Featured Removal of Parliamentary System: Is It Possible?

[saiyan0321]

Parliamentary system has now been enshrined in the constitution of 1973

By Saiyan0321

With the rising incompetence of Federal Governments, both present and past, and the falling standards of governance in general be it Federal governance or Provincial, the people of Pakistan have started wondering whether a change of system will bring to them the long sought after relief. For this purpose an unknown party named “Hum Awam Party” filed a petition in the Supreme Court of Pakistan to order for a referendum to be held on whether the people wanted Presidential system or Parliamentary system. Such a case was filed previously last year and the petition was dismissed.

Social media erupted with many stating that this is an act of the establishment in consolidating its power and to bring back dictatorships whereas an equal number declared that the current system has failed and a proper change in the system is needed for Pakistan to function properly. Conspiracy theorist held that this is part of the forthcoming, yet never to have arrived, change. The question then remains whether the petition can bring forth such a change? And can we ever leave the parliamentary system? The Answer to both is a blunt NO.

For the former, the petition itself tried to create a long road that the Supreme Court of Pakistan, empowered by Article 184 (3) can declare that the system is an infringement of the Fundamental Rights of the people of Pakistan and call for the referendum based on the implementation of those rights. The notion is legally flawed since the said Article does not confer the Supreme Court with the power to bring forth Referendums nor to declare the system itself as an infringement of the Fundamental Rights since the said Article itself creates a limit that the power within 184(3) could be used on the Fundamental Rights enshrined within the Constitution and declaring a system defunct and an infringement on the rights of the people would be to act in a manner outside the borders of the Constitution 1973 which the Supreme Court of Pakistan is not empowered to do. The Supreme Court declared its power in the famous case of Imran Khan and Others vs Election Commissioner of Pakistan and Others PLD 2013 SC 120 where the court held the following

“Thus, in the light of the law laid down in the aforesaid cases, it is clear that this Court, under Article 184(3) of the Constitution, not only has the jurisdiction to pass appropriate orders in the cases involving questions of public importance with reference to enforcement of fundamental rights guaranteed under the Constitution but is also empowered to ensure fulfillment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law.”

So we see that Article 184(3) works within the ambit of the Constitution of Pakistan and declaration of a defunct system would be an act that would be outside the powers of the Constitution. A Supra-Constitutional act is not within the powers of the Supreme Court nor within the powers of the Parliament.

Secondly the act of a Referendum is not something the Supreme Court of Pakistan is empowered with since such a power was under the control of the President in Article 96A but was removed in the 18th Amendment 2010 and is now only located in Article 48 Section 6 which states

“If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered .by either “Yes” or “No”.”

So the power of such is vested within the Parliament and not within the Supreme Court nor within the Fundamental Rights of the people. The ‘Right to Vote’ and the ‘Right to form Political Parties’ is enshrined but Referendums are not part of the Fundamental Rights. The people who support such an act or revolution need to ask the honorable Prime Minister as to why he hasn’t called for such a Referendum since it is most definitely part of its power to place such a request to the parliament and get the wheels turning.

The judgment of the Supreme Court should be the dismissal of the petition. Now coming to the latter on whether we can leave this system or not. The founding fathers enshrined the Parliamentary system within the famous Objectives Resolution which stated;

“WHEREIN the State shall exercise its powers and authority through the chosen representatives of the people”

The above was interpreted that the executive power shall be vested within the chosen representatives of the people, not a single representative i.e. the President but representatives meaning the parliament which shall hold the executive powers and shall elect amongst themselves people who shall be conferred with such powers and responsibilities i.e. President and Prime Minister. In the landmark case of “State vs Zia Ur Rehman PLD 1972 SC 49” where the Supreme Court of Pakistan held that the Resolution was the grounds for the constitutional framework of the country and it would always have a strong impact on the constitution of the country and it stated that in this case the Resolution had held that the power of the people would be in the hands of the legislative assembly along with the declaration that a court from the legal framework cannot declare that legal framework as defunct or abrogate it entirely since such a court must work within the ambit of the said framework.

The Resolution was made part of the Constitution as Article 2A. The Preamble of the Constitution of 1973 also enshrined the Parliamentary form of democracy with the words

“Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.”

And with that we can see that the representatives of the National Assembly were given the executive powers by the people of Pakistan and this is indeed part of the Preamble and the Preamble is the soul of the constitution since it reveals the mindset of the framers. The Constitution enshrined within itself the parliamentary system.

Now the enshrining of the Parliamentary system through the judgments of the Supreme Court of Pakistan was done in the following cases

“Mehmood Khan Achakzai and Others vs Federation of Pakistan and Others PLD 1997 SC 426” which brought forth the question of the basic structure of the 1973 Constitution. The case defined the Objectives Resolution and the Preamble of the Constitution. It held that the structure of the country is based on Parliamentary system and it shall be Parliamentary system blended with the provisions of Islam. The question rose on the powers of the President in line with Article 58(2)(b) where the court held that it did not alter the system itself and only provided a president with executive power with checks and balance which can be found in other parliamentary democracies. The court held that Pakistan was always a parliamentary democracy and created a bar on the legislative that it cannot amend the basic structure of the Constitution 1973 which was Parliamentary democracy, independence of judiciary and Federalism.

