What is the true state of affairs?
The demand for Pakistan, as a separate state for Muslims was based on the "two-nation theory" that the Muslims of the South Asian sub-continent constituted a nation and that on the principles of national self-determination they were entitled to a homeland of their own. The two-nation theory was put forward by Quaid-i-Azam Mohammad Ali Jinnah as a counter argument against the viewpoint of the All India National Congress which argued that all Indians, irrespective of their religion, race, language and caste constituted a single political nationality. The Hindus being in an overwhelming majority could identify or camouflage their interests, rights and authority under the cover of Indian nationalism. Muslims feared the domination of the Hindu majority and destruction of their distinct identity. Pakistan was projected as the political expression of the Muslim nation. However, the emphasis was laid not so much on Islam as on the Muslim nationalism. Religion was not in controver sy. What was in controversy was the demand for the status and a separate homeland for the Muslims. According to Quaid-i-Azam: "United India means a Hindu social and cultural majority dominating the Muslims whose civilization, culture and social structure of life is totally different."
Pakistan came into existence as an independent state on August 14, 1947. The Government of India Act of 1935, with necessary modifications, together with the Independence Act of India was adopted as the Interim Constitution of the Pakistani state. The Quaid-i-Azam, Mohammad Ali Jinnah, was sworn in as the first Governor-General and his lieutenant, Liaquat Ali Khan, was nominated as the first Prime Minister. The members of the Muslim League, who were elected members of the Constituent Assembly during the general elections held in 1946, were organized into the first Constituent Assembly of Pakistan. That assembly functioned in a dual capacity: first, as a federal legislature; and second, as a constitution-making body. At the same time Muslim League governments were set up in the provinces of East Bengal, Sindh, Punjab and the North West Frontier Province. In the initial stages, the Pakistan Muslim League remained the politically dominant party, both at the national level as well as in the provinces. The powe r of this party rapidly eroded as a dominant political force in the country after the death of its founder, the Quaid-e-Azam in September 1948, and after the assassination of its first Prime Minister in October, 1951.
Political power and authority was snatched away by the bureaucrats and generals after the assassination of Liaquat Ali Khan. This happened not because there was a political vacuum since many stalwarts of the freedom movement were there who could shoulder the responsibility. This was because the powerful bureaucrats both in Mufti and in Khaki, joined hands to seize political power. With the appointment of General (later Field Marshal) Mohammad Ayub Khan as Pakistan's first Pakistani commander-in-chief in early 1951, the civil and military bureaucracy, operating in tandem, began to tighten their grip on the institutions of governance. General Ayub Khan , who later confessed to his own political ambitions, teamed up with the Defense Secretary, Major General Iskandar Mirza, to consolidate his grip over the levers of power. In bargain, they also secured the United States' support for modernizing and expanding the armed forces and virtually made Pakistan part of the US strategic objective of containing commun ist expansion in the region. In this they enjoyed the support of another former civil servant, Ghulam Mohammad, who had served as Finance Minister under the Quaid-i-Azam and had, in 1948, succeeded him as Governor General. The bureaucracy ultimately became the rulers. Governor-General, Ghulam Mohammad, dismissed the Nazimuddin ministry with General Ayub's backing in April 1953 although his government had won the confidence of the House only a fortnight earlier. General Ayub himself admitted at a news conference at the Governor's House in Karachi in October 1964, that "when there was a conflict between him (Khawaja Nazimuddin) and Governor-General, I decided to side with the Governor-General."
Only 19 months later, Ghulam Mohammad dismissed Mohammad Ali Bogra's government, a creation of his own and took the arbitrary and unconstitutional step of dissolving the Constituent Assembly itself at a time when it had almost finalized the draft of the constitution only because the members of the Assembly's sub-committee had decided to curtail his powers. And this he did with the active support of General Ayub Khan. His action was condoned by the federal judiciary. Bogra who was touring the United States as Pakistan's Prime Minister, was sacked and literally captured on his return to Karachi by General Ayub and Defense Secretary, Iskandar Mirza, only to be presented in the court of G.G. Ghulam Mohammad. He forced Bogra to form another cabinet in which General Ayub Khan was taken as a full-fledged minister in full uniform. Mirza and Ayub were the two dominant leaders of the civil-military oligarchy that had decided that Pakistan could be governed best by tightening the grip of these two institutions on its government and people.
