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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.

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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