Yasser Latif Hamdani in this article delves into Pakistan's constitutional history to prove how Pakistan has historically favoured the parliamentary system but even parliamentary regimes have had traits of a presidential system. "More importantly, however, this plays no part at all in the challenges that face the country", he argues.
A lot of people are excited about the needless debate over whether we should continue a parliamentary form of government or whether we should adopt a presidential system. Tragically these proponents on either side do not understand the simple fact that our system of government is neither parliamentary nor presidential. It is not even a hybrid really for that would be simple to define.
Parliamentary form of government as it developed in Great Britain emerged out of a monarchy ceding its authority slowly but surely to the parliament. The First Lord of Treasury, and the leader of house for the majority party tasked with governance and legislation after the Glorious Revolution evolved into what became the office of the Prime Minister. The title was not even used till Benjamin Disraeli’s time in the late 1800s.
Therefore, unlike the British parliament, the office of the Prime Minister, at least in nomenclature, is of recent origin. The word President interestingly has a parliamentary origin. Those who presided over the Continental Congress in the US even before independence were called president.
When the US became independent, it was no longer bound to a monarch. Therefore with an elected leader, it saw no reason for there to be a dichotomy and chose the name President for its supreme executive authority. Since there was a stricter separation between the legislative and executive branches in the US than in UK, the Cabinet was appointed by the President and then approved by the Congress. The Cabinet in the UK by convention was always part of the parliament. This is the essential difference between the two.
The British had no intention of introducing parliamentary form of government in the subcontinent. In fact some of the earliest debates in the imperial legislative council led by Jinnah and Gokhale was precisely to the end of transforming it into an Indian parliament, a step to which the British were stoutly opposed.
They wanted to rule the country through bureaucracy largely because they did not trust the natives. Thanks to the efforts of Jinnah, Motilal Nehru, H S Gour and others, the imperial legislative council became the central legislature of India and there were provincial legislatures.
The Government of India Act 1935 was in a way a first step towards responsible government, though it was halfhearted at best. Notably from 1935 to 1947 there was no Prime Minister of India. After independence, the successor states Dominions of India and Pakistan both had a Prime Minister and a Governor General (in strict sense the representative of the monarch).
The head of state for India between 1947 and 1950 and for Pakistan between 1947 and 1956 was the British monarch. Thus the present Queen Elizabeth was once the Queen of Pakistan as well.
Government of India Act 1935 did vest some executive authority in the Governor General and that was primarily of assent to bills. When Governor General Ghulam Muhammad sent the constituent assembly packing, the famous Tameezuddin case turned not on whether the Governor General could do so under Government of India Act 1935 but the fact that Ghulam Muhammad had not assented to an amendment bill that had added the right of writ to the said constitution.
Somehow or the other Pakistan finally managed to make a constitution in 1956 which was unicameral and parliamentary in nature. Indeed it was the closest we came to a Westminster type of democracy. That experiment proved short lived thanks to the first President of Pakistan Iskandar Mirza who abrogated it with the help of the military. In turn he was also sent packing by General Ayub Khan less than a month later.
Left without a constitution or governing framework, Ayub Khan gave us our first presidential constitution, i.e. the Constitution of 1962, in the sense that the executive authority rested with the President.
It, however, departed from the principle of universal adult franchise in one major way. It put an electoral college of basic democrats between the executive and legislature on one side and the people on the other. The people of Pakistan would vote for the basic democrats who would then elect the National Assembly and the President.
Whatever the strengths of the system, the way 1965 Elections were rigged against Fatima Jinnah ultimately became the beginning of the end for the experiment.
When Yahya Khan took over, he wrapped it up and introduced the Legal Framework Order. After the separation of Bangladesh, Bhutto took over as President. In the famous Asma Jillani case, one of the arguments posited by Attorney General was that if the Supreme Court declared Yahya Khan’s coup illegal, Bhutto’s government would also be illegal as Bhutto was transferred power by Yahya. The Supreme Court addressed this issue by stating that Bhutto was the recipient of power from the people and not the military regime.
An interim constitution was passed in 1972, which was also presidential in nature. Then in 1973 the present constitution was unveiled as a consensus document. The constitution envisaged Pakistan as a federal parliamentary republic with Islamic provisions blended in it. It is said that Bhutto himself was toying with the idea of a secular presidential constitution in 1977.
In any event he did not get the time as he was victim of another military coup and subsequently executed after what has been termed as a judicial farce of a trial. Nevertheless the addition of 58(2)b through the 8th Amendment in 1985 vested the President with the power to dismiss the National Assembly.
This played havoc with the various elected governments throughout the 1990s till the 13th Amendment finally got rid of it. It did not save Nawaz Sharif though and ultimately another military coup got rid of him. 18th Amendment went a long way in restoring the Pakistani constitution to its original spirit but it has not gone far enough.
