February issue 2002
General Pervez Musharraf has replaced the political constituency he inherited from General Zia-ul-Haq with a new one, and apparently decided to restructure the state along somewhat liberal lines as opposed to theocratic formulations promoted in past decades.
The electoral reform package announced in the middle of January raises the fundamental question of constitutional legitimacy. Can a military regime, whose authority can only be accepted as a last resort in terms of transition from an undemocratic dispensation to a democratic one, be allowed to devise a new constitution, a function exclusively reserved for people’s representatives? The argument that the Musharraf regime’s power to amend the constitution enjoys the sanction of the Supreme Court holds little water. The Supreme Court itself has no authority to frame the constitution and its authority to rule on matters outside the constitution is self-assumed and of dubious variety. Besides, if the regime’s actions are to be justified because they appear to be in harmony with the public good there will be no grounds to oppose any future forays into constitutionalism that may not pass that test. However, if questions on the constitutional validity of the regime’s proposals can be put aside for the sake of argument, and also in view of the possibility of public acquiescence to the dispensation indicated, these decisions can be discussed on merit. In fact, even judicial precedents can be cited in support of examining the issues on merit before deciding on jurisdiction.
The abandonment of separate electorates is a pre-requisite for a democratic polity. This pernicious system must go not only because a majority of the non-Muslim population has demanded it, but also, and more importantly, in the interest of the majority community’s sanity. Separate electorates had negated the democratic credentials of the state, divided the Pakistani nation along communal lines, aided the advocates of theocracy, and opened the way to legal and social discrimination against citizens on grounds of belief. The scrapping of this colonial legacy should lead to the political and social integration of the Pakistani community.
The proposal to raise the number of seats in the National Assembly also enjoys considerable public support. However, the approach to the issue is somewhat different from that of democratic opinion. The plea for increasing the National Assembly’s strength rested on the premise that, firstly, it is wrong to fix the number of seats in the constitution for all times regardless of the increase in population, and secondly, that the size of a constituency needed to be reduced in order to limit the advantage enjoyed by money-bags and feudals. The military regime’s proposal does not address fully either of these apprehensions. There is no indication that the number of National Assembly seats will be related to population. While the number of constituencies will increase from 207 to 265, it remains to be seen if the reduction in the size of a constituency will be significant enough to encourage the entry of the less privileged into the electoral contest. However, to the extent that this change will improve pluralist representation, it will receive public support.
The increase in the women’s reserved seats from 20 till 1990 to 60 in the future will be supported by all except the clerical fringe and the patriarchs in the Frontier province. The proposal falls far short of the womens and human rights organisations’ demand for 33 per cent representation for women in all elective bodies. Nevertheless, their struggle for due and meaningful representation gain strength from this measure. The mode of filling the women’s seats, however, should generate a serious debate. The women members of the National Assembly will be less representative of the people than the political parties by whose votes they will be elected on a proportional representation basis. Increased representation for women has not been demanded merely for raising the assemblies’ female population, but also to add their perspective to decision-making. This condition will not be met unless political parties accept the legitimacy of the women’s perspective on all issues and stop treating them as mindless creatures to be relegated to the chader and chardiwari.
The matter has been further complicated by the failure to evolve a broadly agreed formula for direct election for women. Women would possibly obtain maximum gains in legislative business by getting themselves elected on the panel of a women-dominated political party. However, in a male-dominated society such as ours, such a course would not only prove impractical, but could lead to a severe backlash from conservative elements. Under the circumstances, pragmatism demands concentrated efforts to persuade political parties to include as much of women’s concerns on their agenda and election manifestos as possible and promote proper monitoring of the parties’ selection of their women candidates.
