR] systems are designed to do) and that a government can be formed with a stable and workable majority (which majority/plurality systems are designed to do): hard choices always have to be made.

4. The requirement of strength and stability can most easily be met if the electoral system is designed to produce a small number of strong parties in the chamber which elects the government.  Ideally this will be achieved by systems which tend to produce just two major parties alternating in power (ideally of the centre-left and centre-right respectively, giving voters policy and not just personality choices). Strong coalition governments, usually of no more than two parties, are also achievable where the coalition partners bring complementary interests to the government (eg the rural based National Party in Australia which has for decades been in coalition with the Liberal Party, or in Germany the Free Democrats usually in coalition with the Christian Democrats, or the Greens with the Social Democrats).

- What is to be avoided in constitutional design are systems almost guaranteed to produce weak coalition governments of three or more parties. Mixed systems like Germany’s MMP can be designed which are basically proportional, but (by excluding parties with low voter support) enable reasonably strong and stable coalition governments to be relatively easily formed: they are much better than pure PR systems like Israel or Belgium, which make the formation of strong and stable governments a nightmare.

5. The most appropriate such checking and balancing mechanisms in my experience are (a) regular fairly conducted elections at which a bad or unpopular government can be removed; (b) an upper house which places some limits on the government’s freedom of action; (c) a court system able to check outright criminal misuse of power, and to strike down unconstitutional legislation or executive actions; and (d) other independent watchdogs designed to keep the government, parliament and public service honest and disciplined.

6.  Check (a): Regular elections. These should be conducted at no more than 4-yearly intervals, and be conducted with impeccable fairness by an independent electoral commission in which all sides of politics, and all major groups and regions in the country, have complete confidence.

7. Elections should be the only mechanism for removing a bad or poorly performing government: Australia had experience in 1975 of a constitutional coup (in which the Queen’s representative, using formal powers under the Constitution which had long been thought unusable, dismissed an elected government) and the scars lingered for many years. Impeachment processes to secure the removal of political leaders should only be considered in the most extreme cases, where manifest illegality is involved as determined by properly functioning independent courts.

8. The solution to removing a poorly performing populist government is for opposing politicians to provide a better alternative at the next election:  clean, competent, sensitive to wider national interests and the concerns of all major groups and regions in the country, and seeking common ground. As New York Governor Al Smith famously put it in the 1920s, “The only cure for the ills of democracy is more democracy”.

9. Check (b): Upper house. The best upper houses have clear but limited powers, and bring a wider range of voices to bear on government processes than may be reflected in the composition of the executive government of the day.  Ideally they are elected on a proportional representation basis (though with some limits, like a 5% threshold vote requirement) or, if they have an appointed component, do so on the basis of some mechanism which ensures that only persons of genuine experience and stature are chosen.  Upper houses should have no power to block budgetary or other legislation crucial to the survival of the government of the day (a problem with the Australian Senate, which is much too powerful in this respect). And in my view ideally they should be limited (like the House of Lords in the UK) to scrutinising and delaying government legislation, not ultimately defeating it. Upper house committees can and should play an important role in holding governments to account through public hearings and reports, and contributing to the policy debate.

10. Check (c): Courts.  Respect for the rule of law demands the existence of courts and judges universally accepted as independent and beyond reproach. If these conditions are satisfied, political leaders in or out of office should not be immune in any way from criminal prosecution for corruption or other breaches of the criminal law.  But political leaders should never be prosecuted for policy mistakes or errors of judgment: the sanctions for poor government must be political not legal. The role of constitutional courts should be limited to adjudicating on whether legislation or executive action is in breach of specific provisions of the constitution; and those specific provisions should, in turn, be very clearly and  narrowly defined.

11. Check (d): Independent Watchdogs.  The best systems of democratic governance also usually have built into them a variety of additional scrutiny, accountability and reporting mechanisms designed to keep the government, parliament and public service honest and disciplined, e.g. anti-corruption agencies, human rights commissions, and Ombudsman processes.  If these are to be of any use, however, they must be, and be seen to be by everyone, as scrupulously independent and non-partisan

12. Free Speech. Effective democratic governance depends absolutely on the traditional rights of free speech and political association being totally respected, in both law and practice. It is one thing to ban speech or writing which manifestly incites to violence, but quite another to ban speech which merely insults, offends or humiliates: participants in the political process should have thick skins, and governments should earn respect, not try to compel it.  Use of defamation law as a political weapon to silence opponents, as has regularly been the case in Singapore, is at odds with fundamental democratic principles.

13. Devolution of power. The proper distribution of power between central government, and local or regional authorities, is always extremely difficult to get right. Federal systems like Australia, Canada and the US can be an important way of meeting regional needs and aspirations, particularly in the delivery of health, education and welfare services, and in areas like land management and urban planning, but it is important not to concede too much ground. Complex modern societies, strongly internationally interdependent, need much standard setting at the national level, and all the key instruments for effective economic and fiscal management must be available to the national government.

14. At the end of the day even the most elaborately and carefully designed constitutional arrangements cannot guarantee stable and effective democratic governance. That depends ultimately on the prevailing political culture, and the mindsets of those exercising the levers of power.  And even the best constitutional arrangements cannot guarantee competent government: that depends on a whole set of different factors, to which I now turn.
Competent Government

