Asia Report N°24918 Sep 2013
EXECUTIVE SUMMARY AND RECOMMENDATIONS
Because of repeated direct or indirect authoritarian interventions during Pakistan’s history, its parliaments have either been absent, short-lived or rubber stamps for the military’s policies, their proceedings hollowed out and meaningless. Even under civilian rule, an overactive judiciary has repeatedly encroached on parliamentary prerogatives, while the executive branch has dominated the governance agenda; legislative advice and consent has been more a matter of form than substance. Five and a half years after the democratic transition began in February 2008, the legislature is still developing its institutional identity. The thirteenth National Assembly (2008-2013), led by the Pakistan Peoples Party (PPP), was far more assertive. Some of the most prominent committees exercised their authority to oversee the executive and to engage the public. But the political system will remain unstable so long as the legacy of military rule is kept alive. The current legislature must resume the unfinished work of democratic reform if it is to fully restore parliamentary sovereignty and stabilise a volatile polity.
The 2013 elections and their aftermath marked the first-ever transition from one elected government to another, 40 years after the 1973 constitution established a federal parliamentary democracy. While the previous parliament missed many opportunities for reform, it nevertheless passed major legislation to restore democratic governance. It also represented an era of bipartisan cooperation that was unlike the vendetta-driven, winner-take-all politics of the 1990s democratic interlude.
The key achievement of the thirteenth National Assembly was the eighteenth constitutional amendment, passed unanimously in April 2010. This removed many of the constitutional distortions of General Pervez Musharraf’s military regime, enhanced fundamental rights and laid the foundations for more transparent and accountable governance. Its most consequential provision was the devolution of power from the centre to the provinces, addressing a longstanding political fault line that had largely contributed to the country’s dismemberment in 1971. The shift towards greater cooperation across the aisle also helped ensure the survival of a fragile political order that faced constant challenges from an interventionist military and a hyperactive judiciary.
The second phase of the democratic transition now underway offers opportunities to entrench parliamentary democracy. With incumbents losing at the centre and in all but one province in the 2013 elections, the parties now in power at the federal and provincial levels, particularly Nawaz Sharif’s Pakistan Muslim League (PML-N), must prioritise governance and deliver on campaign pledges if they are to retain their positions. The opposition parties, too, should realise that they will be better placed to unseat their political rivals if they are an effective government-in-waiting in parliament, presenting alternative policies, budgets and other legislation, rather than merely obstructing ruling party proposals and bills.
If the legislature is to respond to public needs and also exercise oversight of the executive, it must reinvigorate the committee system that was largely dormant during Musharraf’s military regime. While several important committees were far more active in the previous assembly, pursuing official misdeeds and even questioning the military’s role in the polity, legislation was not enacted to provide for parliamentary authority to hold the security apparatus, including its intelligence agencies, accountable.
The committees’ additional value lies in their ability to lead the debate on specific policies; conduct detailed investigations and inquiries on issues of public importance; and engage civil society in the legislative process. Particularly urgent issues include electoral reform, public expenditure and budgetary allocations, law and order and human rights.
There is still a long way to go. Committee achievements to date have been largely due to proactive members, usually the chairs, rather than broader institutional capacity. For committees to fulfil their potential, their members require much more research, analysis and technological support. They currently lack dedicated, trained staff, a problem that also plagues the National Assembly and Senate secretariats. Library resources are likewise inadequate, with the upper and lower houses maintaining separate facilities that unnecessarily add to costs without producing better research. As a result, committees depend on briefs from the executive, often prepared by an unreformed bureaucracy that, like its military counterpart, has little interest in strengthening representative institutions.
The committees, moreover, operate within a broader parliamentary framework that is still pitted with gaps, some legal, some political. Parliament’s constitutional remit does not, for example, extend to the Federally Administered Tribal Areas (FATA). The recent reforms, particularly the eighteenth constitutional amendment, have strengthened parliamentary democracy but failed to remove some of the constitutional distortions of past military regimes, particularly Islamisation provisions that still undermine the legislature’s authority. To become more dynamic and assume its role as a co-equal branch of government, the new parliament should build on its predecessor’s steps, putting itself at the centre of the domestic and foreign policy debate.
