Presidential model of governance
It is to be remembered that election process of a President will stoke political grievances amongst minority provinces
The writer is a lawyer and can be reached at Rajahamzaanwar786@hotmail.com
Lately, there has been unavoidable muttering by few that in the halls of power, yet another intriguing tale of a change in the system from a parliamentary republic to a presidential style is being suspected. If there is any veracity in this then the most obvious question which one envisages is: whether such a system of governance is a sustainable model for Pakistan at all?
The proponents of the presidential system are overawed by their inerrant desire for a stronger government, which will be capable of taking difficult socio-economic decisions thereby allowing it to steer the country, without worrying about the exigencies of a thinly-formed majority by way of the coalition. On a cursory look, it is true that having a government independent from the stifling politics of parliament allows it to implement policy decisions quickly and without delay. As we are aware that in a parliamentary republic, in order for a government to be formed, a political party has to have a majority in parliament. Often, initially, if a single party has not rammed its way through the electoral polls then parties seek a painstaking length and delay to form a coalition government.
Contrary to the view of the proponents, the presidential system hosts a tendency of stifling progress by opening the possibility for institutional skirmishes between the executive and the legislature. There is this example of the 2013 shutdown by the Obama administration in America, and most recently the 35-day-long shutdown in 2018-19 by the Trump administration over the border security between the US and Mexico because Congress did not at first authorise the budgetary proposals to these presidential policies. The possibility of inter-structural co-operation effectively becomes more stringent when the legislature and the President are divided along political lines between different political parties as they would represent different classes of electorates, spearheading differing policies.
Clearly, in a country like Pakistan where political gimmickry is always lurking to undermine the stability of the political structure in the shape of dharnas, demonstrations, etc, we would be unfortunate to see yet again a new culture of institutional deadlocks — one which halts the operation of the entire government for days or even months. Further, our constitutional history reminds us that the stronger a President the less accountable he is. Those were the times where the sanctity of the Constitution was undermined and human rights violations found an abode. In such a series of tyrannical rules, revolutionaries like Habib Jalib and Faiz Ahmed Faiz became the mouthpiece of the people who were depredated of their fundamental rights by successive dictatorial regimes. Who would want to see a radical despot, with the authority to legislate and to overpower parliament running for the presidency? Another Zia and his likes?
Few centuries ago, concerned with the growing tyranny of the French King Louis XIV, Montesquieu found separation of powers in constitutional administration to be indispensable. This doctrine since then has been argued to be the defining feat of the presidential style, within which no one institution can become so omnipotent so as to define the institutional sanctity of the others, yet not so independent so as to evade accountability. The proponents of the presidential system argue that a clearly-separated legislature, executive and judiciary prevent any one of them from overpowering the other or others. However, the reality has another facet to it, and for that let’s take the example of America.
Notwithstanding the American Supreme Court decisions in Satinger v Philippine and the Watergate case, having upheld the doctrine of separation of powers and laying the thematic tone for the American Constitution, Article 1 of the Constitution allows the President to veto any bill which Congress has intended to make into law. This conferral of a legislative power to President shows that a complete separation of powers is not entirely present in the presidential system, as it is advocated to be.
A domestic illustration of the defect in the presidential model is seen in Pakistan’s 1962 Constitution spearheaded by Field Marshal Ayub Khan. Article 30 allowed the President the power to legislate in the event of an emergency. With many other tertiary concerns I have with Article 30, the most concerning is that there appears to be no way in which the provinces are allowed autonomy to decide whether federation is to be called upon in case of an emergency happening in a province. This insertion in the constitution essentially sought to federalise Pakistan as one unit, contrary to the pre-partition autonomous structure of these provinces. Such historical meddling has been the source of interprovincial discord with complaint by smaller provinces against the federation mainly controlled by Punjab, the biggest province.
Other than these theoretical arguments against the presidential system of governance, it is to be remembered that the election process of a President will stoke political grievances amongst minority provinces. A President, in order to win the election, would have to focus his attention on accumulating votes from Punjab, the most populous province, resulting in the victory of a presidential candidate from Punjab. There will be thus an expected division on ethnic lines causing a deeper dent in the rusty Pakistani political machinery. Our political trajectory is marred with a rise in ethnic cults in smaller provinces building an anti-Punjabi narrative. It would be a fatal blunder to introduce a presidential model, as doing so would only help strengthen their narrative of a Punjab-garrisoned state.
Ultimately, the framers of our Constitution gave a constitutional mandate to the courts to resolve issues like these. In order to change the current parliamentary republic to a presidential one, a constitutional amendment would have to be approved by a two-thirds majority in parliament. More stringently, the validity of an amendment is challengeable in the Supreme Court by virtue of its decision in District Bar Association (Rawalpindi) v Federation of Pakistan case on grounds that the constitutional amendment violates the ‘salient features’ of the Constitution. Since the court has identified, amongst other features, parliamentary form of government to be a salient feature, replacing the current model would not just be another stroll in the park and would not allow such a change smoothly, given the courts acting as a guardian. The sordid history of the sporadic presidential system in Pakistan has bestowed upon us enough oppressors for us to wish for a future without unrulier pharaohs.