Experience/Thoughts

  • Perhaps the most basic thing I have learned from 13 years as a Cabinet minister and watching many other governments is that there is wisdom in crowds – when leaders go it alone/don’t consult with interest groups and colleagues/don’t pay detailed attention to professional advice before announcing policy initatives, things invariably end in tears. The Hawke-Keating Government ‘83-96 widely seen as gold standard in Australia (certainly as compared with its Labor predecessors and successors Whitlam/Rudd/Gillard, and the non-Labor governments of the ‘60s and ‘70s, and Abbott now, although the Howard non-Labor government of 1996-2007 was also fairly generally respected).  From my own experience in that government I would spell out more specifically five factors – I think applicable to any government anywhere – which are crucial for competent government performance:
  • One: have clear philosophy and sense of policy direction.  Maintained consistently throughout the Hawke-Keating  term:  very dry in our economic policy, very moist in our social policy, and liberal internationalist in our foreign policy, with the concept of the “social wage” – delivered mainly through health, education, superannuation gains – being at the heart of our capacity to sell wage restraint, deregulation, and tough economic reforms generally to the wider community. Rarely let politics drown good policy, certainly in the crucial area of economic policy, because we were confident of the strength and coherence of the policy we were making.
  • Two: have agreed system of internal government management. Coming into office with memories still strong of dysfunction of Whitlam Government, we had developed a structure-and-process blueprint addressing relations between Prime Minister and other Ministers and their respective offices, between Cabinet and Parliamentary Party, between Executive government and public service: lot of attention paid to consultative processes, committee structures, and lines of decision-making authority. The model served the government well, with little modification, for whole 13 years.
  • Three: operate internally on the basis of argument rather than authority. We argued everything out, often very fiercely (and in language which reflected the strength of the views held) and didn’t just succumb passively to the exercise of leadership authority. The Prime Minister may have been first among equals, but only just. Everything was contestable, and contested. The concept of captain’s picks and captain’s calls, after a couple of early mishaps, just didn’t apply. Our leaders didn’t always love the reality of Cabinet peer group pressure, but both of them accepted that they were running a Cabinet, not a presidential, system.
  • Four: listen and consult with relevant industry, profession and community stakeholders, on every major policy issue. We  also respected and welcomed the advice of the public service, not just in policy implementation but in conceptualisation and design, and had at least as many public servants seconded to our ministerial offices as political and personal staff.
  • Five: explain and argue the case for everything the government does. Hawke and Keating both outstanding communicators, remorseless in their determination to ensure that the major opinion-moulders knew what we were trying to do, why and how.  If the focus groups told us we had a problem, that was the beginning of the public argument, not the end of it.

It is true that we didn’t have in the mid-‘80s some of the technology-driven, 24/7 media pressures that present governments are under, or quite so difficult a set of minority parties to have to negotiate with in the upper house.  In all sorts of ways it is now tougher than it has ever been for governments to deliver good policy outcomes. But I’m not persuaded that the problem is wholly a systemic one: it ultimately comes down to intelligent, competent political leadership.

The bottom line, again, is that governments cannot compel the respect of the people: they have to earn it.

Governance and the Role of Citizen – Small State Model

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Five Point Test

Section 1 – Awareness about Elected Government

1.1 Do you follow parliamentary meetings
1.2 Do you follow cabinet meetings
1.3 Do you get involved in public consultations
1.4 Do you have awareness of any recent initiatives or policies of government for economic and social development
1.5 Do you take part in non-governmental organization (NGO) activity

Section 2 – Familiarity with Government Representatives
2.1 Name the President
2 .2 Name the Prime Minister
2.3 Name the leader of a political party
2.4 Name at least one governor or chief minister of a province.
2.5 Name at least one Member of Parliament representing a constituency other than your own.

Section 3 – Knowledge about Government Affairs
3.1 Do you have easy access to your parliamentarian, mayor, councillor, mayor or local representative.
3.2 Can you access government policies and programmes via the government website
3.3 Do you have access to budget information
3.4 Do you have access to information about salary paid to government officials and parliamentarians
3.5 Can you access reports of national public commissions or authorities issued on specific issues

Section 4 – Overall Satisfaction with Government Services
4.1 Satisfied with supply of electric, gas, drinking water and waste collection services
4.2 Satisfied with supply of essential commodities and services
4.3 Satisfied with education facilities
4.4 Satisfied with health facilities
4.5 Satisfied with transport system and roads and railroads

Section 5 – Influence on Government
5.1 Can you influence government policy through legally provided participatory processes.
5.2 Are you free to disagree with government policy without fear of reprisal?
5.3 Can you freely assess government performance without political pressure?
5.4 Do you enjoy freedom of religion, gender, association and expression?
5.5 Do you have any restriction on your movement, property or finances?

Score Key: Each of the above five sections has 5 self-assessment questions. Each affirmative question scores 4 marks. If your answer draws a blank award yourself a zero. Total score over 50 marks means you are politically aware and making your vote go far to keep an eye on the government you have elected to power. However, a zero score to all questions in any section impacts negatively on the overall result and requires subtracting 20 marks from the grand total. Good luck with the test.

Why the Dharna has not Gone Away: A Political Analysis

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Contrary to Government’s assessment that the PTI and PAT public protest in Islamabad which started in August 2014 would have limited shelf-life and will not last beyond a few weeks, the Islamabad dharna – literal meaning in Urdu – stay put – has continued to attract the people and become a family affair beyond the voices of angry young men. If the growing interest in the daily speeches of Imran Khan and Tahirul Qardi are any guide, the protesters do not seem to be going away any soon despite the hot sunny days and monsoon rains of the last two months and the soon-to-come wintery nights of October. Media channels which compete with each other to replace old news with new headlines discovered to their surprise that the most watched channels by Pakistanis in the last few weeks were not entertainment programmes but news channels providing daily coverage to the dharna. Even housewives seem to have forsaken their favourite TV soaps to watch the happenings around the neighbourhood of Islamabad D-Chowk and Blue area on a daily basis. And now the protest is reaching to other cities and is covered live on You Tube, Whats Up, Twitter, Facebook, Flickr and Pinterest by its supporters and critics.
No one in his wildest dreams imagined that soon after the protesters reached Islamabad last August, the Prime Minister will pack up and leave Islamabad and agree to resign from his position, as demanded by PTI and PAT supporters. True that there were a few days in the early phase of the dharna when the role of the armed forces was not clear and the Government suspected the usual trick, namely the third force to usurp its democratic authority. However, after the armed forces made it clear that it was not their business to clean up the mess politicians had made, the Government knew for sure that the dharna will not be able to shake its writ and legitimate authority to govern until the next general election mandated by the constitution.
Despite this reassured position, the Government lost political ground considerably from where it stood in July when the dharna was still in the offing. All the steps it took to address the protest backfired on itself. Events went in favour of PTI and PAT instead of reinforcing the position of the government. The coming together of the main opposition PPP under the already discredited former President did not help build the image of the Prime Minister who was seen dining and feasting his political rival in Lahore and reasserting his legitimate right to govern as the elected prime minister of the country. A major concession granted by Prime Minister Nawaz Sharif to PTI by establishing a judicial commission to inquire into Imran Khan’s allegations of rigging of 2013 general election was much too late to call off the dharna. The initiative was badly timed and was handled unwisely by the Prime Minister. Even the terms of reference of the commission drafted by the law secretary left much to be desired.

