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Constitutional legitimacy of National Security Council

The News

08-10-1998

Akram Sheikh was President of the Pakistan Supreme Court Bar Association through 1997-98. He was appointed Roving Ambassador by Prime Minister Nawaz Sharif but later in October, 1997 he resigned the commission because of differences with the government on its policy towards the judiciary. The views expressed in this article are his own .

Does the Constitution permit dictatorship of such a nature, where a chief executive can be held accountable neither in the Parliamentary Party nor before the Parliament, and on the voice of dissident, an unending process of humiliation and harassment is unleashed?

The most vital decisions taken during the past year and half have been taken by two, three or a maximum of four persons. Out of these, except the chief executive and another ‘person’, the rest had no business with the constitutional decision-making process.

Parliament learnt successively about devaluations, nuclear explosions, imposition of emergency after all these steps had already been taken

The statement of the former chief of army staff on Tuesday has cost him his job. But it has created ripple in political circles and has stirred the political atmosphere, which had been stagnating for the past few weeks.The change of face has come as no surprise. In fact, many had already started to blame General Jahangir Karamat for being “soft” vis-à-vis national security concerns, particularly the internal security of the country. The recently announced proposal for setting up of national Security Council (NSC) has sparked an intense debate as to the constitutionality or otherwise of the proposal.

The press is full of comments from both sides. The Government has claimed that according to the opinion of the constitutional experts, without naming anyone of them, the proposal was ultra vires of the constitution. Others have seen it from different angles. They have expressed satisfaction over the identification of issues facing the country today. Some have express the opinion that notwithstanding the exit of General Jahangir Karamat, the army may still pursue the idea. Whatever, the final outcome, the issue is sure to reverberate well into the tenure of the newly appointed COAS, General Pervez Musharraf.

The decision making process envisaged revolves around the “chosen representatives” exercising their power as a “sacred trust” in the Islamic polity of Pakistan. Article 90 of the constitution west the executive authority of the Federation in the Federal Cabinet and hold the body collectively responsible for all decisions taken by the “executive authority”. The Rules of Business framed under the Constitution lay down the procedure and parameters for each functionary so as to streamline the routing of files.

Theoretically, the Cabinet is answerable to Parliament. It is thus accountable for any decision taken. Practically, however, many important decision taken in the last eighteen months were either never debated within the Parliamentary Party or, if they were, they were pushed through the Parliament, detrimentally abridging the legislative process. The Cabinet has never gathered courage to inform the Chief Executive of the competence of certain decisions. Mostly, the proclaimed policies of the party in its constitution and party manifesto has been thrown to the wind. Nobody has found courage to question the leadership’s authority for taking decisions behind the back of everyone, including the parliamentary party and even Parliament, in matter affecting national destiny. The Parliament has invariably been taken to be a body which is merely informed about what has already been decided behind closed doors. Under this unfortunate practice, Parliament no longer function as an authoritative body, gaining its significance from its role as forum for genuine debate and consultation, among the chosen representatives of the people, which improves and refines the adopted course of national action. To illustrate: Parliament learned about the reduction of the number of judges on 21 August, 1997 after a proclamation to this effect has already been signed and issued. Similarly, Parliament learned successively about the devaluations, nuclear explosions, imposition of emergency after all these steps had already been taken.

The decision-making process of the party leader with the historically “massive mandate”  can be seen from what happened when nomination of Retd. Justice Rafiq Tarar was announced. In that very meeting the four “expected” candidates for  Presidency were present—-Speaker of the National Assembly, Ilahi Bukhsh Soomro, Syed Ghaus Ali Shah, Sartaj Aziz and Gohar Ayub. After the Cabinet meeting had prolonged for more than two hours the Prime Minister was kind enough to discharge the heavy burden placed on his shoulders by the party to take a decision. The decision announced stunned everyone. I was told by at least five ministers attending that meeting that every body was rendered speechless and mum for six and a half minutes. This decision was taken neither by the central working committee nor the parliamentary party. A veteran journalist and a leader of the Pakistan movement, the closest friend of the Prime Minister and his great father and who also happens to be a person who has come to their rescue invariably as and when they needed his help, told me that a day before the Cabinet meeting, the names disclosed to him of the expected candidate were totally different from what was subsequently announced. The phenomenon of taking decisions in a manner other than that provided for in the Constitution, alien to democratic norms, has assumed the status of legend. It has become a joke not only in Pakistan but internationally.