“Syed Zafar Ali Shah and Others vs General Pervez Musharraf and Others PLD 2000 SC 869” held the order of the PLD 1997 SC 426 and again held that the system of the state will be parliamentary and barred the legislative on passing any amendment that would change such. The most recent of such a case was PLD 2013 SC 1” which again held that the government structure of the state is Parliamentary and it cannot be changed.



Rather than taking part or giving limelight to such individuals or parties who take action to gain some spotlight, we must all ensure to work together in working with the system and bringing appropriate change from within because the problem in Pakistan is not the system itself but all of us who are a part of it. We await Messiahs and new systems but fail to understand that whether it be Presidential or Parliamentary, it is the people who make the country and in any system, the only ones that can bring proper change are the people through self-introspection and bringing all those that are incompetent or corrupt, be it a politician or military general, to justice by open condemnation of such be it the perpetrator is a politician, bureaucrat, judge or a general.

 

[saiyan0321]

@jaibi @WAJsal @Jungibaaz

@Joe Shearer how have your courts defined the system within India? are there any cases where such a question was raised.

@Moonlight

 

[Joe Shearer]

@jaibi @WAJsal @Jungibaaz

@Joe Shearer how have your courts defined the system within India? are there any cases where such a question was raised.

@Moonlight

I honestly don't know. I do know of the three cases wherein the Supreme Court identified and held as inviolable the basic structure of the constitution, but I can't say offhand whether it spoke about the basic form of democracy in the clear way that you have summarised the situation.

If you give me a couple of days, I will find out. Another alternative is to write to //an eminent person whose name and e-mail id I can share with you privately//, and ask: he is widely acknowledged as an authority on constitutional law.

 

[Joe Shearer]

I forgot to congratulate you on your lucid exposition of the subject. Very, very informative and leading to many insights. Thanks.

 

[saiyan0321]

I honestly don't know. I do know of the three cases wherein the Supreme Court identified and held as inviolable the basic structure of the constitution, but I can't say offhand whether it spoke about the basic form of democracy in the clear way that you have summarised the situation.

If you give me a couple of days, I will find out. Another alternative is to write to //an eminent person whose name and e-mail id I can share with you privately//, and ask: he is widely acknowledged as an authority on constitutional law.

I would appreciate that. You can share it with me privately. I would love to talk to him. The three you have introduced me to are amazing so i have no doubt on the fourth. Raza is ever so helpful as he sends me some amazing books. I am forever grateful to him in more ways than one. Yaseer and his legal articulation is amazing and Usman is a class of his own. Every week i place a question of Islamic knowledge or history and he answers me with no hesitation and i am eternally grateful for his insight. In these days who has time to give long answers to people so such an effort indeed deserves gratitude.

I forgot to congratulate you on your lucid exposition of the subject. Very, very informative and leading to many insights. Thanks.

No thank you for the appreciation. I truly appreciate it.

 

[Joe Shearer]

Raza is ever so helpful as he sends me some amazing books. I am forever grateful to him in more ways than one. Yaseer and his legal articulation is amazing and Usman is a class of his own. Every week i place a question of Islamic knowledge or history and he answers me with no hesitation and i am eternally grateful for his insight.

Raza is generous to an extent that I cannot reveal without seriously embarrassing him. My only quibble with him is that he was far too generous, far too permissive with the Hindutvavadi trolls who started climbing into PakTeaHouse. Finally, as I told you, we decamped, seven or eight of us (three, to start with, Gorki and Usman being the other two) and set up insaniyat, which had its day. Yasser has always had the upper hand over me, because on one infamous occasion, I misinterpreted what he had written and piled onto him; it was terrible when I read the concerned passage and realised that he had intended something completely harmless. Usman is truly in a class of his own; his only difficulty is his extreme sensitivity. He is a fountain of information on Islamic history; his Islamic knowledge is intimately wrapped up in the historical unfolding of doctrine. Amazing.

I am only sorry that I can't introduce you to Raza Rumi, who is an order of magnitude above Raza (our Raza). After the attempt on his life, and his sense of guilt at his driver's death in that incident, he went away to the US, and I have completely lost touch.

Let me write to the Professor, explaining the circumstances; as you may imagine, he is a carefully watched figure, being who he is, and it should not embarrass him in the eyes of those monkeys in Delhi, who are waiting for a chance to attack him. If he had been in his substantive post as Registrar of the famous university in UP, he would have been in hot water by now. That two-legged animal Yogi Adityanath is a beast out of control.

I'll get back.

 

[HRK]

Not only this but supreme court in one of its land mark judgment in the case of Zafar Ali Shah Vs. Federation of Pakistan has laid the principal that Constitution of Pakistan is Supreme law and its basic structure or features which are

• Independence of Judicary,
• Parliamentary form Governance,
• Islamic Provisions and
• Federalism

could not be altered even by Parliament.