A joint session of parliament convened by the Government to address the points raised by Imran Khan and to a lesser extent by Tahir ul Qadri lingered on for days but regrettably failed to address the main issue. It offered no solution beyond asserting the authority of the parliament as the representative institution of the people. The joint session also ironically exposed the intellectual level of the honourable members of this august house who were watched live by the people of Pakistan fighting their petty battles, making street-wise statements and raising points of order like students in a special measures public school. Barring a few notable exceptions worth admiring, most of the speeches avoided the real issue and kept repeating the known positions of their parties. The joint session confirmed the negative public impression that the people’s representatives are nothing more than the guardians of their own personal egos and party interests in the name of parliamentary sovereignty and public service.
The dharna also took political parties by surprise. The fast momentum of the dharna gave them not enough time to define their respective stand. MQM which is a party of ordinary hard working people could not align itself with PTI despite the fact that both parties challenge the class-based status quo of the country’s decadent political leaders. Both MQM and PTI want to bring a democracy that serves the interests of people instead of their masters. PAT and PTI also could not articulate the terms of their co-habitation despite being parallel strands of similar, if not the same revolutionary movement and ideology. JI which is a coalition partner of PTI in KPK province decided to remain neutral and impartial and even took the role of a mediator between the Government and its KPK ally. The official opposition PPP played a good-cop bad-cop role. On the one hand, PPP leaders of the opposition in the house and senate continued to criticise the Government for the irresponsible and laid back manner in which they handled the crisis from the beginning of the protest, following the Model Town killings in Lahore, till the squatting of PTI and PAT supporters on the Constitutional Avenue in Islamabad. The PPP Don, Mr Asif Zardari and his former Interior Minister Rahman Malik, on the other hand, adopted the good-cop role and threw their weight on the side of the Prime Minister and the Government assuring their support for the continuation of democracy and the present status quo.
The judiciary which has luckily stayed out of any political controversy and is seen as a credible arbiter decided not to use its authority to take suo-motto notice of the situation and give a ruling that could satisfy all concerned in a manner that was within the confines of the constitution and the demands of the protesters. It was surprising that given its record of suo motto notices in the past on small issues, the Supreme Court decided, much like the armed forces that it will not intervene and leave the politicians to clean the mess they have created themselves.
The President, being the commander of the armed forces, a symbol of the federation and an authority that sits as the head of state of the republic was in an ideal position to intervene and mediate between the concerned political actors. However, the President did not stand up to the occasion and did not prove the worth of his coveted high office. To add insult to injury, his Governors in Punjab and Sindh were more visible trying to do something about the crisis even though they are not constitutionally mandated to play this role as supporters of the government in the absence of the President’s initiative to whom they report and represent in their respective provinces.
Negotiations carried out on various tracks for a resolution of the crisis lacked legitimacy and produced confusion but not results. At first the Government did not take PTI and PAT leaders seriously. Then it welcomed the efforts made by JI. Then a government mediation committee was formed in which the Governor of Punjab was also included although he is not represented in the Parliament. Then came the Jirga of Mr Rahman Malik who claimed that his mediation was the most successful and soon people will hear the good news of reconciliation. Finally, it all came to nothing. This shows that either the Government did not take the dialogue seriously or was mislaid by the Sherpas in the political parties who wanted to take credit for their own mediation initiatives. Mr Rahman Malik’s enthusiasm to jump in a row which was initially not PPP’s but was between PML-N and PTI is a clear evidence of this failed approach.
The above answers the question why the Islamabad dharna has not gone away. But more importantly, there are three main reasons for its success: the dharna leaders are speaking the language of the people and they are loving it; the dharna has given people a social platform to get out of their cramped homes every evening and celebrate culture in a country that has no entertainment, no sponsorship of sports and no theatre for the ordinary folks; and the protest has baffled the Government as to what to do next because force has not worked and its benign neglect is being misinterpreted by many as its weakness to act. The Government has also failed to give the impression of business as usual. Foreign investors have cancelled their visits to Pakistan, the economy is suffering huge losses every day and the recent flash floods have also taken their toll on the treasury.
The argument of the protesters for a fundamental change of the governance model is strong and convincing; they have the pulse of the middle-class households, women and youth, as well as the ordinary man on the street whose priority is his wallet and not necessarily the need to walk through the complicated maze of politics. Their speeches are getting better every day despite repetition and are reaching out more to the public, the longer they are staying in Islamabad.
Songs and dance substituting classical police beatings and blood bath in what is seen essentially as a long and arduous struggle for change is a new dimension of the dharna. Instead of making it a dangerous place to be, the dharna has continued to provide a venue for young persons to meet and have fun while their parents watch them from home on their TV screens and some even join them for a break from the hard life of power outages and increasing prices of commodities of daily use. Reminds me of the days when as a young student in Islamabad I joined public protests against President Ayub Khan not knowing why I was saying ‘Go Ayub Go’ and without realising what were to follow after he was gone in 1969.
So far, the Government has decided to ignore the protests but this wilful neglect is seen by PTI and PAT supporters as tacit admission of guilt and denial of reality, especially against the background of the alleged self-serving democracy of the parliament and bad governance of the executive. The attitude of some of the cabinet ministers has been uncharacteristically hostile and they have not convinced the people that they retain the moral high ground to govern, even though they have the legal authority and constitutional backing to remain in power until their full term is served. Combined with this lack lustre performance is the work of government ministries and departments, including provincial governments, parastatals and loss making public corporations which has hardly anything to show as a role model of good public service. There are small exceptions of individual sacrifices and exemplary performances but these are only patches of greens in the large barren hinterland.
What Should the Government do in such circumstances -continue to ignore the dharna and let the economy bleed through its Achilles heel or let go something that resolves the crisis and still gives it the moral and legal authority to call the shots. If I were the Prime Minister who believed that the majority of the people supported his policies of making Pakistan a strong powerhouse of growth and development, I will take the high moral ground of reshuffling the cabinet and announcing fresh elections within 180 days. I would in the meanwhile revamp the election commission and appoint a capable administrator – not a retired judge as tradition dictates – to head it. In the first 90 days I will freeze postings and transfers, put a hold on all new contracts and foreign agreements and focus on elections. I will organise a national census, call local elections, mandate the election commission to update voters’ lists and assign the judiciary and parliament to look into the grievances of the dharna protesters. In the remaining 90 days I would make way for a neutral, impartial and capable caretaker administrator to make arrangements for a fair and independent election for the nation. I would focus on my party leadership and start my campaign in full swing when all other political parties do the same. In 180 days the nation will know who is a genuine leader and who is politicking. But before I do that, I need to have confidence in me that I am a leader and not a follower. I would show the nation that I lead my party and my supporters from the front instead of being led by my advisers and cabinet colleagues, even though taking decisions by consensus is usually a good thing. But leadership in political cul-de-sacs demands leading on time and from the top.
Syed Sharfuddin
London: 28 September 2014

