Compared 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

Military 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

This briefing paper was presented by Commonwealth Human Rights Initiative (CHRI) http://www.humanrightsinitiative.org/ at the Commonwealth People’s Forum, held in parallel with the Commonwealth Heads of Government Meeting in Kampala, Uganda in 2007. It covers the first ten years of CMAG’s history.

The Commonwealth has a number of compliance mechanisms which monitor the progress of human rights and democratic governance in member countries. The Commonwealth is perhaps the only international organisation which has the mandate to publicly express concern on serious or persistent violations of democratic principles in a member country, and take appropriate measures to reverse such derogation without being accused of interfering in the internal affairs of states.

The Commonwealth’s most formal mechanism for assessing member countries’ compliance with the Harare Principles is the Commonwealth Ministerial Action Group (CMAG) which is constituted by Commonwealth Heads of Government every two years. CMAG has the power to suspend countries from the councils of the Commonwealth if circumstances require such extreme measure, without waiting for formal endorsement from Heads of Government.

CMAG also has the power to readmit a suspended member in the Commonwealth without seeking Leaders’ approval, if it is satisfied that the concerned country meets the Harare benchmarks fully.

Despite some apparent setbacks in a few countries that violated the Harare Commonwealth Principles, namely Zimbabwe, Pakistan and Fiji Islands, as well as its long engagement with The Gambia, Maldives and Cameroon for democratic and electoral reform, which is yet to bear fruit, the Commonwealth has come out stronger and consistent in implementing its rules of engagement. These mechanisms, which are broadly classified as formal and informal, can be further refined and made effective through greater co-ordination within the Commonwealth family involving the Commonwealth inter- governmental bodies, Commonwealth accredited organisations and Commonwealth civil society organisations.

The Commonwealth remains the most effective organisation for pooling resources and involving governments, NGOs and media as partners in democracy and development.

Introduction

Constitutional guarantees for individual liberty and fundamental freedoms, backed by a strong and independent judiciary are an essential feature of democratic societies. Commonwealth countries’ commitment to the fundamental political values of the Commonwealth, and in particular the Harare Commonwealth Principles, is rooted in this principle. The task of deepening democracy and institution building is not possible without taking into account the role citizens play in democratic governance and the freedoms they enjoy in exercising their rights without any unlawful restrictions imposed on them by the state, institution, group or individual.

Commonwealth Heads of Government have resolved in the Harare Commonwealth Declaration and subsequent CHOGM Declarations to abide by their commitment to democracy and the rule of law and other fundamental values. They have also agreed to place their governments under certain compliance mechanisms which are collectively administered by the Commonwealth and guide the work of the association in advancing human rights in member countries.

1. INFORMAL MECHANISMS

1.1. Role of Commonwealth Agencies and Organisations

A number of Commonwealth accredited organisations such as the CPA, CLGF and CAPAM pursue their activities in the overall context of the Harare Commonwealth Principles. Although these organisations work quietly and often in their own specialised areas, they identify and promote good practice in human rights, gender equality, democratic pluralism, decentralisation and devolution and liberal democracy.

1.2. Civil Society Networks

The Commonwealth Foundation is responsible for coordinating the activities of professional associations and civil society organisations in member countries. The Foundation’s work is supported by a number of independent Commonwealth civil society organisations which focus in specific areas, such as the CHRI in human rights, and CTUC in trade union issues.

1.3. Commonwealth Media

Commonwealth media organisations, in particular the CBA, CPU and CJA have helped to free media from government control and provided training to media personnel in member countries. Media freedom is an important component of democracy and human rights.

1.4. Commonwealth Academic Institutions and Think Tanks.

Commonwealth universities and think tanks such as the CPSU have made a valuable contribution in generating fresh ideas to constantly test the relevance of the Commonwealth in modern times. They have defined the vision of the Commonwealth as an association working to empower people, promote fundamental freedoms and create economic opportunity in a globalised world.

2. FORMAL MECHANISMS

2.1. Good Offices Work of the Commonwealth Secretary- General for conflict prevention and resolution.

At the Coolum CHOGM, Commonwealth Heads of Government reiterated their commitment to strengthening the good offices role of the Secretary-General in supporting democratic practice, resolving tensions, conflict prevention and resolution and post-conflict rebuilding.

