Associated Press Service
On March 17, 2012, while addressing the joint sitting of Parliament at the beginning of the 5th and final year of the term of the 13th National Assembly, President Asif Ali Zardari [Unlink] congratulated the Parliament for completing four constitutional terms. While this can be gauged as a movement forward for the system of parliamentary democracy in Pakistan, the performance of state institutions remains somewhat mixed. The passage of legislation providing for the appointment of caretaker governments during Election through a bipartisan process, timely conduct of the Senate election, and greater parliamentary oversight of the national security are positive developments for the strengthening of parliamentary democracy.
However, the accountability of public officials remains a cause of serious concern, especially since the National Accountability Bill remains stuck in the National Assembly Standing Committee on Law and Justice for the past three years. Furthermore, the Public Accounts Committee after the resignation of PML-N’s Chaudhry Nisar Ali Khan, MNA (NA 53, Rawalpindi-IV, Punjab, PML-N) from the chairmanship marks a significant departure from the spirit of the Charter of Democracy. The rise of sectarian violence and spiralling law and order in parts of Balochistan also question the capacity of state institutions, in particular, law enforcement agencies to contain target killings, capture and convict criminal elements. Poor performance of the economy coupled with institutional weaknesses could be detrimental for systematic growth. Increasing political influence in postings, transfers and purely administrative and business decisions is further undermining governance.
The following developments can be considered positive for the growth of democracy in Pakistan:
- Passage of the 20th Amendment: The passage of the 20th amendment has paved the way for a consensus appointment of caretaker governments in the centre and the provinces to oversee future polls. The Government and the Opposition agreed on a “system of reaching consensus” on the appointment for the caretaker governments in the centre and the provinces in the 20th Amendment to the Constitution which was passed unanimously by the Parliament on February 20, 2012. The term of ECP members has been fixed at five years.Fearing that without a prior agreement on the definition of “consultation” between the Government and the Opposition on the appointment of Caretaker Government, the country may face a political deadlock close to the General Election, PILDAT had filed a Constitution Petition in February 2012 before the Supreme Court asking the Court to interpret the scope of ‘Consultation’ between the President and the outgoing Leader of the House and the Leader of the Opposition in the National Assembly for the formation of Caretaker Governments before the next General Election. This prompted the Opposition and the Government to seize this issue and move swiftly to address this through the 20th Amendment to the Constitution.20th Amendment to the Constitution has now inserted a new Article 224-A which stipulates that in the case the outgoing Prime Minister and the Leader of the Opposition do not agree on any person to be appointed the Caretaker Prime Minister, within 3 days of the dissolution of the National Assembly, they will forward two names each to a Parliamentary Committee to be immediately constituted by the Speaker of the National Assembly. The Committee will need to decide on a name within three days. The article further stipulates that if the Committee is unable to decide on a name, these names will be referred to the Election Commission of Pakistan which will make the final decision within next 2 days. Similar procedure is to be followed in the provinces in the case of disagreement between the outgoing Chief Minister and the Leader of the Opposition.
It is praiseworthy that the 20th amendment, which was initially needed to just validate the election of 28 law-makers through by-polls who membership was suspended by the Supreme Court, was used as an opportunity by the opposition to tackle the issue of smooth system of appointment of caretaker government and tenure of Election Commissioners. The positive initiative and swiftness of the opposition in seizing of this issue as well the maturity of the Government and its spirit of conciliation and accommodation are worth acknowledging in this regard.
While the 20th Constitutional Amendment is silent on consulting the parties outside the Parliament on appointing consensus-based, neutral caretaker governments, PILDAT has proposed that in order to take all political stakeholders on board, parties not represented currently in the Parliament and Provincial Assemblies of Pakistan, should also be consulted in the appointment of neutral caretaker Governments, as also in the appointment of the Chief Election Commissioner. The Leader of the Opposition in the National Assembly, Chaudhry Nisar Ali Khan, MNA, had earlier announced that parties outside the Parliament will also be consulted on the appointment of the caretaker governments in the centre and provinces before the next General Election. It is hoped that this will be put into practice both by the Government and the opposition.
- Senate Election: Despite various analyses predicting an early General Election, the as-scheduled holding of Senate election has allowed Pakistan’s fledgling democracy to take a step further towards democratic consolidation. While elections alone do not signify quality of democracy, in Pakistan’s peculiar political history where tenures of democratically elected Parliaments have been curtailed, holding of election on schedule is a positive development. As expected, Senate election has strengthened the ruling PPP’s representation though its seats are short of a clear majority. The PML-N, which had seven members in the Senate, also improved its strength to 14 members.  The present Senate has 104 members instead of a previous 100, for a first time four religious minority members were elected to the Senate.