Therefore Parliament does not enjoy unlimited freedom nor it can exercises its power against the basic structure of constitution so even power to held the Referendum is bestowed to the Parliament by the constitution itself, the same power could not be exercised against the basic structure of constitution or in simple terms Parliament could not held referendum in favour of Presidential form of Governance or against the Parliamentary form of Governance, this would be beyond the mandate given to Parliament by the constitution

 

[HRK]

Parliamentary system has now been enshrined in the constitution of 1973

By Saiyan0321

With the rising incompetence of Federal Governments, both present and past, and the falling standards of governance in general be it Federal governance or Provincial, the people of Pakistan have started wondering whether a change of system will bring to them the long sought after relief. For this purpose an unknown party named “Hum Awam Party” filed a petition in the Supreme Court of Pakistan to order for a referendum to be held on whether the people wanted Presidential system or Parliamentary system. Such a case was filed previously last year and the petition was dismissed.

Social media erupted with many stating that this is an act of the establishment in consolidating its power and to bring back dictatorships whereas an equal number declared that the current system has failed and a proper change in the system is needed for Pakistan to function properly. Conspiracy theorist held that this is part of the forthcoming, yet never to have arrived, change. The question then remains whether the petition can bring forth such a change? And can we ever leave the parliamentary system? The Answer to both is a blunt NO.



For the former, the petition itself tried to create a long road that the Supreme Court of Pakistan, empowered by Article 184 (3) can declare that the system is an infringement of the Fundamental Rights of the people of Pakistan and call for the referendum based on the implementation of those rights. The notion is legally flawed since the said Article does not confer the Supreme Court with the power to bring forth Referendums nor to declare the system itself as an infringement of the Fundamental Rights since the said Article itself creates a limit that the power within 184(3) could be used on the Fundamental Rights enshrined within the Constitution and declaring a system defunct and an infringement on the rights of the people would be to act in a manner outside the borders of the Constitution 1973 which the Supreme Court of Pakistan is not empowered to do. The Supreme Court declared its power in the famous case of Imran Khan and Others vs Election Commissioner of Pakistan and Others PLD 2013 SC 120 where the court held the following

“Thus, in the light of the law laid down in the aforesaid cases, it is clear that this Court, under Article 184(3) of the Constitution, not only has the jurisdiction to pass appropriate orders in the cases involving questions of public importance with reference to enforcement of fundamental rights guaranteed under the Constitution but is also empowered to ensure fulfillment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law.”

So we see that Article 184(3) works within the ambit of the Constitution of Pakistan and declaration of a defunct system would be an act that would be outside the powers of the Constitution. A Supra-Constitutional act is not within the powers of the Supreme Court nor within the powers of the Parliament.



Secondly the act of a Referendum is not something the Supreme Court of Pakistan is empowered with since such a power was under the control of the President in Article 96A but was removed in the 18th Amendment 2010 and is now only located in Article 48 Section 6 which states

“If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered .by either “Yes” or “No”.”

So the power of such is vested within the Parliament and not within the Supreme Court nor within the Fundamental Rights of the people. The ‘Right to Vote’ and the ‘Right to form Political Parties’ is enshrined but Referendums are not part of the Fundamental Rights. The people who support such an act or revolution need to ask the honorable Prime Minister as to why he hasn’t called for such a Referendum since it is most definitely part of its power to place such a request to the parliament and get the wheels turning.

The judgment of the Supreme Court should be the dismissal of the petition. Now coming to the latter on whether we can leave this system or not. The founding fathers enshrined the Parliamentary system within the famous Objectives Resolution which stated;

“WHEREIN the State shall exercise its powers and authority through the chosen representatives of the people”

The above was interpreted that the executive power shall be vested within the chosen representatives of the people, not a single representative i.e. the President but representatives meaning the parliament which shall hold the executive powers and shall elect amongst themselves people who shall be conferred with such powers and responsibilities i.e. President and Prime Minister. In the landmark case of “State vs Zia Ur Rehman PLD 1972 SC 49” where the Supreme Court of Pakistan held that the Resolution was the grounds for the constitutional framework of the country and it would always have a strong impact on the constitution of the country and it stated that in this case the Resolution had held that the power of the people would be in the hands of the legislative assembly along with the declaration that a court from the legal framework cannot declare that legal framework as defunct or abrogate it entirely since such a court must work within the ambit of the said framework.

The Resolution was made part of the Constitution as Article 2A. The Preamble of the Constitution of 1973 also enshrined the Parliamentary form of democracy with the words

“Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.”

And with that we can see that the representatives of the National Assembly were given the executive powers by the people of Pakistan and this is indeed part of the Preamble and the Preamble is the soul of the constitution since it reveals the mindset of the framers. The Constitution enshrined within itself the parliamentary system.

