THE eighteenth amendment essentially aims at removing distortions incorporated into to the constitution by military regimes and strengthening parliamentary democracy. This article is an attempt to assess to what extent the amendment is likely to promote the cause of parliamentary democracy in Pakistan.

To begin with, despite overhauling the constitution, the amendment has not removed the word ‘Majlis-i-Shoora’ introduced by late General Ziaul Haq to characterise parliament. Majlis-i-Shoora means a consultative body, which merely tenders advice to the head of the state. Ziaul Haq set up a nominated Majlis-i-Shoora after toppling an elected government.

When the constitution was restored in 1985, among various distortions in the constitution which the new parliament was made to accept, was to designate itself Majlis-i-Shoora. The present political leadership wants to empower parliament. But it is strange that they have retained the nomenclature of Majlis-i-Shoora. While the continuation of the name will not by itself reduce the power of parliament, it does have substantial symbolic value.

Obviously the most important of the constitutional changes is the deletion of Article 58-2b, which empowered the president to dismiss the National Assembly in his discretion on the ground of breakdown of the constitutional machinery. As the country’s political history bears out, Article 58-2b had defaced the constitution by making parliament and the prime minister subservient to the president. There was little doubt that parliamentary democracy would not take root unless the aforementioned article was scrapped.

Article 90 vested the executive authority of the federation in the president, to exercise it “either directly or through officers subordinate to him”. In a country with well-established constitutional conventions such a provision should not have caused any problem as the president being a figurehead acts on the advice of the cabinet. However that does not apply to Pakistan where in the absence of healthy constitutional conventions the president is not likely to confine himself to the role of a figurehead.

Quite rightly, therefore, Article 90 has been amended to provide that the “executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister who shall be the Chief Executive of the Federation.” The new language of Article 90, which in fact is return to the original wording, will make the office of the prime minister stronger.

Similarly Article 48 has been amended to provide that the president shall act “on and in accordance with” the advice of the cabinet or the prime minister, except in matters where he is empowered to act in his discretion, within fifteen days. However, it would have been better if the original formulation of Article 48, which provided that the prime minister’s advice shall be binding on the president, had been restored.

Clause (6) of Article 48 empowered the president to hold a referendum, in his discretion or on the advice of the prime minister, on a question of national importance. The amended Clause (6) stipulates that the matter of holding a referendum shall be referred by the prime minister to parliament, whose decision will be final.

Article 46, entitled “Duties of Prime Minister in relation to President,” has been restored to its original formulation providing that the prime minister has only to inform the president about all policy matters and legislative proposals. Before the eighteenth amendment, it was also mandatory for the prime minister (a) to submit to the president any information that the latter might call for relating to administrative affairs and legislative proposals, and (b) on president’s direction submit to the cabinet any matter on which the premier had taken a decision.

Article 105 has been amended to the effect that the provincial governor shall act on and in accordance with the advice of the cabinet or chief minister. Article 129 has been amended to provide that the executive authority of a province shall be exercised by the provincial government. Powers of the governor to sack the provincial assembly, under Article 112 (b), on the ground of breakdown of constitutional machinery has been scrapped.

Article 6 has been amended in three respects: One, the definition of high treason in Clause (1) has been expanded to include suspension and holding in abeyance of the constitution, in addition to its subversion and abrogation. Two, Clause (2) has been amended to characterise “collaborating” in addition to “abetting” as acts of high treason. Three, a new clause (2A) has been inserted to provide that the act of high treason shall not be validated by the judiciary.

However, the amendment to Article 6 seems redundant. In the first place, subversion of the constitution already includes its suspension and holding it in abeyance. Similarly, abetting subversion of the constitution is the same thing as collaborating. As for the new Clause (2A), no constitution in the world provides for its subversion and therefore no court working under the constitution can legitimately declare it valid. No doubts, the courts in Pakistan have done so in the past invoking the doctrine of necessity. But that was manifestly illegal and unconstitutional.

Clause (4) of Article 17, which made it mandatory for political parties to hold intra-party elections, has been deleted. This is quite understandable in a political culture where dynasties rule the roost and where leaders are revered as saints incapable of making any wrong. But how can political parties champion the cause of democracy if they do not practise democracy in their own ranks? The clause therefore should have been retained.

The seventeenth amendment had provided that no person could hold the office of prime minister for more than two terms. The purpose was clearly malafide: to prevent the two two-time former prime ministers from assuming the office for another term. This restriction has now been removed.

Article 99 has been amended to the effect that the federal government, rather than the president shall specify the rules by which the business of the federation shall be carried out. The amended Article 101 provides that a provincial governor shall be appointed by the president on the advice of the prime minister. Previously, the appointment was made by the president in his discretion after consultation with the prime minister.

Amendment to Article 213 provides that the chief election commissioner shall be appointed by the president on the recommendations of a parliamentary committee, which will confirm one name out of three forwarded by the prime minister and leader of the opposition. Article 224 has been amended to divest the president of his discretion in appointing caretaker prime minister and made it mandatory for him to consult the PM and leader of the opposition.

Clause (2) of Article 268 stipulating that the laws specified in the sixth schedule of the constitution cannot be altered or repealed without president’s previous sanction has been scrapped.

Article 243 has been amended to provide that services chiefs, including the army chief, shall be appointed on the prime minister’s advice rather than as per president’s discretion. The very fact that Article 243 has been amended brings out the fragility of Pakistan’s democratic system, because in a proper democracy the appointment of army chief should not be more important than that of the head of a civilian department. However, since in our case, the armed forces are the power behind the throne, who can themselves occupy the throne at will, the appointment of army chief is considered to be one of the most crucial decisions made by a civilian government.

Interestingly, the last two military regimes were headed by “loyal” army chiefs appointed on the advice of the PM. This reminds us that the mere change in appointing authority cannot alter the dynamics of civil-military relations. However, since someone has to appoint the army chief, it is better if the PM rather than the president has the final word in that.

On the whole, the eighteenth amendment is a commendable job on the part of political parties. Though exceedingly important, the amendment by itself is not sufficient to strengthen parliamentary democracy and constitute an effective bulwark against military interventions. The last two coups (1977 and 1999) were staged when on paper both parliament and prime minister were strong and the president was merely a figurehead.

The most effective deterrence against military interventions is the people’s trust in and support to the democratic dispensation, which is possible only when democracy serves the people rather than the elite. Unfortunately, the version of democracy that we have had is elitist democracy — which in fact is only democracy in name — rather than people’s democracy — the real democracy. It is high time transition from a sham to a real democracy was made.

THERE’S a lot of gloating and back-scratching going on these days among our bloated parliamentarians. Besotted with success that took a full 9 months to take shape, they are jubilant as if they’ve found the Holy Grail of democratic emancipation after wandering through the wilderness of autocratic mauling and mangling of Pakistan for such a long time.

One could afford to be justifiably charitable to these parliamentarians who have otherwise little to show in the achievement box for all the money and resources spent on their comfort. The proposed amendment to the disfigured constitution left behind by Musharraf would, after all, restore power to parliament where it should reside in a parliamentary democracy, such as the one our puffed up leaders and democracy gurus claim to be working for.

Not surprisingly, however, there’s little or no festivity among the people of Pakistan to mark what’s being hawked as a ‘historic milestone’ in Pakistan’s crooked march to democracy’s cherished fairy land.

On the contrary, the people of Hazara, in their bastion in Abbotabad, are reacting vociferously and violently to what they see as a clever attempt to short-change them and usurp interests and rights; they’re up in arms against the renaming of their province as Khyber Pakhtoonkhwa, a macabre name in any case that makes little sense.

But while the Hazara people have an axe to grind with the deal-makers in the parliament — and seem ready to sacrifice blood to make their point — the rest of Pakistan is manifesting its disgust with the prevailing order, which includes the government and parliament, by taking to the street, en masse. From Peshawar to Karach, the people’s protest against a cruel and sadistic power shortage is making itself felt literally in flames; burning tires are translating their disgust in massive plumes.