 

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Pakistan Update: Politics of Public Protest

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Some countries with whom Pakistan has close political and economic ties and two inter-governmental bodies (the EU and the Commonwealth) have issued public statements on the present political situation in Pakistan. The Parliament and its representative parties are supporting the PML-N government of Mian Nawaz Sharif on the one hand, and on the other hand are two smaller parties which have brought people power to Islamabad in thousands who are now displaying their prowess in front of the sensitive institutions in Islamabad for over a week.

These overseas statements range from standard diplomatic expressions of concern to clear messages of advice and caution aimed at certain quarters. They all, however, stress one point that the issues must be resolved politically and peacefully without giving any room to the military to repeat the events of 1999 when the elected government of PM Nawaz Sharif was removed by General Musharraf on charges of bad governance. Statements from political parties and civil society within Pakistan bear the same headlines and contents with varying degrees and local flavours.

The arguments advanced by both sides of the political divide are clear and make sense when seen in the context of good democratic governance. But what will happen next and how this deadlock will be resolved is still an open question. The two protesting parties (PTI which has representation in the National Assembly and governs one province – KPK) & PAT (which has no presence in parliament but is led by a motivational preacher cum scholar) allege that it is their constitutional right to stage protests and demand PM’s resignation. Their main argument in support of their demand is that the last elections were massively irregular or rigged and all doors available to them in the system which they have been knocking have remain closed without any response. One of the two protesting parties (PAT) goes further than this demand – it is asking for a complete overhaul of the electoral system, full implementation of Constitution in regard to State responsibilities, review of the rules of business of the Executive and devolution of the Judiciary down to village level to make justice available at the doorsteps of the common man. Together, they have around 50,000 protesters comprising families, women and children who are staging sit-in in front of Parliament since last week. Even though the figure of protesters fluctuates in day and night time and many take breaks to sleep at home and freshen up, the presence of so many people in the open grounds of Islamabad’s most sensitive roads in close proximity to the cordoned off diplomatic enclave poses a serious security risk for all. Violence cannot be ruled out because the speeches have been fire brand and full of emotion which can cause a mass surge on PM House and adjoining government buildings. A police crack-down on the protesters is also possible from the government to end the sit-in and disperse crowds. Better police management and patience and flexibility on both sides have helped keep peace but there have also been tense moments. Last but not the least there is the threat of a terrorist attack by Taliban to take advantage of the situation and force the army to take over the government. Their aim will be to engage the army on many fronts and weaken its hold on the ongoing military Zarbe Azb operation currently under-way in the tribal areas of Pakistan which have provided safe havens to the terrorists. Of all the options, this scenario is the worst and will invoke Pakistan’s suspension from the Commonwealth once again.

The government, on the other hand, is justified in saying that all solutions must be found through dialogue and within the Constitution and Parliament. The Parliament for now is not in favour of any mid-term election nor is it in favour of an in-house change of PM. The second largest party in Parliament, the PPP is issuing vague statements – the party supports the Constitution and parliamentary processes but it is highly critical of the way the government has mishandled the protests. The PPP will be politically strengthened if the ruling PML-N in the Centre and in the Province of Punjab (Pakistan’s largest and in many ways trend setting province) comes out bruised and weakened from the crisis or if the government of PM NS is wound up under duress, creating once again a situation where an elected PM is robbed of his 5-year electoral mandate so early in his term. Ironically, PM NS has no record of good governance to defend himself but he has the electoral mandate and the Constitution on his side. He also has the support of provincial governments and smaller political parties. The civil society is however divided on the verdict and so is the media.