The point of this long-winded history is to show that the issue in Pakistan is not whether it should have a parliamentary or a presidential form of government. Historically we have preferred parliamentary form to the presidential form but that has never stopped anyone from disrupting democracy.
The issues in Pakistan are threefold: 1) The civil-military imbalance, 2) The role of religion in the Pakistani constitution, and 3) The distribution of power between the center and provinces. In so far as the first issue is concerned, the unelected entrenched institutions in Pakistan have been wary of allowing elected institutions to govern. At the very least they want a share of power and influence over key decisions. It is an institutional position, which is yet to be challenged.
The role of religion in the Pakistani Constitution is problematic for reasons that are known to everyone and is a discussion that merits its own separate article. The powers that be are also uncomfortable with provincial autonomy because it takes away from the centralization urge that they have long advocated in the country.
PM Imran Khan’s government does go a long way in maintaining status quo on civil-military relations. In a way Pakistan has already evolved a curious system whereby the PM keeps a certain ministry to himself and then appoints an advisor who acts as de facto minister.
Imran Khan was not the first PM to do so. Let us not forget that Nawaz Sharif himself had an advisor running the foreign ministry for a very long time. The recent appointment of Hafeez Shaikh as the Finance Advisor is just another example. One could say that this preserves the essential feature of a presidential system, whereby the PM acting as the president can appoint key members of his own cabinet instead of choosing them from within the parliament.
I would caution against this conclusion because there is a system of checks and balances in presidential system whereby any such appointment is usually ratified by the legislature. No such process exists in Pakistan. One may also say that the appointment of a party loyalist like Arif Alvi as the President of Pakistan may well be argued as a first step to ensure that the President remains only a figurehead. However in a parliamentary democracy, the role of a President is one of neutrality.
A president has to be a figurehead as well as a representation of the federation. Yet that too is not keeping with Pakistan’s own unique tradition. Forgetting all the military dictators and strongmen who held the post, one only needs to look at Asif Ali Zardari who was a powerful president who exercised enormous influence as the party head as well. It was the Prime Minister who was his appointee and not the other way around. Nawaz Sharif nominated a complete unknown – what was his name- as the President.
So really Pakistan is neither presidential nor parliamentary but is a unique hybrid which defies such categories. More importantly, however, this plays no part at all in the challenges that face the country. So let us put this debate to rest. This goes for both sides. Changing the name of executive authority means nothing at all.
The real constitutional problems of Pakistan will remain the same and they will not be addressed either way. Acknowledging this is political realism.
A lot of people are excited about the needless debate over whether we should continue a parliamentary form of government or whether we should adopt a presidential system. Tragically these proponents on either side do not understand the simple fact that our system of government is neither parliamentary nor presidential. It is not even a hybrid really for that would be simple to define.
Parliamentary form of government as it developed in Great Britain emerged out of a monarchy ceding its authority slowly but surely to the parliament. The First Lord of Treasury, and the leader of house for the majority party tasked with governance and legislation after the Glorious Revolution evolved into what became the office of the Prime Minister. The title was not even used till Benjamin Disraeli’s time in the late 1800s.
Benjamin Disraeli
Therefore, unlike the British parliament, the office of the Prime Minister, at least in nomenclature, is of recent origin. The word President interestingly has a parliamentary origin. Those who presided over the Continental Congress in the US even before independence were called president.
When the US became independent, it was no longer bound to a monarch. Therefore with an elected leader, it saw no reason for there to be a dichotomy and chose the name President for its supreme executive authority. Since there was a stricter separation between the legislative and executive branches in the US than in UK, the Cabinet was appointed by the President and then approved by the Congress. The Cabinet in the UK by convention was always part of the parliament. This is the essential difference between the two.
The British had no intention of introducing parliamentary form of government in the subcontinent. In fact some of the earliest debates in the imperial legislative council led by Jinnah and Gokhale was precisely to the end of transforming it into an Indian parliament, a step to which the British were stoutly opposed.
They wanted to rule the country through bureaucracy largely because they did not trust the natives. Thanks to the efforts of Jinnah, Motilal Nehru, H S Gour and others, the imperial legislative council became the central legislature of India and there were provincial legislatures.
The Government of India Act 1935 was in a way a first step towards responsible government, though it was halfhearted at best. Notably from 1935 to 1947 there was no Prime Minister of India. After independence, the successor states Dominions of India and Pakistan both had a Prime Minister and a Governor General (in strict sense the representative of the monarch).
The head of state for India between 1947 and 1950 and for Pakistan between 1947 and 1956 was the British monarch. Thus the present Queen Elizabeth was once the Queen of Pakistan as well.