The parliamentarians may congratulate themselves on having crossed the Rubicon to slay the demon of autocracy, but the people of Pakistan have little patience left for empty rhetoric and inane slogans. The parliamentarians may be concerned with the exercise of raw political power but the people of Pakistan are getting desperate about the appalling shortage of that power that should light their lamps and cool their sun-baked homes, not to mention turning again the idled wheel of the economy that gives them their daily bread after so much toil.

That the narcissistic legislators are infuriatingly out of sync with the people’s sentiments is evident in the obscene haste with which the bill of the 18th Amendment to the constitution has been rushed through the lower house of the parliament. The Rabbani Committee took nine long months to deliver a draft that seeks to amend about 100 clauses of the existing 1973 constitution — covering nearly one-third of it — but the members National Assembly took a mere two days to put their seal of approval on the detailed document. No deliberation, no discussion, no debate; nada. The Assembly has once again lived up to its reputation of being a rubber-stamp body whose denizens know not when to put their thinking caps on.

The callousness of the MPs is put into the sharpest relief in what the much-touted 18th Amendment doesn’t have for the people as well as for other pillars of the state.

Most ominously conspicuous by its absence is any blue-print in it for the empowerment of the people — the so-called font of the parliament’s powers to which their representatives masquerading as ‘democrats’ and ‘democracy-lovers’ never tire of paying lip service.

Pakistan’s perennial problem isn’t just bad governance, which stands exposed in all its damning dimensions in the present state of near-anarchy on the streets of Pakistan. Equally aggravating the malaise is the perpetuation of a non-democratic — if not plainly anti-democratic — culture holding the country’s myriad political parties and factions in its thrall. The proposed amendment doesn’t offer any clue or willingness on the part of its framers to offer a remedy in this department.

Bad governance that has now virtually paralysed the system is simply a symptom of the cancer of non-democratic values eating into our body politic. It isn’t surprising, therefore, given more than a half-century of un-interrupted corralling of power in the hands of a well-entrenched ruling elite, that governance today is being abused by a coterie of corrupt cronies and sycophants loyal only to Zardari and virtually saying pox to the people of Pakistan.

The 18th Amendment to the constitution merely re-cycles the concentration of power, from one set of wielders to another, within the established ruling order. It doesn’t make any attempt, at all, to inject the element of democratic culture in the sinews of established political parties that have had no infusion of fresh blood for a very long time.

In fact, the latest amendment brazenly removes the mandatory requirement of regular and periodical elections (sub-clause 4 of Article 17 of the constitution) within the ranks of political parties. How should one interpret this blatant disregard of a basic norm of democratic culture by our self-anointed ‘reformers?’

The ineluctable reality is that every political party in Pakistan is democratic in name only. They’re, otherwise, nothing but family concerns operating on the template of a private limited company, with all the shares and assets concentrated among family members and a select band of loyal and unquestioning cronies.

The PPP is a fief of the Bhuttos and, lately, of the Zardaris. PML-N is a family business of the Sharif clan and its familial acolytes. ANP is owned and hogged by the Wali family, and the JUI by Fazul Rehman and some like-minded faithfuls. The Chaudhris of Gujrat have their lock on PML-Q with Musharraf-loyalists making up its second tier. No wonder Chaudhry Shujaat is threatening to rock the boat in the Senate for the passage of the bill; the strategy for it may have been worked out in Chaudhry Pervez Ilahi’s recent meeting with Musharraf in London.

The urbanised, middle-class and intelligentsia-based MQM is perhaps the most telling example of how undemocratic the culture of our political parties could be. For public consumption, MQM is run on a collegial model with the Raabeta Committee supposedly taking major decisions by consensus. But the Raabeta itself is an un-elected and fully nominated outfit on the model of a Stalinist Politburo. Worst, still, is the fact that the Politburo can be overruled by the party’s reclusive ‘leader’ who operates from the shadows like a typical mafia don; his word is Delphic and can’t be questioned.

How could these undemocratic and feudal-minded parties which have never held elections of any kind within their ranks, profess to be democratic and extend their claim to speak for the rights of the people — the principal stake-holders of a democratic polity? Investing the nurturing of democracy in their grubby and soiled hands is tantamount to letting Al Capone run the Revenue collection.

The bottom-line is that the people of Pakistan have nothing to feel upbeat about in the present dispensation of power because it offers no room for their participation in the process or for their emancipation and empowerment. Pakistan’s tenuous democracy remains incarcerated within a ruling elite whose sole concern is focused on recycling power within its domain so that each stake-holder may have a stab at wielding it periodically.

Back to why the parliament is showing such contempt for comprehensive debate on the proposed amendments and betraying unwarranted alacrity to get done with rubber-stamping it? The devil, literally, is in the details, especially those relating to the appointment of judges to the apex court.

There was ostensibly no justification to appoint a special committee for doing away with Musharraf’s blatant 17th amendment to the constitution. That could have been done by the parliament in the same manner it has approved the 18th Amendment; all that was needed was the will to do it. But the will wasn’t there. The ruling cabal was keen to drag its feet on the demand, just as it had procrastinated and finally licked the dust in humiliation on the restoration of Chief Justice Iftikhar Chaudhry.

The idea was to buy time and come up with some institutionalised mechanism to have a foot in the door on the appointment of judges to the top echelons of the judiciary. The rulers just wanted to get even with the top judiciary which had been restored much against their will because of the people’s power.

The rulers got lucky in their strategy for the judges as they found a consensus among all the stake-holders in the parliament on their appointment. The consensus wasn’t hard to reach because no political party worth its salt relishes the idea of a fully independent judiciary, notwithstanding their robust and loud-mouthed protestations to the contrary.
Musharraf wasn’t the first to assault the judiciary; he was only the meanest and crudest, by far. Some of the very same ‘democrats’ now feigning their allegiance to an independent judiciary were no less brazen in their own assault against the ramparts of the apex court.

The obscene haste to get done, in a jiffy, with rubber-stamping the mechanism of parliamentary ‘oversight’ of the judiciary, woven into the matrix of the 18th Amendment, has only one purpose: stymie the people of Pakistan with a fait accompli on an issue for which their civil society fought a well-heeled and dug-deep dictator tooth and nail. The assault on the judiciary’s independence is still on, albeit in a more humane and civilised disguise.

The people of Pakistan have been thrown another gauntlet. It’s their call now. Will they take it? Will they have the stamina left, after a whole-sale draining of their body fluids as a consequence of 16-hour-long power black-outs, to rise to the occasion and call the bluff of their dictatorial democrats? The jury may remain out on an answer for sometime.

THEY say that democracy is a compromise. But sometimes these compromises are unpopular and politically costly or both. That is why marketing these compromises to the polity is a cumbersome but necessary occupation for most democracies. Sometimes these compromises are made with the opposition, sometimes with other states and sometimes with both.

The ‘New START’ treaty is one such compromise, which the US has made with both the Republicans and the Russians. Coupled with the Nuclear Security Summit and the Nuclear Posture Review, this treaty is aimed at generating the momentum, formalising and eventually launching President Obama’s ambitious initiative of a ‘Global Zero’, leading to the anticipated reduction of nuclear weapons and their delivery systems.

The Republican senators are describing both these events as two big compromises that US can do without and three powerful Congressmen, including former presidential hopeful John McCain, are lobbying hard within top military ranks to put pressure on the White House to ensure that in return for a substantial reduction in the Russian nuclear arsenal, Obama Administration must not sell its new symbol of sustained US commitment to western European security, the ABM shield.

Such symbols are useful bargaining chips in Brussels, particularly when most Nato member states, including right-leaning Nicholas Sarkozy led France, are wriggling out of their commitment to contribute to the Afghan troops surge. The Russians have been openly critical of the US Anti-Ballistic Missile (ABM) shield in Europe, not only because the shield could be effective against non-Iranian Intermediate Range Ballistic Missiles (IRBMs) but also to weaken US standing within Nato, which is dragging its feet on Afghanistan to put pressure on Washington to revert to Nato’s original agenda of protecting Europe as its long-term core interest. But the toughest battleground for ‘New START’ is at home.

The Nuclear Zero is not a new or radical idea and three years ago, in January 2007, Reagan’s secretary of state George Shultz; Nixon’s and Ford’s secretary of state, Henry Kissinger; Clinton’s secretary of defence Bill Perry and the former chairman of the Senate Armed Services Committee Sam Nunn, jointly called for a nuclear-weapons-free world in an article published in The Wall Street Journal. This article created the window of opportunity for both democrat and Republican lawmakers to openly debate its pros and cons.