Now the enshrining of the Parliamentary system through the judgments of the Supreme Court of Pakistan was done in the following cases

“Mehmood Khan Achakzai and Others vs Federation of Pakistan and Others PLD 1997 SC 426” which brought forth the question of the basic structure of the 1973 Constitution. The case defined the Objectives Resolution and the Preamble of the Constitution. It held that the structure of the country is based on Parliamentary system and it shall be Parliamentary system blended with the provisions of Islam. The question rose on the powers of the President in line with Article 58(2)(b) where the court held that it did not alter the system itself and only provided a president with executive power with checks and balance which can be found in other parliamentary democracies. The court held that Pakistan was always a parliamentary democracy and created a bar on the legislative that it cannot amend the basic structure of the Constitution 1973 which was Parliamentary democracy, independence of judiciary and Federalism.

“Syed Zafar Ali Shah and Others vs General Pervez Musharraf and Others PLD 2000 SC 869” held the order of the PLD 1997 SC 426 and again held that the system of the state will be parliamentary and barred the legislative on passing any amendment that would change such. The most recent of such a case was PLD 2013 SC 1” which again held that the government structure of the state is Parliamentary and it cannot be changed.

Rather than taking part or giving limelight to such individuals or parties who take action to gain some spotlight, we must all ensure to work together in working with the system and bringing appropriate change from within because the problem in Pakistan is not the system itself but all of us who are a part of it. We await Messiahs and new systems but fail to understand that whether it be Presidential or Parliamentary, it is the people who make the country and in any system, the only ones that can bring proper change are the people through self-introspection and bringing all those that are incompetent or corrupt, be it a politician or military general, to justice by open condemnation of such be it the perpetrator is a politician, bureaucrat, judge or a general.

Bro try to get your articles published in main stream printmedia of Pakistan, you really write good articles

 

[Jungibaaz]

Rather than taking part or giving limelight to such individuals or parties who take action to gain some spotlight, we must all ensure to work together in working with the system and bringing appropriate change from within because the problem in Pakistan is not the system itself but all of us who are a part of it. We await Messiahs and new systems but fail to understand that whether it be Presidential or Parliamentary, it is the people who make the country and in any system, the only ones that can bring proper change are the people through self-introspection and bringing all those that are incompetent or corrupt, be it a politician or military general, to justice by open condemnation of such be it the perpetrator is a politician, bureaucrat, judge or a general.

Couldn't agree more with your concluding remarks. I've held the same in response to those advocating a presidential system while deploring the ills of the current system. They're never able to answer sufficiently when asked to elaborate how the alternative will rid us of the problems in the current system, nor can they effectively point out what inherent flaws of the parliamentary system they think is the basis for the issues they raise. IMO, a small portion of people who think this way are frustrated and they're unwittingly bemoaning the fact the that we have a country and a current state of affairs that is multi-polar in its power structure, and requires a degree of decentralization and checks on power. This type of thought is also wont to default to the simplistic notion that we're better off with no civilian rule at all.

 

[saiyan0321]

Couldn't agree more with your concluding remarks. I've held the same in response to those advocating a presidential system while deploring the ills of the current system. They're never able to answer sufficiently when asked to elaborate how the alternative will rid us of the problems in the current system, nor can they effectively point out what inherent flaws of the parliamentary system they think is the basis for the issues they raise. IMO, a small portion of people who think this way are frustrated and they're unwittingly bemoaning the fact the that we have a country and a current state of affairs that is multi-polar in its power structure, and requires a degree of decentralization and checks on power. This type of thought is aso wont to default to the simplistic notion that we're better off with no civilian rule at all.

I could not agree more with the bold part.
Absolutely correct and the most interesting factor here is that a Presidential system, such we see in other democratic nations, is based on proper democracy and is home to checks and balances. The concept of 'Separation of Powers' is very much enshrined and the President is not all powerful and the most greatest highlight of that is the fact that a US president is not empowered to enter into any treaty that is not ratified first by the Congress and the courts in US can strike down any law that they feel is against the fundamental structure of the constitution or impacts the fundamental rights of the people and the most famous landmark case would be 'Marbury vs Madison 1806' where the court asserted their power through Judicial Review and till now have struck down nearly 200 legislation, declaring them as unconstitutional. So the beacon of Presidential system aka the US is home to such separation of powers similar to the separation we witness in our parliamentary system. Even if we adopt the entire system of the US, the President will not be empowered to, say, declare Karachi as a province or meddle in provincial affairs just as the US president cant meddle in state affairs.

I believe that people that speak about presidential system often use it as a camouflage to hide their intention that they desire dictatorial rule however since they are aware that wishing for dictators would not just make themselves look foolish in political matters but also make themselves a laughing stock in front of everyone. To avoid such a response they declare the system defunct and use this term as a means to wish for benevolent dictators and these characters either have little stake in the political future of the country or are assured that whether dictatorial or political, it will not impact them. They berate checks and balances and look down upon decentralization without realizing that the structure of the country demands such a nature and it was lack of decentralization that played the largest role in the events of 1971 and you know what, people ignore what happened next in 1972. Bangladesh got formed, takes the entire limelight but the centralized structure had created such fissures that by the dawn of 1972, every single province was vying for separation with movements rising left and right and it was the events of 1972 that had the most impact in creating a more decentralized constitution in 1973 in contrast to the centralized constitutions of 1956 and 1962.