Published in The Express Tribune, June 13th, 2019.
The proponents of the presidential system are overawed by their inerrant desire for a stronger government, which will be capable of taking difficult socio-economic decisions thereby allowing it to steer the country, without worrying about the exigencies of a thinly-formed majority by way of the coalition. On a cursory look, it is true that having a government independent from the stifling politics of parliament allows it to implement policy decisions quickly and without delay. As we are aware that in a parliamentary republic, in order for a government to be formed, a political party has to have a majority in parliament. Often, initially, if a single party has not rammed its way through the electoral polls then parties seek a painstaking length and delay to form a coalition government.
Contrary to the view of the proponents, the presidential system hosts a tendency of stifling progress by opening the possibility for institutional skirmishes between the executive and the legislature. There is this example of the 2013 shutdown by the Obama administration in America, and most recently the 35-day-long shutdown in 2018-19 by the Trump administration over the border security between the US and Mexico because Congress did not at first authorise the budgetary proposals to these presidential policies. The possibility of inter-structural co-operation effectively becomes more stringent when the legislature and the President are divided along political lines between different political parties as they would represent different classes of electorates, spearheading differing policies.
Clearly, in a country like Pakistan where political gimmickry is always lurking to undermine the stability of the political structure in the shape of dharnas, demonstrations, etc, we would be unfortunate to see yet again a new culture of institutional deadlocks — one which halts the operation of the entire government for days or even months. Further, our constitutional history reminds us that the stronger a President the less accountable he is. Those were the times where the sanctity of the Constitution was undermined and human rights violations found an abode. In such a series of tyrannical rules, revolutionaries like Habib Jalib and Faiz Ahmed Faiz became the mouthpiece of the people who were depredated of their fundamental rights by successive dictatorial regimes. Who would want to see a radical despot, with the authority to legislate and to overpower parliament running for the presidency? Another Zia and his likes?
Few centuries ago, concerned with the growing tyranny of the French King Louis XIV, Montesquieu found separation of powers in constitutional administration to be indispensable. This doctrine since then has been argued to be the defining feat of the presidential style, within which no one institution can become so omnipotent so as to define the institutional sanctity of the others, yet not so independent so as to evade accountability. The proponents of the presidential system argue that a clearly-separated legislature, executive and judiciary prevent any one of them from overpowering the other or others. However, the reality has another facet to it, and for that let’s take the example of America.
Notwithstanding the American Supreme Court decisions in Satinger v Philippine and the Watergate case, having upheld the doctrine of separation of powers and laying the thematic tone for the American Constitution, Article 1 of the Constitution allows the President to veto any bill which Congress has intended to make into law. This conferral of a legislative power to President shows that a complete separation of powers is not entirely present in the presidential system, as it is advocated to be.
A domestic illustration of the defect in the presidential model is seen in Pakistan’s 1962 Constitution spearheaded by Field Marshal Ayub Khan. Article 30 allowed the President the power to legislate in the event of an emergency. With many other tertiary concerns I have with Article 30, the most concerning is that there appears to be no way in which the provinces are allowed autonomy to decide whether federation is to be called upon in case of an emergency happening in a province. This insertion in the constitution essentially sought to federalise Pakistan as one unit, contrary to the pre-partition autonomous structure of these provinces. Such historical meddling has been the source of interprovincial discord with complaint by smaller provinces against the federation mainly controlled by Punjab, the biggest province.
Other than these theoretical arguments against the presidential system of governance, it is to be remembered that the election process of a President will stoke political grievances amongst minority provinces. A President, in order to win the election, would have to focus his attention on accumulating votes from Punjab, the most populous province, resulting in the victory of a presidential candidate from Punjab. There will be thus an expected division on ethnic lines causing a deeper dent in the rusty Pakistani political machinery. Our political trajectory is marred with a rise in ethnic cults in smaller provinces building an anti-Punjabi narrative. It would be a fatal blunder to introduce a presidential model, as doing so would only help strengthen their narrative of a Punjab-garrisoned state.
Ultimately, the framers of our Constitution gave a constitutional mandate to the courts to resolve issues like these. In order to change the current parliamentary republic to a presidential one, a constitutional amendment would have to be approved by a two-thirds majority in parliament. More stringently, the validity of an amendment is challengeable in the Supreme Court by virtue of its decision in District Bar Association (Rawalpindi) v Federation of Pakistan case on grounds that the constitutional amendment violates the ‘salient features’ of the Constitution. Since the court has identified, amongst other features, parliamentary form of government to be a salient feature, replacing the current model would not just be another stroll in the park and would not allow such a change smoothly, given the courts acting as a guardian. The sordid history of the sporadic presidential system in Pakistan has bestowed upon us enough oppressors for us to wish for a future without unrulier pharaohs.
Published in The Express Tribune, June 13th, 2019.