According to the latest World Nuclear Stockpile Report compiled by the Federation of American Scientists, currently the world has 23,300 nuclear weapons of which 8,190 are maintained in an operational or ready-to-use status. The US and Russian Presidents signed a new arms-control treaty, called the ‘New START’, which set new limits on US and Russian warheads and launch platforms, which are the lowest ever agreed.

But despite Democrat-led euphoric attempt to paint it as a landmark event, it is not certain whether in a polarised Congress it will gain the two-third majority, needed to ratify the treaty, particularly when the looming mid-term poll offers Republicans a golden opportunity to weaken Obama on the Capital Hill for his sobering Afghan policy and blame him for using Nuclear Zero only as a political diversion from serious domestic issues such as poor economy and dismal unemployment rates hovering around ten per cent.

Republican Senator from Arizona Jon Kyl has already demanded to know whether the New START treaty represents “a new era in global arms control or unilateral disarmament by the US.” It remains to be seen how long moderate Congressman like Lugar can blunt the pressure from hawkish Republicans who want to weaken Obama, by distancing themselves from bi-partisan efforts, which the Democrats could later use to salvage votes by sharing the blame on dicey issues.Ironically, Obama’s stiffest opposition is not from the Republicans but the very people who make and safeguard US nuclear weapons.

Many US nuclear scientists believe that American nuclear systems are aging, raising questions about the reliability of bombs, planes, and missiles. The US Senate did not ratify the 1996 Comprehensive Nuclear-Test-Ban Treaty (CTBT), and though the White House expects a ‘favourable vote’ on the CTBT during the current Obama term, the Republicans strongly believe that the United States needs to preserve the option of testing the reliability of old weapons or developing new ones. In January, the directors of America’s three top nuclear laboratories told the US Congress that they couldn’t be confident that stockpile stewardship would work indefinitely to guarantee America’s arsenal. What it implies is that Nuclear weapon testing is still necessary. Wither CTBT!

The sole superpower status puts peculiar limitations on disarmament ambitions of the US. Even if Obama wants, he can’t cut America’s arsenal as much as he might desire. A significant decline or depletion of US nuclear capability may accelerate the lobbies in the nuclear threshold countries under the US nuclear umbrella like Japan to seriously consider developing its own nuclear deterrent. In view of growing regional tensions and provocation like the North Korean nuclear testing and rising China, how long can Tokyo resist the temptation of developing its ‘sovereign deterrent’, will seriously restrict the content of what might Washington want to offer Moscow in terms of ‘substantial’ nuclear disarmament.

Obama administration’s second front is Moscow. The Russians’ conventional forces are a shadow of their Cold War era might and despite sustained efforts to replenish its army, air force and navy, they are increasingly dependent on nuclear weapons, both as an international and domestic status symbol and of course for their deterrent value. They are unlikely to agree to a major nuclear arsenal cut, without of course a major concession by the US, which irrespective of its content, could inevitably prove politically too costly for Obama administration, to retain democrat majority in the US Congress, beyond the mid-term elections.

Last spring, Obama declared in Prague that “in a strange turn of history, the threat of global war has gone down, but the risk of a nuclear attack has gone up.” That could be true for Moscow and Washington, which according to the Federation of American Scientists and the Natural Resources Defence Council’s latest estimates, jointly maintain 22,340 of the total 23,300 estimated nuclear warheads, held in various operational and dis-assembled states.

As per this assessment, only the US and Russian nuclear arsenals constitute almost 96 per cent of the total nuclear weapons held by the whole world and all the other states’ combined nuclear arsenals represent only 4 per cent of the world’s total nuclear weapons. More importantly, for some states, keeping a safe, secure and reliable nuclear capability is not a luxury or status symbol but a geo-strategic necessity for survival in an anarchical world.

Many people in small states, particularly those with lingering territorial disputes, unsuccessful conflict resolution attempts, long and chequered history of hostilities and faced with large well-armed neighbours, believe that for them maintenance of a robust nuclear arsenal is the only reliable insurance against war, particularly when their big neighbours continue to brandish massive conventional arsenal along their borders, coin aggressive war doctrines, resort to coercive diplomacy and regional strategic encirclement. For such small and insecure states, nuclear deterrent is not a symbol of prestige but an investment in regional peace and security and an instrument that in the absence of large conventional forces, ensures their territorial integrity and sovereignty in a relatively cost-effective manner.

That is why, as a means to ensuring economic security to over 20 per cent of world’s total population living in South Asia, Pakistan continues to discourage arms race in South Asia and views its well-guarded nuclear deterrent as ‘a cost effective factor of stability’ in this region.

In fact, in view of the war on terror, which has cost Pakistan’s small economy over 40 billion dollars in the past 9 years, in order to prevent India from carrying out any adventure against its territory, thanks to the world’s fourth largest armed forces and an overwhelming 8:1 defence budget ratio, a robust and reliable nuclear deterrent inadvertently becomes the lynchpin of Pakistan’s national security policy, whose clear, unambiguous, dominant and long-term motive is to prevent conflict in South Asia, particularly in the absence of conflict resolution in the entire 62 years of its existence.

In short, the global zero can only be realised if a ‘Conflict Zero’ is achieved in the world, which in view of the current world security architecture, its uncertainties and inequalities, is an even more ambitious dream, as old as Abel and Cain.

The writer is associated with the Strategic & Nuclear Studies Department of the National Defence University, Islamabad.

THE challenging of the Eighteenth Amendment before the Supreme Court has sparked a debate whether the latter is competent to strike down a constitutional amendment. One view is that parliament is empowered to amend any provision of the constitution and the courts can at the most interpret a constitutional amendment but they cannot invalidate it. The other view is that parliament’s law-making power including amending the constitution is not untrammelled and the courts can determine the validity of an amendment.

The first view is based on the contention that parliament (including the two houses and the president) being representative of the popular will is supreme over all other institutions or bodies in the state and therefore laws passed by it are not subject to judicial review. The advocates of this view, however, sometimes make a distinction between ordinary laws and constitutional laws and maintain that though the former may be subject to judicial review the latter are not.

In this connection, a reference is made to Article 239 dealing with amendment to the constitution. Para (5) of Article 239 states that “No amendment of the Constitution shall be called in question in any court on any ground.” Para (6) adds that “there is no limitation whatever on the power of the Majlis-i-Shoora (Parliament) to amend any of the provisions of the Constitution.]”

Prima facie, the courts are not empowered to enquire into the vires of a constitutional amendment. They can only interpret a constitutional provision; they cannot invalidate it.

But does it mean parliament can change the federal character of the constitution, abolish the parliamentary form of government or deprive citizens of their fundamental rights including the right to life simply by passing a bill by a two-third majority?

The important question here is whether parliament in Pakistan is supreme or sovereign? Sovereignty is the supreme power in a society or the state from which all lawful authority emanates. The sovereign is one who is the source of all laws in the state and is entitled to exact obedience or compliance from others.

The ultimate test of the validity of a law, decree or order is its conformity with the will or the word of the sovereign. By implication, the sovereign is not subordinate to any law or institution. For if sovereign were subject to any law or institution, that law or institution would be supreme and thus sovereign.

In an absolute monarchy, sovereignty is vested in the office of the king (or the queen) and expressed by the maxim, “The King can do no wrong.” In case of a constitutional government, sovereignty is vested not in a single institution or person but in the constitution itself — the basic law of the land.

All institutions and persons derive their authority from the constitution and have to conform to the letter and spirit of the constitution, otherwise their actions will be deemed unconstitutional and hence invalid and without lawful authority.

The one possible exception to this rule is the British parliament, which comprises the queen, the House of Lords and the House of Commons. Every legislative measure enacted by the two chambers and assented to by the queen is a valid piece of legislation. But this is because Britain has an unwritten constitution and there are no legal limits to the powers of parliament. In addition, in Britain there is no distinction between an ordinary law and a constitutional law and parliament can pass any law by a simple majority.

