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Wednesday, February 14, 2024

Is parliamentary system of governance in Pakistan a salient feature of the Constitution?

Scholars in India, Pakistan argue that parliamentary system of government has failed to serve the people of South Asia, urge the need for debate on matter

The Supreme Court of Pakistan on Wednesday rejected a petition seeking a presidential form of government in the country. Two separate petitions were moved in the apex court to roll back the parliamentary system of government earlier this week. The petitions triggered a debate in the legal community on the possibility of the move being given the nod by the superior judiciary.

It is important to mention here that in Pakistan, it has become increasingly difficult to debate and dissect different political and academic viewpoints related to the evolution of the political system. GVS spoke to a lawyer who believes that the bar councils, left-leaning political parties, and some other segments of the society consider it to be “blasphemous” to even talk about replacing the current system.

The petition for a change of the governance system had been filed by Tahir Aziz Khan, the chairman of Hum Awam Pakistan – a little-known political party — under Article 184 (3) of the Constitution earlier this week. The petitioner had requested the apex court to issue directions to the prime minister to hold a referendum for setting up a presidential form of government.

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The second petition in this regard was filed by a citizen of Islamabad, Dr Sadiq Ali.

Senior lawyers believe that the move to introduce a presidential system in the country might be shot down by the apex court, which has already declared that the salient features of the Constitution cannot be amended and the parliamentary form of government is among these features.

SC’s landmark judgment: Parliamentary system is a salient feature of the Constitution

In 2015, a majority of Supreme Court judges – while hearing the 21st Constitutional Amendment case – had held that the parliamentary form of government was one of the salient features of the Constitution which could not be changed through a constitutional amendment.

Justice Sheikh Azmat Saeed had authored the verdict which had been endorsed by eight judges. Interestingly, four sitting SC judges — Chief Justice of Pakistan Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Maqbool Baqar — are signatories to this ruling.

According to the verdict, the Constitution contains a scheme reflecting its salient features. “In an effort to discover such salient features, material outside the Constitution cannot be safely relied upon. The salient features are ascertainable from the Constitution, including democracy, the parliamentary form of government, and independence of the judiciary,” it read.

It said the powers of the parliament to amend the Constitution were subject to implied limitations and the parliament, in view of Articles 238 and 239, was vested with the power to amend the Constitution as long as the salient features of the Constitution were not repealed, abrogated or substantively altered.

The verdict also noted that the apex court was vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining salient features. “It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the salient features of the Constitution have been repealed, abrogated, or substantively altered.”

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Some legal experts believe that the verdict would be a hurdle in the way of those seeking to introduce a presidential system in the country.

Parliamentary versus Presidential System: What suits South Asia?

Dr. Shashi Tharoor, a member of the Indian Parliament and former international diplomat, holds the current parliamentary system responsible for political shenanigans, bad governance, and political instability in India.

In a piece published by an Indian publication, he boldly argues that the parliamentary system we borrowed from the British has not worked in Indian conditions. The parliamentary system was successful in Britain, argues Tharoor, due to some very important structural and cultural conditions.

These include arguments related to the fact that Britain is a small island nation with electorates of less than a lakh voters per constituency, as well as the fact that the system is based on traditions that simply do not exist in India.

Tharoor, after identifying five reasons, claims that the parliamentary system has failed us [India]. He maintains that the current system has created a number of challenges, including a party less system and a unique breed of the legislator, unqualified electables who intend to seek executive power through elections, as well as the fact that a government has to rely on a fickle legislative majority for change.

This, argues the former diplomat, forces parties to focus more on politics than on policy or performance. It also affects the voting preferences of an electorate that has been distorted as parties and ideologies have become increasingly irrelevant. As a result, governments focus less on performance and more on staying in office.

Moreover, Dr. Tharoor also noted that the intention to enter into the Parliament to attain governmental office creates four specific problems:

  • Executive posts are given to the electable, not to those who are able.
  • It puts a premium on defections and horse-trading.
  • Due to the absence of technical and policy expertise, legislation suffers. Laws are practically drafted by the bureaucracy, the ruling party asks its MPs to give a nod.
  • Parliament or Assembly serves not as a solemn deliberative body, but as a theatre for the demonstration of their power to disrupt. The well of the house — supposed to be sacrosanct — becomes a stage for the members of the opposition to crowd and jostle, waving placards and chanting slogans until the Speaker, after several futile attempts to restore order, adjourns in despair. In India’s Parliament, many opposition members feel that the best way to show the strength of their feelings is to disrupt law-making rather than debate the law.

While rejecting the argument fashioned by the Indian liberals, Tharoor presents a case of the Presidential system.

“A directly elected chief executive in New Delhi and in each state, instead of being vulnerable to the shifting sands of coalition support politics, would have the stability of tenure free from legislative whim, be able to appoint a cabinet of talents, and above all, be able to devote his or her energies to governance, and not just to government,” he writes.

Dr. Atta-ur-Rahman, former chairman of the HEC, and president of the Network of Academies of Science of OIC Countries (NASIC), recently wrote an article, Road to national reconstruction, and argued to replace the current parliamentary system of government with a presidential one to ensure separation of power, and better governance.

Rahman did not go much into theoretical debate nor did he offer any detailed explanation to defend his proposal. Experts maintain that there must be a debate at the national level to adequately analyze the merits and demerits of different systems of government in order to improve governance in Pakistan.