Sunday, January 31, 2010

Panacea to solve present problems

Panacea to solve present problems


By Fakhruddin G Ebrahim

I am a beneficiary of Pakistan. Whatever I have achieved or acquired is because of Pakistan. Therefore, if I sound ‘Jazbati’ or upbeat, you will please excuse me. There is a lot of despondency and despair visible in Pakistan and it is not without any basis. Most of the people I meet are deeply concerned and asked me what is happening and what is going to happen. The very fact that such a question is being put makes me unhappy.Let me start from the beginning to understand the present. Constitution is the ‘ROOH of a nation’ and an independent Judiciary is its heart. It is the Constitution which ensures well being and fundamental basic rights of its people.In a federation like Pakistan, where one unit is larger than three others combined together it is the Constitution that holds the country together. The vital importance of the Constitution cannot, therefore, be underestimated; we call it the basic law, the fundamental law - the mother of all institutions. We wasted 26 long years before we gave the country its fundamental law, the basic law - the consensus 1973 Constitution. And prior to that we shot one prime minister who had played principal role in the creation of Pakistan; lost more than half the country without shedding even a silent tear and committed judicial murder of another prime minister ZAB, the author of 1973 Constitution.And look what we have done to this Constitution, notwithstanding its Article-5, which states that it is inviolable duty of every citizen of Pakistan, whether residing in or out of Pakistan, to obey the Constitution. Its Article-6 provides that abrogation of Constitution is high treason. Notwithstanding this article, one military dictator General Ziaul Haq considered the basic law a trash of paper and ruled the country in its total violation for over 10 years and in the process murdered the first elected prime minister of Pakistan - the author of 1973 Constitution. He amended the Constitution according to his whims. In fact, he mutilated and deformed the Constitution.This was followed by yet another decade of military rule under General Musharraf, when the basic document was held in abeyance, as was earlier done by General Ayub, make the judiciary subservient. Right from 5th of July 1977 upto 3rd March 2008 we had military judiciary axis. It may be noticed that in real terms, only two general elections were held under the 1973 Constitution, firstly, by ZAB and secondly, by Musharraf, the latter on his own terms. Of course there were four elections held in-between when Benazir and Nawaz Sharif each won twice, but they were not allowed to complete their terms and to my mind, therefore, these elections are to be ignored.Just imagine, 60 years of Pakistan and only two general election! In other words, we halted political process and people were deprived of their right to choose their own representatives. There are no born democrats and political workers were denied existence by suppression of trade unions and the student unions. The political process that started in February 2009 must continue and military rule must be eliminated for all times to come. We are fortunate that we have today not only an independent judiciary, but that judiciary has ordained that hereafter there will be no abeyance or abrogation of the Constitution much less its validation. There is, therefore, no room for military intervention or military adventure.The fact that we have a “Luli Langri” democracy today should not come to us as a surprise. We never had, except for one occasion, sustained political process, which is a must for political and economic empowerment of people. It is political process, alone which results in political stability and economic progress, which alone ensures the people their basic rights. We were denied our rights and the occasions to fight for our ordinary human rights much less rights guaranteed under the Constitution.The recent decision of the Supreme Court on the Army Welfare Trust Plot at Karachi is a great step forward. For the first time the Supreme Court has, amongst other things, invited our attention to the forgotten Article-38 of the Constitution which obliges the government to give us good governance for the welfare of the people. There will be no life after democracy, if Article-38 is not implemented. A lot of controversy has been raised on NRO, on the question of appointment of judges and the relationship between the executive and the judiciary. To my mind, judiciary and executive are two pillars of the same building and there is no room for any conflict.Why should raising of these issues be of so much concern that fear is being expressed, that these issues will have disastrous consequences and that we will have reached a point of no return. Each organ of the state must perform its function in accordance with the Constitution, for, after all, the Constitution is the supreme law of the land. The NRO judgment must be implemented in letter and spirit un-conditionally. All that is required is that action be taken in terms of the judgment, namely, the government must commence actions within the country and in relation to cases pending abroad, forward a copy of the Supreme Court judgment with a request that the cases, if closed, may be re-opened. It is upto the foreign courts then to take action permissible under the laws in force in that country. In so far as the cases within Pakistan are concerned, unless President Zardari waives immunity he will have protection under Article-248, but in so far as foreign courts are concerned, his request, if any, will be dealt with in accordance with laws in force in that country. As to appointment of judges and the controversy raised in relation thereto, what is needed is honest implementation, without any ifs or buts and without any mental reservations.

