Daily Times

In the aftermath of Lahore High Court’s decision to take former Prime Minister Nawaz Sharif off the exit control list, PTI supporters took to twitter with the trend “Pakistan needs a presidential system.” It is almost as if they believe that in a presidential republic due process and judiciary do not exist but what exists an all powerful single entity of the president who is at once the chief executive, chief judge and commander in chief.  This is incredibly naïve and ill-informed.

Two of the world’s oldest democracies in the modern age, US and France, have presidential systems.  It does not mean that they do not have legislatures.  In fact the US Congress is aware of its British parliamentary heritage.  Amongst the portraits of prominent figures in parliamentary history, the US Capitol Building has a portrait of King Edward I of England who is credited for development of the parliamentary tradition. You may recall Edward I as the villainous Longshanks in the film Braveheart.  Democracy is democracy and it does not matter whether the executive sits in the parliament or outside of it.  Pakistan’s founder Mr. Jinnah sat as the speaker of the constituent assembly despite being the Governor General and often signed bills as such, thus altering the form, which required his assent as Governor General.  This is a constitutional point often overlooked by historians of Pakistan’s constitutional tradition.

It is not about rich or poor. It is often a high profile case that sets precedent that helps many others. This is the way of the law

Pakistan has had both de jure and de facto presidential systems from 1958-1973, 1977-1988, and 2002-2010.  The real question has never been of form but who is the president or prime minister.  The bottom line has always been that a civilian chief executive has always had a hard time in this country.  Prime Minister Liaquat Ali Khan was perhaps the strongest and most non-controversial prime minister in our history.  Yet he was assassinated in broad day light only three years or so into his term.  Zulfikar Ali Bhutto who was Pakistan’s President from 1972-1973 and then the first directly elected president was hanged after a dubious judicial process which the superior judiciary of Pakistan itself has disavowed on many occasions, to the extent that his case is not even considered good precedent.  Benazir Bhutto was dismissed twice on trumped up charges and was ultimately assassinated close to where the first Prime Minister of Pakistan was assassinated.  Three times elected as prime minister, Mian Nawaz Sharif was disqualified on the basis of “iqamah” and has been jailed after a dubious process. He is now on death’s door.  So what would happen then if Pakistan was to have a presidential system and a civilian leader was popular enough to win it all?  Let us assume that this would be a departure from all established models of presidential democracy in so much that the president of Pakistan would be an elected King embodying the legislative, judicial and even military powers.  How long would a civilian be allowed to hold such an office?

Our history affords us a readily available answer to that question.  In 1999 Mian Nawaz Sharif tried to make himself the supreme leader with the 15th Amendment to the constitution.  His government was sent packing just before it could be passed.  Thankfully he shelved the idea in his third term.   So the answer is that an all powerful executive, be he president or prime minister would not be acceptable to anyone.  Power in any case must be divided up into as many parts as possible.  In the US, both the Congress and the Supreme Court act as checks on executive power exercised by the president.  This is the only way a presidential system or for that matter any democratic and republican system can work.

Only a democratic system with checks and balances, whether it is presidential or parliamentary, can in the long run serve the people.  The role of the judiciary as a counter-majoritarian safeguard vis a vis Article 199 of the Constitution is an important check on any excesses by the executive or even the legislature.  Bad mouthing the Lahore High Court for telling the government to take the former prime minister off the ECL does not achieve anything.  Any lawyer would tell you that the government had only two courses of action- to either take him off the list or keep him on.  There was no third option of asking for an indemnity bond.

Then came the issue of Article 9 of the Constitution, which promises right to life to even convicts.  It was the government’s own doctors that certified that Mian Nawaz Sharif could not be treated in Pakistan.  If Mian Nawaz Sharif has the means then to travel abroad and get treated there, the government is essentially duty bound to allow him to do so. It is a question of a fundamental right of a citizen.  If this means that the same facility has to be extended to all convicts, so be it.  That is how law works.  It is not about rich or poor. It is often a high profile case that sets precedent that helps many others.  This is the way of the law. Those who are now championing a “presidential system” should know that the presidential system does not mean that judiciary ceases to exist.  Judiciary is the glue that holds the republic together.

Yasser Latif Hamdani is an Advocate of the High Courts of Pakistan and a member of the Honourable Society of Lincoln’s Inn in London