Major General Iskandar Mirza who acted as a bridge between bureaucracy and the Army, entered the Governor-General's house through political manipulation and Ayub Khan's backing. To perpetuate himself into power General Mirza divided the Muslim League to form a party of his own - the Republican Party - which had neither any organizational structure nor roots in the masses. It died its own death and could not be resurrected when parties were restored years later. As many as four governments fell during the 30-month period (March 1956 to October 1958) of his presidency since he could manipulate politics in the National Assembly through his Republican Party. General Ayub Khan succeeded in seizing power because he had the support of the military and could control the actions of Iskandar Mirza, who abrogated the 1956 constitution and imposed martial law. Later when Iskandar Mirza was still president, General Ayub disclosed that it was at his initiative that the president imposed martial law. "I said to the President: Are you going to act or are you not going to act? It is your responsibility to bring about change and if you do not, which heaven forbid, we shall force a change."
President Ayub Khan, in 1962, "gifted" the nation a constitution rooted in the concept of controlled democracy (Basic Democracy). It provided for a central, rather than federal, structure. Nothing contributed more to alienation between the two wings of Pakistan, than the ten years of Ayub Khan's regime. Effective power was concentrated in the hands of Generals and civil bureaucrats, a class in which East Pakistan was poorly represented. President Ayub's "Decade of Development" (1958-1968) proved a masterly piece of deception. It made the rich richer, and the poor received plenty of promises. With the breakaway of East Pakistan, Yahya Khan and his coterie of Generals were swept from power.
After the rule of two military dictators viz, Ayub and Yahya, Zulfikar Ali Bhutto became a civil dictator. A champion of the poor and downtrodden, he had no patience for the dilatory dictates of democratic debate. Bhutto introduced his own constitution, duly providing for a democratic and parliamentary form of government. In trying to sweep away all obstacles in his way he assumed presidential powers and then came round to devise a constitution in which the Prime Minister became the chief executive and the President was assigned a ceremonial role. The popular concept of personal power is so strongly entrenched in our mind that the name of the constitutional president - Choudhry Fazal Ilahi - became a common joke in our society. However, once the constitution had been passed by the National Assembly by acclamation, Bhutto decided not lift the emergency which had been imposed during the Bangladesh war and in fact suspended the fundamental rights, on the pretext of considerations of security. Bhutto himsel f did not live up to the standards of his own constitution and allowed his feudal and autocratic nature to violate its spirit as and when he found it expedient to do so.
The political process was once again disrupted when, following the general elections called by Bhutto in March 1977, nine opposition parties teamed up to create the Pakistan National Alliance (PNA) determined to dislodge Bhutto by whatever means they could. The PNA launched a mass campaign against the Bhutto government for rigging the elections. Curiously, it is widely believed that Bhutto could have easily secured a comfortable majority even if some of his colleagues had not resorted to selective rigging and manipulation. A segment of the army is believed to have also encouraged the PNA movement because of the proclivities of the army chief, General Ziaul Haq whom, ironically, Bhutto had himself chosen in the belief that he would be more pliable than some of the other Generals senior to him. According to Prof. Ziring, even before the 1977 election campaign began, Army officers were plotting to overthrow Bhutto. These men no longer believed that he was the savior sent to restore Pakistan to a place in t he constellation of states.
On July 5, 1977, the Chief of Army Staff, General Ziaul Haq, ousted Bhutto while the talks between the PPP and the PNA for possible fresh elections were well in progress. General Zia's eleven years at the helm of Pakistan's affairs were unprecedented because of his total lack of concern for democracy or even civilized government. He had Bhutto tried and executed on a murder charge which to this day is not universally regarded as quite credible. The General ruled by martial law edits for the initial eight years (1977-85) and later with the help of a face of an elected party-less assembly (Majlis-e-Shoora). To fortify his position, Ziaul Haq, much more so than any of his predecessors, gave a new emphasis to Islam in national polity. Before he was killed in an air crash, he had almost completely devastated Pakistan of its image as a modern, democratic state, conforming to the ideals spelt out by Quaid-i-Azam.
