The Pakistani ‘state’ under stress — I
Is the state the supreme public power in the soverign entity called Pakistan?
The state of the Pakistani state is currently weak and is becoming weaker with every passing day. To understand what is happening, it would be useful to look briefly at the country’s roller-coaster political history which has resulted in confusing the meaning of the state as understood in Pakistan. In going into the history, I will also briefly write about a conversation I had with President Ziaul Haq a few weeks before he was killed in an airplane crash.
Look at any dictionary for the meaning of ‘state’ and clues begin to appear why this particular organism is so much under stress in most parts of the world. My dictionary attaches many meanings to the word ‘state’. It says: “It is the supreme public power within a soverign political entity”. Or is it? In some of the South Asian nations, the state can no longer be said to exercise the supreme authority given to it by the basic law of the land — the constitution. Competing sources of power have emerged. This is particularly the case in Pakistan.
Is the state the supreme public power in the soverign entity called Pakistan? According to the second dictionary definition, the state is “the sphere of supreme civil power within a given polity”. According to this definition, the state is equated with civilian authority and that authority is put into place by the people through elections. It is widely known — at least widely understood — that on several matters, the legally constituted state in Pakistan does not exercise the powers given to it by the 1973 Constitution. On issues pertaining to external security and on matters concerning India, the elected government does not have the ‘supreme authority’. It must listen to the military and within the military to the army high command.
The other example of the state not performing its functions as defined by law also comes from Pakistan. On two occasions, the ruling authority — in both cases a military leader who usurped power — amended the constitution to make the president rather than the parliament the supreme authority in the country. This was done by General Ziaul Haq’s Eighth Amendment to the constitution adopted on November 9, 1985. The amendment shifted the locus of authority from the parliament to the president. A provision was added to Article 48 according to which “the validity of anything done by the president in his discretion shall not be called into question on any ground whatsoever”. To this provision was added a new clause to Article 58 according to which “the president may dissolve the National Assembly in his discretion where, in his opinion, a situation has arisen that the government of the Federation cannot be carried out in accordance with the provision of the constitution and an appeal to the electorate is necessary.”
General Zia used this provision in May 1988 to dismiss Prime Minister Muhammad Khan Junejo and dissolve the National Assembly. The dismissal came with the announcement that general elections would be held in October as provided by the amended constitution. However, the president had no intension of keeping his word. He told me, in a meeting I had with him, on July 30, in his office in Islamabad, that he was working on drastically changing the constitution by going in for a presidential form of government. The country was to be divided into 20 provinces, each to be administered by an appointed governor. This, he said, was recommended by a commission he had appointed under one Justice Ansari. He provided me with this information after offering me the position of finance minister in the caretaker government he had put into office after dismissing Junejo. When I demurred saying that I wished to continue with my job at the World Bank, he said with a smile that he knew why I was reluctant to accept his offer. “You think elections will be held in October and I will hand over power to the elected prime minster. None of this will happen. I am going to be around for a long time”. This was the last time I met him. He was dead within less than three weeks of this meeting.
Under the eighth amendment President Ziaul Haq, in other words, had acquired almost dictatorial powers. This provision remained and was used three times by two of his civilian successors. It was removed by the 13th Amendment to the constitution approved in 1997, when an elected government with a large mandate took office. It was reinstated by the Seventh Amendment, introduced into the constitution by General Pervez Musharraf, the fourth military man to govern the country. This was adopted on December 17, 2003 before the army chief of staff was prepared to share power with an elected parliament. The amendment restored the powers of the president to dissolve the National Assembly and dismiss the prime minister. It also incorporated 10 laws into the sixth schedule of the constitution, four of which established the system of local government in the provinces. These laws “could not be replaced or amended without the previous sanction of the president.”
This encroachment by the president into the powers of an elected parliament was removed for the second time by another amendment — the 18th Amendment — adopted by the parliament, elected in February 2008. The amendment was approved in April 2010 and signed into law by President Asif Ali Zardari on April 2010, a year and a half after being elected president.
Has the 18th Amendment restored a parliamentary form of government in the country? The answer is no, since the president continues to wield power that goes beyond that permitted by the constitution. He does that by virtue of the fact that he is also the head of the political party that has the largest presence in the national assembly. The prime minister, the constitutional head of the government and directly elected by the people is, in practice but not in terms of law, subservient to the head of the state, who is indirectly elected. In other words, in practice, Pakistan is not being governed according to the basic law of the land. The supreme power in the state is in the hands of a state functionary who is exercising power that goes beyond that sanctioned by the constitution. This confusion about the locus of power hurts the working of the state and is weakening it.