Centralization has always been opposed and it has always created a predatory impact on the country where the central power completely sucked the country dry. One simply has to look the governance and legal history of Azad Kashmir from 1949-1974 to understand what such rule does. The founding father of Azad Kashmir Sardar Ibrahim was so sick of being run form centralized center through a ministry that he rebelled in a very strong fashion in 1950s.

Such people who wish for dictators and to be run through selected ministries are themselves delusional. They cant answer because in their mind the problem is not the feudal structure or lack of democratic awareness but in separation of power and decentralization.

 

[Jungibaaz]

Presidential system is real democracy. In presidential system I can directly vote for my favorite presidential candidate and MNA candidate. In Parliamentary system you need the support of 100 to 150 MNAs for becoming PM and in presidential system you need the support of millions of people for becoming president. Presidential system is fully democratic and parliamentary system is semi democratic because it is copied from a country which has a queen as head of state and no law can be passed without her approval. Iska siwa koi khas difference nhi ha parliamentary and presidential system main.

I think that a lot of the time people advocating a Presidential system in Pakistan are misreading how each system works when it's truly democratic and what the differences are; I mean to really say that we are looking at the current perceived failings of the parliamentary system incorrectly, hence prescribing the Presidential system as a solution for said perceived failings. Both these systems are examples of representative democracy, direct democracy (Athenian democracy) doesn't even allow for election of representatives, be they PMs, or MPs, or indeed Presidents. Direct democracy favours sortition and similar means of elevating to citizens to authority as opposed to elections. So really what we are talking about is how to arrange and distribute power within a representative democracy, and people cite a more efficient executive in the President when they promote this system, but Presidents in most systems lack the legislative powers Prime Ministers have. They can be less accountable and more independent, true, but also their purview is therefore necessarily limited by an equivalent amount. And even then, it is not without any accountability either.

So while I can agree that Presidential systems have some merits, the man you vote for will be the head of government, however even that in a democratic system does not mean that a democratic President has all the authority. He himself can be elected even marginally by an electoral college, but he's not the supreme authority. Take the US' system as an example. The executive branch (President) is just one of three, the others are the Legislative branch (Congress), and the Judicial (Supreme Court). And the President is not free to do as he wants, his legislative (law making ability) is nil without Congress, and indeed both Congress' lower and upper houses and the Supreme Court check and balance the power of the president. The President can veto legislation but can't create his own, he can appoint Judges among other presidential appointments, but both his appointments can be vetoed by Congress (Legislature), and also his presidential veto can be vetoed by Congress. He can, if he breaks the law or violates the constitution also be impeached.

So if you want to have a democratic Presidential system, fine, you can have one. But not without checks and balances, otherwise you're asking for a heap of political strife somewhere down the line if the executive branch can't be checked. In Pakistan, my reservation with a Presidential system is too much centralization of power, and that historically, a sort of undemocratic Presidential system has been used by dictators to deprive Pakistan of democratic self-rule.

Therefore you need to ask yourself the following questions and apply the following comments before arriving at what sort of system you want and what distribution of power it should manifest:

• What specifically are the failings of the current systems and how do you propose to remedy them in a Presidential system?
• Do you want a Presidential system that is democratic, or do you want a more powerful, less inept executive?
• If the answer to the above is that you want a more powerful executive as an answer to the problems you currently see, your comment about a Presidential system being more democratic is not applicable.
• Actually what a lot of people are inadvertently advocating is a more draconian executive, even if the process of electing him remains democratic, the system is still more authoritarian.
• Is the sort of Presidential system you want truly democratic? If so, where do you draw the checks and balances?

Once the above is hashed out, we can re-examine whether a Presidential system is truly better, or even marginally better, let alone whether it's a fix for the problems we may perceive in the current system. As said elsewhere and before, I'm not against a Presidential system, I have yet to be properly convinced by those calling for one. I would happily hear the arguments, as there could be a case to be made.

@saiyan0321

 

[saiyan0321]

Yes it is possible. Pakistan is already semi presidential no law can be passed with out the approval of the president of Pakistan. Change election procedure of the president of Pakistan and abolish cabinet it would become presidential system.

Article 75

[75. President’s assent to Bills.—(1) When a bill is presented to the President for assent, the President shall, within 2[ten] days, —

(a) assent to the Bill; or

(b) in the case of a Bill other than a Money Bill, return the Bill to the Majlis-e-Shoora (Parliament) with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered.]

3[(2) When the President has returned a Bill to the Majlis-e-Shoora (Parliament), it shall be reconsidered by the Majlis-e-Shoora (Parliament) 4[****] and, if it is again passed, with or without amendment, by the Majlis-e-Shoora (Parliament), 5[in accordance with article 70] it shall be deemed for the purposes of the Constitution to have been passed by both Houses and shall be presented to the President and the President shall not with hold assent therefrom].


So basically the President cannot withhold its assent if the bill is sent again because the executive is not the legislative. The powers of legislation remain with the legislative and this is what we mean when we use the words Troika of Power.