Pakistan has a written constitution, which is the basic law of the land. That basic law has created various institutions and defined their powers. Like the judiciary and the executive, the legislature or parliament is the creation of the constitution. Thus whatever powers parliament has are conferred on it by the constitution, which also defines the limits of these powers.

For instance: parliament is prevented from making any law which is in conflict with any of the fundamental rights granted by the constitution to the citizens. In this respect, Article 8 of the constitution states: “Any law, or any custom or usage having the force of law in so far as it is inconsistent with the rights conferred by this Chapter [Chapter 1], shall, to the extent of such inconsistency, be void.”

Two, parliament, under Article 227, cannot make any law which is repugnant to the injunctions of Islam. Three, it is beyond parliament’s competence to make any law which is inconsistent with the basic character of the constitution. This is only logical, because all subordinate laws have to comply with the basic law. Four, parliament being the federal legislature cannot legislate on matters which fall within the exclusive legal competence of a province.

Though parliament is empowered to amend any provision of the constitution, there are two limits on this power: One, the constitution can only be amended by a two-third majority and not by a simple majority. Thus any constitutional amendment shall be invalid if it is not carried out in accordance with the prescribed procedure.

Two, while giving parliament the power to alter the constitution, Articles 239 uses the word “amend”. The lexical meaning of the word “amend” is to make minor improvements in a document through addition or deletion. This clearly means that any amendment to the constitution has to be within its basic framework, otherwise it will not be minor. It is pertinent to mention that the present parliament, unlike the Z.A. Bhutto era parliament which authored the 1973 constitution, is not a constituent assembly and therefore cannot rewrite the constitution.

Thus parliament can introduce minor changes to the constitution; it cannot re-write or deface the constitution by changing its essential character. For example, while parliament can re-name the Supreme Court as the Federal Court or fix the number of judges, it cannot abolish the court itself. The former will be a change within the basic framework of the constitution and hence an amendment; however, the latter will not qualify as an amendment to the constitution.

Thus parliament in Pakistan is not sovereign. Rather sovereignty is vested in the constitution. An act of parliament is valid only if it does not conflict with the constitution. If a dispute arises as to the validity of an act of parliament or an executive order, it is for the superior judiciary to decide, because this involves interpretation of the constitution, which is a function assigned to the courts by the basic law.

Having said that, it does not mean that the judiciary’s power to interpret the constitution is untrammelled. Rather it is also limited by the constitution. The courts cannot declare any action which is manifestly unconstitutional to be constitutional and thus valid.

Similarly, the courts cannot assume the power of amending the constitution. That power is exclusively vested in the legislature under Article 239 of the constitution. It was held by the Supreme Court in State versus Ziaur Rahman and others (PLD 1973 SC 49) that: “In the case of a Government set up under a written Constitution, the functions of the State are distributed among the various State functionaries and their respective powers defined by the Constitution…. Limitations would, therefore, be inherent under such a system so that one organ or sub-organ may not encroach upon the legitimate field of the other…. It cannot, therefore, be said that a Legislature, under a written Constitution possesses the same powers of ‘omnipotence’ as the British Parliament. Its powers have necessarily to be derived from, and to be circumscribed within the four corners of the written Constitution.”

It is however important to mention that the Supreme Court being the apex court is the only court to which the doctrine of stare decisis — which provides that past decisions are binding on the courts — does not apply. This means that the Supreme Court can set aside its own judgments made in the past. For instance, the apex court’s verdict in the Dosso case — wherein General Ayub Khan’s martial law regime was upheld — was set aside by it in Asma Jilani’s case, which itself was set aside in the Begum Nusrat Bhutto case, when the court once again upheld a military regime invoking yet again the doctrine of necessity.

The implication of this principle is that in the instant case it is up to the Supreme Court to decide whether it can strike down the eighteenth amendment to the constitution either partially or wholly. The court may also decide that it can strike down the amendment but in the end uphold it for being a valid piece of legislation.

DURING the last few weeks a barrage of criticism against the West, Nato and the United Nations poured out of Kabul. The man roaring in anger and giving vent to his frustration was none other but the darling of the West until about a year ago — Hamid Karzai.

Clad in sombre green robe, perhaps to project an aura of piety, Karzai hobnobbed with his American masters for eight years, basking in the position that fell upon him like manna from heaven, thanks to another holy man called Bush, who confided his shocking biblical prophecy to President Chirac that God wants to “erase” Mid-East enemies before a New Age begins. The same year, Bush reportedly told the Palestinian foreign minister that he was on “a mission from God” in launching the invasions of Iraq and Afghanistan and was receiving commands from the Lord.

But the situation changed with Obama coming in. Instead of Bush-like pampering phone calls, embarrassing questions and expressions of displeasure poured in from Obama about rampant corruption and mismanagement in his government and his brother’s drug trade.

The matters came to a head during presidential elections last August which he won, but not without a massive vote fraud that embarrassed the West and the UN who had funded, supported and supervised the elections. At least one-third of Karzai’s votes — more than a million — were found to be fake. Karzai conceded massive fraud but conveniently blamed it on the UN, international monitors and foreign embassies.

Karzai’s loss of legitimacy as a democratically elected president cast doubt over the credibility of the West and the UN. They were seen to be instrumental in illegitimately reinstalling a puppet regime, inefficient and corrupt to the core that ranked 179th on Transparency International’s Corruption Perceptions index, just ahead of last place — Somalia. As for his control over Afghanistan, he had hardly ventured out of Kabul that led to him being derided as the ‘mayor of Kabul’. In affect, he was a political liability.

After the newly appointed Electoral Complaints Commission, which included UN-nominated members, tossed out enough Karzai votes to force a runoff and when the US insisted on having a say in the composition of Election Commission, Karzai was convinced of West’s intentions to dump him. He chose the war path. He accused the West of “orchestrating fraud in presidential election”. He alleged that foreigners did not want the September parliamentary election to take place. “They also want the parliament to be like me, battered and wounded. They want me to be an illegitimate president. And they want the parliament to be illegitimate.”

President Obama’s recent visit to Kabul was not pleasant for Karzai either. Obama gave Karzai a dressing down over his failure to address key issues of corruption, measures for transparency in upcoming parliamentary elections and establishing guidelines on how to persuade insurgents to switch sides. Later, Obama said in a television interview he was displeased with Karzai’s performance.

With billions of western dollars going down Afghanistan’s black hole with not much to show in terms of stability and development, 100,000 foreign troops fighting a counterinsurgency campaign with another 30,000 new US troops arriving, whose success depended on a credible Afghan partner and Karzai, that partner, making a fool of himself, Obama had his reasons for losing his cool.

Karzai retorted by telling Afghan parliamentarians that his frustrations with the West might lead him to join the Taliban. Ironically, he said that America would be perceived as an invader if it interfered in the internal affairs of Afghanistan. He accused the UN and the international media of conspiring against him, with daily attacks on his character by foreigners intended to marginalize him, to make him “psychologically smaller and smaller”. “They wanted to have a puppet government. They wanted a servant government,” he said.

Karzai’s stinging criticism of the West and the UN drew an angry response from Washington. Declining to call him a US ally after having called him a partner in peace for so long, the White House hinted that it might cancel his Washington meeting with President Obama next month.

Realising he had overstepped his bounds, he made a conciliatory call to Secretary Clinton, followed by a visit to Kandahar to help build public support for a crucial US-Nato offensive.

But when confronted by a shura of 1,500 elders who heckled him about corruption and misrule and said the US offensive would bring strife, Karzai, playing to the gallery, agreed to delay or even cancel the operation. “Until the time you say you are happy, the operation will not happen,” Karzai told them, with an embarrassed General Stanley McChrystal looking on.

The last thing Obama administration wanted to see was Hamid Karzai subverting US-Nato’s planned offensive against the Taliban in Kandahar for which over 10,000 American troops are being positioned.

A barrage of disdain erupted from the Washington cognoscenti, who questioned his state of mind and leadership. A former UN envoy to Afghanistan, Peter Galbraith, described Karzai as “off balance” and “prone to tirades”. He said, “He can be very emotional, act impulsively. In fact, some of the palace insiders say that he has a certain fondness for some of Afghanistan’s most profitable exports,” apparently referring to opium. Abdullah, Karzai’s electoral opponent, said Karzai’s behaviour was “not normal”.