To restore parliamentary sovereignty, as envisioned in the original 1973 constitution
To the National Assembly and Senate:
1. Pass a constitutional amendment package to:
a) repeal Article 227, which prevents parliament from passing laws that violate “Islamic injunctions”;
b) abolish the Federal Shariat Court, which undermines legislative authority; and
c) restore Articles 62 and 63 to their original form, repealing all arbitrary morality clauses for electoral candidates.
2. Pass a constitutional amendment to extend parliament’s remit to the Federally Administered Tribal Areas (FATA).
To enhance parliament’s power of the purse and to reinvigorate the committee system
To the Government of Pakistan:
3. Abolish discretionary development funds for parliamentarians.
4. End the practice of passing large supplementary budgets, ex post facto, and instead require that supplementary appropriations be approved by parliament before the money can be spent.
5. End the practice of using statutory regulation orders (SROs) to override the legislature in enhancing or reducing taxes and duties on specific goods.
To the Parliamentary Standing Committees:
6. Hold regular hearings on relevant ministry performance, summoning federal secretaries and other high-level officials to testify on their performance, including execution of policy and use of financial and other resources.
7. Review ministries’ proposals before the budget’s formulation, and use the process also to assess the value of government programs and policies, through consultations with officials, civil society and constituents; and in the case of the National Assembly’s finance and revenue standing committee, hold pre-budget consultations, with chambers of commerce, trade union, small business, industry and other civil society representatives.
8. Exercise their authority to review expenditures of ministries and departments at the end of the budget cycle and hold officials accountable for anomalies.
9. Hold regular public hearings on issues under their remit, inviting government, non-government and private sector experts; ensure a wide range of opinion when preparing the witness list; and respect all – including potentially contentious – viewpoints.
To assert civilian control over the security apparatus and to reform the criminal justice system
10. The parliamentary committee on national security should hold public hearings on issues under its remit, with a wide range of government and non-government witnesses.
11. The National Assembly should rigorously debate the annual budget when it is introduced and also demand greater transparency in defence allocations.
12. The mandate of the defence and interior committees should be expanded to include oversight of military and civilian intelligence agencies.
13. The defence committee, in the case of the military’s main intelligence agency, the Inter-Services Intelligence (ISI) directorate, and the law, justice and human rights committee, in the case of the civilian-controlled Intelligence Bureau (IB), should draft legislation defining the legal parameters and civilian chains of command.
14. The standing committees on interior and law, justice and parliamentary affairs should draft legislation to modernise the basic bodies of criminal justice-related law: the Pakistan Penal Code (PPC), Criminal Procedure Code (CrPC) and Evidence Act.
To strengthen parliamentary functioning
To the National Assembly and the Senate:
15. Give all committee members a work space and adequate staff.
16. Enhance standing committees’ oversight of the executive branch by empowering them to vet and approve senior civil service appointments proposed by the Federal Public Services Commission, to ensure they are made on merit rather than personal or political affiliation.
17. Enforce the requirement that each standing committee submit an annual report on its activities that goes beyond an account of proceedings to analysis of its impact on policy.
18. Extend protection of parliamentary speech to witness testimony in parliamentary hearings; and enhance transparency of parliamentary proceedings by setting a threshold for closed-door hearings, such as consent of one quarter of a committee’s members on the request of a witness whose security is endangered; and discussion of classified or other confidential information.
19. Build the capacity of the National Assembly and Senate secretariats to support parliamentary committees and parliamentary work in general by:
a) establishing and enforcing clear educational and professional criteria for appointments to the secretariats;
b) developing and enforcing a uniform code of conduct for the National Assembly and Senate secretariats;
c) training specialists, including legal draftsmen, archivists, researchers and policy analysts, on policy issues and parliamentary procedure; and
d) merging the National Assembly and Senate libraries, with a consolidated research and analysis wing, and ensure the stock is continually updated.
Islamabad/Brussels, 18 September 2013