Under present arrangements, it is not possible for CMAG to formally discuss a country where the Secretary-General’s good offices role is ongoing. CMAG can only intervene if the good offices do not resulted in any tangible progress on compliance with the Harare Principles. This places the Commonwealth Secretary-General in a sensitive position. If a period of two years could be set as the upper limit for good offices, CMAG could directly engage with these countries by placing them on its agenda after this deadline.

By its very nature, the Commonwealth good offices process for conflict resolution is unpredictable and has no end date. During this period, if the fundamental human rights

2.2. The Commonwealth Secretariat

The Commonwealth Secretariat has several programmes for deepening democracy and promoting human rights in member countries which are overseen by the Human Rights Unit and the Political Affairs Division. In addition, a number of other Divisions provide support for the Secretary General’s good offices role and assist member countries in institution building and reform.

The Commonwealth Secretariat also builds strategic partnerships with other Commonwealth bodies and institutions, as well as with regional and international organisations to coordinate its work in conflict resolution, local government reform, parliamentary good practice, election observation, human rights, gender mainstreaming and legal and constitutional reform in member countries.

2.3. Special Envoys

The Secretary-General’s good offices involve the appointment of Special Envoys who assist the process of negotiations and consensus building in times of crisis and/or serious violation of Harare Principles. Special Envoys have also been appointed when member countries request assistance for resolving internal conflict or overseeing constitutional and electoral reform. A meeting of Special Envoys was held in London in 2006 to review the Commonwealth’s ongoing work and draw up lessons from their collective experiences.

The work of the Special Envoys is not easy. It is also complicated by the fact that Special Envoys are not authorised to make any commitment on behalf of the Commonwealth for technical assistance

for capacity building or development projects. This reduces the ability of Special Envoys to press for early action.

Special Envoys are also sometimes not available on a full time basis to pursue the good offices mandate in a sustained manner.

2.4. Commonwealth Election Observers

Election observation has been a flagship of the Commonwealth’s democracy and human rights programme for over fifteen years. It has provided the basis for further engagement with member governments for technical assistance for capacity building for the electoral management body, for introducing good offices and for providing vital reports to CMAG on the basis of which the Group has sometimes suspended countries from the councils of the Commonwealth.

2.5. CHOGM and Commonwealth Ministerial Meetings

The Commonwealth has taken failing countries to task through public statements of disapproval as well as through suspension from membership if they repeatedly fall short of their commitments on democracy, human rights, rule of law and separation of powers.

The Commonwealth’s disapproval of states’ non-performance on human rights goes much further than the steps taken by any of the international organisations, including the UN. Although Commonwealth Foreign Ministers have met annually since 2002, the body that has the direct mandate from Heads of Government to act as the custodian of Commonwealth’s fundamental political values is the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG).

Although Heads of Government have given CMAG full powers in regard to taking appropriate measures, including imposition or lifting of suspension, they have sometimes taken matters outside the remit of CMAG as happened in the case of Zimbabwe when they decided to set up a Troika to deal with Zimbabwe. Subsequently, the Troika was expanded and became a Committee of Six Prime Ministers to deal with the Zimbabwe issue. Generally, Heads of Government have rarely interfered with the work of CMAG and endorsed its decisions.

2.6. CHOGM Chairperson-in-Office

Since the Coolum CHOGM, CMAG has also benefited from the contribution of the Chairperson in Office, whose representative is on the membership of the Group. The Secretary-General also consults the Chairperson in Office on good offices.

The role of the Chairperson in Office between one CHOGM and another is still evolving and has not yet been defined formally. To supplement this role, the Commonwealth tried the concept of the Troika, by constituting a Committee, comprising the past, current and future Chairpersons in Office, but it was not very successful.

2.7. Commonwealth Ministerial Action Group (CMAG)

CMAG is a vital source of support and encouragement to member countries in upholding the fundamental political values of the Commonwealth as enshrined in the Harare Declaration. At the same time, CMAG acts as a ‘court’ for those countries which have persistently violated Harare Commonwealth principles or undermined democracy on the grounds that these reflect national circumstances.