In this decision-making process, the Cabinet merely takes the blame and the collective responsibility for such decisions. I will not refer to these phenomena commonly known at the Raiwind Forum or “Abbajee” for I have personal  regards for the whole family of the Prime Minister in this brief article I only intend to examine the validity of the practice which is invoked for decision-making and which definitely has no relevance or nexus to various provisions of the Constitution of the Pakistan. The consequence of the state of affairs has resulted in the current national scene: vibrant relations between federating units have come to a grinding halt and shoots have been fired from across the Attock Bridge and Punjnad towards Punjab. Furthermore, smaller provinces are voicing unprecedented dissatisfaction over the treatment they are being meted out at the hands of the “centralist” chief executive. As rightly pointed out by the former COAS, Gen. Jahangir Karamat, the polorisation, vendetta and insecurity-driven expedient policies have already had destabilizing effects on the entire state structure.

Such is the consequences of “constitutional” dispensation and the decision-making process of the Government. The most vital decisions taken during the past years and-a-half have been taken by two, three or a maximum of four persons. Out of these, except the chief executive and another ‘person’, the rest had no business with the constitutional decision-making process. The Chief Minister of the Punjab undoubtedly is the Chief Executive and repository of the provincial executive authority. However, his association in the decision-making, affecting our federation is as good or bad as associating a stranger with the constitutional dispensation and is as much violative of the sacred document as other  “aid and assistance” available at Raiwind.

It is true that unending violations of the constitutional process and decision- making would not justify the setting up of a committee in violation of the constitution—to wrongs certainly do not make one right. When the system has been thoroughly destablished,  however, having been made topsy-turvy; when bodies, like Khidmat Committees, unknown to any law or the constitution have been set up to pacify the supporters of the incumbent “massive mandate”, when the entire federal set-up has been jolted to its foundation, I see no reason why a positive effort to institutionalise decision-making for ‘aiding and assisting’ the constitutional structure could be termed as ultra-vires of the constitution.

Many raised loud objection to the setting up of a forum which may contribute towards a system of checks and balances on the powers of the Chief Executive. Such intellectual also became party to the erosion of the independence of the judiciary, the sole substantive constitutional mechanism established for accountability of executive actions. These intellectuals frequently voice concern whenever an attempt is made to hold the chief executive under some kind of discipline or control. The elected members have not been able to do it because they cannot afford to stand up before the party leader–For doing so would mean consciously risking disqualification by the party leadership for future nomination from their constituency. Dissidents are, in this another ways, hounded and hunted. The voice of conscience is suppressed with the full throttle of state power and yet it all supposedly remain a “pure”, “chaste” and unadulterated parliamentary democracy.

Is it all constitutional? Does the constitution permit leadership of such nature, mere a Chief Executive is accountable neither in parliamentary party nor before the parliament, and on the voice of dissident, an unending process of humiliation and harassment is unleashed? The expression of an independent view on the floor of the House is sufficient to disqualify the member from continuing in his place where he Is supposed to communicate his constituents’ voice. The courts strong muscles were deeply bruised and weakened by the 28 November, 1997 episode. Nevertheless, the state intellectuals do not see any violation of the constitution but the moment an effort is made to fix the broken system; to reunite the federating units; to institutionalise decision-making, the constitutional set-up is immediately and incomprehensively stated to exposed to threats.

I am sure the constitution does not permit arbitrary decision-making, violation of the provincial autonomy, pursuits of policies based on vendetta, selective accountability, witch-hunting of adversaries  decision-making by a family set-up at Raiwind or Larkana. The proposal for setting up a national security council may offer an opportunity for the government to continue in office while retaining the assistance of persons most needed to fix the  dilapidated system.

In light of the above, the Prime Minister and the whole Cabinet manifestly owe a debt of gratitude to the institutional suggestions of the Armed Forces made through their spokesman and representative, the “retired” COAS. This should be taken as the most needed support to democracy rather than interference with the governance.

Gen. Jahangir Karamat became victim of his proposal to set up the National Security Council. It appears that he plainly intended to help save the federation and to help the government improve its decision-making process. These are indispensable and sorely needed infusions required in our current politico-constitutional arrangement. Let there be no more casualties for turning a deaf ear to this vital need of the hour—– be it government or the very federation that it is charged to run.