A new controversy

Arif Nizami

The week has been cathartic for those who believe in the supremacy of parliament and the rule of law. President Asif Ali Zardari signed the Eighteenth Amendment Bill into law in the presence of all the politicians who matter, with much fanfare and bonhomie. And, finally, the long-awaited United Nations Commission report on the assassination of Ms Benazir Bhutto was also released.

The group photograph taken on the occasion of the signing of the law becoming part of the 1973 Constitution enabling transfer of political power from the presidency to the prime minister published in most newspapers captured the true historic significance of the event. Rarely have politicians demonstrated such solidarity and unanimity in the service of democracy.

As expected, various petitions challenging the constitution of the judicial commission for the purpose of appointing judges to the High Courts and the Supreme Court under the amended Constitution have been challenged in the apex court. As expected, the plea has been taken that the procedure is tantamount to changing the basic structure of the Constitution. The stalwarts of the judges' movement barrister, Aitzaz Ahsan and Ali Ahmed Kurd, amongst others, however strongly disagree.

Aitzaz Ahsan fears another confrontation between the judiciary and parliament if the Supreme Court strikes down the 18th Amendment. However, a senior lawyer and one of the former stalwarts of late Zulfikar Ali Bhutto, Abdul Hafeez Pirzada, who played a pivotal role in evolving a consensus on the 1973 Constitution, thinks that parliament has overstepped its mandate by amending the Constitution. He thinks the basic structure of the Constitution has been changed, which cannot be done without a referendum.

Pirzada, who bid adieu to the PPP long ago, is these days perceived to be close to the dictator-in-exile, Gen Musharraf. Maverick lawyer Akram Sheikh and Supreme Court Bar Association president Qazi Anwar vociferously support his view. Hamid Khan, a prominent jurist, a stalwart of Imran Khan's Tehreek-e-Insaf, feels that there is nothing odd about the Supreme Court striking down constitutional amendments, as has happened many times in India.

Notwithstanding the hiccups, all political parties present in parliament rallied around in support of the 18th Amendment in the final analysis. PML-N leader Nawaz Sharif and his brother Shahbaz Sharif, who had absented themselves when the National Assembly passed the amendment, were present at the Presidency for the signing ceremony.

Nawaz Sharif, who has come under severe criticism from his own party for supporting the change of name of NWFP to Khyber-Pakhtunkhwa, was seen being warmly embraced by President Asif Ali Zardari. This was a good gesture, especially in the backdrop of the music Nawaz Sharif has been facing from his self-styled mentors for conceding on the Khyber-Pkhtunkhwa name.

These elements are trying in vain to drive a wedge between the Sharifs by painting Mian Shahbaz Sharif, known for his rather hawkish political views, as "a true Muslim Leaguer," whereas Nawaz is criticised as a deviant for going along with the consensus on the Pakhtunkhwa issue. They have not only castigated Nawaz for attending the ceremony but have also launched a media campaign against him for cosying back to President Zardari.

His being a signatory to the Charter of Democracy with Ms Benazir Bhutto, it would have been sheer opportunistic politics on the PML-N supremo's part if he had done anything but support the 18th Amendment. However, it remains to be seen whether in its anxiety to cash in on anti-PPP constituencies, the PML-N does not waver again from its stance on the 18th Amendment.

The 26-member constitutional committee comprising all political parties under the chairmanship of Mr Raza Rabbani has been officially disbanded .It deliberated for more than nine months to produce a consensual draft of the 18th Amendment. Ishaq Dar and Ahsan Iqbal were representing the PML-N in the committee and obviously enjoyed the confidence of their party and leader. Hence, to say that the constitutional amendment was passed in two days without debate is not only a travesty of truth, it is an insult to the travails of the chairman and members of the committee who toiled for almost a year to produce an agreed draft.

Aitzaz Ahsan has warned about the clash if institutions with disastrous consequences if the apex court strikes parts of the 18th Amendment. Hopefully, better sense will prevail. The chief Justice of Pakistan in his wisdom is well aware of the parameters set by the Constitution. While inaugurating the national judicial conference he aptly remarked: "The role of the judiciary is not that of an opposition to the legislature and the executive but that of a custodian and a bastion of the constitutional rights and liberties of the citizens."

Parliament represents the collective will of the people and, in the case of the 18th Amendment, signifies the consensus of all the political parties. Those who are crying hoarse that only a constituent assembly has the mandate to amend the Constitution kept mum when the 1973 Constitution was maimed and truncated beyond recognition through arbitrary amendments. These amendments were mostly initiated by military strongmen, duly rubberstamped by parliaments and validated by the courts.

Admittedly, there are a few downsides to the 18th Amendment. For example, exempting party leaders from holding party elections indeed sounds hypocritical for parties which do not tire of preaching democratic principals like fair and free elections. But their leaders do not want free elections for themselves. I recall one retired khaki complaining about the future of democracy in Pakistan. However misplaced his criticism, his view was: "Is the future of democracy in Pakistan that either Hamza (son of Shahbaz Sharif), Bilawal (son of Zardari and Benazir Bhutto) or Moonis (son of Pervez Elahi) will be our future leader?"

Judging by the dynastic bent of mind of South Asian leaders, as well as the electorate, he is probably right. Unfortunately, the other alternative which has plagued Pakistan for more than half of its existence is another military dictator taking over in the name of saving the nation form corrupt politicians.

Despite the ushering in of the supremacy of parliament and the president voluntarily giving away some of his crucial powers usurped by Gen Musharraf from a rubberstamp Assembly, there is despondency in the air. Owing to the dismal state of the economy, endemic power shortages, terrorism and a pervasive sense of insecurity bordering on a state of anarchy, the common man does not feel good about the future of democracy in the country. Hence, unless our leadership walks the talk by actually moving to give better governance mere constitutional amendments cannot guarantee a stable and a lasting democracy.

The PPP government has finally risen to the need take action against Gen Musharraf and all those mentioned adversely in the UN report. This action should be focused and should not be allowed to deteriorate into a witch-hunt against opponents. The revelation in the report that the follow-up vehicle on the fateful evening of Ms Benazir Bhutto's assassination occupied by Rehman Malik, Dr Babar Awan and others left the ambush site, abandoning Ms Bhutto in a critical state, is absolutely shocking. Despite this damning revelation, how these gentlemen are enjoying the perks and privileges of power and the confidence of the president is a mystery.