The protesting marches have been fed adrenal-soaked speeches every few hours and it is very hard for the two leaders of PTI and PAT to slow down the momentum they have generated in the marches thus far. It is inconceivable that without any major political gain they will take a reverse drive to cool down on their own. One positive factor is the introduction of folk songs and home learnt dances to keep people entertained in a city which is otherwise socially infertile and entertainment starved as far as ordinary people are concerned. However, it is also a clever ploy by PTI and PAT to keep their crowds in situ, without causing significant reduction in their numbers.

Within Pakistan, there are only three forces who can defuse the crisis – the President, but everyone knows he has no political personality nor any prowess to act as a credible arbiter. The second force is the army which has learnt its lessons in the past and is guided by ground realities and external signals of disapproval and is wisely not in a hurry to intervene. The army also thinks that by bailing out PM NS from this crisis, they can expect more cooperation from PML-N government in the future. Until recently, the army has had a rocky relationship with PML-N government on the issue of General Musharraf’s trial, relations with India and launching the military operation in North Waziristan.

The third and final force is the judiciary. The CJ could have ended the protest by ordering a high-level judicial inquiry into the allegations of election fraud and given the ruling that, if proven, a mid-term election under a caretaker government will become mandatory. This has not happened because there is a serious trust deficit between the protesting parties and the government and they suspect that PM NS and his hawkish ministers will prevail upon the new commission to prevent a transparent and fair investigation. Ironically, the TORs of the commission which was requested by the government from the CJ have been drafted by the law ministry in haste without giving much thought to the larger issue and are likely to be rejected by those opposition political parties which are directly concerned with it.

Under the circumstances it makes good sense to seek external support from those inter-governmental institutions which specialise in democracy, election observation and democratic reforms. The organisation which is closest to Pakistan and has no conflict of interest whatsoever is the Commonwealth. It has a mechanism to offer Commonwealth good offices to countries which face internal conflicts arising between political parties or democratic institutions. The Commonwealth also has a built in mechanism to suspend countries which are under military rule. The Commonwealth has the ability to talk to all stakeholders as an impartial and neutral arbiter and fill in the trust deficit. The Commonwealth could make a suggestion to both sides that the commission requested by the government to investigate the vote rigging allegations could be overseen by a group of independent Commonwealth observers drawn from selected countries who will complete their work within an agreed deadline. If such a role is accepted both by the government and by other political parties, in particular PTI and PAT, the protests can end on the mutual understanding by all parties that if the commission finds a pattern of serious and persistent rigging in a large number of constituencies, the government will immediately call mid-term elections under a neutral administration. If on the other hand the commission finds that the level of irregularities is small and is consistent with what normally happens in other Commonwealth elections without any evidence of systematic fraud, then there will be no mid-tern elections and no resignations and PML-N will have a full 5-year term without further street protests.

If Commonwealth good offices are requested by the government and are accepted by the London based organisation, this will be a win-win for all because at the moment there is no one in the country who could be seen to be neutral other than the three forces which are mentioned above but each has a problem which prevents it to act decisively.

The only other alternative is use of force by either the government or the protesters which will be disastrous if there are large number of casualties either by accident or by design of the agent provocateurs, or if the army moves in as a recourse of last resort. The TTP would also want the military to get distracted and loosen its grip on the operation in North Waziristan. As Interior Minister has repeatedly said, the terrorist threat is real and imminent; it cannot be dismissed lightly.
Syed Sharfuddin
22-08-2014
The writer is a former Pakistan diplomat and a former Special Adviser at the Commonwealth Secretariat London.

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Scorched Earth

The Trouble with Caretaker Government

SharafThe idea of holding free and fair elections under a neutral caretaker government sounds attractive for two reasons: a level playing field for all contestants and an administration which is entirely neutral safeguarding the integrity of the ballot. Both these assumptions, even though well-intentioned, have adverse implications for the future of democracy.

Appointment of a caretaker administration implies that the incumbent government does not enjoy the confidence of political parties for facilitating a free and fair election and should resign before the poll. In developed democracies, there is no concept of swearing in a caretaker government to conduct the immediately following general election. The outgoing government remains in office until such time elections have been held and a new parliament is formed, although such governments do not take policy decisions nor act in a manner that may impact on the function of the new administration.The 1973 Constitution of Pakistan envisaged a similar setup for the conduct of general elections. However, the death of General Zia in 1988 and subsequent dismissals of governments in the 1990s under Article 58-2(b) necessitated the formation of caretaker governments to oversee fresh elections. Regrettably, the elections conducted by those caretaker administrations did not result in setting any high standards which should justify the continuation of this practice. No election in Pakistan has been without controversy.

The caretaker clause in Article 224 of the Constitution, which was introduced by the military government under the LFO of 2002, allows the president and the governors in the provinces to appoint caretaker governments and cabinets without any defined parameters. The only restriction imposed is on the caretaker prime minister and the chief ministers who are not eligible to contest the immediately following election of such assemblies.

Caretaker governments are usually a feature of new democracies or countries coming out of the shadows of a civil war. Pakistan does not fall in either category. Pakistan’s democratic institutions are fairly developed and its political parties and civil society have a degree of sophistication which is comparable to that of advanced democracies.

Another difficulty with caretaker cabinets is that these are not responsible to anyone except the president or the governors in the provinces. If the president becomes controversial in an election, the credibility of the entire caretaker government is at stake.

Like other issues in democracy, elections are a process of acquiring maturity over time. If anything requires strengthening it is the power of the election commission to conduct a fair election and prevent abuse of power or authority by those not authorised to exercise it under law. It should be ensured that the army, police and the bureaucracy are placed at the disposal of the election commission.

Those cabinet ministers who intend to actively support their party candidates or those who themselves wish to contest the election should not be allowed to misuse government vehicles, property, staff and funds for the campaign. The challenge of democracy lies in accepting responsibility and following the rules; not by keeping the practitioners of democracy insulated from the reality of politics.Whatever the outcome of the popular vote, it should be respected in the true spirit of democracy and the Constitution. Even a hung parliament deserves the right to be given a chance to cobble together fragile coalitions. Democracy comes stronger with such experiences. Artificial solutions based on expediency actually harm democracy in the long run.