- Parliamentary Recommendations on Foreign Policy: The unanimous passage of 14-point recommendations of the Parliamentary Committee on National Security by the Parliament marks the beginning of an oft-demanded Parliamentary overview and ownership of Pakistan’s foreign policy. In the traditional foreign policy realm of Pakistan, Parliament and Parliamentary bodies have had little influence, if any. While it remains to be seen how effectively the Government implements Parliament’s recommendations on restructuring Pak-US relations, major thrust of Parliamentary resolution, the facilitation of this review and the unanimous approval of these recommendations indicate the Government’s maturity and due regard to the institution of Parliament which is setting exemplary traditions of Parliamentary oversight of governmental policies.The recommendations deal primarily with bilateral relations with the United States, transportation of arms through Pakistan, on-going drone strikes, the use of Pakistani airspace, the presence of intelligence security contractors and state that no verbal agreements on matters of national security will be made in the future. The demand for a re-formulation of ties with the United States become critical after a unilateral raid in Abbottabad, to capture Al-Qaeda leader Osama bin-Laden, and NATO attacks on a Pakistani check post in Mohmand Agency. These events raised several questions for Pakistan’s sovereignty and the direction of its foreign policy.
- ECP disqualification of Waheeda Shah: What was recorded as a dark testimony of Pakistani political elite’s disregard for rules and human respect and dignity had a redeeming feature in the Election Commission’s decision to disqualify Pakistan People’s Party’s Waheeda Shah. Waheeda Shah, a candidate in by-election in PS-53 Tando Muhammad Khan, was disqualified by the ECP for two years and her election was termed as null and void on the basis of television record of her slapping two female polling staffers during by-election.Since the constitution of a 5 member Election Commission after 18th Amendment, collective decision making was seen in the Election Commission where even the CEC was out-voted. In its order, the Election Commission also directed Sindh Inspector General of Police for taking disciplinary actions against DSP Irfan Shah and other police officials, who, despite their presence on the scene, remained silent over Shah’s misbehavior.The incident and its conclusion also underscores the important role news media has to play in Pakistan on monitoring election and a uniform application of electoral rules and framework for electoral fairness.
- Intelligence Agencies produce “missing persons” in Supreme Court: February 13, 2012 marked a milestone in Pakistan’s history when on the Supreme Court orders to the Military Intelligence (MI) and Inter Services Intelligence (ISI), seven (7) prisoners were produced before the Supreme Court. On March 1, 2012 the Supreme Court reprimanded the intelligence agencies by telling them that they are not above the law. The Chief justice also termed them as the biggest violators of the law of the country. This is a breakthrough in the history of civil-military relations in Pakistan as for the first time Intelligence Agencies, which largely operate outside the ambit of law, are being held to account. Another important development in this regard has been a letter written by Mr. Mustafa Nawaz Khokhar, Human Rights Advisor to the Prime Minister, to the Director General ISI, directing him to provide the detainees with professional medical care. The letter is said to be the first direction of its kind to the DG ISI by a civilian cabinet member. This letter, although symbolic, is a significant attempt by the civilian Government to assert itself on ‘autonomous’ security agencies in the country.
Following developments have had a negative impact on the quality of democracy during the quarter:
- Prime Minister Indicted: On January 3, 2012, the Supreme Court issued a warning against the government to implement and execute the verdict on National Reconciliation Ordinance issued in December 2009, by writing to the Swiss authorities to investigate graft cases. The Supreme Court charged Prime Minister Yusuf Raza Gilani with contempt of court for “wilfully defying, disregarding and disobeying” court’s order of the NRO verdict. The court told the PM that contempt of court was a punishable offence under article 204 (2) of the Constitution, and he would be tried on this charge. On January 19, Prime Minister Yusuf Raza Gillani appeared in front of the Supreme Court to defend the contempt charges filed against him. Security was tight when the Prime Minister drove to the Court himself. The thrust of the appeal given by the PM’s counsel Aitzaz Ahsan [Unlink] was that as “head of state, the President enjoyed immunity under the constitution.” The court expressed displeasure over the PM’s response submitted on March 21, in which the Prime Minister told the Judiciary to settle the contempt matter first and then raise the issue of implementation of the NRO verdict. According to Justice (Retd.) Tariq Mahmood, the Supreme Court can issue a separate contempt notice, and it can appoint a commission or direct its registrar or any other senior government official to write the letter on behalf of the government to the Swiss authorities.Apparently, the Prime Minister’s conduct amounted to ridiculing the Court. Article 204 of the Constitution states that:
A Court shall have power to punish any person who,
Delay in Appointment of the CEC: While the opposition seized the opportunity to include important amendments on the process of consultation for appointing caretaker governments as well as providing 5 year term each to the 4 Election Commissioners appointed after the 18th Amendment, both Government and the Opposition have failed to evolve timely consensus to appoint the Chief Election Commissioner. The term of the Chief Election Commissioner concluded on March 23, 2012. Instead of initiating and concluding advanced consultations for the appointment of the new CEC, a month after the expiry of the term of the CEC, there are no indications that the Government and the Opposition have even initiated the process of consultation in this regard.The very requirement of the 20th Amendment to the Constitution arose when Supreme Court questioned the legal status of the 28 legislators who had been elected in by-elections held at a time when the ECP was incomplete due to non-appointment of its members as required under the 18th Amendment. It inexplicable why both the Government and the Opposition are repeating the same mistake by delaying on developing a consensus on the crucial appointment of the Chief Election Commissioner of Pakistan.
- abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
- scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
- does anything which tends to prejudice the determination of a matter pending before the Court; or
- does any other thing which, by law, constitutes contempt of the Court.
On April 26, the Court convicted the Prime Minister with the contempt of court. Gillani was given a symbolic sentence till the rising of the court and did not have to face imprisonment. A detailed judgment is expected to delineate the consequences of being charged with contempt, whether he will be convicted under a particular clause in the constitution, 63-1 (G) which would disqualify him from holding public office. This is the first incident in Pakistan’s judicial history in which a prime minister has been indicted. Prime Minister, however, continues to make public statements on his intent not to write letter to Swiss authorities to re-open corruption cases against Mr. Zardari. The short order of the Supreme Court and its reaction by various political parties has exposed the weaknesses in the political system and a weak democratic culture. The Supreme Court could have avoided the uncertainty and conflicting interpretation of its short order by announcing its detailed judgment instead of announcing the short order first and holding the release of detailed judgment. The Prime Minister should have tendered resignation after he was convicted irrespective of the fine point about the ramification of conviction. The major opposition party, PML-N should have waited till the announcement of the detailed judgment before announcing the launch of a movement against the Prime Minister and declaring that they did not recognise Gilani as the legitimate Prime minister of Pakistan any more. All three parties could have acted more maturely and that would have indicated a mature democratic system in the country. It is also important that the public debate does not merely delve on the contempt matter, but urges the state to take action against corruption among public officials. This can be done through the passage of a National Accountability Bill which ensures the appointment of a neutral Director General of National Accountability Bureau and guarantees the independence of the Bureau.
- Public Accounts Committee no longer under the Leader of Opposition: Five months after the resignation of PML-N’s Chaudhry Nisar Ali Khan from the Public Accounts Committee, PPP’s Nadeem Afzal Gondal has been elected unopposed as the Chairman of the PAC on April 25, 2012. Former PAC Chairman, Chaudry Nisar, had resigned protesting the appointment of a controversial Auditor General by the Government just as the Committee was set to commence reviewing the audit reports pertaining to the term of the current Government.The appointment of the Leader of the Opposition as head of the PAC for the first time in Pakistan in the 13th National Assembly was celebrated as a major positive step towards deepening democracy, under the spirit of the Charter of Democracy signed between the PPP and PML-N. This certainly undermines the democratic tone of the Charter. In 4 years of its term, the PAC as a whole was able to clear the backlog of audit paras since 1990.In March, the Government reportedly wrote to the Leader of the Opposition Chaudhry Nisar Ali Khan requesting him to retake the PAC chairmanship. “Following the spirit of the CoD and good work which the PAC has done over the past three years, Chaudhry Nisar should take back the charge of the committee, or nominate some body from his party as his replacement,” the letter said. It is reported, however, that the PML-N has not formally responded to the letter and failed to nominate a chairperson for the PAC, as requested by the Peoples Party.
It is rather sad that a democratic convention of giving the chairmanship of the PAC to the opposition could not take root in Pakistan and we returned to the old ways when PAC was chaired by a member of the ruling coalition. It is difficult to ascertain as to who – the ruling party or the opposition PML-N, carries greater responsibility for the reversal of this democratic convention but this much is certain that it is a setback to democracy.
- No Local Governments: On April 13, 2012, the Supreme Court directed the chief secretaries of all the four provinces to submit schedule on April 30 for holding local government elections. While it remains to be seen what response do provinces submit, it is regrettable that in 4 years Provincial Assemblies and Governments have failed to establish elected Local Governments, a crucial third tier of democracy.
