Eightytwo years ago, Woodrow Wilson took America into the 20th century with a challenge to make the world safe for democracy. President’s Musharraf’s challenge in the 21st century is to make democracy safe for Pakistan.
Pakistan opted for Parliamentary democracy after independence and declared itself to be a federal Islamic republic on April 12, 1973. Parliament is one of the chief instruments of our democracy. In England parliament is sovereign and “true it is, that what the parliament doth no authority upon earth can undo.” In short, it can do everything that is not naturally impossible.
De Lolme has summed up the matter in the grotesque expression which has now become proverbial. “It is a fundamental principle with English lawyers that parliament can do everything but make a woman a man and man a woman”.
In Pakistan the parliament is not supreme and not all that powerful either. Like the other two major institutions of government, its powers are defined and limited by the Constitution. The doctrine of legislative omnipotence finds no place in a federal system of government like ours. Our Constitution is the fundamental law of the land and has superiority over all the institutions it creates, be it the legislature, executive or judiciary. None of the institutions of government can go beyond the powers vested in them by the Constitution.
Pakistan opted for the parliamentary form of government long ago, but we have till today not resolved two basic problems which have bedeviled the growth of our democracy. These are: (1) What should be the powers of the president and the prime minister in a parliamentary form of government? and (2) What should be the role of the army, in a democratic Pakistan with a parliamentary form of government?
India framed a constitution, like ours, on the Westminster model within two years of independence and has a parliamentary form of government. All their constitutional experts including Sir Chimanlal Setalvad, Sir Krishna Swamy and others, made it abundantly clear right in the beginning that the executive responsibility for the governance of the country rests with the prime minister; the president is neither an appellate authority over the prime minister nor a supervisory authority over the prime minister or the cabinet. Doubts in regard to the precise powers of the president vis-a-vis the prime minister and the council of ministers were originally raised by India’s first president, Dr. Rajendra Prasad, who had earlier presided over the constituent assembly.
Rajendra Prasad raised three points of constitutional importance and claimed that he was not bound by the advice of the council of ministers. He contended that he had the power to withhold assent to bills in his discretion, dismiss a ministry or a minister and order a general election and as a supreme commander of the defense forces, send for the military chiefs, and ask for information about defense matters. The power, he argued, flowed from the president’s oath of office.
Jawaharlal Nehru, the prime minister, was taken completely by surprise and promptly sought the formal opinion of the attorney-general, M. C. Setalvad, a recognized legal colossus. Setalvad was clear in his opinion that in a parliamentary form of government, the office of the president was essentially that of a titular head like that of the British monarch. He, therefore, held that the president was bound by the advice of the council of ministers and could not withhold assent to a bill as claimed by Rajendra Prasad. At the same time, however, he was of the opinion that the president could, like a constitutional monarch, assert his influence in other ways, as spelt out by Bagehot, an acknowledged authority on British constitutional law. According to Bagehot, the Crown had “the right to be consulted, the right to warn, and the right to encourage” and nothing more.
Setalvad’s views were equally of interest on the two other issues. First, he said that the president could not send for the service chiefs but he could send for the defense minister. Setalvad further held that the president should avoid speeches which might embarrass the government. That settled the issue once and for all and that is where the matter rests today. Indian democracy has stood the test of time. The executive is accountable to the legislature and legislature alone. There is no other check on the Indian prime minister or the cabinet. The constitution has kept the country united, allowed its democracy to continue to function and gain strength and kept the armed forces at bay.
In our case, successive governments disfigured, defiled, defaced, decimated and destroyed the basic features of our Constitution with the help of a pliant judiciary. We deviated from the principles of parliamentary form of government, gave vast powers to the president, including power to appoint service chiefs, governors, power to dissolve the National Assembly and power to supervise and oversee the working of the government. This, inevitably, led to trouble which persists till today.
Is it consistent with the principles of parliamentary government to empower the president at the expense of the prime minister? And is it consistent with the principles of parliamentary democracy to divest the parliament of its constitutional role as the sole check on the executive and pass on this function to an un-elected, extra-constitutional body like the National Security Council dominated by the armed forces?
The irony is that in spite of all the battering it has received, the Constitution, which is now almost unrecognizable, is still described as the 1973 Constitution of the Islamic Republic of Pakistan. It is, like in ancient times when the emperor would test his ministers and courtiers by bringing out a donkey and calling it a horse. If you maintained that it was a donkey, you lost your head. If you called it a horse, then you got a promotion.
It is axiomatic that the army has no political role in any democratic country, whatever its form of government. But, for historical reasons, it has acquired this role in Pakistan which now appears to be irreversible. The only question for consideration, therefore, is: should this role be formalized through the NSC and made a part of the Constitution or should it be left as it is?
In my opinion, the army should be like an emergency lamp. When power fails - and power fails quite frequently in Islamabad - the emergency lamp comes into operation. When power is restored, the emergency lamp becomes dormant. Or to put it in another way, the role of the army should be like that of a fire brigade. It should rush to the site of fire, extinguish the fire as quickly as possible, and then get back to the station. It must not stay at the site of the fire a minute longer than is absolutely necessary. If it lingers on, tarries too long, gets involved in the management and administration of the house, it ceases to be a fire brigade.
The chief of army staff should, like the emergency lamp, remain in the background. If strain develops between the president and the prime minister and the country faces what is called the “deadlock of democracy”, he should act as a referee, avoid becoming a participant or a partisan in the political power game and act as a peacemaker and peacekeeper without derailing the political process. In course of time, this arrangement will, hopefully, develop into a healthy convention and become a source of strength and stability for Pakistan’s democracy.
On the other hand, if the army’s role in politics is formalized, as is proposed, it will expose it to criticism both at home and abroad. It will be accused of exercising power without responsibility and of usurpation of the functions of parliament and of Bonapartism. The center of gravity, the locus of ultimate power, will shift to the National Security Council, an unelected body dominated by armed forces answerable to none. It will result in constitutional anarchy because the proposed National Security Council is foreign to the parliamentary form of government and is inconsistent with the supremacy of the Constitution and the role of parliament as the “great inquest” of the nation.
There can’t be two suns in the sky. There should be one authority in any government, in any state, in any country. There can’t be a second center of power in a parliamentary system of government. If you create a second center of power, conflict between the two will develop and confusion and chaos will follow.
“I think you listen too much to the soldiers”, Lords Salisbury wrote to Lytton, Viceroy of India. “No lesson seems to be so deeply inculcated by the experience of life as that you should never trust experts. If you believe the doctors, nothing is wholesome: if you believe the theologian, nothing is innocent: if you believe the soldiers, nothing is safe. They all require to have their strong wine diluted by a very large admixture of insipid common sense”.
I recalled Salisbury’s words of advice when I left the chief executive’s office after five hours of free, frank and open discussion with President Musharraf on the constitutional package. Contrary to popular belief, President Musharraf is a good listener, enjoys the cut and thrust of argument and is still open to conviction. What he needs more than anything else is civilian input.