Daily Times

The assumption of the premiership by Raja Pervez Ashraf and the politicisation of the office of president have emerged as the most important developments on the political scene of Pakistan. The debate about these issues has largely been hinged on technical legalities, where opposing parties dig deep into various articles of the constitution to find supporting arguments. We seem to have ignored the importance of conventions in completing the superstructure of a constitutional political system.

The Law of the Constitution written by Professor A V Dicey was first published in 1885. Based upon his lectures, the distinguished scholar identified three leading characteristics of the British constitution as the ‘Sovereignty of Parliament’, the ‘Rule of Law’, and the ‘Conventions of the Constitution’. The first two features of the British Constitution are used heavily in our daily political discourse. Sovereignty of parliament is the favourite rhetoric of the Pakistan People’s Party supporters and the rule of law appears to be the main battle cry of those that sympathise with the judgments of the higher judiciary. Surprisingly, ‘conventions’ appear less frequently in our discourse, despite being one of the pillars upon which Dicey constructed the discipline of constitutional law.

Conventions or ‘constitutional morality’ arises because they meet the wants of the time. Dicey illustrates that in 1868 when a Conservative ministry in office suffered a general election defeat. Mr Disraeli at once resigned without waiting for even the meeting of parliament. The same course was pursued by Mr Gladstone in 1874, and again, in his turn, by Disraeli in 1880, and by Gladstone in 1886. This convention arose to reverse the precedent set by Peel in 1834 when the Conservative ministry, though admittedly defeated in the general election, did not resign until they suffered an actual defeat in the newly elected House of Commons. The new convention thus reflected the acknowledgment that the electorate constituted politically was the true sovereign power.

Britain does not have a written constitution as the British constitution lives in the hearts and minds of the people. When a widely accepted convention is broken, people are shocked, resulting in loss of support for the offending party. It is this unfavourable backlash that ensures that unwritten conventions are shown respect by successive governments. In certain cases, conventions become so important that they are turned into laws, known as ‘enacted conventions’.

The Pakistani constitution has two fundamental characteristics. One, it is based upon a parliamentary form of government and second, it empowers the exercise of Allah’s sovereignty by the representatives of the people as a matter of trust. Equality before the law, in turn, is the common principle of both characteristics. Needless to say, a parliamentary system of government functions on some well-accepted conventions. Various political parties give their programmes through their manifestos to the electorate. A clearly known party leader, who aspires to become the prime minister of the country if his /her party bags the majority of seats, leads a party. Since the prime minister represents the winning political party, there is a need for an office that represents the whole of the country. In constitutional monarchies, kings or queens perform this job, while in republics like India and Pakistan, the office of president has been created to do the same ceremonial job.

The framers of the Pakistani constitution also had a strong parliamentary form of government in mind. Convention requires that the party leader should become the prime minister so that all political power is transferred to his office. In India, from Nehru to Rajiv Gandhi, we see many charismatic party leaders adding prestige to the office. Only Sonia Gandhi did not opt to become prime minster, as there was a campaign against her foreign ethnicity. In Pakistan, on the other hand, successive military leaders, from Ayub Khan to Pervez Musharraf, preferred to assume the title of president. Generals Zia and Musharraf ignored the basic structure of the 1973 constitution and shifted the centre of gravity to the office of the president. They made sure that a very lacklustre politician be handpicked as the prime minster so that the office does not gain its legitimate glory.

Mr Asif Ali Zardari on the eve of the formation of the government after the 2008 elections had two choices. First, he could have followed the fundamental convention of parliamentary democracy by heading the new government as its prime minister. Second, he could have chosen the MQM model and hence shifted to London or Dubai wherefrom he might have controlled the party remotely. He chose neither of the two and opted for the president’s office. In the process, the office of premiership was relegated to secondary status.

As per Article 41(1): “There shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic.” Political parties reach the corridors of power after acrimonious electoral battles and as a result, no party can claim to represent the people as a whole. A leader of a political party can therefore never be a symbol of unity of the republic, and the constitution therefore requires the president to be above all kinds of political affiliations. He or she may have political ideas but his office demands complete neutrality as he only appears as a symbol of unity.

The constitution prescribes a mere figurehead role for the president. The divisive political role has been earmarked for the prime minister. Unfortunately, complete disregard has been shown so far to this basic requirement of the sacrosanct office. The practice of bringing out a prime minister like a rabbit from the hat has also further damaged the parliamentary form of democracy. Hope all concerned Pakistanis are alive to the need for some damage reversal.

The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com