Government of India Act 1935 did vest some executive authority in the Governor General and that was primarily of assent to bills. When Governor General Ghulam Muhammad sent the constituent assembly packing, the famous Tameezuddin case turned not on whether the Governor General could do so under Government of India Act 1935 but the fact that Ghulam Muhammad had not assented to an amendment bill that had added the right of writ to the said constitution.
Somehow or the other Pakistan finally managed to make a constitution in 1956 which was unicameral and parliamentary in nature. Indeed it was the closest we came to a Westminster type of democracy. That experiment proved short lived thanks to the first President of Pakistan Iskandar Mirza who abrogated it with the help of the military. In turn he was also sent packing by General Ayub Khan less than a month later.
Left without a constitution or governing framework, Ayub Khan gave us our first presidential constitution, i.e. the Constitution of 1962, in the sense that the executive authority rested with the President.
It, however, departed from the principle of universal adult franchise in one major way. It put an electoral college of basic democrats between the executive and legislature on one side and the people on the other. The people of Pakistan would vote for the basic democrats who would then elect the National Assembly and the President.
Whatever the strengths of the system, the way 1965 Elections were rigged against Fatima Jinnah ultimately became the beginning of the end for the experiment.
When Yahya Khan took over, he wrapped it up and introduced the Legal Framework Order. After the separation of Bangladesh, Bhutto took over as President. In the famous Asma Jillani case, one of the arguments posited by Attorney General was that if the Supreme Court declared Yahya Khan’s coup illegal, Bhutto’s government would also be illegal as Bhutto was transferred power by Yahya. The Supreme Court addressed this issue by stating that Bhutto was the recipient of power from the people and not the military regime.
An interim constitution was passed in 1972, which was also presidential in nature. Then in 1973 the present constitution was unveiled as a consensus document. The constitution envisaged Pakistan as a federal parliamentary republic with Islamic provisions blended in it. It is said that Bhutto himself was toying with the idea of a secular presidential constitution in 1977.
In any event he did not get the time as he was victim of another military coup and subsequently executed after what has been termed as a judicial farce of a trial. Nevertheless the addition of 58(2)b through the 8th Amendment in 1985 vested the President with the power to dismiss the National Assembly.
This played havoc with the various elected governments throughout the 1990s till the 13th Amendment finally got rid of it. It did not save Nawaz Sharif though and ultimately another military coup got rid of him. 18th Amendment went a long way in restoring the Pakistani constitution to its original spirit but it has not gone far enough.
The point of this long-winded history is to show that the issue in Pakistan is not whether it should have a parliamentary or a presidential form of government. Historically we have preferred parliamentary form to the presidential form but that has never stopped anyone from disrupting democracy.
The issues in Pakistan are threefold: 1) The civil-military imbalance, 2) The role of religion in the Pakistani constitution, and 3) The distribution of power between the center and provinces. In so far as the first issue is concerned, the unelected entrenched institutions in Pakistan have been wary of allowing elected institutions to govern. At the very least they want a share of power and influence over key decisions. It is an institutional position, which is yet to be challenged.
The role of religion in the Pakistani Constitution is problematic for reasons that are known to everyone and is a discussion that merits its own separate article. The powers that be are also uncomfortable with provincial autonomy because it takes away from the centralization urge that they have long advocated in the country.
PM Imran Khan’s government does go a long way in maintaining status quo on civil-military relations. In a way Pakistan has already evolved a curious system whereby the PM keeps a certain ministry to himself and then appoints an advisor who acts as de facto minister.
Imran Khan was not the first PM to do so. Let us not forget that Nawaz Sharif himself had an advisor running the foreign ministry for a very long time. The recent appointment of Hafeez Shaikh as the Finance Advisor is just another example. One could say that this preserves the essential feature of a presidential system, whereby the PM acting as the president can appoint key members of his own cabinet instead of choosing them from within the parliament.
I would caution against this conclusion because there is a system of checks and balances in presidential system whereby any such appointment is usually ratified by the legislature. No such process exists in Pakistan. One may also say that the appointment of a party loyalist like Arif Alvi as the President of Pakistan may well be argued as a first step to ensure that the President remains only a figurehead. However in a parliamentary democracy, the role of a President is one of neutrality.
A president has to be a figurehead as well as a representation of the federation. Yet that too is not keeping with Pakistan’s own unique tradition. Forgetting all the military dictators and strongmen who held the post, one only needs to look at Asif Ali Zardari who was a powerful president who exercised enormous influence as the party head as well. It was the Prime Minister who was his appointee and not the other way around. Nawaz Sharif nominated a complete unknown – what was his name- as the President.
So really Pakistan is neither presidential nor parliamentary but is a unique hybrid which defies such categories. More importantly, however, this plays no part at all in the challenges that face the country. So let us put this debate to rest. This goes for both sides. Changing the name of executive authority means nothing at all.
The real constitutional problems of Pakistan will remain the same and they will not be addressed either way. Acknowledging this is political realism.