Published in The Express Tribune, September 20th, 2011.
Look at any dictionary for the meaning of ‘state’ and clues begin to appear why this particular organism is so much under stress in most parts of the world. My dictionary attaches many meanings to the word ‘state’. It says: “It is the supreme public power within a soverign political entity”. Or is it? In some of the South Asian nations, the state can no longer be said to exercise the supreme authority given to it by the basic law of the land — the constitution. Competing sources of power have emerged. This is particularly the case in Pakistan.
Is the state the supreme public power in the soverign entity called Pakistan? According to the second dictionary definition, the state is “the sphere of supreme civil power within a given polity”. According to this definition, the state is equated with civilian authority and that authority is put into place by the people through elections. It is widely known — at least widely understood — that on several matters, the legally constituted state in Pakistan does not exercise the powers given to it by the 1973 Constitution. On issues pertaining to external security and on matters concerning India, the elected government does not have the ‘supreme authority’. It must listen to the military and within the military to the army high command.
The other example of the state not performing its functions as defined by law also comes from Pakistan. On two occasions, the ruling authority — in both cases a military leader who usurped power — amended the constitution to make the president rather than the parliament the supreme authority in the country. This was done by General Ziaul Haq’s Eighth Amendment to the constitution adopted on November 9, 1985. The amendment shifted the locus of authority from the parliament to the president. A provision was added to Article 48 according to which “the validity of anything done by the president in his discretion shall not be called into question on any ground whatsoever”. To this provision was added a new clause to Article 58 according to which “the president may dissolve the National Assembly in his discretion where, in his opinion, a situation has arisen that the government of the Federation cannot be carried out in accordance with the provision of the constitution and an appeal to the electorate is necessary.”
General Zia used this provision in May 1988 to dismiss Prime Minister Muhammad Khan Junejo and dissolve the National Assembly. The dismissal came with the announcement that general elections would be held in October as provided by the amended constitution. However, the president had no intension of keeping his word. He told me, in a meeting I had with him, on July 30, in his office in Islamabad, that he was working on drastically changing the constitution by going in for a presidential form of government. The country was to be divided into 20 provinces, each to be administered by an appointed governor. This, he said, was recommended by a commission he had appointed under one Justice Ansari. He provided me with this information after offering me the position of finance minister in the caretaker government he had put into office after dismissing Junejo. When I demurred saying that I wished to continue with my job at the World Bank, he said with a smile that he knew why I was reluctant to accept his offer. “You think elections will be held in October and I will hand over power to the elected prime minster. None of this will happen. I am going to be around for a long time”. This was the last time I met him. He was dead within less than three weeks of this meeting.
Under the eighth amendment President Ziaul Haq, in other words, had acquired almost dictatorial powers. This provision remained and was used three times by two of his civilian successors. It was removed by the 13th Amendment to the constitution approved in 1997, when an elected government with a large mandate took office. It was reinstated by the Seventh Amendment, introduced into the constitution by General Pervez Musharraf, the fourth military man to govern the country. This was adopted on December 17, 2003 before the army chief of staff was prepared to share power with an elected parliament. The amendment restored the powers of the president to dissolve the National Assembly and dismiss the prime minister. It also incorporated 10 laws into the sixth schedule of the constitution, four of which established the system of local government in the provinces. These laws “could not be replaced or amended without the previous sanction of the president.”
This encroachment by the president into the powers of an elected parliament was removed for the second time by another amendment — the 18th Amendment — adopted by the parliament, elected in February 2008. The amendment was approved in April 2010 and signed into law by President Asif Ali Zardari on April 2010, a year and a half after being elected president.
Has the 18th Amendment restored a parliamentary form of government in the country? The answer is no, since the president continues to wield power that goes beyond that permitted by the constitution. He does that by virtue of the fact that he is also the head of the political party that has the largest presence in the national assembly. The prime minister, the constitutional head of the government and directly elected by the people is, in practice but not in terms of law, subservient to the head of the state, who is indirectly elected. In other words, in practice, Pakistan is not being governed according to the basic law of the land. The supreme power in the state is in the hands of a state functionary who is exercising power that goes beyond that sanctioned by the constitution. This confusion about the locus of power hurts the working of the state and is weakening it.
Published in The Express Tribune, September 20th, 2011.