Weekly Bang-e-Sahar Saturday June 21—June 27, 2008
By Zafar Iqbal
THE Constitution of Pakistan is supposed to be modelled on whatever we understand to be the British constitution which evolved over several hundred years beginning, one presumes, with the Magna Carta 1215/16.The civil wars of the 17th century limited the power of the monarch. The war was between the long haired and the short haired: Cavaliers versus the Roundheads. It resulted in the beheading of Charles I by the Roundheads.The monarchy was restored under Charles II, but matters again came to a crisis in 1688 when James II was ousted for trying to re-establish Catholicism. It resulted in the Bill of Rights. The dispute was whether the King was above the law or the law was above the King. However, the law could only be changed by the King in Parliament. It ultimately resulted in parliamentary supremacy but according to most writers on the English constitution not in parliamentary sovereignty. A.V. Dicey, in the middle of the 19th century propagated the idea of parliamentary sovereignty but other important constitutional authors have not agreed with it although they were all very proud of the British constitution.On the other hand, our legal brains claim to be committed to the views of Dicey. As far as Pakistan is concerned, this has nothing to do with reality. Our parliament is the servant of the executive. There are no dissenting back-benchers.The important writers on the British constitution were not necessarily lawyers. They were journalists or academics, or even a practicing politician. They were conscious of the role in the constitution played by civil servants. As far as running the ship of state was concerned, the civil servants knew what was what.As a British writer on the constitution says “…British civil servants, although servants, were not meant to be, and almost invariably were not, remotely servile. The most senior officials were men (and latterly women) of high intellectual calibre, equipped with good education, assertive personalities, and, in a majority of cases, a well developed sense of their own worth.”Harold Laski was professor of government at the London School of Economics. More important than the House of Lords or the monarchy both, Amery and Laski, correctly divined, was the civil service. It is said that Clement Attlee told him to shut up before the 1945 election.Under the British constitution the legislature, in theory, controls the courts. With the passage of time the leader of the winning political party became more and more powerful. He became a ‘Chief Executive’ and the concept of primus inter pares (first among equals) no longer exists. The nature of executive supremacy depends upon the personality of the prime minister and the composition of his kitchen cabinet.One wonders why our political scientists and lawyers imagine that the British constitution can be transplanted into Pakistan. In Britain, prime ministerial power is contained by public opinion and the fact that backbenchers of the party in power can revolt, as happened with Mrs. Thatcher and possibly, Tony Blair. Pakistan’s Constitution of 1973 was designed to promote prime ministerial dictatorship. All succeeding prime ministers have tried to uphold this doctrine as far as they could manage. As far as one could see, given ZAB’s civil service reforms, he was in the process of creating a ‘one party’ state. The problem that he faced was that the army was not entirely under his control, although he thought he had managed it by appointing Ziaul Haq as chief of army staff.As far as the 1977 elections were concerned, he had almost complete success in the Punjab because of a well integrated servile civil administration. It didn’t work quite so well in the other provinces because the administration was not so well integrated. The agitation started in Karachi and finally moved up to Lahore. That was the end and the army made plans to move in. Free and fair elections are not possible without a nonpolitical and relatively secure bureaucracy. Two issues, which may ensure some sort of democratic rule, stand out: good governance and the rule of law. Unfortunately, few people in power are interested in good governance or the rule of law. In India they claim to be interested in both. As a result their similarity to the British civil servant may be true given the elite Indian Administrative Service (I.A.S.). This development was emphasized and supported by Sardar Patel not by Jawahar Lal Nehru.ZAB destroyed the concept of an elite service. Gen Musharraf destroyed district administration which the Indians have not done. He also demoted the Public Service Commission and made everything political on the insistence of Shaukat Aziz. Without an elite service it is not possible to attract individuals of a high calibre and without a certain sense of security and political independence in the civil infrastructure, free and fair elections are unlikely to happen. Gen Musharraf was probably hoping that the nazims would support him. Some of them may have tried but on the whole they were probably looking into the future and went along with the ‘hate Musharraf’ surge in some sections of public opinion.The Economist of May 24 has quoted a senior British officer referring to a ninth century Muslim scholar, Ibn “There can be no government without an armyNo army without moneyNo money without prosperityAnd no prosperity without justice and good administration.”Except for the early years of Pakistan, no government has been interested, including the present one, in justice or good government. Since 1972, things have tended to decline. In Pakistan ‘prime ministerial’ dictatorship has been far from benevolent. Article 58 (2) b is opposed by political parties who expect to be in power — the PPP joined PML-N in its repeal by Nawaz Sharif in 1997 and PML-N will join the PPP in repealing it now. Perhaps as a substitute Gen Jehangir Karamat suggested the formation of a National Security Council and was made to resign by Prime Minister Nawaz Sharif for making this statement.We, nevertheless, need some constitutional device to contain prime ministerial dictatorship if we are serious about a better Pakistan. What do we do? Much serious thought is needed except that our clever people tend to fall back on cliches about what is supposed to be the Westminster model; completely forgetting that Pakistan is not Britain. Our electorate is still not properly educated, besides we are still a semitribal society with a substantial element of provincial prejudice. All governments have been against good administration or justice. Besides, there has been little prosperity except when the US decides to favour Pakistan. This has always, roughly, coincided with a military takeover.
Weekly Bang-e-Sahar Saturday June 21—June 27, 2008