If a national consensus is not developed to show zero tolerance for electoral fraud and polling irregularities, and a culture of honesty and integrity is not promoted actively, a caretaker cabinet or government, howsoever neutral and honest, can do very little to reverse the systematic rigging of elections. Bangladesh offers living proof of the limitations which undermine public confidence in the caretaker government’s ability to conduct a transparent and credible election.

What is more important is a level playing field for all political parties, a state broadcaster which allocates equal time and coverage to all contestants, a community of media which sets its own codes of conduct for the coverage of election, a civil service which is completely apolitical and an election commission which is financially and administratively autonomous and enjoys the confidence of political parties and civil society.

What is also important is an electorate which is free from violence and intimidation to express its will on the day of the poll, without ghost voters lurking in the electoral rolls or stuffed ballot papers found in the boxes irrespective of whether these are transparent or opaque.

A caretaker government can never be a replacement for these important features of a free and transparent election, even if that cabinet is truly committed to its goals.

The tradition of appointing a chief election commissioner from the judiciary also needs to be reviewed. In India, the post of the chief election commissioner is regarded as an administrative position because elections require constant administrative supervision and management. The judiciary performs a highly specialised function. It interprets laws enacted by the parliament and also decides on issues of law when disputes are brought before it for a ruling.

The argument that a senior judge has the ability to interpret electoral laws better than a civil servant does not hold much ground because 90 per cent of the work of the chief election commissioner is about the management and administration of elections, and only 10 per cent is concerned with the framing of electoral laws and their interpretation. Besides, a chief election commissioner can always appoint a senior lawyer as a member of the commission, or request a court to interpret a law if there is doubt on its application in the context of elections.

An election commission which is headed by a judge of a superior court cannot substitute the court itself. Any person can challenge the decisions of the election commission before the higher judiciary. That being the case, it makes sense not to appoint the head of the election commission from the judiciary. What we need is a complete separation of powers.

The 1973 Constitution, as amended by the LFO, provides for a caretaker government to supervise the next election. It is a foregone conclusion that after the assemblies are dissolved on completion of their term in November, the present government would leave office and a new caretaker administration would be formed.

In ideal circumstances, this should not be the case. Article 224 deserves to be rewritten to recapture the spirit of the 1973 Constitution. This would be yet another step towards restoring full democracy in Pakistan.

This article was published by the author in the daily Dawn on 22 October 2007. http://m.dawn.com/news/1070581/dawn-opinion-october-22-2007

chaar Minaar

Roots of 2007 Judicial Crisis in Pakistan

SharafCompared to other democracies, Pakistan has never been a shining star in upholding the principle of the independence of the judiciary. The reasons for this underperformance are similar to those found in many developing countries and include poverty, backwardness and lack of trained and qualified judges to impart justice to large sections of the population. Those who lose out on justice are mostly women and other vulnerable social groups.

Despite recent efforts to improve the image of the judiciary in Pakistan, thousands of cases are pending in courts. However, the biggest and foremost reason for the judiciary’s poor performance is the constant interference by the executive in the affairs of the judiciary.

This interference started early in the life of the country when the then president and martial law administrator required the judiciary to take a fresh oath of office swearing allegiance to the emergency provisions leading to the military takeover of the country in 1958. This was important because while the military coup eliminated two branches of government — the legislature and executive — it did not otherwise affect the judiciary. The only way the judiciary could be neutralised by a military regime was to make the senior judges subservient to the executive and prevent them from challenging the legitimacy of the coup and other extra-constitutional measures required to run the affairs of the state under military rule.

After initial resistance to the political events in 1958, the judiciary succumbed to the pressure and accepted the argument that if it did not compromise with the situation, military courts would replace civilian courts in all spheres of the judiciary. In order to continue their jurisdiction over criminal and civilian matters without questioning the politics of the day, the judiciary decided to go along with the requirement of taking an oath of allegiance to the military dictator.

The judiciary’s validation of the coup which was applied in the State v Dosso case in 1958 was so potent that three African countries in the Commonwealth borrowed it subsequently to validate the abrogation of their constitutions by the military. Later, the Dosso reasoning was replaced by the ‘doctrine of state necessity’.

This entente cordiale between the military regimes and the judiciary proved mutually rewarding. The judiciary could continue functioning without interruption as long as it did not question the actions of the military regime. The military rulers, on the other hand, could claim that not all was taken over by them and that the courts were free to dispense justice to society without fear or favour.

Following the military overthrow of a democratically elected government in 1999 in Pakistan, the senior judiciary was again asked to take an oath of allegiance to the military chief executive. Those who dissented, like Justice Saeeduzzaman Siddiqui, had to step aside. Subsequently, the Constitution (17th amendment) act 2003, declared that all laws, rules and orders issued under the military government were deemed to have been made in accordance with the Constitution.

The country has paid a high price in terms of its image abroad as the oath of allegiance of the senior judiciary remains a big obstacle in convincing the world that Pakistan’s judiciary is truly independent of the executive. The present episode is perhaps the first time in the history of Pakistan when the judiciary seems to be exerting its independence vis-à-vis an executive which is beginning to acquire more and more powers despite the lip service paid to the theory of checks and balances.

Under the Commonwealth Latimer House principles, Pakistan is morally and politically bound to ensure and respect the separation of powers and independence of action between the three branches of government – the executive, the legislature and the judiciary.

The announcement made on behalf of the Supreme Judicial Council that the electronic and press media should be careful in discussing a matter which is ‘sub-judice’ makes matters worse for the government. In this age of the internet, the government cannot prevent foreign newspapers and TV channels from commenting on the drama which is being played out in the streets of Islamabad.