CMAG has provided broad strategic direction to the Commonwealth Secretary-General for the provision of technical assistance required by member governments to help with constitutional reforms, independence of the judiciary and capacity building for effective election management bodies.

CMAG’s work is guided by two mutually reinforcing mandates. These have been endorsed by all member countries. However, these mandates do not constitute any legal instrument and do not have the force of international law. These are:

(i) Millbrook Action Plan on the Harare Declaration (1995) which set up CMAG.

(ii) Realising Millbrook (March 2002) which clarified CMAG’s mandate to cover situations of serious or persistent violations of the Harare Principles other than military overthrow of democratically elected governments.

The clarified mandate of CMAG lists ten measures that CMAG can take in its engagement with the concerned member country to persuade it to comply with the Harare Principles, or face expulsion.

(i) Consultation by the Chairman of CMAG or the Secretary- General with the government concerned;

(ii) Appointing an envoy or group of eminent Commonwealth representatives to facilitate constructive dialogue in the country concerned;

(iii) Encouraging bilateral demarches by member countries, especially those within the region, both to express disapproval and to support early adherence to the Commonwealth’s fundamental political values;

(iv) Soliciting the support and intervention of regional organisations in promoting adherence to the Commonwealth’s fundamental political values;

(v) After due consultations, the prompt public expression by the Secretary-General of the Commonwealth’s collective disapproval;

(vi) Suspending the member country concerned from the Councils of the Commonwealth;

(vii) While under suspension from the councils of the Commonwealth, a member country should not receive new Commonwealth technical assistance, other than that directed to the restoration of democracy;

(viii) Stipulating an appropriate timeframe for the re-adherence to the Commonwealth’s fundamental political values, after which CMAG could recommend that the member country concerned be fully suspended from the Commonwealth;

(ix) Other steps considered necessary to engage a member government on the need for progress or to express the collective concern of the Commonwealth;

(x) Consideration of appropriate further bilateral and multilateral measures by all member states (e.g. limitation of government- to-government contacts; people-to-people measures; trade restrictions; and, in exceptional cases, suspension from the association), to reinforce the need for change in the event that the government concerned chooses to leave the Commonwealth and/or persists in violating the principles of the Harare Commonwealth Declaration even after two years.

In circumstances of continuing serious breaches of the Commonwealth’s fundamental political values, CMAG may consider recommending to Heads of Government that the member country concerned be expelled from the Commonwealth.

Step (x) has never been applied by CMAG. Nigeria returned to democratic rule before this step was contemplated in 1997. On Pakistan, Zimbabwe and Fiji Islands, CMAG went only as far as step vii, namely suspending these countries from the Councils of the Commonwealth.

3.1. There are three distinct mechanisms which enable the Commonwealth to remain engaged with member countries in support of deepening democracy, good governance, the protection of human rights, respect for the rule of law, independence of the judiciary, transparent and inclusive parliamentary processes, freedom of expression, devolved local government and political reform.

A. Formal Channels; B. CMAG Role; C. Informal Channels.

These comprise Secretary-General’s good offices role, Special Envoys,Election Observer Missions, Commonwealth Secretariat, CHOGM and other Commonwealth Ministerial Meetings, Consultations with Chairperson-in Office, Regular Sessions and extra-ordinary Meetings; Submissions to CMAG, Eve of CHOGM Meeting and Report to CHOGM, CMAG Ministerial Missions; Commonwealth Foundation, Commonwealth accredited organisations, Commonwealth civil society and media organisations, Other relevant specialised bodies, academic institutions and Think tanks.

3.2 While there is full and satisfactory coordination between A & B and growing coordination between A & C, there is hardly any coordination between B & C. Closer interaction between civil society and CMAG can build confidence of the countries under CMAG’s audit and multiply channels of assistance. It will also help build domestic capacity for monitoring compliance and release resources for work in other priority areas to link democracy with development.

3.3. The volume and division of work between A & C is balanced but the same is not the case between A & B. While there were as many as 12 countries on the good offices activity in the period following the Malta CHOGM, there were only two countries on the CMAG’s agenda in the same period. CMAG also decided in 2006 to meet in fewer regular sessions than before.