The proposal to reserve 25 National Assembly seats for technocrats is clearly violative of all democratic principles. No definition of a technocrat has been given. The definition devised by General Zia-ul-Haq when he created this special category for the Senate, is open to question. Besides, the technocrats form a much smaller (and hardly under-privileged) group in Pakistan as opposed to businessmen, shopkeepers, industrial workers, and peasants. The stakes of these groups in a democratic polity are higher than those of the so-called technocrats. There is no talk of representation of economic and social groups, and singling out technocrats for favours is totally unjustifiable, particularly in view of their general antipathy to democracy, which most of them are trained to despise as mob rule.
The proposal regarding technocrats should be read with the more outrageous suggestion to close the doors of the National Assembly to non-graduates. This is a throw-back to proposals for rule by the capable, that have been debated ever since Plato wrote his anti-democratic treatise, and have been rejected umpteen times. It is a misconception that those who manage to get graduation certificates are more perceptive and responsible and less corrupt than others. We do not have educational institutions or even a system of education to support such claims. If an academic degree was an insurance against incompetence and corruption there should have been no inefficiency or corruption in our administrative services. Besides, experts are required to implement plans and not to decide priorities, which is a function of the politicians, who are expected to appreciate public needs better than the experts looking down upon the multitude from their ivory towers. Above all, democratic representation everywhere corresponds to the relative weight of the social classes. The path to facilitate the entry of better informed candidates into legislatures lies through the demolition of the privileges available to less democratic elements in society such as feudals and vote-buyers.
The election commission has a new Chief Election Commissioner. The choice of the outgoing Chief Justice of the Supreme Court for the post could have been motivated, among other things, by a desire to raise the prestige of the office. However, Justice Irshad Hasan himself is too seasoned a knight of many battles to argue that independence and fairness are integral accompaniments of stature or even competence. The proposed increase in the number of high court judges who will join the Chief Election Commissioner and form the Election Commission after the polls have been notified, which has been the procedure so far, will not meet the demands for a permanent multi-member commission. With all due respect to high court judges, it appears unfair to test their ability to disagree on non-judicial and largely political matters with one who has just vacated the highest judicial office in the land and whose opinion might have mattered in their own elevation to the superior judiciary.
The demand for an independent election commission cannot be met until proof is available of its total financial and administrative autonomy and the Chief Election Commissioner enjoys the confidence of all parties in parliament even if the powers that be continue to resist the proposal that he should be selected by agreement between the leaders of the ruling and opposition parties.
At the moment, those lauding the regime’s package are getting more media space than its critics or opponents. But nobody should believe that there will be no opposition. The clerics, who see the bogey of secularism in everything democratic, will take time to recover from the shock of loss of patronage that had inflated projections of their strength. The Muslim Leaguers, who had been drugged with the potion of separate electorates being the ideological under-pinning of the Islamic Republic of Pakistan, are divided between those who wish to share power tomorrow and those who have a little more confidence in their constituency faithfuls. In any case the regime favours parties without their heads. In the short term, Musharraf’s regime should be able to derive satisfaction from the political parties’ being in disarray, the clerics shorn of their plumage and can hope to win this round through public acquiescence. But a lot of work will have to be done, and not merely in the electoral arena, to ensure public conversion to the new election package, because without that its permanency cannot be guaranteed. This public acceptance of the regime’s proposals will depend not only on what form of democracy is revived after the promised general elections, but also, and perhaps more critically, on how the state is governed thereafter, and whether future governments can better guarantee security of life, rule of law, the right to work and a decent living, equality of opportunity without any discrimination and community control over public affairs, and all this in a genuinely federal framework.
All those who are getting unduly excited about their admission into the favoured political constituency — the non-Muslim organisations, feminists, and the motley crowd of middle class neo-liberals, who have become experts on politics without political experience — now face a tough challenge. It is they who will be held responsible, more than the state authority, for generating a discourse rooted in democratic culture, non-communal polity, and gender equality, and demonstrating at least majority support for shared values. Their failure in this endeavour will result in a worse regression than anything we have witnessed so far.
Mr. I.A. Rehman is a writer and activist living in Pakistan. He is the secretary general of the Human Rights Commission of Pakistan Secretariat.