In my previous article (‘In the pursuit of a welfare state,’ Encounter, January 24, 2010) I had added a cautionary optimistic note about prospects for democracy, provided the National Reconstruction Ordinance (NRO) did not become a source of a renewed tectonic politics in the country.

Several readers of the article have sent me cynical responses by suggesting how a political system that allows a man like Mr Asif Ali Zardari to become president can be expected to produce good results for the country. The problem has arisen mainly because what may be called an historical anomaly that was created in the constitutional system of the country.

The supporters of Mr Zardari never tire of reminding the people that he is a constitutionally elected president. The answer of course may be yes and no, depending on which constitution one is referring to. The 1973 Constitution is an integrated document. It provides for the election of the president, by a joint session of the parliament, who is envisaged as a symbol of the nation and who acts on the advice of the prime minister.

The prime minister is elected by the parliament and is answerable to that body, and runs the government with the help of his cabinet. The judiciary is independent to do its business in accordance with the responsibilities as defined in the constitution. The decisions of the courts are final and must be obeyed. The judges are appointed by the president (who always acts on the advice of the prime minister, who is answerable to the parliament). Thus the circle closes.

This represents a parliamentary system and resembles the systems as they exist in many other countries. Some Pakistani legal wizards have dragged the concepts of trichotomy or dichotomy of power in their recent discussions about the Supreme Court judgments, which is a phoney issue in the context of the parliamentary system. Separation of institutions — the senate, the house, the president, the executive (administration), and the Supreme Court — as embedded in the US constitution is irrelevant for parliamentary democracy.

The 1973 Constitution was the product of compromise and consensus. Mr Z.A. Bhutto had to bargain, for example, with the religious parties to get his provisions about the democratic framework for the country in exchange for section 227 (`All existing laws shall be brought in conformity with Islam…`). The constitution does require a revisit for some updating of its provisions. But what it got instead was a complete distortion of its objectives, in letter and in spirit, from the past two military dictators.

The distorted document is the so-called amended 1973 Constitution, the basis of Mr Zardari`s election. He is `constitutionally` elected, then, in the same way as General Musharraf was `constitutionally` elected. But there is more to it.

General Ziaul Haq in his wisdom decided to enlarge the electoral college for the president, by adding elected members of the provinces to Section 41. But he spared himself from the amended section by declaring himself the president for the next five years by virtue of the charade of a referendum he had held in 1985. In 1988 his rule came to an abrupt end.

He appointed himself president, not to act in line with the 1973 Constitution, but by assuming extraordinary powers through his notorious PCO (Section 270 and the 8th Amendment). The original constitution then had been thoroughly mutilated to give a `legal` cover to dictatorial powers.

General Musharraf broadly followed in the footsteps of his predecessor and used his PCO as well as the 17th Amendment to become the `custodian’ of democracy in Pakistan.

Mr Zardari took over after General Musharraf was given an honourable departure, by using the same constitutional framework originally established by General Ziaul Haq. As a civilian candidate, and as co-chairman of PPP, he could take for granted the support from elected members of the PPP because the party discipline — not just a potential conflict of interest in the election procedure but a reality. That he is a people’s president, or that he was elected by a two-thirds majority of the electoral college should be taken with a grain of salt.

In the democratic systems, the presidents with extraordinary powers are as a rule directly elected by the general voters. The 1973 Constitution opted for the electoral system because, to repeat the point I have made above, it provided for a president only as a ceremonial office, a sign of unity. After having been elected through the existing system, therefore, his democratic commitment should have persuaded him to make the move to the next step without delay and ask the parliament to restore the status quo ante, in the spirit envisaged by Z.A. Bhutto, the founder of the PPP. In this context, the appointment of the standing parliamentary committee to examine the constitution is rightly viewed as a dilatory manoeuvre. The existing distorted constitution has thus created a serious imbalance in the functioning of the institutions closely linked with it. The post-PCO judiciary has come a long way from the doctrine of necessity, but the parliamentary setup that is being carried on remains in the framework of PCO, 8th and 17th Amendments, with section 270, further hyphenated with A, AA, and AAA still intact.

This is where the role of the judiciary in the NRO becomes relevant. The judgment had not only declared NRO unconstitutional but also outlined the mechanism to deal with the remedies available to the state. Prime Minister Yousuf Raza Gilani, referring to the situation concerning Mr Zardari, recently announced in the parliament that the Supreme Court had exceeded its limits because the president enjoyed constitutional immunity.

After all, why make him the target, he added, when there are more than 8000 cases affected by the judgment.

First, it should be obvious that Mr Zardari’s status is not in any way equivalent to all the other NRO cases. Secondly, the court asked about the cases in Switzerland which were mysteriously terminated on behalf of the Government of Pakistan. The court may be optimistic about getting some light shed on the matter of misdemeanour of Mr Zardari, as they would be fishing in a deep hole with the itinerary of secret accounts and property deals perhaps as long as the devil’s tail spread across several countries.

A simple question arises: instead of focusing on the judgment, why not ask Mr Zardari how all this wealth accumulated during the last three decades relates to his legitimate earnings. Holding the highest public office in the country, he is expected to owe this explanation to the nation.

The interesting twist is that the defence against charges of corruption has now moved from being `politically motivated` to protection under a constitutional immunity. And about this immunity, the same argument should really apply to Mr Zardari as it would to General Musharraf. Both were elected through the same electoral college and same constitutional system.

In fact, the paradox is not that the Supreme Court had to deal with a difficult challenge. It is that Mr Zardari did not offer to take a leave absence and get the charges against him cleared.

The issue is not going to go away, nevertheless. The public focus may be blunted somewhat if he should decide to abide by the original constitution and act as president in the spirit underlined in that original constitution. The image and perception count a lot in political life and controversy about his credibility will continue to haunt him to the end of his term.

The country is faced with two serious crises: a weak economy and a continuing threat to national security. It is the duty of the governing party to pursue an active legislative agenda, with a strong and vigorous opposition to promote effective governance in the parliamentary tradition. One can draw a parallel with some other countries, especially in Southeast Asia. There is a silver lining at the end of the tunnel. The next general elections, provided they are free and fair, might produce better results, for all major parties in the country.

izzud-din.pal@videotron.ca

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