Besides his row with President Obama, there are other reasons for the current low in the US-Karzai relations. As the US engagement in Afghanistan reaches a turning point, Karzai is showing reluctance in kowtowing to Washington’s objectives and his keenness to pursue a course of his own.

Looking beyond the American withdrawal, Karzai, like many other collaborators, must begin to move to the centre distancing himself from the US to improve his acceptability among Afghans opposed to American occupation. To survive in a treacherous political environment that Afghanistan is, he must have a supportive new parliament and neutralise the threat from Taliban groups led by Mullah Omar. This explains his desperation to control the Election Commission and lead the reconciliation effort.

He is reluctant to subvert loyalties of Taliban foot soldiers and reintegrate the defectors into Afghan society, a task given by Obama’s commanders, fearing that a backlash from the Taliban leadership can scuttle his chances of future accommodation with them.

Against the wishes of Obama administration, he publicly insists on directly initiating negotiations for a power sharing arrangement with Mullah Omar which could confer legitimacy on his government. Mullah Omar, however, refuses to deal with him. Karzai’s overtures to the Mullah Omar have angered Obama who considers this a premature step.

Karzai is confronting the US on another front too — the Loya Jirga (or the tribal Grand Assembly) scheduled for April 29, the outcome of which might largely determine the contours of an Afghan settlement.

The Jirga denotes a power struggle. Karzai insists on his right to lead national reconciliation effort and draw up the re-integration plan for the Taliban under a mandate from international conference in London. The West would like the Jirgato develop a broad consensus for an ‘interim government’ that would force Karzai to step down from the presidency. They might use Abdullah Abdullah, a Tajik, to raise the banner of revolt against Karzai at the Jirga.

The US, stuck with him for lack of a workable alternative at least for now, needs Karzai administration’s support for the success of upcoming military initiative. There is too much at stake for the US to allow him to become an obstacle. Hence they would like to deny him a majority in the new parliament. Obama would prefer a Karzai on the leash rather than a Karzai running free.

Leaders who place themselves in the service of imperialist masters are in fact weaklings, despite their trappings of power. They can break free or follow independent course only at the peril of their lives. Refusal to fall in line may lead to an accident or a military putsch. Afghanistan is witness to many such actions.

Karzai cannot survive without US support and is in no position to threaten, confront or defy it. Yet if he does, one doesn’t have to be a Nostradamus to predict his fall. A sound advice for Karzai from Justin Raimondo of Antiwar.com: “Get out of town fast, because ‘the richest man on the planet’ wouldn’t do well at Bagram”.

THIS year marks the 125th anniversary of the founding of Indian National Congress. Many people in India, irrespective of their religious belief, richly contributed to the freedom movement by working in the Indian National Congress. However, due to the majoritarian attitude of Indian leaders and the narrow outlook of those who devise the educational curriculum, minorities’ contribution has been totally forgotten.

India has never been a nation in the classical sense of the word as used in the West. The nations in the West were founded on the basis of one language and one culture. But India was never mono-religious, mono-cultural and mono-lingual. Pluralism of all kinds — religious, linguistic and cultural — has been its hallmark. When Indians began to challenge the British Raj, their leaders realised the importance of unity of the people, especially of Hindus and Muslims. One of the slogans of the activists was “Deen dharam hamara mazhab, yeh isai (meaning the British) kahan se aye (Islam and Hinduism are our religions, where these British came from?).

When the Indian National Congress was formed the Muslims too responded enthusiastically. This has never been emphasised by Indian historians. If at all, they focus only on Sir Syed’s attitude towards Congress and his advice to Muslims not to join it. But this was an opinion of a section of the Muslim elite which had intensely suffered during the 1857 war of independence and wanted to make up with the British rulers. There were such elements among Hindus, too, especially zamindars, rajas and maharajas.

But Sir Syed’s attitude towards Congress was not of hostility but of caution as he wanted Muslims to concentrate on modern education and social change. His role was much more complex. An important thing to note is that Sir Syed had worked tirelessly for Hindu-Muslim unity and had described Hindus and Muslims as two eyes of the bride of India.

It should also be noted that Sir Syed was not a mass leader. He was trying to influence the North Indian Muslim elite as a leader of social and educational change. Also, the Muslim elite, too, was not united behind him. Others like the retired judge of Bombay Court Badruddin Tyabjee joined the Congress along with 300 Muslim delegates in its Mumbai session. He was elected president of the Indian National Congress.

Muslims, in general, welcomed the formation of the Congress party and supported its efforts to achieve India’s freedom. I wish to throw some light on this question in this article. First thing I would like to emphasise is that no community should be judged by what few of its people do. Even priorities and programmes differ from people to people.

Quite surprisingly, the most enthusiastic Muslim support for the Congress came from the Orthodox Ulema of Deoband School. I must state here that the Ulema had actively participated in the 1857 war of independence and made great sacrifices. Hundreds of them were awarded harsh jail terms which were then known as kalapani i.e. exiled to Andaman-Nicobar and Malta, an island in the south of Italy. I have visited Malta cemetery and saw graves of hundreds of Ulema who died there and could never return to their country. Some of them were very prominent such as Maulana Fazal Kahirabadi (though there is some confusion with another person of similar name).

Once the Congress was formed, the founder of Darul Ulum, Deoband, Maulana Qasim Ahmed Nanotvi, a prominent alim himself, issued a fatwa urging Muslims to join Indian National Congress and throw the British out of the country. He not only issued a fatwa but also collected scores of such fatwas and published them in the form of a book and named it Nusrat al-Ahrar i.e. for the help of freedom fighters. These Ulema were mass leaders and were determined to expel foreign rulers.

Another eminent Alim Maulana Mahmudul Hasan took part in what came to be known as Reshmi Rumal ‘ conspiracy’ under which Hindus and Muslims had decided to defeat Britishers by passing on messages to others in India for an uprising. Besides Maulana Mahmudul Hasan, several other Ulema and ordinary Muslims took part in this so-called ‘conspiracy’.

Another great intellectual who made great sacrifices for the freedom of India was Maulana Hasrat Mohani, also an eminent Urdu poet and revolutionary. The Maulana was an admirer of Bal Gangadhar Tilak who gave the slogan of ‘freedom is my birth right’. Mohani used to address him as Tilak Maharaj. Though a Maulana, he was also one of the founders of the Communist party of India in 1925.

Maulana Mohani was frequently jailed for his political activism and was often given harsh punishments which included grinding of one maund (40 kilo) of raw grains in the month of May. But the Maulana never gave in. His passion for freedom of India was non-negotiable. Even Gandhiji, in the long term interest, wanted to accept Home Rule for a transit period. When a resolution for Home Rule was moved in the Ahmedabad session of Congress in 1922, the Maulana had to be kept away for arranging a mushaira so that he does not oppose the resolution. Such was his commitment to complete freedom.

The Khilafat movement has also been grossly misunderstood. In fact it was very intelligent move on the part of Mahatma Gandhi to draw Muslim masses into the freedom movement by extending full support to it. Unfortunately the Muslim elite looked at it from its own biased perspective. But the fact is that due to this movement thousands of Muslims took part in the freedom struggle. It is another matter that the Khilafat movement ultimately collapsed after Kamal Ata Turk’s revolution which overthrew the Ottoman Caliphate.

Ali Brothers i.e. Maulana Mohammad Ali and Shaukat Ali were products of this movement. Both of them played a crucial role in the struggle for freedom of India. Their mother was equally committed to the freedom movement. When their mother heard the rumour that her sons Muhammad and Shaukat Ali were thinking of tendering an apology to the British to come out of jail (it was only a rumour) she, a lady observing purdah came on the public stage and said if they ever did so she would never pardon them. Maulana Muhammad Ali had developed sharp differences with Gandhi towards the end of his life but while dying he expressed his wish to be buried in Jerusalem as he did not want to die in ‘slave India.’

During the Khilafat movement some Muslims declared India to be Darul Harb (abode of war) and began migrating to Afghanistan to form an interim government to organise jihad against the British.