The above review of the political development of Pakistan has brought out that the in-egalitarian power structure which the country inherited from the colonial era remained intact with power concentrated in the two state institutions -- the military and bureaucracy -- with the backing of the feudal class. These power groups were not committed to establishment of democracy as it eroded their power and privileges. The urban middle class, independent professionals and intelligentsia, who have interest in promoting democracy, have become somewhat politically marginalized.
In Pakistan's constitutional history, neither the politicians nor the military leaders respected the Basic Law. General Zia had once proudly proclaimed that he could tear up the constitution and throw it into the dustbin whenever he liked. This he nearly did with his wanton disfigurement of the constitution through the Eighth amendment.
In short, the incompetence of the political leadership which came to the top after Quaid-i-Azam, combined with the arbitrary and autocratic nature of the governments headed by Ayub Khan, Yahya Khan, Bhutto and Ziaul Haq, succeeded in subverting, even destroying, the main institutions of a democratic state -- executive, legislature and judiciary. Each institution functioned largely at the whim of the man at the top. Parliamentary democracy, in the true sense of the word, was virtually not given the chance to strike roots in the milieu of Pakistan. It is mere polemics, therefore, to argue that parliamentary politics has not worked.
Democracy can be defined as a functional balance between the three pillars -- legislative, executive, and judiciary -- to the ultimate satisfaction of the people, as reflected in the Press, the fourth estate. Without this balance, and without the exercise of people's will, there is no democracy. But these conditions do not exist now or ever existed in the past in Pakistan. In parliamentary democracy the government is responsible (i.e. answerable) to parliament, and parliament to people, in general elections. Political parties provide the channel of this relationship. The sovereignty of people rules through the supremacy of parliament and freedom of expression is the vehicle of people's control.
Our parliament -- the first pillar -- has never been supreme. The immediate post-independence period followed a vicergal pattern, in which the governor-general nominated the prime minister in 1947 and dissolved the parliament in 1954 with judiciary upholding it on technical grounds. Elections under the 1956 constitution were repeatedly postponed by the sitting rulers so that power may not go to a new team. Under the 1962 constitution the parliament was merely a talking forum for financial legislation and was over shadowed by the veto and power of dissolution held by the president. Martial law covered the skies of Pakistan between 1969 to 1973 and 1977 to 1985 leaving behind the crippling legacy of the Eighth amendment for the assemblies elected in 1988, 1990 and 1993.
DEMOCRACY - PAKISTANI STYLE
The existing structure of parliamentary democracy in Pakistan completed twelve and a half years in May, 1997. This was the first time in the 49 year history of the country that democratic institutions based on adult franchise had continued to function without interruption for the whole 12 years. However, by whatever name we choose to describe our present system, neither the conservative Locke nor revolutionary Rousseau would have called it a democracy. Perhaps we are following Bagehot who says: "Democracy is the way to give people the greatest illusion of power, while allowing them the smallest amount in reality."
Any electoral process which throws up Mazaris, Jatois, Mirs, Legharis, Tiwanas, Bhuttos, Nawabs, Sardars and the like as the elected representatives of the poor haris, laborers, petty shopkeepers, office workers and other segments of the working class in this country is not fair, transparent and well meaning. It makes a mockery of the most fundamental principle underlying the concept of a democratic form of government, viz. that those who run the government must be the representatives of the people. There is no connection whatsoever between the voters and their elected representatives in any sphere of life, social, economic or political. Elections which ensure a similar pattern with such painful regularity, cannot be really elections as understood in the political context. It is historically undeniable that in this country not more than 200 families have been sharing political power for the entire period of five decades of its independence, which is a very sad reflection on any society living in the closin g years of the 20th century. As the things are today it does not matter in the least for the majority of Pakistanis whether there is democracy in the country or dictatorship. For the masses life was the same during General Zia's dictatorship as in Nawaz Sharif's democracy.
Our elected governments have generally felt no need to accommodate the opposition nor acknowledge its role as the conscience of the society. Indeed, both the government and the opposition have operated in a system which denies autonomy to the domain of party politics. We have a tradition that those who do not agree with us are our enemies and should be treated as traitors. This is exactly what we did to Sheikh Mujib who emerged as the majority leader. He was imprisoned and the army moved in to punish the people who had elected as their leader a person who did not satisfy the whims of the military ruler. With all this background which is dark, dready and dismal, our rulers continue to relish untrammeled authority and consider dissent as sedition and an act of disloyalty.