In normal circumstances, the Chief Justice, upon hearing about the charges against him from the president, should have himself announced that in view of the allegations against him, he was proceeding on leave pending the outcome of an inquiry by the Supreme Judicial Council. But the rapid action that followed Justice Iftikhar Chaudhry’s meeting with the president last Friday and his subsequent protective custody and ‘isolation’ by the security agencies led to suspicions that the government was fed up with his bold and fearless demeanour in taking suo motu notices. The chief justice had spoken about many social issues which are highly objectionable and serious in magnitude but which were never brought for legislation in parliament or if these were already covered by laws, were not fully enforced by the government.

Two recent examples of the chief justice’s suo motu notices are his ban on kite flying and expression of concern on the temporary ‘disappearance’ of people. Both actions did not go down well with the government. The Punjab government lifted the kite flying ban for two days and as a result of the death of 13 persons in unfortunate incidents is now faced with possible court cases from the affected families. The ‘disappearance’ of persons has more serious overtones because it infringes on the human rights of people.

From the point of view of the government, surprise custody of suspected individuals for questioning may be necessary to round up terrorists. It is true that Pakistan has a very important role to play in combating terrorism and that it has to show a constantly rising graph in its performance on the war on terror to keep Washington satisfied. But it is also the responsibility of the government to ensure that there is a proper balance between domestic law enforcement and human rights. All other countries of the world which have joined the war against terror have observed this balance.

Normally it is not the function of the apex court to keep issuing suo motu notices to bring about societal change. But if the Chief Justice tried to translate into action the president’s vision for a fair and just society, why should he be punished for bringing about a positive change?

It is argued that the procedure set out in clauses four, five and six of Article 209 has not been followed chronologically. Clause 5 (b) of Article 209 gives the president the authority to direct the council to inquire into the matter of misconduct but it does not give the president the power to remove or make ‘non-functional’ the concerned judge of the Supreme Court or a high court until the condition in clause 6 of Article 209 has been fully met.

The government order preventing Justice Chaudhry from performing his duties on charges of misconduct raises two fundamental questions on the application of the rule of law. The first is denial of his constitutional right to continue as Chief Justice until he is proven guilty of the charges laid against him; and the second is correctness of the composition of the body holding the inquiry against the Chief Justice in accordance with the Constitution. The present composition of the Supreme Judicial Council is without the senior-most judge of the Supreme Court after the Chief Justice.

The next senior-most judge is Justice Rana Bhagwandas. His membership of the Supreme Judicial Council is mandatory in accordance with clause 3 (a) of Article 209. Even if the president had asked the judiciary to invoke Article 209 against Justice Chaudhry, the other members of the council should have consulted Justice Bhagwandas on telephone about the date of its meeting and confirmed his participation. Sadly, this does not seem to have happened because the council met on March 13 without Justice Bhagwandas.

Although the events surrounding this interesting judicial case are not a surprise to people who have followed closely the circular email of a Supreme Court advocate, Naeem Bokhari, the action that the executive took last week was too harsh and too hasty. Stopping the Chief Justice from performing his duties with immediate effect on the basis of a letter, even if the letter contained hard facts, is not good practice.

If letters alone can form the basis of determining the fate of highly-placed people in public office, it may be recalled that last year a dozen intellectuals, former politicians and retired generals wrote an open letter to the president warning him of the dangers of continuing both as president and army chief, in the interest of the nation and for the stability, unity and consolidation of democracy in the country. The president ignored that letter, perhaps rightly so because in the affairs of the state, such letters do not mean anything.

If on the basis of the inquiry of the Supreme Judicial Council it is determined by a majority vote that Justice Chaudhry is not guilty of misconduct, can anyone imagine the embarrassment it will bring to the government? Will the president be then prepared to resign admitting an error of judgement in referring Justice Chaudhry’s case to the Supreme Judicial Council?

Moreover, if this government has taken the high moral ground that previous governments were so autocratic that they did not even spare the institution of the judiciary by forcing Sajjad Ali Shah to resign or by masterminding a physical attack on the Supreme Court, how can it defend this action which to outsiders appears similar to earlier assaults on the judiciary? The removal of the Chief Justice will clearly be seen abroad as an indication that in an election year the government wants to ensure that he is not a threat to their plans to re-elect the president in uniform and win the elections for the ruling party.

Whatever the Supreme Judicial Council decides on the reference is its constitutional duty and right. But people will be curious about the details of how the inquiry is conducted. They might also support Justice Chaudhry’s request for a public inquiry.

What is at stake is not the judicial process or the issue of transparency because there are instances where inquiries have been held in camera. What is important is that the Council also looks at the record of Justice Chaudhry’s professional performance. How much harm or good have his judicial verdicts and suo motu notices brought to the country? How far has he been instrumental in restoring the independence of the judiciary? Has he inspired his juniors in the profession to be bold and fearless in dispensing justice for the public good?

After all, none of us can claim to be a saint. If Justice Chaudhry has any vanity or personal flaws, did these come in the way of him being a responsible, bold and fair Chief Justice? Judging from the public enthusiasm and media commentaries that this case has generated, it is indeed a golden opportunity for the judiciary to set the direction of its future which the infamous Dosso case turned away from nearly half a century ago.

This article was published by the author in the daily Dawn of Pakistan on 15 March 2007. www.dawn.com/news/1069923/dawn-opinion-march-15-2007

Islamabad

An Exit Strategy for the Military

SharafMilitary regimes are quintessentially patriotic and unforgiving on the question of national ideology. While they mean well for their country, their understanding of the complex political issues is always limited and their record of performance often falls short of declarations.

Military regimes see democracy as a means of managing political turbulence, and not as an organic institution addressing the needs of a sustainable pluralistic society. They associate themselves with the stability and strength of the state in the fashion of l’état c’est moi. Any criticism of the military regime is seen not as an audit of the government but as an attack on the state itself.