- Punjab takes on the Centre: The central government criticized the sitting government in Punjab for supporting vandalism, when massive power blackouts led to violent demonstrations in the province. Up to five hours of continuous power shutdowns marred routine life in the city, creating a severe shortage of water and crippling other economic activities. The agitators damaged billboards and windowpanes of several shops after their owners refused to shut their shops. Out of a total of 40 grid stations in Lahore, 22 grid stations were shut down to keep demand lower than supply. In Faisalabad, on March 28, trade and industrial associations announced a wheel jam strike and violent protests against outages and inflated power bills continued. The protestors told the media they would besiege residences of Members of National Assembly and Members of Provincial Assembly for their in action in tackling the power crisis.
- No Leader of the Opposition in the Sindh Assembly: While the Government and the opposition in the Parliament celebrate the unanimous passage of 20th Amendment to the Constitution on a system of reaching consensus on the appointment for the caretaker governments in the centre and the provinces, Sindh Assembly remains without a Leader of the Opposition.The Sindh High Court suspended a petition of PML-Q’s Arbab Ghulam Rahim, who stands to lose his seat in the Sindh Assembly for being absent since 2008. Rahim, a former Chief Minister during the Musharraf period, has been applying for leave from self-imposed exile after alleged victimization by the ruling PPP after he turned down their offer for withdrawing his candidate from the Senate elections. Pakistan People’s Party leader Agha Siraj Durrani moved the motion against Rahim, asking the seat to be declared vacant due to his absence without leave from the assembly. The Sindh Assembly rules state that if an MPA is absent for 40 consecutive working days, they stand to lose their seat. It is reported that a property dispute between the Nuhrios (Arbab’s caste) took the Hindus and Muslims Tharparkar “to the brink” in the 1990s. Rahim has been instrumental to the politics of his constituency, because of his alleged alliance with three main communities of the area – the Nuhrios, the Rahimoons and the Samejas. This has allowed him to defeat contesting electoral competitors such as the PPP in 2008.
- Sectarian Killings in Balochistan: The capacity of law enforcement agencies to control violence in Balochistan remains a cause of concern. On March 30, women belonging to the Hazara community staged a protest outside the Balochistan Assembly against the government and law enforcement for not taking action against target killings in Quetta. On April 14, 10 more people were gunned down in three incidents of target killing and firing in various parts of the provincial capital. Balochistan governor Nawab Zulfiqar Ali Magsi remarked that if peace was not restored, the army may take over the situation. Political violence is not conducive for the functioning of administrative apparatus that is critical to deliver services and provide justice, let alone the flourishing of democracy.
- Violence in Karachi: On March 26, violence hit Karachi when a MQM political worker was murdered. Another eight people were reported to have been killed and dozens injured as a result of firing. More than 35 vehicles, including a police mobile, were torched in various parts of the city. All educational institutions were shut down and exams were postponed, transport remained partially suspended throughout the city, a heavy contingent of Rangers and police were deployed in sensitive areas.The following day, an ANP political worker was killed leading to another spate of violence, in which six more people were killed and 11 vehicles were torched. The Awami National Party demanded the government take military action in Karachi against extortionists, target-killers and “other dangerous elements, which have made the city a hell for the common man.” The failure of lawmakers and political parties to find a political solution to violence in Karachi is troublesome. The demand of military action in the past has conceded space to military forces to take control of the political administration, often through the imposition of martial law.
- No Standing Committees in Balochistan Assembly: During a recent session of the Balochistan Assembly, Minister for Agriculture Asad Baloch noted that house has functioned for four years without any standing committees. The Minister told the media that “in a parliamentary set up, these committees serve as the backbone of the legislature.” The committees are critical to debate issues and obtain technical details on proposed legislation.
- Cabinet expansion: Centre goes Balochistan way: The federal government expanded its cabinet by adding five new federal ministers and six new state ministers, making the aggregate number of ministers in the cabinet 54. Defending this move, newly-inducted Minister for Information Qamar Zaman Kaira stated that ministers get less perks and privileges than a MNA or Senator.
- Violence against women on the rise: An annual report published by the Aurat Foundation stated that there was an overall 6.74 percent increase in the reported cases of violence in 2011. Over the past four years, despite the passage of proactive legislation addressing violence against women, the report concluded that there had been no shift in the demographic of violence. According to facts put forward by the Aurat Foundation, there was a 48% increase in sexual assault cases, 37% increase in acid throwing, 26% increase in ‘honour killings’ and 25% increase in domestic violence. A bill seeking to prevent Domestic Violence was blocked in Parliament by JUI-F’s Maulana Fazl-ur-Rehman on claims that it promotes “Western values