In the name of democracy we continue to subvert it by framing cases against our opponents. The worst excesses in this period were committed in the tenure of the Jam Sadiq Ali-MQM government in Sindh between August 1990 and February 1992, when a large number of false cases were registered or existing vaguely-worded FIRs used to intimidate and harass PPP leaders. This victimization had the full sanction of the then-President Ghulam Ishaq Khan, and the then-Prime Minister Nawaz Sharif, as the coercion could not have been carried on if they had opposed it. Benazir, her spouse, and party workers were tied in legal knots as long as Messrs Ghulam Ishaq Khan and Nawaz Sharif's power relations survived. The spate of cases, arrests and sentences against PML (N) leaders and MQM leaders and workers appeared in some, if not all instances, to be dubiously motivated, continued during the second stint of Benazir.
Eighteen people were charged on June 12, 1995, with "high treason." The accused included a former governor of Punjab, two former federal ministers and above all, Mian Mohammad Nawaz Sharif, ex-Prime Minister of Pakistan and currently the leader of the parliamentary opposition. The case was withdrawn after it acquired an international dimension as a US State Department spokesman expressed concern over the adverse effects these charges may have on the future of democracy in Pakistan. Our Foreign office issued a strong statement protesting against Washington's undue interference in Pakistan's internal affairs. Prime Minister Benazir Bhutto took a more benign view of the matter, dismissing it as a minor disagreement in the broader context of improving Pakistan-US relations. As for the charges against the opposition leader, her suave affirmation was ironically similar to that of dictator Ziaul Haq, who had her father, Zulfikar Ali Bhutto, tried and hanged: the law must take its course. The protest ove r the American statement has been no less ingenuous and ironic. Throughout the eleven years of Ziaul Haq's rule, leaders of the Pakistan People's Party, especially Begum Nusrat Bhutto and Benazir Bhutto, did their utmost to bring about foreign pressure on the government of Pakistan.
The successive governments are keeping doors open for floor-crossing, that is the root cause of not only our political instability which is hindering our economic development but also of top-level corruption, which filtering down, pollutes the entire body-politic. Whether it is used in the NWFP (Feb. 1994) to move a provincial government or applied in Islamabad to pre-empt a threat by the PML (N) to move a no-confidence motion against the PPP government, floor-crossing undermines political values.
Weaning of partymen was checked by the Article 96 (5) of the constitution which was to lapse after ten years by which votes of the dissidents of any party that is, votes of breakaway members of any component of governing coalition were to be disregarded in a no-confidence motion. The eighth amendment did away with the 1973 provisions meant to institutionalize the unwritten conventions and mores of parliamentary systems. Caretaker Prime Minister, Dr. Moeen Qureshi, issued an ordinance, in 1993, forbidding floor-crossing. The ordinance was allowed to lapse after four months by the Benazir government. This shows the intentions of the ruling elite which encourages horse-trading for political maneuvering.
The absence of the anti-defection law has invested MNAs and MPAs with the power to black mail their party leaders into extending them unreasonable concessions, triggering large-scale corruption. The establishment brokered and manipulated a more than two thirds majority for the IJI in 1990, and the IJI resorted to blatant seduction of MPAs to prevent the PPP forming the government even in the lone province of Sindh during its 1990-1993 tenure. Benazir government toppled NWFP Chief Minister Pir Sabir Shah's government in February 1994 as many MPAs were lured to join hands with the central government. In September, 1995, through the same method, the central government unsuccessfully attempted to install a PPP government in Punjab.
LEGISLATION THROUGH ORDINANCE
The former Chief Justice of the Supreme Court, Justice Mohammad Munir, said of the first Constituent Assembly that it lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body in the state. This equally applies to the present democratically elected National Assembly and provincial assemblies of the country.
Our constitutions have been based on a trichotomy of powers between the three organs of the state -- the legislature, the executive and the judiciary. The basic function of the parliament is to make laws, the executive implements the laws (and also proposes laws for public interest) and the judiciary serves as a check on any excesses of the executive. However, in practice the successive governments in the country have always tilted the balance of power in their favor through relegating the parliament to a position of talking show while making legislations through ordinances and curtailed the independence of judiciary  by using various methods.