Secondly as i highlighted court judgments, constitutional nature, limitations on amendments in the article, if you would peruse it, you would understand the impossible nature of it being so. We were Semi-Presidential before the 13th amendment and post the 14th amendment and now with the 18th amendment, the presidential power is, i would say, less than semi presidential

Once the above is hashed out, we can re-examine whether a Presidential system is truly better, or even marginally better, let alone whether it's a fix for the problems we may perceive in the current system. As said elsewhere and before, I'm not against a Presidential system, I have yet to be properly convinced by those calling for one. I would happily hear the arguments, as there could be a case to be made.

Thats the thing. The power of the executive must not cross into the realm of the legislative. The US president is not all power and has huge limitations placed on him. The Pakistani Presidents were given just this power to abrogate the assemblies and Pakistan witnessed the days of the 90s where it was not known whether the parliament would survive the year or not. Call it parliament, congress, senate or Jirga but there must be three separate powers.

Executive, Legislative and Court.

They can be given any names but their limitations placed must be respected and the limitations the checks they place on the other powers of state.

Let me also highlight that the US election is also based on Electoral college who then vote the president in terms of the peoples choice. So lets imagine that we have a US elected system

We have a set of candidates from each party as it is in the US ( there were other candidates apart from Hillary and Trump. There were a bunch) and then these candidates are not elected directly but through an electoral college like in the US. Who is to say that the electoral college wont vote for the other? who is to stop horse trading after all the problem with parliamentary system is that there is not direct election and horse trading takes place. Thats the problem right? So what will stop this? So lets forget about horse trading. What happens when you win more electoral college but have less votes than the opposition like it happened in 2016. What then?

The problems with the system arent that its not presidential nor parliamentary or one is superior to the other. The soul of the system remains which is troika of power.

 

[saiyan0321]

The executive branch (President) is just one of three, the others are the Legislative branch (Congress), and the Judicial (Supreme Court).

The Troika of Power is a very important concept in a proper democracy and let me expand on it a bit.

I am actually writing a book on it (Along with legal governance of Azad Kashmir and Gilgit Baltistan and have published one on the 1963 Sino-Pak Treaty). The book is titled 'Legal Evolution of the 1973 constitution'. Its in the works however there are some points where i touch upon it. Let me Reproduce some of them

"
He partially enacted the 1962 constitution to fill the void that had grown since 1969 till a new constitution could be drafted. Realizing that constitution making is a serious business and cannot be jumbled up anymore, he called together a constitutional convention where all parties were to meet him on 17th April 1972. The difference between this convention and the previous two was that this time business was not considered an attempted joke to garner and secure power but to bring forth a solution that can keep the country together, create effective governance and showcase the will of the people. Various people from all fields came together to formulate an expansive document that would cover everything from finances of state to separation of powers. It is a little known fact that the basis for the 1973 constitution was the 1956 constitution which was placed as a skeleton to amend and to give form to a more complete constitution.

The lawyers and philosophers present in the convention made use of the ideals of John Locke. His ideals in his book ‘Two Treatises of Government’. The two treatise is a masterpiece in political philosophy as it enumerates enlightenment and rule of law. The book itself is divided into two treatises.

In the first treatises he provides criticism for the work of Sir Robert Filmer, who in his book ‘Patriarcha’ argued that absolute monarchy and rule was the natural system of the world as it was divinely hereditary in nature and in support of these arguments, he presented the concept of biblical Adam, who in his role as father, possessed untold authority over all his children and all of the world and it was this authority that was passed down through generations. He argued that since this ownership gave him absolute authority then the concept of ‘Jure Divino’ i.e. doctrine of divine right of king to rule. Filmers arguments were very strong but against this John Locke provided counter arguments that would make any politician and lawyer proud. He argued that it is without a doubt that fatherhood creates natural authority however that authority cannot be passed down to his children. It is his and it will die with him and this is simply because of the fact that a father does not create life but it is God who creates life. Secondly the power of the father over his children are not absolute since the power is shared between two parents and the lasting power over the children only belongs to God.

Locke takes into Filmers argument of Biblical Adam’s ownership over all of the world and held that the world was originally held in common but even if it was not, God only granted authority to Adam over the animals and land. Never upon humans. Neither Adam nor his children could enslave all of humanity for the law of nature forbids reducing one’s fellow into a state of depression.

Locke, with his arguments threw down the concept of absolute monarchy and ended his criticism by highlighting that no king has ever claimed authority of rule by stating that he is the heir of Adam. When such a claim has never been made, then how can such authority be considered to be derived from it?

The second treatises focuses on the doctrine of state of nature as well as into rule of law, property, life and estate. He defined state of nature as a point wherein individuals are under no obligation to obey one another but are such themselves judge of what the law of nature requires. He argued that before we think about political power, we must first understand what the state of nature of a person is in its more natural form. He defined that in the state of nature a person is perfectly in freedom of acting freely or disposing his property within the confines of what he believes to be the natural state of law. They do not have to ask permission nor depend on the will of others to arrange matters on their behalf. In this state all power and jurisdiction is reciprocal and no one possesses it more than the other and here it is evident that all beings are, without discrimination, equal among themselves. He highlighted that there has never been an ordained monarch in this world however in the state of nature, where there exists no institutionalized polity, is in no way a lawless society since they are subject to laws of God and nature.

