Basics of good governance

Dr Farrukh Saleem

The writer is an Islamabad-based

freelance columnist

farrukh15@hotmail.com

August 05, 2001

Some 54 years ago Pakistan stood at Point A; illiterate, malnutritioned and poor. Over a period of half a century, collective efforts of Ghulam Mohammed, Iskander Mirza, Ismail Ibrahim Chundrigar, Malik Firoze Khan Noon, Field Marshal Mohammed Ayub Khan, General Agha Mohammed Yahya Khan, Zulfikar Ali Bhutto, General Mohammed Ziaul Haq, Mohammed Khan Junejo, Benazir Bhutto, Ghulam Mustafa Jatoi and Mian Nawaz Sharif have managed to add just one new element. And, that element is insolvency.

When General Yahya Khan took over on 31 March 1969 Pakistan's total area was 947,940 sq kilometers. By the time the General handed over power to Bhutto, Pakistan was around 800,000 sq kilometers.

Lesson of the story: Individuals don't build nations. Systems do. No Pakistani wants to be where we are. How do we get to Point B? Who is going to take us there?

Over the past twenty years, more than two-dozen leaders around the world have proclaimed national emergency of one sort or another and, as a consequence, accumulated all types of supra-constitutional powers within their offices. Besides Pakistan, these include Chechnya in 1999, Sudan and Burma in 1997, Cuba in 1996, Bosnia/Herzegovina and Greece in 1994, Yugoslavia and Peru in 1992, Iraq in 1990, Libya in 1986, Grenada in 1983, Poland in 1981 and Iran in 1980. The usual justification is that such powers are necessary to take the country forward.

The usual problem is that once the military gets into the saddle it becomes awfully difficult to get off. In Taiwan, Chiang Kai-shek, the Commander-in-Chief of the National Revolutionary Forces, declared martial law in 1949 which was lifted in 1987. In South Korea, General Park declared martial law in 1972 and the general's Emergency Decree No 9 was ended in December 1979 after Park was assassinated by the Korean Central Intelligence Agency (October 1979). In the Philippines, General Ferdinand Marcos declared martial law in 1972. Martial law was lifted eight years later but Marcos lasted till 1986.

Pakistan has gone through so many martial laws over such a short life span that the future of the current military regime is less of a puzzle. The national security establishment remains adamant on defining Pakistan's national security without any reference to the elected representatives of the people of Pakistan. The mathematics of the annual budget is such that there is nothing left after debt servicing and defence. Any political government that takes over is bound to fail in delivering what most Pakistanis desire: a minimum educational infrastructure and a health delivery mechanism. Time and again, this failure in delivery by politicians has been used by the army as an excuse to dislodge elected governments. Prime Minister Nazimuddin was the only one who came out publicly in support of slashing the defence outlay. He was sacked right away.

If there is any one person most responsible for making martial laws a permanent fixture within the geographical boundaries of this Land of the Pure then that person is Justice Mohammad Munir, the Chief Justice of the Federal Court (the predecessor of the present Supreme Court of Pakistan).

In 1954, Chief Justice Sir George Constantine of the Chief Court of Sindh had declared that the "Constituent Assembly was a sovereign" and that the "governor-general had no power of any kind to dissolve the Constituent Assembly." Governor-General Ghulam Mohammad, with the complete backing of General Ayub, appealed to the Federal Court Chief Justice Munir, writing for the majority, said, "Pakistan remained subject to the prerogative rights of the Crown," adding that the "governor-general, as representative of the Crown" had the right to dissolve the Constituent Assembly. Justice AR Cornelius (a non-Muslim), also of the Federal Court, dissented. Justice Cornelius opined that the Constituent Assembly was "sovereign", the governor-general's dissolution was illegal and that "Pakistan owed no allegiance to the Crown."

Perhaps not realising at the time, Justice Munir, with a single stroke of his pen, managed to wreck the basis of all future constitutional governments in Pakistan (Justice Munir was latter posted to Tokyo by the government and then accepted a cabinet position under Ayub). The practice of using "law as a servant" to "service the coercive forces" hasn't stopped since. Judges continue to "substitute their own pleasure for the constitutional intentions of the legislature."

What is also at fault is our 'Messiah philosophy'; our hope that someone would take over and set everything in the right direction. That isn't going to happen. To be certain, the Holy Qur'aan does not prescribe a particular type of government. Any form of government that guarantees justice, equity and representation would do. Justice means rule of law as oppose to rule of man. Representation is the principal prerequisite towards forming some sort of a consensus on national priorities.

Modern governments are all about separation of powers followed by properly vested checks and balances. Look behind a successful country and the secret to success is lawfully implanted legislative, executive and judicial powers in three separate but equal branches. Modern governance has certainly not been an accident. Starting from Aristotle, James Harrington, John Locke and on to Montesquieu. In 1690, some three hundred and eleven years ago, Locke concluded "the best way to avoid a perverted government was to provide constitutionally for separation of the legislative and executive powers." Another half a century and Montesquieu "added the third power of the judiciary..." It is as if without separation of powers and checks and balances the result would be a 'perverted government'.

In 1787, the founders of the American republic further refined-almost perfected-the theory of checks and balances. There are checks and balances even within the two houses of Congress. The House of Representatives and the Senate, for instance, legislate separately. This legislation is then subject to presidential veto. This veto can, however, be overridden by a two-third majority vote in each house. Then comes the judicial branch which may-and has in the past-declare legislation as being unconstitutional.

The judiciary, however, is itself subjected to executive as well as legislative checks. Both the president and individual judges can also be removed through legislative action. One of the goals is the prevention of concentration of power into any one branch of the government. Whenever there is concentration of power there is a possibility of a 'perverted government'. This possibility must be eliminated altogether.

So, who is going to take us to Point B? If the military government is sincere in leading Pakistan into the right direction then it would have to follow the principles of separation of powers, checks and balances, avoiding concentration of power and eliminating every possibility of a perverted government. To be certain, our generals are yet to take the first step.