Parliament is supposed to be the supreme legislative organ of the state. The government has, however, effectively marginalized parliament, usurped its powers and reduced it to a mere rubber stamp. Its proceedings have been trivialized to little more than slanging matches between the ruling party and the opposition. Legislation, which is initiated in parliament itself, is limited largely to the Finance Act (i.e. the budget) and some other minor and inconsequential laws.
The democratic governments, since the end of martial law in March 1985, issued 408 presidential ordinances upto October, 1995. Only 152 Acts were approved by the National Assembly during this period. Junejo government issued 10 ordinances from March 1985 to May 1988. During Benazir's first stint of office - December 1988 to August 1990 - not a single legislation was presented to the parliament, while 18 ordinances were issued. Nawaz Sharif government legislated through 78 ordinances from Nov. 1990 to April, 1993. During 1995, more than 100 ordinances were issued, while the total number of ordinances issued by the Benzir's two government reached 220 in October, 1995.
An emergency power to promulgate an ordinance in a situation requiring immediate action when the National Assembly is not in session, is being routinely exercised by the President, to usurp the legislative function of the state. Following the same practice, the provincial governments have also rendered redundant the provincial assemblies by advising the governors to promulgate ordinances. The ordinances are promulgated by the President and the governors on the binding advice of the Prime Minister and the chief minister or their cabinets.
A piece of emergency executive legislation, as envisaged by the constitution, is not to last more than four months unless earlier rejected or adopted by the legislature. This provision is being circumvented by the executive to make permanent laws. Ordinances are generally re-promulgated on the day of their demise, instead of being placed before the legislature. This practice subverts the basic structure of the basic law, which has been raised on the principle of the division of legislative, executive and judicial functions of the state among its three organs. It also makes a mockery of the concept of the supremacy of parliament, which has been reduced to a little more than a debating society for all practical purposes except that of passing budget, which has also become a ritual and in which the Senate has no say. Incidentally, Article 89 of the constitution, which confers and regulates the president's power to promulgate ordinances, also leaves the Senate out of reckoning. An ordinance can be issued e ven if the Senate is in session.
An ordinance is a temporary measure designed to enable the state to deal immediately with unexpected and extraordinary situations, and is not meant to replace the normal legislation. Unfortunately, however, like most other powers conferred by law, successive governments have blatantly abused the power to legislate given by Article 89, to the extent that today, the executive has effectively usurped the legislative powers and functions of the parliament. The result is that the country is inundated with a flood of ordinances, while parliament's legislative activity has been reduced to the absolute minimum.
The abuse of the ordinance-making power can be appreciated if one examines the sort of provisions which are the subject-matter of various ordinances. For example, consider Ordinance 86 of 1994 promulgated on November 13. By this ordinance, which comprises only one operative section, the definition of "gallantry" in the Decorations Act of 1975 has been altered. Or consider Ordinance 57 of 1994, promulgated on August 4. By this ordinance, sub-section (1) of section 10 of the Lighthouse Act of 1927 has been amended. Can it legitimately be argued that these alterations were such that immediate action was warranted?
The real abuse of Article 89 however lies in the manner in which the same ordinance is repeatedly re-promulgated by the government. As pointed out, an ordinance has a life of only four months. To circumvent this "inconvenience", the government every four months (or thereabouts) promulgates a fresh ordinance that is identical or substantially similar to the one about to expire. This process is repeated indefinitely and the same legal provisions are thus kept alive through one ordinance after another. In this manner, parliament has been effectively eliminated from the legislative process.
This conclusion has now been upheld by and received judicial imprimatur of the Supreme Court. In a judgment reported in PLD 1994 SC 363, the Court concluded, in the words of Justice Saleem Akhtar, that "on repeal of an Ordinance after expiry of four months, the President has no power to re-enact and repeat the same". In the same case, Justice Ajmal Mian observed: "The legislative power vests in an assembly, which power cannot be usurped by a head of the state or a province while the Assembly exists... I am inclined to hold that if the National Assembly does not stand dissolved, the President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the national Assembly."