According to Locke, the proper alternative to the natural state is not absolute monarchy or dictatorship but the democratically elected governments by the will of the people where the freedoms and liberty of the people are protected under the absolute rule of law. These ideals and principles greatly influenced the process of constitution making. Locke argued that man was not the property of another man since he was created by God himself like all men thus all of them were born equal and were, without discrimination, the same in the state of nature. This same argument was placed in the constitution of 1973 as well in Article 2A where the Objectives Resolution was made a part of it. The first paragraph of the Objectives Resolution stated;

“Sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the state of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust.”



It is evidence of same concept that John Locke was stating in his arguments that absolute authority belongs to God and the people are equal in his law and nature and the authority that is driven is given to the entirety of the people by God himself and they, through themselves must formulate on the way to utilize this authority.

Now another influence that John Locke had on the 1973 constitution was the doctrine of separation of powers which is the concept that the power of the state should not be in the hands of a single being or institution of the state but must be spread and separate so that each institution keeps the other in check. Locke made distinctions in the second treatises between the executive that must execute the laws thus called the executive, and the legislative that is supreme holder of power. Now in his book he separates the two as executive as ‘always in being’ and the legislative as ‘not always in being’ but it is the executive that holds the supreme power, not the executive. His ideal was that even in a monarchy the supreme power must remain with the entity that changes and this change is from the consent of the individual and in his view the individual was the majority whose consent is either given by themselves or through a representation chosen by them. So we see here that separation of powers, as envisioned by Locke, creates a basis for our constitution since the system he has prescribed is the one we have in place, which is the concept of ‘Trichotomy of Power’ where the three institutions Executive, Legislative and Judiciary are independent and separate from each other."


'Trichotomy of Power; One of the major features of the 1973 Constitution was that it was formed on the basis of the concept that there shall be three state institutions who shall hold power and this delegation of power will not be abused and will keep each other in balance and in check. The three powers were the Executive, whose job was to execute the laws and the administration of the state, the Legislative, whose job was to pass legislation and could hold the executive in check and the Judicature, whose job was to administer justice freely and without any pressure from any institution and could keep a check on the unconstitutional steps taken by both. This balance makes sure that the state is not under a single dictatorship and it is in line with the concepts of John Locke in his Second Treatise where he discussed the doctrine of Separation of Powers. This was also discussed in the case of Zia-ur-Rehamn where the court wrote comments stating that functions of a state must be distributed between various functionaries of the state and in normal scheme of things there exists the Trichotomy of Power which ensures power to be held by three, Executive, Legislative and Judicature. These organs can be of any form of their own types, like the Legislature can be unicameral or bicameral, but they remain independent. Justice Hamdoor Rehman wrote that it would be the job of the constitution to decide what form these three take and what are the limits and boundaries of their powers. The good justice did define that in a written constitution, unlike an unwritten one like the British have, the legislature cannot be said to be omnipotent , like the British parliament, since its powers will always be derived from the four corners of the constitution. We can see that here we deviate from the concept of John Locke where he stated that in separation of power, the legislative would be supreme but not just in this case but repeatedly the Supreme Court has stated that the three institutions are independent yet integrated with each other, functioning in their own spheres yet keeping a check on the other. This delicate balance is the cornerstone of the 1973 Constitution.'


Weirdly enough this manuscript was the first i started and before it, i have finished Two books, Co-authored an Urdu Novel and would finish the Azad Kashmir in a couple of weeks. Anyhow The point is that the Trichotomy of power is very important for a proper state structure and without such the country will into absolute mess. The power of the Court to declare a law passed as void, the power of the President to pardon and the power of the legislative to make laws that impact both.

The balance that it creates is what helps the state balance it self as a true democracy

@Joe Shearer @WAJsal @waz @niaz

 

[niaz]

Democracy has been derived from ‘Demos’ which means people and ’Cracy’ when used as a suffix means the rule, hence the rule/government of the people.

Cleisthenes, who first started the democratic government in Athens circa 508 BC, did not include all the population of Athens. Athens (ancient Attiki) had by then about 100K citizens and another 150K slave. However, in the Athenian democracy, only about 40K male citizens of over 18 years were eligible for voting and able to participate in the policymaking process. The system was flawed from the very beginning.

First ‘past the post ‘as practiced in the UK, Pakistan & Indian, etc. is also flawed because only a small percentage of the total votes casts are needed to win the election as long these are more than all other candidates. US ‘Electoral College’ Presidential System has also serious flaws. During the last election, Hilary Clinton polled more than a million votes than but lost to Donald Trump. In both these systems; on average, the winner needs about 30% of the popular vote for victory. How can the winner then claim to have the whole nation's mandate?

Proportional Representation system wherein each area elects more than one Representative is more democratic because the parliament includes representatives of nearly all of the major political parties roughly according to their percentage of popularity. However, a major flaw in this system is that nearly all the governments are ‘Coalition’ governments and at a critical juncture, even a party representation a mere 5% of the population can exercise power far beyond its mandate.

