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VIEW: Balance of power Shahid Hamid
A system in which the Prime Minister has all the powers is as flawed as one in which the President has all the powers. A truly democratic parliamentary system is one in which the powers of Government vest in and are exercised by the Cabinet
Under a new, indeed novel, definition of consultation inserted in Article 260 through the Legal Framework Order of 2002, consultations are not binding on the President, except in the matter of appointment of judges. Constitutional consultations necessarily imply the development of a consensus. The new definition has made consultation a mere formality instead of a consensus building process. Clearly there is a need either to re-define this word or to omit the new definition.
The laws specified in the Sixth Schedule to the Constitution cannot be amended without the previous sanction of the President after consultation with the Prime Minister (Art 268). Pervez Musharrafs Legal Framework Order of 2002 added to the list in the Sixth Schedule the State Bank of Pakistan Act 1956, the NAB Ordinance 1999, the four Provincial Local Government Ordinances of 2001, the Election Commission Order 2002, the Conduct of General Elections Order 2002, the Political Parties Order 2002, the Police Order 2002 and the 2002 Order which bars a person from holding office of Prime Minister or Chief Minister for a third term, as also the requirement for consultation with the Prime Minister.
Since under the new definition of Consultation in Article 260 consultation is not binding, this effectively means that the said laws cannot be amended without the consent of the President. The protection given to the four Local Government Ordinances and to the Police Order were time-limited and are due to expire later this year. The Parliamentary Committee should give serious consideration to deletion of the entire Sixth Schedule which presently gives special protection to as many as 35 laws. There is no real rationale for protecting any of these 35 laws from the normal course of legislation.
The President has the power to give directions with reference to the affairs of the Federally Administered Tribal Areas and to make Regulations for the peace and good governance of these Areas and to decide whether or not an act of Parliament or Provincial Assembly shall extend to such Areas (Art 247). He also has the power to direct the Governors of the Provinces to act as his agent in FATA (Art 145). These powers are to be exercised on the advice of the Prime Minister and there has been no change in the original provisions after 1973.
The President is not answerable to any Court for the exercise of powers and performance of his functions. No criminal proceedings can be initiated or continued against him. Institution of civil proceedings against him in his personal capacity are also subject to specified restrictions (Art 248). There has been no change in the original provision after 1973.
A number of interesting conclusions emerge from the above recital. After the enactment of the 1973 Constitution, the first and last President, who was a purely titular figure, was Chaudhry Fazal Elahi. At that time the President had no power that could be exercised by him independent of the advice of the Prime Minister to the extent that no order signed by him had any legal validity until countersigned by the Prime Minister.
The balancing, or over-balancing, of powers between the President and the Prime Minister was brought about by Zia-ul Haqs Order 14 of 1985. It was this Order which fundamentally altered the spirit of the 1973 Constitution and made it the present mix of Presidential and Prime Ministerial powers. If the ultimate objective now is to make the President a purely titular figure, like the Queen of England, then we will need to repeal not only the 17th Amendment of 2003 which validated Musharrafs Legal Framework Order 2002 but also the 8th Amendment of 1985 which validated Zia-ul Haqs Revival of Constitution Order 14 of 1985.
Since 1985, we have had a constitutional system in which there is a sharing of powers between the President and Prime Minister. It appears to me that, leaving aside other non-Constitutional factors such as the selection by Musharraf of Prime Ministers who had no independent political support and the fact that Asif Zardari, and not Yousaf Raza Gilani, is the head of the main party in the ruling coalition, the balance of power is tilted in favour of the Presidency by Article 58-2(b). Should it therefore be omitted as was done by the 13th Amendment of 1997?
On the two occasions viz 1977 and 1999 when crisis situations arose and there was no Article 58-2(b) to resolve them within constitutional parameters, the end result was military rule. The dissolutions of the National Assembly in 1998, 1990, 1993 and 1996, in the exercise of Presidential powers under Article 58-2(b) were not desirable events, notwithstanding the fact that in 1990 and 1996 these dissolutions were upheld by the Supreme Court, but at least what followed remained within constitutional limits.
Might it then not be a better idea that instead of omitting Article 58-2(b), the exercise of this power by the President is made subject to the condition that in case the dissolution order is struck down by the Supreme Court, this will automatically result in the removal of the President from office and the fresh elections that follow will be for the office of the erring President and not for the National Assembly which he sought to dissolve?
With respect once again to those who may hold a contrary opinion, a system in which the Prime Minister has all the powers is as flawed as one in which the President has all the powers. A truly democratic parliamentary system is one in which the powers of Government vest in and are exercised by the Cabinet. Article 90 of the original Constitution spoke of the executive authority of the Federation to be exercised, in the name of the President, by the Federal Government consisting of the Prime Minister and the Federal Ministers who were to be collectively responsible to the National Assembly.
Have we seen Cabinet Government since 1985? The short answer is no. The reason is again not far to seek. A Cabinet of 15 to 20 Ministers can govern. A Cabinet of 60 plus Ministers cannot. Over-sized Cabinets mean that all important decisions of State are taken elsewhere either by the President or by the Prime Minister or by both or by a troika and not by the Cabinet who may be informed after but not before such decisions are taken.