One view is that the best judge is the chief justice. While the other is that seniority must prevail in appointment of judges. These differences can always be resolved, if not by past precedents, by laying down new precedents, which eliminate discrimination - the mother of all evils.That, however, is not the end of the matter, for we have larger problems affecting the people of Pakistan as a whole. Some people say that nearly two years have passed and we do not see any ray of hope. No doubt people have a right to be impatient. After all we have denied them their right to good governance for decades and they have, therefore, right to be impatient. They want results, promised by the leaders. They are demanding their long denied rights. We must try and appreciate their impatience. Some people say that most of these problems would not have arisen, if Mr Zardari had not been the President of Pakistan. Irrespective of its truth or otherwise, the fact remains that election of Mr Zardari as President was, if not unconstitutional, against the spirit of the Constitution. A president is president of Pakistan. He represents the unity of the nation. He should not belong to, much less be leader of, a political party, which is effectively in power. Furthermore, there is talk of balance of power between the president and the prime minister. This negates the 1973 Constitution and gives an impression that 17th Amendment is not altogether irrelevant. The 17th Amendment must go. Look at the problems created in Punjab by the discretionary power used by the president in appointing - to say the least, not so independent governor. The concurrent list must go immediately to empower the provinces. These are not new demands, they have already been agreed to by the premier parties including the most respected Mohtarma Benazir Bhutto that these amendments, introduced by General Musharraf, should be eliminated from the Constitution. Why have these amendments been linked to other amendments which are controversial which has resulted in inordinate delay. It is said that the requisite majority in the National Assembly is not available. If these amendments are immediately introduced, we will know, who stands where and we will be able to distinguish between democrats and so-called democrats.Our experience, past and immediate present, require following steps to be taken:-1. Open government. A new freedom of Information Act with meaningful provisions. Open government equally for the benefit of government for there will be no room for unfounded allegations against the government; 2. A general amnesty to all Pakistanis, more particularly the holders of public office and their dependents to bring back all their foreign assets within a specified time and failure to do so to result in punishment, minimum 15-year rigorous imprisonment; 3. No out of turn promotion, seniority to be respected. 4. Military to be treated like any other departments of government with no right to carry on any business, not connected with military requirements. 5. No allotment of plots to holders of public office;6. Holders of public office to be given locally assembled cars;7. Re-introduction of Wealth Tax;8. Re-introduction of Capital Gains Tax;9. Compulsory voting; 10. Defamation Law (Section 500 PPC) to be restored, amendments made by Zia to be deleted;11. No extension in service; 12. Visible reduction in Govt. expenditure. All information relating to expenditure made available to the public; 13. Cabinet to consist of no more than 15 Ministers;14. Minimum foreign trips; 15. No leader in exile;16. No ostentatious living;17. Every holder of public office to file copies of their income tax returns to which every citizen will have access with liberty to raise objections;18. FBR to publish list of all tax payers, occupation or profession wise.19. Discretionary funds to be disclosed including how the same is spent; 20. Since people have been deprived of their right to vote for too long, the life of their assemblies should be four years instead of five years.21. No nominated woman’s seat in the National Assembly. Women seats to be filled in by the female voters with liberty to women to contest general seats. 22. Genuine autonomy to institutions;23. Equal compulsory education to all to be achieved within a specified time;24. Expenditure incurred on holders of public office to be disclosed from time to time, not less than once a year;25. Duty of the government to provide gainful employment and necessities of life at reasonable prices; A time to be specified within which this obligation will be performed; The aforesaid suggestions are not new. It is equally known that good governance is possible only if the government implements above suggestions. Government expenditure to be reduced to the minimum to enable achievement of above objectives.The aforesaid suggestions are made in all humility. It is my considered view that since we have denied these rights for so long while the rich have become richer, the delay in its implementation will only augment our problems and Pakistan will have lost its meaning - just a dot on World Atlas.It is the duty of the press and the civil society to press for realization of the above demands. At least there should be effective think tanks, who can analyse the aforesaid demands with a view to its possible implementation at the earliest. We can no longer afford to remain silent. In the past we have done no more than ‘Tabla Bajana’. Now is the time to carry out our inviolable duty to obey the Constitution, as provided in Article-5 of the Constitution and insist upon the government to take serious note of Article-38 of the Constitution.

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