The last year has seen a number of constitutionally significant developments which have challenged the direction of travel towards greater democracy and strengthening of democratic institutions. The net result of these developments has been to create a headwind that is arguably slowing the progress of our democracy.
The first recent development is the growing chorus calling for a review of the 18th Constitutional Amendment that strengthened the democratic institutions of provinces. The arguments in favour of a review of the 18th Amendment are usually along the lines of “a stronger centre and dependant provinces make more economic and administrative sense”. It is said that this is particularly relevant with the reconfiguration of the National Finance Commission (NFC) award, which has increased the amount the provinces receive.
However, a thriving economy and a healthy democracy are not mutually exclusive concepts. Devolution and decentralisation in states with diverse populations is a global phenomenon in the last two decades. The call in other countries, from Europe to Africa and the Americas is for decentralisation, not for greater centralisation. What are the arguments in favour of bucking this global trend? Experts and economists suggest that there is no proper basis to support an argument for rolling back the 18th Amendment, other than a stronger centre requires less coordination and “buy-in” from the provinces. It is also noteworthy that more control from the centre has not historically proven to be particularly beneficial for Pakistan. There were good reasons that led to the introduction of the 18th Amendment. The 18th Amendment is not perfect. There are undoubtedly gaps, particularly with regard to women, minority rights, health-related issues and some concerns relating to a standardised education system. Nevertheless, overall it has resulted in less isolated and more empowered provinces, which now benefit from legislative, financial and administrative authority and control over their own resources. The fact that a rollback of the 18th Amendment is being advocated in certain quarters is of concern. Democratic institutions should move closer to the people, not away from them.
The second development concerns the continued problematic relationship between the executive and the judiciary. The tension in this relationship was brought to the fore in the recent presidential reference against a sitting Supreme Court (SC) judge. The reference, its timings and the way it was instituted raises a number of constitutionally significant issues. The reference concerns Justice Qazi Faez Isa, who has been accused of the non-declaration of certain assets he is said to own. But since the matter is sub judice, no comments are being made here on the subject.
The third development concerns the increased marginalisation of the Parliament. The government has arguably shown a lack of recognition of the constitutional importance of Parliament as an institution. Parliament’s sovereignty is enshrined in the Constitution, as the supreme and ultimate legislation-making organ of the State. Parliament’s sovereignty is legitimised by popular vote. If the federation is the beating heart of the Constitution, Parliament is its lungs. Only recently the Islamabad High Court (IHC), in a case concerning the alleged illegality of presidential appointments made to the Election Commission of Pakistan, suspended the notification of these appointments and clearly reiterated that Parliament represented the people of Pakistan and democratic principles should be applied to resolve political disputes. The Parliament’s constitutional importance is arguably not sufficiently recognised by the current government. At times it appears as if the government wishes to purposely diminish Parliament’s role as a key democratic institution. This misconceived and ill-placed understanding is not just immature but also dangerous to democratic foundations.
Fourth is the over-use and ease with which laws are being made through presidential ordinances. The Prime Minister, seemingly becoming impatient with the parliamentary process, recently, with the aid of his cabinet, approved eight presidential ordinances. He stated that ordinances will aid the running of the government’s legislative business. A provincial example is the Khyber Pakhtunkhwa Actions (in aid of civil power) Ordinance that extends in the whole province certain powers to the armed forces that joined in former FATA and PATA. While ordinances are legitimised by constitutional provisions, the use is ordinarily confined to when the Senate and National Assembly are not in session and when the President is “satisfied that circumstances exist which render it necessary to take immediate action”. With the Houses in regular session, the overuse of this presidential power arguably shows a lack of appreciation of the raison d’etre of Parliament, which is to legislate and scrutinise.
All this coupled with a stifling of the human rights and women’s commissions, the restrictions of the media and civil society organisations has left us wondering whether our young democracy is still standing.
It may currently appear to the government that they do not require vital democratic institutions to fulfil their mandate. Political expedience is a significant driving force for those in government. There is, however, substantial political risk to the belief, also shared by previous governments including the last one, that political expedience trumps all. What every government should realise is that strengthening democratic institutions, such as the judiciary and Parliament, is akin to an insurance policy that will also protect them in the event unconstitutional and undemocratic pressures undermine their mandate, legitimacy or existence as representative political parties.
Published in The Express Tribune, November 15th, 2019.