This article is the sixth in a seven-part series. The fifth part appeared yesterday. The author is a senior advocate of the Supreme Court, and a former civil servant, cabinet minister and Governor of Punjab
A system in which the Prime Minister has all the powers is as flawed as one in which the President has all the powers. A truly democratic parliamentary system is one in which the powers of Government vest in and are exercised by the Cabinet
Under a new, indeed novel, definition of consultation inserted in Article 260 through the Legal Framework Order of 2002, consultations are not binding on the President, except in the matter of appointment of judges. Constitutional consultations necessarily imply the development of a consensus. The new definition has made consultation a mere formality instead of a consensus building process. Clearly there is a need either to re-define this word or to omit the new definition.
The laws specified in the Sixth Schedule to the Constitution cannot be amended without the previous sanction of the President after consultation with the Prime Minister (Art 268). Pervez Musharrafs Legal Framework Order of 2002 added to the list in the Sixth Schedule the State Bank of Pakistan Act 1956, the NAB Ordinance 1999, the four Provincial Local Government Ordinances of 2001, the Election Commission Order 2002, the Conduct of General Elections Order 2002, the Political Parties Order 2002, the Police Order 2002 and the 2002 Order which bars a person from holding office of Prime Minister or Chief Minister for a third term, as also the requirement for consultation with the Prime Minister.
Since under the new definition of Consultation in Article 260 consultation is not binding, this effectively means that the said laws cannot be amended without the consent of the President. The protection given to the four Local Government Ordinances and to the Police Order were time-limited and are due to expire later this year. The Parliamentary Committee should give serious consideration to deletion of the entire Sixth Schedule which presently gives special protection to as many as 35 laws. There is no real rationale for protecting any of these 35 laws from the normal course of legislation.
The President has the power to give directions with reference to the affairs of the Federally Administered Tribal Areas and to make Regulations for the peace and good governance of these Areas and to decide whether or not an act of Parliament or Provincial Assembly shall extend to such Areas (Art 247). He also has the power to direct the Governors of the Provinces to act as his agent in FATA (Art 145). These powers are to be exercised on the advice of the Prime Minister and there has been no change in the original provisions after 1973.
The President is not answerable to any Court for the exercise of powers and performance of his functions. No criminal proceedings can be initiated or continued against him. Institution of civil proceedings against him in his personal capacity are also subject to specified restrictions (Art 248). There has been no change in the original provision after 1973.
A number of interesting conclusions emerge from the above recital. After the enactment of the 1973 Constitution, the first and last President, who was a purely titular figure, was Chaudhry Fazal Elahi. At that time the President had no power that could be exercised by him independent of the advice of the Prime Minister to the extent that no order signed by him had any legal validity until countersigned by the Prime Minister.
The balancing, or over-balancing, of powers between the President and the Prime Minister was brought about by Zia-ul Haqs Order 14 of 1985. It was this Order which fundamentally altered the spirit of the 1973 Constitution and made it the present mix of Presidential and Prime Ministerial powers. If the ultimate objective now is to make the President a purely titular figure, like the Queen of England, then we will need to repeal not only the 17th Amendment of 2003 which validated Musharrafs Legal Framework Order 2002 but also the 8th Amendment of 1985 which validated Zia-ul Haqs Revival of Constitution Order 14 of 1985.
Since 1985, we have had a constitutional system in which there is a sharing of powers between the President and Prime Minister. It appears to me that, leaving aside other non-Constitutional factors such as the selection by Musharraf of Prime Ministers who had no independent political support and the fact that Asif Zardari, and not Yousaf Raza Gilani, is the head of the main party in the ruling coalition, the balance of power is tilted in favour of the Presidency by Article 58-2(b). Should it therefore be omitted as was done by the 13th Amendment of 1997?
On the two occasions viz 1977 and 1999 when crisis situations arose and there was no Article 58-2(b) to resolve them within constitutional parameters, the end result was military rule. The dissolutions of the National Assembly in 1998, 1990, 1993 and 1996, in the exercise of Presidential powers under Article 58-2(b) were not desirable events, notwithstanding the fact that in 1990 and 1996 these dissolutions were upheld by the Supreme Court, but at least what followed remained within constitutional limits.
Might it then not be a better idea that instead of omitting Article 58-2(b), the exercise of this power by the President is made subject to the condition that in case the dissolution order is struck down by the Supreme Court, this will automatically result in the removal of the President from office and the fresh elections that follow will be for the office of the erring President and not for the National Assembly which he sought to dissolve?
With respect once again to those who may hold a contrary opinion, a system in which the Prime Minister has all the powers is as flawed as one in which the President has all the powers. A truly democratic parliamentary system is one in which the powers of Government vest in and are exercised by the Cabinet. Article 90 of the original Constitution spoke of the executive authority of the Federation to be exercised, in the name of the President, by the Federal Government consisting of the Prime Minister and the Federal Ministers who were to be collectively responsible to the National Assembly.
Have we seen Cabinet Government since 1985? The short answer is no. The reason is again not far to seek. A Cabinet of 15 to 20 Ministers can govern. A Cabinet of 60 plus Ministers cannot. Over-sized Cabinets mean that all important decisions of State are taken elsewhere either by the President or by the Prime Minister or by both or by a troika and not by the Cabinet who may be informed after but not before such decisions are taken.
This article is the sixth in a seven-part series. The fifth part appeared yesterday. The author is a senior advocate of the Supreme Court, and a former civil servant, cabinet minister and Governor of Punjab