One Maulana Ubaidullah Sindhi was the main figure behind this migration and he did form an interim government under the leadership of Raja Mahindra Pratap as president of the republic of free India, with himself as prime minister. Thousands perished when the King of Afghanistan threw them out under the British pressure. Such was the enthusiasm of Muslim masses for India’s independence.

Another charismatic figure in the freedom movement was Maulana Husain Ahmed Madani who strongly opposed the partition of India and in this respect challenged Allama Iqbal, a great poet-philosopher, on the issue of nationalism and wrote a book Muttahida Qaumiyyat aur Islam. He also opposed the two-nation theory of Mohammad Ali Jinnah and argued that it had no Islamic sanction. His book has recently been translated into English by Jami’at al-Ulema-i-Hind. Maulana Husain Ahmed was abused and greeted with garlands of shoes by Muslim League activists.

Nobody can forget the great services of Maulana Azad and Khan Abdul Ghaffar Khan also called Sarhadi Gandhi to the cause of freedom of India. Both remained committed to the cause of free India and the end of British rule. Khan Abdul Ghaffar Khan was the only leader who never reconciled with the partition of the country and consistently opposed it in the CWC of Congress even when leaders like Nehru and Sardar Patel accepted it as fait accompli. Maulana Azad also gave a convincing statement against the partition.

These Muslim leaders deserved a respectable place in the history of Indian freedom movement. But owing to communal attitude of many of the ruling political leaders, academicians, historians and writers, the rich contributions to the cause of freedom movement by Muslims and the ulema, in particular, have been ignored or forgotten or very casually mentioned in text books. When I visited Gandhi Museum in Madurai which is considered the best (or one of the best) Khan Abdul Ghaffar Khan was represented by only one photograph. I felt so sad to see that that I pointed out to the director of the Museum the serious omission. He promised me to rectify it.

Today an average Hindu thinks that Muslims have divided India and looks at them with suspicion. The Congress has made no efforts to correct the facts.

The writer is a scholar and chairman of the Centre for Study of Society and Secularism, Mumbai.

TO promote democracy in the country, there is a real and urgent need to have an organised and strong force of the peasantry. This suggestion was made by Professor Hamza Alavi about two decades ago and remains highly relevant under the present conditions in the country.

Hamza Alavi (1921-2003) was a rare breed, an intellectual in the best tradition of the word, internationally recognised scholar with a prolific record of publications, an economist by training but with a deep understanding of the theory of social change, with reference to post-colonial societies. His perspective on the problems of governance facing Pakistan would make a convenient point of departure for the following discussion concerning the state of democracy in Pakistan.

It is customary for writers in developing countries including Pakistan to emphasise the role of the urban bourgeoisie in the promotion of democratic culture in the country, in line with experience in Western Europe. The focus then is put on the ‘progressive forces’ to work against the decadent feudalism in the country to remove this major hurdle in the achievement of the goal.

The problem is that neither does the concept of urban bourgeoisie nor that of feudalism fit into the real class formation of the country.

In Pakistan, for example, the current data extrapolated from the 1998 Census indicates that the urban/rural divide in the country is approximately in the ratio of 32/68 per cent. The bourgeoisie seem to constitute only a small proportion of those living in the 32 per cent in urban areas, the rest being dispersed among the lowers middle class, the shanty towns, and squatter colonies providing employment to workers in the informal sectors, especially in metropolitan areas such as Karachi.

In the urban middle classes in Pakistan, one could include both military and civilian bureaucracy, the business and professional groups, and the civil society activists (including trade unions). With the exception of the last group, it is not easy to define what proportion among them would be inclined towards effective democratic governance. Unlike in Europe, information about social groups is not easily available, as not many analytical studies have been done on this subject in Pakistan.

Political parties, however, in their policy statements broadly indicate the pattern of opinions and views of their supporters. PML-N reflects moderately conservative religious inclination among the middle to lower middle income traders, retailers and businessmen. MQM has a large urban base but the party has tolerance for intra-party hierarchy, notwithstanding its claim for secular and progressive agenda. The Pakistan People’s party has national presence, with concentration of waderas and landlords in Sindh and southern Punjab, though it still has a cluster of party faithfuls among the working classes but their allegiance to roti-kapra-makaan is receding into the distant horizon.

Nevertheless, small but vocal pro-democracy groups do make their presence known and have a potential to expand and to play a productive role in the progress of Pakistan. But the fact is that they do not have the numerical strength to become the engine of change on their own strength, to weaken the present elite-controlled structure of government.

In this regard, the issue of feudalism in Pakistan needs to be clearly delineated. There is considerable confusion about this European-rooted institution in Pakistan. In a lecture Prof Alavi delivered in January 1991 in Lahore, he lamented that the term feudalism was being freely bandied about in ordinary discourse in Pakistan, whereas feudalism, properly understood, had been rejected in British India in favour of Permanent Settlement and establishment of faithful (to the colonial rule) landed aristocracy throughout India including Sindh and Punjab.

What we have now here is ‘feudal mentality’ practised even with Harvard or Oxford accent and immaculate dress in the latest western fashion. Unlike the old feudals, the latter-day feudals are market-oriented and are connected with the global economy. In this regard, there is no distinction between the urban industrial/commercial bourgeoisie and the rural land-based aristocracy; both are governed by the laws of commodity production, to use a technical jargon.

In his lecture then Prof Alavi made an attempt to revise the traditional political and social formulation in Pakistan and to underline the fact that the urban bourgeoisie and the landlords were both participants in commodity markets, and that the social change in Pakistan under the present class formulation must depend upon the organised force of the peasantry. This revision took the South Asian marxists by surprise for whom the conventional wisdom called for a focus on the bourgeoisie as catalysts for capitalism, and it was pointed out by ZENO (pseudonym used by the late Safdar Mir) in one of his regular columns in Dawn (Cultural Notes, January 18, 1991).

Land-based aristocracy has further developed into two distinct groups, the military corporate interests and the civilian landlords. Land ownership in the agricultural sector is highly skewed with a small group of about five per cent owning around 70 per cent of land, using tenants, farmers, cultivators (mazaraeens), and landless labourers as the reserve army, as the actual tillers of the of fruits of land. They can be easily dispensed with at will as and when mechanised farming becomes fashionable to enhance commodity production.

The urban/rural divide would probably change in the future because of population growth and regional migration. There are projections galore because Pakistan government does not seem to believe in holding decennial censuses. After all, data can be manufactured in accordance with bureaucratic requirements. In a recent report the UN Population Fund predicted, however, that share of urban population may increase to 50 per cent of the national figure, but it is the life in the city with at least one in three dwellers living in slums, that would be the cause for real concern. The size of the bourgeoisie may not increase proportionately.

The 18th Amendment put in this context would take the country virtually back to its constitutional consensus arrived at in 1973, albeit with many controversial articles inserted in it. Why should this be called a celebration is beyond comprehension. The civilian government with PPP emerging as one of the main parties in 2008 elections had a duty to rid the country of the distortions introduced by the two military dictators. And it should not have taken two years to come to this promised goal. It becomes more preposterous when it is claimed that an ‘elected’ civilian president had for the first time voluntarily given up the powers ‘inherited’ by him. This is taking self-congratulation beyond the edge. It further spoils the solemnity of the occasion when remission is granted to criminals in jails. What is the connection, other than the fact the one of the beneficiaries happens to be a crony of Mr Zardari.

Professor Alavi’s narrative underlines one of the major problems facing Pakistan. He uses the issue of peasantry to point out how out of cinch the top elite leadership of the country is with people at large, whom they use as their vote banks at election times and then put all the burden of taxation on ordinary citizens to finance power and perks for themselves, and to pay for running the government machinery. In the meantime, the burden of domestic and foreign debt continues to grow.

The major issues of far-reaching consequences for future generations are constantly being ignored. Land reform is nowhere in sight in the agenda of the PPP. Right to education from age 5 to 16 is now being promised. It is a solemn responsibility in view of the fact that the entire educational system, especially at the primary level, is completely broken. Kerry-Lugal Act offers a window of opportunity in this regard but the entire issue around this comprehensive offer from the US government has been totally messed up.