3. Assessment and Conclusions

3.1. CMAG remains the most effective multilateral body in international affairs which has the ability to suspend member countries from the association for violating democratic principles. Its ability to positively engage with countries in order to support and strengthen democratic institutions should be strengthened by enabling the Group to directly call upon other relevant Commonwealth organisations and bodies such as the Commonwealth Foundation, Commonwealth Parliamentary Association, Commonwealth Local Government Forum, Commonwealth Human Rights Initiative and Commonwealth Policy Studies Unit to provide assistance through their monitoring, awareness and capacity building workshops and other training programmes.

3.2. Throughout its work, CMAG has focused on two main issues: subordination of the military under civilian democratic institutions and strengthening the machinery and processes for transparent and free elections. CMAG has not laid sufficient emphasis on promoting liberal democracy in member countries. It has not given priority to respect for fundamental freedoms and individual liberty over all other aspects of government responsibility such as equality, social justice, democracy, stability and law and order.

3.3. CMAG has often overlooked the responsibility of governments to promote sustainable development and achieve consensus building as enshrined in the Harare Declaration and reiterated in the Millbrook Action Programme. The Group has limited its work to promoting only the fundamental political values of the Commonwealth in member countries. At the Abuja CHOGM Heads of Government declared that development and democracy are interlinked and enforce each other strongly. The Millbrook Action Programme also requires that CMAG should link sustainable development to the Commonwealth’s fundamental political values and divide its work equally in both areas.

3.4. CMAG’s mandate on the measures it can take against countries failing the Harare Principles is sufficiently detailed in the Millbrook Action Programme as well as the document ‘Realising Millbrook’. However there is no clear definition of what constitutes serious or persistent violations of the Harare Principles. Member governments have escaped CMAG’s scrutiny despite situations where elections have been postponed beyond the constitutional life of the government, where political parties have not been allowed to function freely or where fundamental human rights of citizens have been abrogated. There is an urgent need to agree on some normative criteria of the breaches of Harare Principles the existence of which should justify CMAG’s direct engagement with the concerned countries, in addition to the involvement of the Chairperson in Office and the Commonwealth Secretary-General’s good offices role.

3.5. CMAG should be encouraged to take note of the June 2006 CHRI Report on the performance of Commonwealth members on the UN Human Rights Council titled: Easier Said than Done’. There are 12 Commonwealth countries currently on the UNHRC, namely, Bangladesh, Cameroon, Canada, Ghana, India, Malaysia, Mauritius, Nigeria, Pakistan, South Africa, Sri Lanka, United Kingdom and Zambia. These countries have a greater moral obligation to fulfill their human rights commitments compared to other member countries which are not represented on the Council.

3.6. In reality, the pursuit of human rights goals by the Commonwealth has been challenging. Other than CMAG and the Commonwealth Secretary General, who represents the collective voice of governments, member countries have been reluctant to speak publicly in condemnation of the serious or persistent violations of the Harare Principles by another member country. Some do so to protect their bilateral relations; others take a broader view of developments where sometimes Harare Principles are overshadowed by other more significant geo-political considerations. There are also those who prefer to keep quiet because they expect that in the event of a similar situation arising in their countries, the others will take a similar stand and not criticise them publicly.

3.7 Another challenge is that in an increasingly globalized world where regional economic blocs are emerging more powerful than global international groupings, the Commonwealth, as an inter-governmental organisation, does not have a massive development assistance budget, political or strategic dimension or military and technological portfolio to keep its members fully committed to the association’s goals.

3.8. Taken seriously, the Commonwealth not only gives weight to the voice of small and developing states in regional economic groupings, it also works in ways that are more action oriented than being just a grouping of diverse countries.

About the author. Mr Syed Sharfuddin is a former Special Adviser for Political Affairs in the Commonwealth Secretariat, London. He was Deputy Conference Secretary of CHOGM and CMAG from 2000 to 2006. Mr Sharfuddin joined the Pakistan Foreign Service in 1977 and served in senior diplomatic positions in Washington, Harare and Dhaka before joining the Commonwealth Secretariat in 1996. Mr Sharfuddin specializes in South Asia and has written regularly on democracy and good governance.