Hence there is no such thing as a ‘True Democracy’ or a perfect political system that correctly reflects the aspirations of all the citizens.

Coming back to Pakistan; undoubtedly John Locke’s principle of ‘Social Contract’ whereby citizens transfer part of their basic right to the State on the condition that the State would ensure the stable, comfortable enjoyment of their lives, liberty, and property and that governments exist by the consent of the people in order to protect the rights of the people and promote the public good; is the ‘sine qua non’ of any democratic government and Pakistan is no exception.

I have not read all of John Locke’s writings but from what I have; I understand that John Locke wanted the separation of Church from State and separation of religion from politics. The US Constitution which was heavily influenced by John Locke included this principle. In a country where secularism is mistakenly associated with ‘Godlessness,’ John Locke’s philosophy is out of place because the ‘Objectives resolution of March 1949 starts with:

The sovereignty of the entire Universe belongs to Allah alone. Authority should be delegated to the State through its people under the rules set by Allah.

Even though not clearly mentioned, a UK-style parliamentary system is also implied in this resolution.

At a stretch, one could argue that the statement that ‘Pakistan would be not a ‘Theocratic’ state whereby beliefs/practices of any one religion or sect will be forced upon citizens,’ mentioned in the Objective Resolution and made part of the Constitution has been influenced by John Locke’s philosophy, but not much else other than the implied social contract.

I also failed to see either overt or implicit reference to any ‘Troika’ in Pakistan’s 1973 Constitution or need to balance the power of Army Chief, Chief Justice, and the Executive.

The constitution guarantees freedom of the Judiciary but also states under article 177:

"The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175A."

Article 175A being ‘Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.’

Additionally, under the Armed Forces, the Constitution states:

Command of Armed Forces.

(1)	The Federal Government shall have control and command of the Armed Forces.
(2)	Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President.
(3)	The President shall subject to law, have power- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and (b) to grant Commissions in such Forces.

From the above it clear that Parliament is supreme with the President is the highest officer and the leader of the parliament ( Prime Minister) does not share power with the non-elected high officers such as Chief Justice or Chief of the military.

All governmental systems are run by the elected representatives, whether Presidential or Parliamentary. Simply changing a system but having the same quality of people running it is essentially replacing Twidledee by Tweedledum

What is really required is to inculcate Tolerance & Honesty and a sense of justice for the common man among the populace in general and among the polity in particular so that good governance could ensue. In the words of the maverick columnist Hassan Nisar, what Pakistanis really need is an improvement in the ‘Ikhlaqiat’ meaning an improvement in human traits such as Honesty, Justice, good behavior, and empathy.

Since 1973 Constitution is the only Constitutional document unanimously approved by nearly all the parties/stakeholders. Any serious tinkering with it tantamounts to playing with fire and could lead to serious consequences. Besides, we have had a presidential system under Ayub Khan, Zia ul Haq & Musharraf. Governance was definitely better but it was no 'Panacea' and we lost the eastern half of Pakistan under President Yahya Khan. However, if the people of Pakistan want to change to the Presidential System, so be it, but is there any guarantee that it would be better, and is it worth the risk?

 

[peagle]

Couldn't agree more with your concluding remarks. I've held the same in response to those advocating a presidential system while deploring the ills of the current system. They're never able to answer sufficiently when asked to elaborate how the alternative will rid us of the problems in the current system, nor can they effectively point out what inherent flaws of the parliamentary system they think is the basis for the issues they raise. IMO, a small portion of people who think this way are frustrated and they're unwittingly bemoaning the fact the that we have a country and a current state of affairs that is multi-polar in its power structure, and requires a degree of decentralization and checks on power. This type of thought is also wont to default to the simplistic notion that we're better off with no civilian rule at all.

In a Presidential system, we can follow two routes, an electoral college route like America, and I suppose, as practiced under Ayub's power grab. Or a directly elected president under one person one vote system.

Ayub's system did not work and is open to massive rigging, largely because of the large number of electors, who are easy to influence or bend to your will.

If we follow a system similar to America, with a smaller number of electors, it can be assumed they will be harder to corrupt because the public gaze will be upon them. But what will happen, as has happened a number of times in America, when the winner did not received the majority of the polled votes, there will be anarchy. Just imagine Nawaz Sharif having polled more votes, but Imran Khan winning, the country would be on fire.

Under the one person one vote system, generally president works with the Prime Minister and the powers are shared, with the President holding the upper hand. Just imagine a President and Prime Minister being from opposing parties, it just makes me laugh and cry at the same time. streets will be full of blood.

In both the above options, it regularly happens that the President is from one party, but the parliamentary majority is held by an opposing party, imagine getting any legislation passed in such a situation.

Presidential system just is not suited for our society, people are intellectually lazy and wish change for the sake of change. Change gets you nothing but instability. Sticking with a system suited to your local customs and realities and with gradual adaptations over time is what will deliver Pakistan a stable prosperous future.