The Naxalite movement in India should serve as a warning signal for Pakistan. The status quo in land ownership and management system is no longer a sustainable option. The tiller of the land will make his presence felt with the passage of time, whether he is thrown out of his job through ‘modernisation’ of agriculture and forced to migrate to the growing urban slums, or allowed to continue to serve the lord. The consequences would be disastrous for the country.

AT a time when the 18th Amendment has been universally acclaimed as a great achievement and when editorials, articles and comments in the media have praised the accomplishment, Mr Karamatullah Ghori, in his article published on April 18 in this section, has chosen to deny that anything good has happened, and has lashed out at all the MNAs, politicians and the political parties.

Mr Ghori criticises the speedy passage of the bill by the National Assembly. When a draft was prepared by representatives of all the political parties together, after thorough debate and discussions for nine long months in the Rabbani Committee, it was very much in the fitness of things for the politicians and the political parties in the Assembly to vote for it without any waste of time. How many days or weeks would Mr Ghori want the Assembly to take on matters already agreed by all political parties? Whose rubber stamp was the Assembly being by approving what its own members had concluded in the Committee? Mr Ghori neither seems happy with the Rabbani Committee taking more time nor with the National Assembly taking less time.

To me it appears cynical to think that “it recycles the concentration of power from one set of wielders to another”. It actually transfers the power back to where it belongs, from one person to the parliament which is democratically elected by the people. Where else should it be?

Mr. Ghori asks what’s for the people in the 18th Amendment? As Mr Gulsher Panhwer puts it so well in his letter in Dawn of April 18, that the 18th Amendment purges the Constitution of rubbish dumped into it by successive dictators. It removes the mutilation from the constitution and restores it to its near original form. For Mr Ghori, is there anything for the people in the 1973 constitution which now stands restored?

His reference to Quaid-i-Tehrik Mr Altaf Hussain as a leader who operates from the “shadows” like a typical mafia don, is a figment of imagination, well-nigh a totally fabricated lie, a woeful attempt at character assassination of the man who has transformed the minds and lives of millions of down trodden and oppressed people of Pakistan through his philosophy, leadership, hard work, dedication, services and sacrifices; and who rules the hearts of millions of Pakistanis, including myself and thousands and thousands of people I personally know.

Mr Ghori’s remarks are an insult to all these people. Mr Altaf Hussain works from an office which is well known all over the world and Mr Ghori himself has visited that office and marked his attendance there. Mr Altaf Hussain has never aspired to hold any position of power like becoming a minister or governor, or to live in a luxurious life style.

For anyone who has an iota of truthfulness in him/her, this alone speaks volumes about Mr Altaf Hussain’s selflessness and his distaste for personal aggrandisement. These signs are as clear as the sun (Azhar min ash-shams) and are there for every one to see and realise, except for the most ardent cynics, blind people or those whose hearts are sealed. Regarding Mr Ghori’s references to the undemocratic functioning of the MQM, I would like to remind that MQM is a democratic political party in which elections are held for various posts. The elections are covered by the electronic as well as print media. The MQM is the only party where no dynastic, hereditary or family based politics is followed. None of the brothers or sisters of Mr Altaf Hussain holds any position in the MQM. How many such examples can Mr Ghori cite in Pakistan?

MQM’s Rabta Committee is not “supposedly” taking major decisions by consensus as surmised by Mr Ghori. It is actually doing so and Mr Altaf Hussain accepts the Committee differing with him and taking decisions by consensus. Mr Ghori seems totally ignorant of the strong role of MQM’s general workers meetings in the consensus building and decision making process, where all workers are invited and their inputs and opinions are taken into account.

I would hate to be personal but since his article is so personal, I may add that I have often wondered what’s behind his addiction to Pakistan bashing and bashing of Pakistani politicians, when all his life, as an government servant, he toed the line of these very politicians, who he berates now, as well as all dictators as long as his bread was buttered, and never championed the cause of democracy or the people.

Perhaps it is the frustration he felt upon being transferred back to Pakistan from his diplomatic assignment in Turkey during Musharraf’s time, which he did not like, and chose not to return to the country even for a short duration and instead acquired Canadian and American nationalities and settled there, in spite of all his purported pain for the poor people of Pakistan. Since then he has been consistently spewing venom against Pakistani leaders and the government, with abandon.

I wish he had read some of the praise for the 18th Amendment appearing in the media, with an unbiased mind and I pray that his bitterness reduces and may he be guided.

The writer is an MQM MNA.

PAKISTAN has a governance problem that is not going to be even marginally solved by changing the name of a province, transferring subjects from an incompetent centre to even more incompetent provinces, altering the balance of constitutional power in favour of the prime minister, or creating a media frenzy over the UN report on Benazir Bhutto’s assassination.

While the politicians pat themselves on their backs for passing the Eighteenth Amendment and have flamboyantly proclaimed that they have learned their lesson from the past, they need only consider a few facts from Pakistan’s constitutional history.

The 18th Amendment substantially undoes the Musharraf-era 17th Amendment. The seventeenth amendment undid the Nawaz Sharif ‘heavy mandate’ amendments that tilted the constitutional balance towards a prime ministerial autocracy. Those heavy mandate amendments undid components of General Zia-ulHaq’s constitutional restructuring including parts of the 8th amendment. This amendment, in turn, had effectively altered the spirit of the original 1973 ‘consensus document’ in favour of a presidential autocracy. In the not too distant future, one can imagine a resurgent praetorian government passing the umpteenth amendment to undo the eighteenth amendment and reintroducing the substance of the seventeenth amendment.

No number of constitutional amendments can help Pakistan avert administrative breakdown and the collapse of its residual public service delivery capacity. The improvement in the quality and effectiveness of Pakistan’s two-million plus civil employees is a massive undertaking and one for which the present dispensation, like the previous dispensation, has demonstrated little ability. With monotonous regularity meetings are held, some more high powered than others, to discuss important issues, some publicity is created and in the meanwhile the country continues to run out of energy, water and law and order, and seems incapable of raising the taxes needed to pay for running the administration and paying for basic services.

Although members of Pakistan’s dwindling and demoralised reality-based community are not taken seriously by people in power, the Pay and Pension Committee, chaired by Dr. Ishrat Hussain, has, to its credit, advised the government to commit itself to three strategic shifts if it wants to save the state apparatus and, incidentally, Pakistan, from internal collapse. First, the national pay scales system introduced by Zulfiqar Ali Bhutto must be abandoned when it comes to remunerating Pakistan’s policemen, intelligence personnel, lower court judges, medical workers/doctors and education professionals.

Second, pays and pensions must be made competitive to attract and retain better talent in all sectors of the state apparatus while perks in kind and additional allowances ought to be minimised. Third, the number of public sector employees must reduce even if it means a recruitment ban in the general administration and public sector corporations alongside the privatisation of the latter. The modalities of implementing these proposals depend substantially on political will and the ability of the government to comprehend the seriousness of the diagnosis and the difficulty of the prescriptions.

While improving the pays and pensions system and reducing the number of government employees are vital to restoring the health of the state, material inducements alone can only go so far. A critical feature of Pakistan’s crisis of governance is that regardless of the composition of the regime, power is exercised arbitrarily. Rules and procedures are ignored and issues such as merit and suitability for assignments take a back seat to servility and patronage. Steps need to be taken to insulate civil servants from arbitrary changes to their status so that order is restored within the state apparatus’s personnel management.

These steps can include legislative measures, such as providing constitutional guarantees to civil servants against arbitrary treatment. Concurrently, independent commissions constituted under an Act of Parliament can be mandated with overseeing the discipline and transfers of different services within the civil bureaucracy. Both these steps would have the effect of reducing the discretion of the political executive.

For this to take place the politicians would have to understand that their task in a modern state is not to run the administration or interfere in the day-to-day working of the state apparatus. Their task is to make policy with the assistance of senior civil servants and technical experts who are then charged with implementing the policy in accordance with the law and reporting their progress to the political executive. Whimsicality and political patronage are anathema to sound administration.

That Pakistan needs sound administration can be illustrated by the present electricity crisis. Although estimates vary, there is a theft of a substantial portion of Pakistan’s electric power generation. These electric kleptomaniacs include private enterprises and desperately mismanaged state institutions ranging from hospitals to district headquarters. Once in a while a list of the defaulters made public is of no effect.

