BASIC LAW CHANGES, BASIC REALITIES DON'T

By

SUSHANT SAREEN

    On the face of it, the 18^th Constitutional Amendment is a remarkable political achievement of the PPP-led coalition government in Pakistan. Forging a national consensus on amending over a 100 articles of the constitution, including making some very far-reaching and extremely contentious changes in the much abused and much misused constitution of Pakistan, was never going to be easy. The accolades being heaped on the head of the Constitutional Reforms Committee, Senator Raza Rabbani, for skilfully shepherding the bill through the committee and through parliament are well deserved. But the real credit for the sheer scope and scale of the amendments made should go to Asif Zardari who, from the very beginning, had insisted on making the bill an omnibus amendment rather than merely repealing the distortions introduced in the constitution by Gen. Pervez Musharraf through the 17^th Amendment.

    While the PPP and other political parties in Pakistan can pat themselves on the back for undoing Musharraf's mutilation of the constitution and correcting some of the imbalances that had over the years crept into the basic law, it is as yet still not quite clear whether the constitutional changes will have any impact on the basic realities of power and politics in Pakistan. There is actually a very real possibility that the amendment could lead to another round of political instability in the country with political players repositioning themselves and reorienting their politics either because they have got some of what they wanted or because they have not got what they wanted, or even because they haven't got what was promised to them.

     One simple, immutable reality that hasn't altered with the 'revenge of democracy' is the domination of the Pakistan army. Although Pakistani politicians cannot stop proclaiming that the doors have been shut on another extra-constitutional intervention by the Pakistan army, they are perhaps being a little too hasty in reaching such a conclusion. Even today, when it comes to issues like relations with India and US, the policy on Afghanistan, the nuclear program and Pakistan's cooperation (or lack of it) with the international community on the issue of clamping down jihadist infrastructure, it is the Pakistan army and not the parliament or political government that calls the shots.

No one understands this better than Asif Zardari, who after signing on the 18^th Amendment bill quite candidly told Pakistani journalists that while the doors had been shut on dictatorship, "you never know what might happen tomorrow". The fact of the matter is that when the time is ripe for a military intervention, neither the courts nor the constitution, and certainly not the media, can do anything about it. The amendment forbidding judges from sanctifying a military takeover sounds nice on paper but in real terms is as worthless as the long standing provision in the constitution that mandates the death penalty for any act of high treason.

    The powers that had been arrogated to the Presidency during the Musharraf era have now been taken away and the president has been reduced to a virtual figurehead. While the president still enjoys some powers, especially during periods when the government's numbers in the National Assembly are shaky, he no longer has the power to dismiss the government or the national assembly. Nor can the President use his discretion in making certain crucial appointments, including those of the armed forces chiefs. The constitutional castration of the presidency however doesn't really affect Zardari.

All those constitutional powers that he appears to have lost because of the 18^th Amendment, he continues to retain by virtue of being the head of the PPP. The power to dismiss the government and the national assembly had already become redundant in the case of Zardari. Any such action by the President had to be endorsed by the Supreme Court within 15 days. The current judiciary which is rabidly opposed to Zardari would have struck down any such move. In any case, Zardari had absolutely no reason to ever want to dismiss his own party's government.

If anything, after the 18^th Amendment it has become easier for Zardari to remove the Prime Minister if he ever wanted to take such a drastic step. The law now gives party heads the power to disqualify any party member from parliament for violating party discipline. Similarly, while the appointment of services chiefs will have to be made on the 'advice' of the prime minister, in the current political scenario, the prime minister will almost certainly take his orders from the party chief, who is also the president, on these appointments. Therefore, it is not for nothing that Zardari continues to maintain that he does not find himself powerless. And with the de jure power being with the prime minister, it will now be easier for Zardari to pass the blame for failures on the 'empowered' PM and take the credit for successes in the account of the party which he heads.

Just as politically Zardari's position remains unchanged, similarly the greater devolution of powers to the provinces is more on paper than real. No doubt that by abolishing the concurrent list, a long standing demand of ethnic and provincial nationalists and a major grievance of the smaller provinces has been addressed. The provinces have also been given a greater share in the natural resources found there. But the concessions conceded to the provinces are probably a case of 'the only thing worse than not getting what you want is getting it'.

All the extra resources that would flow to the provinces courtesy the NFC award are now going to get absorbed by the extra responsibilities that have devolved on the provinces leaving them once again short of funds. There are also questions being raised about capacity of the provinces to handle the additional tasks. While the administrative and financial problems will hobble the provinces' ability to efficiently discharge their duties and keep them dependent on the centre, this will have its fallout on the politics with nationalist and separatist elements raising the demands for complete autonomy and control over resources. In other words, nothing will really change on the ground on the issue of provincial autonomy.

Among the most contentious issues in the 18^th Amendment was the renaming of NWFP and giving the majority Pashtun population in the province a sense of identity. The compromise name, Khyber-Pakhtunkhwa, has however raised a storm of protest in the Hazara division of the province which has a majority non-Pashtun population. The demand for carving a new province out of the Hazara division has in turn resurrected demands for creating other new provinces by reorganising existing provinces in South Punjab, Pashtun belt of Balochistan, giving the troubled FATA region a provincial status etc.

In order to present a more liberal face to rest of the world, the 18^th Amendment has made changes in composition of Senate to give minorities a representation in the upper House of parliament. But this cosmetic gesture has been balanced by closing the doors of the Prime Minister's office for non-Muslim forever. Not that the religious minorities ever had a hope in hell to aspire for that post in a country that shunned it's the only Nobel prize winner because he was a Ahmedi. The state of minorities is worse than pathetic as they are fair game for being killed, kidnapped, robbed, their women abducted and forcibly converted, the places of worship desecrated, demolished. And representation in the Senate is hardly going to make any difference to the lot of the minorities in the Islamic republic.

On its own, the 18^th Amendment is unlikely to effect a paradigm change in the power equations or for that matter the political culture of Pakistan. After all, the constitution is "nothing more than a piece of paper" (to quote the former Pakistani military dictator, Gen. Ziaul Haq). Whether this piece of paper will be torn up and thrown into the dustbin, as it has so often in the past, or the 18^th Amendment will end up being remembered more for what it achieved rather than for what it has failed to address will depend entirely on the behaviour of the political players. The manner in which the political players in Pakistan belied the hopes and expectations of the people after the 2008 General Elections doesn't inspire too much confidence in their ability to stabilise the political system and usher in a political culture that speaks for the janata rather than the junta or judges.

*********************************************************************

    <1420 Words>                    24^th April, 2010

*******************************************************************