 For years, democratic elections and constitutional liberalism have formed an intrinsic part of western political culture. But in many countries, although multi-party elections are becoming the norm, respect for the rule of law, separation of powers and fundamental freedoms are on the retreat. The rise of illiberal democracy is therefore a cause for concern.
Today 118 of the world’s 193 countries are democracies. But in many countries, elections are neither free nor credible. In some countries the elected parliament itself imposes restrictions on the freedom of speech and assembly.
According to a survey, 50 per cent of the regimes which lie between confirmed dictatorships and consolidated democracy do better on political liberties than on civil liberties. It can therefore be argued that nearly half of the countries in the world today are illiberal democracies. Seven years ago this ratio was only 22 per cent.
Democracy without its essence is capable of producing inefficient, corrupt and bad governments. This is because the emphasis is placed on elections even though these may be multi-party, with greater participation by women. Constitutional liberalism, on the other hand, is not about procedures for selecting a government but rather the government’s goals. It refers to a tradition of protecting an individual’s right to life and property and freedom of religion and speech through the rule of law. The Magna Carta, the US constitution, the UN Instruments on Human Rights and the Final Helsinki Act are all expressions of constitutional liberalism.
The concept of constitutional liberalism evolved differently in many parts of the world but it was perfected in the late 1940s when most western countries became full democracies. More recently, central Europe has moved successfully from communism to liberal democracy in the same way as liberalism preceded democracy in other countries in Europe in the 1990’s.
In East Asia, countries have incorporated many aspects of constitutional liberalism in their political systems. However, in other parts of the world, elections have not resulted in promoting democratic liberalism.
Absolute democracy can easily undermine liberty. At the same time, excessive emphasis on constitutional liberalism can lead to liberal autocracy. This imbalance has often led to tensions between the centre and local governments. Developing countries have argued for strong central powers to implement difficult and sometimes unpopular economic reforms. In contrast, countries with little centralised power and a tradition of managing pluralism have been able to progress quickly towards liberal democracy.
It is commonly assumed that democracy brings ethnic harmony and peace. Neither is necessarily true. Ethnic harmony is a feature of mature liberal democracies. In fact, without liberalism, introduction of democracy can lead to ethnic conflict and civil war. Democracy introduces an element of competition; liberalism tempers it with accommodation and protection of minorities.
Democratic peace has little to do with democracy. Countries with little tradition of consolidated liberalism can be hyper-nationalistic and are prepared to wage war to protect democracy. Liberalism gives democracies peace through constitutional rights, ensuring that no single leader can drag his/her country into war. It also creates economic interdependence making it costly for democracies to wage wars. There is a need to rediscover the liberal western tradition for the development of good government throughout the world. If a democracy cannot preserve liberty and laws, it is small consolation that it exists in name.
Constitutional liberalism is a gradual and long-term process in which an election represents only one step. If a country holds elections, a great deal from that government is accepted without much regard to its adherence to the rule of law. Also, little effort is made to create imaginative constitutions in transitional countries in order to take them beyond electoral democracy. This must change.
Governments must be measured by yardsticks relating to constitutional liberalism as well as elections. If a government is promoting economic, civil and religious liberties with limited democracy, it should be supported to do more.
Today, democratic governance is not threatened by monarchies, the church or dictatorships. Its problems lie within illiberal democracy, namely erosion of liberty, abuse of power, ethnic divisions and conflict. The most useful role that the international community can play to consolidate democracy is to encourage constitutional liberalism where democracy has taken roots.
One of the major considerations in recommending policy is how to respond to situations where parties and leaders that are corrupt and self-serving use money and muscle power to form governments. Should support for such elected governments be withdrawn or should there be new criteria established where other key elements of democratic governance such as commitment to human rights, the rule of law and separation of powers take priority, with elections playing only a secondary role?
If there is support for such a wider agenda, there should be an international instrument which binds all countries to adhere to certain basic norms of democratic governance against which the international community could demand compliance and provide appropriate assistance.
It has been argued that extremist parties and disparate groups have hijacked the democracy agenda by exploiting poverty, deprivation and external factors such as foreign occupation and economic and social injustice and won elections only to justify their actions in the name of popular support.
The debate is open on whether the democracy agenda be fundamentally altered to isolate such so-called democratic governments, or should there be engagement with them to ensure that they are persuaded to preserve fundamental liberties and laws in return for economic and technical assistance. Globalisation has deepened economic interdependence and integration has created a strong pull factor for such regimes to abandon extremism and violence and embrace constitutional liberalism.