Fixing this problem needs the restoration of the writ of the state. In practical terms, the law enforcement agencies need to crack down on the big defaulters and make several high profile examples while the department concerned offers electricity thieves a deal — come clean, settle your past dues and in the future pay the bill. Now, this can only be done if powerful people do not pressure the civil servants tasked with the crackdown to go easy on them or look the other way.

Pakistan’s politicians have been so absorbed in politicking and acrimony over the past two years that the country’s real problems are not receiving requisite attention. Yes, it is a positive development that the 18th amendment has finally been passed and that this time the level of political confrontation was contained. The politicians must, however, understand that unless they demonstrate the will and the ability to solve problems that affect the electorate, a piece of paper is not going to save them from being ousted a few years hence. Without, however, a competent and highly motivated civil service there is practically no chance that the politicians can deliver meaningful improvement on the ground.

The writer is the author of The Culture of Power and Governance of Pakistan–1947-2010.

SOME political observers have taken exception to the role played by Nawaz Sharif in pushing the Eighteenth Amendment through in the National Assembly. The question being posed is: was he conned into throwing his weight behind Zardari? Or did he bite the bullet of his own accord?

There was a time not long ago when Nawaz Sharif (NS) was riding high in popularity and esteem. Gallup Pakistan and several other reputed opinion survey groups came up with findings putting NS at the pinnacle of the popular approval rate in Pakistan. He was commanding approval ratings hovering in the 70s, whilst Zardari’s ratings were marooned in the dismal teens. There was nary a doubt which of the two excited the imaginations of the Pakistanis — ordinary folks and not too many of them intellectuals — about leadership of a better tomorrow compared to this pitiful present.

NS endeared himself with the man on the street, in general — and selectively with an intelligentsia that still disdained him for his allegedly woolly intellect — because of his forthright stewardship of the movement to restore the deposed CJ Iftikhar Chaudhry and other notables of the top judiciary. He also articulated all the relevant nuances about the independence of the judiciary. So focused was he in his crusade to have the judiciary restored to its pedestal of the state’s prime watchdog of the people’s rights that many pretended to forget that not long ago the jiyalas of the same NShad brazenly assaulted the ramparts of the very same Supreme Court of Pakistan.

Nawaz Sharif’s rising popularity graph at that tryst of the nation with its desired destiny could well be likened — with some poetic license, of course — to the phoenix rising from its own ashes.

But, then, only a few months down the nation’s tortuous journey under the flag of a governing elite that claims to be of the people but has earned notoriety for doing everything to rob them of their rights, Sharif’s acolytes and factotums conjured up a deal with their nemeses from the PPP. They put their heads together — over a period of nine hectic months — with representatives of other parties in the Rabbani Committee to craft a constitutional amendment that was supposed to sweep aside the detritus the Musharraf team had left behind.

However, as this scribe pointed it out in his previous piece on the subject, the 18th amendment is a clever ruse to gift the politicos with a crafty leverage to barricade the judiciary’s independence and bend it to their will.

It would be plainly naïve of NS or any of his lieutenants to feign ignorance or pretend they were duped into it by Raza Rabbani or other leaders of the regime. There were some very eminent and alert members of the Nawaz Sharif team — men as bright and wide-eyed as Ahsan Iqbal and Ishaq Dar who, besides being hands-on have continually enjoyed the trust of their chief.

They knew exactly what was the bait being woven into the matrix of the 18th Amendment to trap the top judiciary. They couldn’t be unmindful of the trap doors that would open up to devour the judiciary’s constitutional independence like hungry alligators lying in wait under a creaky bridge. In other words, they played along in full consciousness and became willing parties to a last desperate attempt by the buccaneers in Islamabad’s tallest houses — who resisted restoring the CJ until the very last minute — to chain the dragon they suspect may devour them one day.

It may seem ironic, but NS and his team of loyalists have, at last, done constitutionally what they had set out to achieve by raw muscle power when Pakistan’s ‘first home-grown’ PM was in the saddle a decade and more ago.

Any benefit of doubt that a charitable reader of the unfolding scenario may be inclined to lend to NS and his cohorts, i.e. they were taken for a ride in a state of benign neglect by them, is quickly obviated by the robust defence of the 18th amendment flaunted on popular television channels by Ahsan Iqbal. Mr Iqbal is too close to NS — an ineluctable character from his ‘kitchen cabinet’ — to pretend that his advocacy of the ‘shady’ deal is entirely off his own bat and doesn’t reflect the ‘leader’s’ perception.

So it doesn’t sit well with a keen observer of the carefully choreographed act for any votary or partisan of NS to pretend that he didn’t know what he was signing on. He knew perfectly as well on this occasion as he did in 2000 when he received an amnesty from Musharraf in return for exile in Saudi Arabia.

Why did he do it? Why did he bite the bait, hook, line and sinker as the proverb says — if it were really some bait dangled before him? Why did he choose to go against his grain, the one he had been marketing with zest as his very own — his home-grown seed, so to speak — from the moment he returned from exile and got down to meeting the challenge of political re-incarnation like a rejuvenated gladiator thrown into the ring?

It doesn’t take a genius to reckon that Nawaz Sharif was swayed by the prospect of re-occupying the PM’s throne — from which he was no doubt trotted out most unceremoniously by a soldier of fortune. The 18th amendment removes the untenable impediment Musharraf had mischievously conjured up to strangulate both NS and BB. With BB gone and her widower unable to fit into her shoes, the road to PM’s House is now open to NS without fear of detours or road-blocks. So with light beckoning him so clearly at the end of the tunnel NS had no compunction in reviving relations with the man he had, not too long ago, denounced as ‘the greatest danger to democracy in Pakistan.’

That’s precisely what the leading lights of PML-N have been articulating, as best as they are capable of, for the benefit of the media and the people of Pakistan that NS has leaped into the fray with the sole intent of safeguarding democracy in Pakistan. That’s baloney.

Democracy will, henceforth, be under real threat because this innovation threatens to barricade the institution of judiciary, the anchor of democracy in any open and liberated society, and hold it in thrall to wily and unprincipled politicos. Democracy will also be imperilled by the monster of dictatorship unleashed within the ranks of political parties by the authors of the 18th Amendment when they decided to do away with the mandatory need for elections within the party ranks.

In their convoluted perception of democracy our knights-in-the-shining-armour are discarding the only thing good that an autocrat like Musharraf had tried to inject into the bone-dry sinews of our political parties. This innovation would suit NS as much it titillates the fancy of Zardari.

Zardari and his team-mates working behind the scenes managed to swing NS to their cause because he’s, potentially, as allergic to a robustly independent judiciary as Zardari is. But it would be stretching Zardari’s well-honed skills for wheeling-dealing to absurd heights if one were to believe that he converted an unwilling NS to his cause. The element of conning looks very slim, if not entirely non-existent, given NS’ eagerness to usher in a salubrious environment for his third stint as PM, which would give him an ‘honour’ that no body else in Pakistan has had, to date.

It ought to be admitted by NS and his team that the mask of democracy’s crusader and a champion of judicial independence that they had been hawking for so long has now come off for good. The people of Pakistan, with a sense of the political dynamics around them, will be loath to be conned by NS or any other ‘saviour’ of democracy and / or judiciary’s independence. In the end, it could well be the case of a crusader shooting himself in the foot to lay claim to martyrdom.

But one could still afford to be charitable to NS and say that he has thus far betrayed no rush to topple Zardari any time soon. The radiant face with which NS showed up at the pomp-and-pageantry surfeit signing ceremony at the Presidency in Islamabad said a lot about a man smugly confident about his own future and his tryst with destiny.

NS’s new-found confidence has manifested itself recently in the idea to let MQM stage their own mini-carnivals in Lahore, Rawalpindi and Multan. The two may need each other, come the next elections, to rub in their self-touted credentials of being ‘all-Pakistan parties.’ In return for some seats in urban Sindh, where MQM has struck deep roots, NS should have no regrets in letting MQM earn a toe-hold or two in Punjab, though it would still be a mismatch between a right-leaning PML-N and a left-inclined MQM. But then marriages of convenience are stuff of political expediency. So bon voyage to these two embarking on a road with no milestones.