Has the Charter of Democracy become irrelevant? — by Mohammad Jamil

How can one put highly professional military personnel, dealing with sensitive information, under non-professionals who are not competent enough to do the job?

Politics is said to be the art of the possible and some say it is the art of compromise, but in Pakistan it is the art of deceit and deception, as the nation has witnessed how the partisans conducted themselves during the late 1980s to the 1990s. The Charter of Democracy (CoD) was signed by (late) Benazir Bhutto and Mian Nawaz Sharif in London on May 14, 2006, which was reflective of unity in ‘adversity’. Among other things, they had asseverated that they would abandon the politics of confrontation and vendetta. But one can see that the PML-N does not let any opportunity go to waste to demonise President Zardari. In a press conference after a breakfast meeting with Nawaz Sharif the other day, Prime Minister Gilani said the government hoped to have the CoD implemented before March 23, 2010. However, Nawaz Sharif expressed disappointment over the PPP’s failure to implement the CoD, though the PPP had to take along other allies — the MQM and the ANP — who had some reservations over constitutional amendments, and, in fact, wanted more focus on provincial autonomy.

The PPP and the PML-N formed a coalition government, but Mian sahib lost his patience and demanded the PPP to honour its commitments. Differences had also cropped up over the reinstatement of judges, and the PML-N withdrew from the coalition at the Centre and joined the campaign for the reinstatement of the judiciary. After this reinstatement, the Supreme Court, in its verdict, declared the NRO void ab initio and ordered a reopening of the cases against its beneficiaries. The PPP government at first procrastinated, taking the plea that it would act after the detailed judgement. Meanwhile, a crisis-like situation developed when President Zardari, ignoring the recommendations of Chief Justice (CJ) Iftikhar Muhammad Chaudhry for elevating Justice Saqib Nisar, transferred the Lahore High Court CJ to the Supreme Court and issued a notification. Prime Minister Gilani and Aitzaz Ahsan salvaged the situation by convincing President Zardari to accept the CJ’s recommendations on the elevation and appointment of judges. A precedent was set for future reference that the CJ’s word will be final so far as appointments and elevations in the judiciary are concerned.

During the standoff between the executive and the judiciary, the PML-N put its weight behind the judiciary, and Nawaz Sharif went so far as to announce that if the PPP government did not implement the verdict of the apex court, it would start yet another long march. Point 3 (a) of the CoD reads: “The recommendations for appointment of judges to the superior judiciary shall be formulated through a commission, whose chairman shall be a chief justice, who has never previously taken oath under the PCO.” CJ Chaudhry had the spine to stand up to a military dictator; as such the judiciary has emerged as a strong pillar of the state, relegating parliament to a secondary position. Keeping in view his struggle, nobody could have dared to include such a clause in the constitution, and even if both the PPP and the PML-N had agreed on this clause, the apex court would probably have declared it void ab initio.

Meanwhile, the special parliamentary committee assigned with bringing about changes to the constitution has reached an agreement on a process for the appointment of judges to the superior judiciary. This is in line with the CoD except there is no mention of the condition for the chairman of the judicial commission who had never taken an oath under the PCO. The commission will forward its recommendations to the prime minister who will, in turn, send a candidate’s name for approval to a parliamentary committee consisting of both the government and opposition members. This is indeed a laudable decision because the concentration of power in one person, be it the president, prime minister or CJ, leads to controversies. These are just recommendations and one has yet to see whether this amendment will be carried through in both the houses of parliament and become part of the constitution, as there is many a slip betwixt the cup and the lip. There was yet another lacuna in the CoD. When appointments of the judiciary and civil-military relations were taken up, why had they left out politicians who had supported, aided and abetted military dictators in the past?

There is yet another touchy subject: the civil-military relationship. Clause 32 of the CoD under part D, ‘Civil-military relationship’ reads: “The ISI, MI and other security agencies shall be accountable to the elected government through the prime minister, secretariat, minister of defence and cabinet division respectively.” But this clause seems to be based on a flawed perception, as the Joint Chiefs of Staff Committee and the Chief of Army Staff are under the prime minister, which means that the armed forces and its wings are theoretically under civilian control. According to defence analysts, the MI’s mission is to collect information at a tactical level in the enemy’s territory within a certain defined area, whereas the ISI is to collect information at a strategic level and cater to the three armed forces. In other words, these agencies are an integral part of the armed forces, and any effort to dissociate them from the military’s chain of command is tantamount to weakening the armed forces. The present government had issued a notification placing the ISI under the interior ministry, but this was later withdrawn on resistance from the military leadership.

The question arises as to how one can put highly professional military personnel, dealing with sensitive information, under non-professionals who are not competent enough to do the job? In the CoD, the section pertaining to the ‘civil-military relationship’ will not generally require legislation from parliament, but it is a very delicate subject and the government should ‘handle it with care’. The military has supremacy in our political structure because this is the institution that gives supreme sacrifice during wartime. This supremacy may also be attributed to the unwritten part of the constitution, and its origins can be traced to the time when General Ayub Khan was made defence minister in a civilian set-up. Secondly, when politicians were involved in internecine conflicts, members of the bureaucracy — Malik Ghulam Muhammad, Chaudhry Muhammad Ali, Iskandar Mirza and others — started palace intrigues and created a situation whereby the military had to move in. Having said all this, the three pillars of the state should try to function within the parameters drawn up by the constitution, as any trespassing into others’ domains could stir crises and even anarchy.

The writer is a freelance columnist. He can be reached at mjamil1938@hotmail.com

Source: Daily Times



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