Under military rule, the state is both too strong and too weak. A military regime continuously tries to make the state stronger. The regime also has an insatiable appetite to control and improve governance. It tries to collect more taxes, clamps hard on dissent and uses force to resolve intricate political issues. States under military regimes are inherently weak because they lack a genuine functioning democracy.

The history of military rule in Pakistan is, however, not as gloomy as often painted. In its 60 years of independence, four of Pakistan’s presidents came while serving in the army. Compared to this period, Nigeria has had more coups than Pakistan and none of its military rulers did as much for the country’s economic development as the generals in Pakistan. In Argentina during 1930 to 1983 (a total of 53 years) 14 military presidents governed the country. It is not unrealistic, therefore, to expect that Pakistan will eventually move to a civilian democratic rule without military interference.

The question arises about how to find an exit strategy for a military regime, irrespective of whether it is directly involved in politics or is using proxy parties to leave political power to a successor regime which is genuinely democratic.

The first is the scenario of a military regime going to war with another country and facing defeat, including foreign occupation. This happened in Japan after the Second World War; in Pakistan after the emergence of Bangladesh; in Greece in 1974 when to safeguard the institutional unity and prestige of the army, a faction of the senior military officers overthrew the losing junta and handed over power to a civilian caretaker government; and in Argentina where a similar defeat at the hands of the British in the Falklands war led to elections and a change of guard in 1983.

The second is the scenario of a military regime being so corrupt that even the country’s armed forces feel embarrassed about it and withdraw from power when an opportunity presents itself for change. This is precisely what happened in Nigeria when after the sudden death of General Sani Abacha in 1998, his successor, General Abdul Salami Abubakar, organised free and transparent elections in Nigeria within one year of his presidency and transferred power to an elected president.

The problem with this scenario is that not all military regimes are corrupt. In fact some are cleaner and far more responsible than the democratic administrations they replaced. General Mobutu’s notorious and incompetent reign brought as much tragedy to the former Zaire as has President Mugabe’s misrule to Zimbabwe. Ironically, Mugabe has won successive elections in his country and is not a commissioned military officer, even though he fought the war of Zimbabwe’s independence in the trenches as a comrade.

The general dissatisfaction of people against inefficiency and bad governance by an elected government in Fiji led to a military takeover in 2006 which could well have been avoided if the warning signs were read and addressed in time by the civilian government. It was also the same story that led to the 1999 coup in Pakistan.

Another scenario in the exit strategy is free and transparent elections in which the military agrees to give up power if the parties that support the regime lose the election. In doing so, the outgoing military regimes ensure that legal formalities are completed before their departure to deprive the successor democratic governments of a chance to question the laws and ordinances promulgated during military rule. This scenario applied to Uganda and Chile in the 1980s, and to Pakistan in 2003 when parliament incorporated a major portion of the Legal Framework Order in the 1973 Constitution under the Seventeenth Amendment.Sometimes a military regime may hold elections but in the aftermath of the results not being to its liking, bar the winning party from taking power. This was witnessed in the Burmese elections in 1990. In 1992, the Algerian military invalidated the first democratic elections because the party that won the majority was not ‘kosher’ by the army’s standards.

This volte-face results in weak democracies where the army is not reconciled fully to an entrenched democratic process.

There are examples of countries which had a weak tradition of democracy, such as South Korea and Taiwan, going to elections with military-backed parties and retaining power through free elections.

In this process, the military-backed parties subsequently went through political renewal and became considerably independent over time having a civilian leader, as in Taiwan. After two successive elections, the military-backed parties ultimately lost the majority in these countries and the military accepted the verdict of the people in a democratic process they could not control.

Another scenario that is not entirely democratic but allows the military to leave politics in return for a limited institutional role in the governance structure is made possible through a constitutional arrangement assuring the military a number of seats in the legislature.

The Ugandan constitution, for instance, allows the army to send a fixed number of officers to parliament under a reserved quota for the armed forces.

Pakistan has also sought to give the military an institutional role in politics through the introduction of the National Security Council which includes on its membership the chiefs of the three armed forces as well as the chairman of Joint Chiefs of Staff committee. Although the NSC is a forum for consultation, it is regarded by the opposition political parties as an unnecessary extension of the parliamentary process.

In countries coming out from the shadow of military rule, the transition to democracy takes place in two phases. In the first phase, multi-party elections result in the formation of civilian governments. These governments either retain an allegiance to their military predecessors or exhibit signs of authoritarianism which they experienced in their political struggle under the military regime.

Sometimes in the first phase of democracy a handful of powerful people exercise control over the political process and economic decision-making in the form of an oligarchy.

Democracy’s second phase is about recognising the political division of labour and respecting professional and institutional specialisations. The more specialised a body politic, the greater chances there are for it to become a stronger democracy.Specialisations lead to checks and balances. These include separation of powers between the three branches of government; separation of religion and state in all spheres of political, economic and social activity; separation of civil society from government; separation of elected representatives in the legislature and the executive from the partisans of those bodies who elect or replace them; separation of responsibilities and functions between the national government and local governments; and separation of facts from values and the vision a country has for its future.

These separations are also sometimes referred to as functional competencies. Under this arrangement, national parliaments delegate more powers to expert administrative bodies in the areas of their competence, but with due public oversight and a strict accountability regime. The acquiescence by parliament gives these bodies sufficient democratic legitimacy to function independently.

Applying this principle to new democracies, especially those in the first stage of transition, one can build a model of democracy where parliament can entrust the armed forces with certain nation-building tasks where they have a comparative advantage over the civilian sector; i.e. building new cities, developing communications infrastructure, supporting the industrial base with R&D and filling the gaps in the security, supply and knowledge sectors in society. The military establishment can thus become an invaluable tool of development while remaining subservient to the institutions of democracy.

This article was published by the author in the daily Dawn of 12 June 2007. www.dawn.com

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