Holding regular and legitimate elections has now become an accepted norm even though some countries are democracies only in name. Efforts should be made to make elected governments accountable to the people.
The international community should assist countries in reviewing their constitutions and legal and electoral framework to bring them in line with liberal democratic principles and strengthen democratic institutions, including electoral commissions to make democracy irreversible.
The doctrine of national circumstances has prevented many countries from accepting the fundamental values of democracy on the pretext that some of these are not compatible with their own history and culture. A major policy consideration is whether to address this issue globally and make liberal democratic principles universally accepted, overriding national circumstances.
Another area where research needs to be undertaken is placing limits on the terms of office of heads of state and government. Are such limits desirable in order to encourage retirement of leaders who have abused the power of incumbency to remain indefinitely in power? There are many examples in the developing countries where such ‘elected’ leaders are still in power.
In many transitional countries the performance of political parties has let down democracy. Political parties are either not mature enough or lack the courage to oppose autocratic rulers.
Political parties have also not been able to develop fully because of their weak internal governance structures, as well as their inability to develop codes of good practice for elections and for dealing with other political parties.
There are five key areas against which the performance of political parties can be realistically measured:
1) Political environment in which parties function and conduct their business. In many developing counties, this environment is fundamentally hostile to political parties. This affects their unity and ability to organise themselves as a formidable opposition.
2) External regulations that shape parties and party systems. Political parties are directly affected by the consequence of an imperfect constitution or its interpretation by a government which is only democratic in name but not in practice. It is also important to examine whether national laws put any restrictions on political parties such as an excessively restrictive framework for the registration of new political parties, limits on the freedom to exercise the right to assembly and free speech and what can be termed as government interference in their internal functioning.
3) Intra-party functioning. This is often the most neglected area of political parties’ work. While parties are active in the political field, they sometimes neglect to conduct internal elections and fail to devise rules and legal frameworks for the selection and removal of party leadership, candidate selection, mechanisms for dispute resolution, funding and internal audit.
4) Institutional shortcomings. Often political parties are found to be organisationally weak and heavily dependent on single leaders. Strong family connections and reliance on few sources for party funding also prevent political parties from transcending their leadership. Institutional issues involve long-term stability of political parties to command support of people which is essential for the stability of democracy.
5) Challenge of emerging new parties based on regionalism, ethnicity and egalitarianism. Established political parties face this phenomenon due to many reasons which include nationalism, rise of specific interest groups, and a desire to practise democracy locally. The performance of political parties depends on the role they play in maintaining inter-party relations and promoting pluralism and fostering peace and democracy. This also helps to form coalitions.
It is possible to rebuild trust in political parties by examining a number of factors that impact on their reputation. Political parties can function independently and efficiently if the external political environment is conducive to nurturing a liberal democratic system.
Political parties can be fully functional only if there is respect for the rule of law, independence of the judiciary and constitutional protection for freedom of assembly, religion and speech.
Without these democratic values, political parties can only struggle to survive and at best contest elections but not deliver much in terms of substance. Effort should therefore be directed first to correct the external environment for political parties to flourish.
It is also important that irrespective of the external environment, political parties raise their game by setting mechanisms for democratic functioning and observe codes of conduct for internal governance. They must play a positive role in parliament, in standing committees and during campaigns at the time of elections.
A major issue regarding the performance of political parties is lack of capacity. Many opposition parties are weak because of shortage of funds and insufficient training of workers. The international community needs to support political parties by offering technical assistance on such issues as internal democracy, inter-party relations, role and responsibility of parties in government and opposition, role of money politics and code of conduct for parties during elections.
Declining trust in political parties can also be measured from the low voter turnout at most elections. One way of rebuilding this trust is for parties to involve citizens in consultations at the grass-roots level. Parties should be prepared to review their policies and mechanisms by taking into account public attitudes and opinions. They also need to build their ability to communicate with voters their achievements and proposals in a positive and targeted manner.
PS: This article was published by the author in the daily Dawn on 13 April 2007 http://www.dawn.com