Salaam,

Here, the Presidential Constitution (of 1962 by Ayub Khan) and it's corollary is posted. All the students of Political Science, Constitutional Law and Pakistan Affairs are supposed to share their views on the Government System that should be established in Pakistan.

The system that failed

By Anwar Syed

EVERY so often I find someone arguing that the present disarray in our government and politics will not go away unless we adopt a presidential system. But no one has spelled out the relevant specifics and told us what kind of a presidential system he is commending. We did once have such a system, and I propose to recall its principal features to provide a frame of reference, or a point of departure, for further thinking.

The 1962 Constitution that Ayub Khan had bestowed upon us vested the executive authority of the Republic in the president. He appointed such ministers as he might want to have without reference to the legislature, and they served during his pleasure. He allocated the central government’s work to divisions, approved its rules of business, and specified the manner in which his orders and instructions were to be carried out.

He could appoint from amongst members of the National Assembly a number of persons (as many as the number of government divisions) as parliamentary secretaries to perform such functions as he might assign to them. Since his ministers could not be members of the Assembly (because of the required separation of powers), these parliamentary secretaries could serve as his agents in the legislature, for they remained its voting members.

The president was to be elected by 80,000 members of “basic democracies” (rural and urban local councils). The ordinary citizens of Pakistan were thus excluded from participation in his election. He could be removed from office for reasons of physical or mental incapacity, or for wilful violation of the Constitution or gross misconduct. The initial move for his removal or impeachment must be endorsed by at least one third of the total membership of the National Assembly. It must have the support of three quarters of the Assembly’s members to succeed. If one half of them did not vote for it, those who had initiated the move would lose their seats in the National Assembly forthwith. (Enough to scare those who might contemplate his removal.)

Strangely enough, the Constitution did not specifically vest the legislative power of the Republic in the National Assembly. This may have been the case because, as we will see shortly, it gave the president extensive control over legislation and authority to issue instruments having the force of law. It did not prescribe any specific number of days, or the times, for which the assembly must meet. The Speaker could call it to session at the request of one third of its membership, and the president could summon and prorogue it from time to time.

The Assembly was not empowered to override the president’s veto. If he declined assent to a bill it had passed, and if it passed the bill again, in its original version or with amendments, with a two-thirds majority of its total membership, it would resubmit the bill to him. If he still did not like it, he could submit it to a referendum to be conducted among the members of the Electoral College (80,000 “basic democrats”). It would become law only if it passed that hurdle.

The Assembly could not take up and pass legislation that would require, for its implementation, expenditure of public funds without the president’s prior approval. Thus the Constitution, in effect, deprived it of the authority to legislate on its own initiative, in that it is hard to imagine a law that would require no public funds whatsoever for its execution.

The president could make and promulgate any number of ordinances, having the force of law, at times when the National Assembly was not in session. An ordinance so made could remain in effect for as long as six months if the Assembly had not been called to session during that time, and for 42 days after its first meeting following the promulgation of the said ordinance. The president could also promulgate ordinances, as he might deem fit, while a proclamation of emergency he had issued remained in force even if the National Assembly was in session at the time. The Assembly would not have the power to annul them.

The Constitution allowed the president to dissolve the National Assembly at any time, except during the last 120 days of its term or when proceedings for his own removal from office had been initiated but not yet concluded. He was not required to give his reasons for dissolving the Assembly.

Apart from making laws that would bring about societal improvement, it is the normal function of a legislature to levy taxes and authorize the purposes for which their proceeds are to be spent. But, amazing though it may be, the Constitution of 1962 did not assign this function, and the corresponding authority, to the National Assembly of Pakistan.

Expenses related to the offices of the president, his ministers and parliamentary secretaries, speaker and members of the National Assembly, judges of the Supreme Court, and several other presidential appointees, plus service charges on the national debt, were to be charged upon the Central Consolidated Fund without needing legislative approval. Also exempted from that necessity were demands not shown in the annual budget as new expenditures. “Recurring expenditures” were not subject to the Assembly’s approval except in relation to an excess of more than 10 per cent over the amount approved for the same purpose the previous year. The Assembly might accept, reject, or reduce demands for new expenditures. But it could not appropriate funds for projects of its own choosing.

Nor could it levy new taxes or make changes in the existing ones. It could not authorize borrowing or place any financial obligation upon the government without the president’s concurrence. The Constitution required the placement of a sum of money not less than 10 per cent of the government’s total expenditures as a “contingency” fund to be used by the president in his discretion to meet unanticipated, and unnamed, needs.

The president, acting in his discretion and without reference to the legislature, appointed the heads of the armed services, chief justice of the Supreme Court, chairman and members of the Central Public Service Commission, the attorney general, comptroller and auditor general, chief election commissioner, chairman and members of the Advisory Council of Islamic Ideology. He also appointed the provincial governors who, in the discharge of their functions, were to follow his directions. He approved the postings of persons belonging to an “All Pakistan Service” (Civil Service of Pakistan, Police Service of Pakistan, etc.), and holding positions connected with the affairs of the centre.

This Constitution disenfranchised citizens except for choosing local councillors (40,000 in each of the two provinces), who in turn elected the president, and members of the central and provincial legislatures. The present advocates of a presidential system do not necessarily want to restore this abominable usurpation of the people’s right to be governed by their chosen representatives. We shall, therefore, disregard it and limit ourselves to a brief comment on the president’s authority and powers as outlined above.

The ideas of the separation of powers and checks and balances, which distinguish a presidential from a parliamentary system, did not get more than a perfunctory recognition in the Constitution of 1962. In order to have a frame of comparative reference, let us take a quick look at the salient features of the American presidential system. Legislative power vests unequivocally in Congress. It may adopt any number of bills that its own members may have introduced at the president’s request or on their own initiative. The president may veto a bill, but a two-thirds majority in each house of Congress can override his veto. Congress levies taxes and authorizes expenditures. The president proposes a budget for the next fiscal year but Congress is free to appropriate more or less than what he has requested, and allocate funds for purposes of its own choosing.

Congress may impeach and try the president for grave misdemeanours and send him home, but he cannot dissolve Congress. Normally, he does not even summon or prorogue it. Congress is authorized to oversee the administration’s performance in executing the laws it has made. Presidential appointments to higher posts in the judiciary, executive departments, and the diplomatic service cannot take effect until confirmed by the Senate.

It should be apparent that the National Assembly of Pakistan under the 1962 Constitution was not a legislature in the normal sense of that term. As we have seen above, it was not free to make laws, levy taxes, or allocate funds without the president’s consent. It could not oversee the administration’s performance. The president’s ministers were free to address the house but they were not required to be present on the floor to answer questions or respond to criticism. The “representative institutions” Ayub Khan allowed us were wanting not only in the mode by which they came into being but also with reference to the authority they were permitted.

Those who advocate a presidential system for Pakistan do so in the hope of doing away with “horse trading,” defections, intrigues, and the resulting political instability witnessed during our more recent parliamentary regimes. They believe these vices will disappear if the chief executive has a fixed term of office and need not, therefore, bend to fickle and covetous politicians.

At this point we may ask what exactly these advocates have in mind for us. If they want to give us anything like the American presidential system, the chief executive in our present political culture may have security of tenure, but he will not be allowed to govern. Our assembly men and senators will hassle and harass him, his ministers, and higher civil servants every step of the way, demand all kinds of favours, before they authorize his budget and accept his legislative proposals. On the other hand, if our political engineers wish to return us to the Constitution of 1962, then evidently they consider us as deserving of nothing better than a presidential dictatorship.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, US. E-mail: anwarsyed@cox.net