Balance of powers between President and Prime Minister

[Abridged form of the full texts was published in part one ant two in Daily Star, 08 and 15 December 2007]

Head of State--- whether called King or Queen, Emperor or Empress, Chancellor or President--- in a form of government--- whether totalitarian, authoritarian, oligarchic or democratic--- is a necessary adjunct to the very existence of a state. As of now, three models--- parliamentary, presidential and srmi-presidential, otherwise branded as Westminister model of parliamentary democracy, American model of presidentail democracy and french model of semi-presidential democracy--- are prominently in use in the present world of democracy.

Westminister model, widely called British parliamentary system of government, is, in fact, a result of compromise between the traditional monarchy and the then rising class who poineered the ‘glorious revolution’ of 1668 that caused the fall of absolute monarchy through the assassination of James 11. This model was the call of the time, call of the rising class, nay, call of the people of the Kingdom. This system of government, later, after the Second World War 11, became popular to the newly emerged independent states of former British Empire because of their long time association and familiarity with it. Hence, it, as a system of government, became a model to them.

But the unfolding reality of the theory and practice of parliamentary democracy in the non-monarchical states shows that if a sovereign state prefers to follow it, in that case condition precedent is that its full contents cannot be adopted because of the difference and variation of the contexts of the two; because of the difference and pecularities of the political cultures of the two; because of the difference of degree of respect to the constitutional conventions of the two and, above all, because of the existence of constitutional monarchy in the former and non-existence of the same in the latter and, to fill the vaccum, resultantly the concept of president as head of state was coined. Thus, truly speaking, Westminister parliamentary model with a constitutional monarch began to be adopted and tailored by the newly independent states of former Brtish empire with a constitutional non-monarchical head of state who is to be elected by an electoral college namely Parliament. Hence, there arose the concept of Republic differentiating it from that of Kingdom.

Not a single state can be cited as an example that has put the Westminister model in the original form while making the constitution; yes, it is neither possible nor desirable at all; because for a broad-based acceptability, accommodativeness and sustainability an adoptation necessarily needs ‘adjustment, readjustment and tailoring in the perspective of the state in question’.This is also truer in case of the power of president in this system.

Co-habitation (not in the sense of French model, but in the sense of co-exsistence) of strong Prime Minister and weak President in the name of so-called parliamentary democracy is likely to give birth to a Prime Ministerial system, which is a marked deviation from the very concept of a parliamentary democracy. That’s why, making the head of state constitutionally a titular or figurehead giving him enough time to sit idle without any interest in or headache about the affairs of state, frankly speaking, is not a credit at all. Majority of the politicians, lawmakers, constitutional experts, political scientists and political thinkers fell relaxed with a sigh of relief pondering that ‘ let the figurehead president do his job being within the four walls of the Constitution at the same time paying no heed to the negative impression discharging from such role.’

Rather, speaking from the working of the two august offices of President and Prime Minister in a parliamentary system of government, it is more reasonable and logical to say that credit lies in making him more mobile otherwise as head of state at the same time giving him no scope to disturb the system on a plea e.g. devising a formula of head of state who is neither titular nor executive. This is more dynamic, modern, upto date approch to keep the parliamentary system moving without being absorbed into another form, namely, French model widely called semi-presidential system. There is no deneying the fact that when a model is a hybrid one, then the existence and continuance of its basic flavor cannot be without a loss in its entirety. If the hybrid takes a new name that may conceptually be not damaging to the spirit of the parent concept but, if the concept getting attached with a diamatrically opposed model and takes a name being prominently prone to that model, then it leaves enough scope both theoritically and practically to jump to a conclusion that it has been done without taking much care of the very dynamics and mathematics of the original system

Yes, time has come to think that even during the operation of parliamentary government the head of the Head of State cannot remain hung down in shame , at least, when his voiced needs to be sounded, when his role as the last resort of hope needs to be played for the interests of the people and the country.

Three options hunt them all the time, one is Parliamentary system and the other is presidential one and the third one being the French model of the fifth Republic coined and poineered by De Gaulle, a general and statesman. It is widely held that French model, striking a balance of power between President and Prime Minister, stays in-between the parliamentary and presidential systems. Hardly it is believed that striking a balance between President and Prime Minister is also a reality being ‘within the range or fold of parliamentary system’ without taking resort to a French model].

French model:

One of the highly talked-about issues of the day is French Constitution and it is said or believed that the smooth working of a parliamentary system is hindered in number of ways because of its inherent weakness and limitations arising from the political culture of the state in question for which the system has already generated asking in the minds of all, in paricular, in the developing countries, about its viability in its true nature. From this very point of view, French model, as a whole, has become an object of attention and attraction.

A careful study to the amended-Constitution of the fifth Republic which has been in force since 1958 unveils the truth that in the name of balancing the powers , the President has virtually been made more powerful in certain areas such as he, apart from dissolution of Parliament by the advice of Prime Minister, can elicit or refuse submmission of a Bill of specified nature or a treaty to a refurendum; he can, bypassing the Prime Minister or Parliament, may refer a matter of national importance to a referendum; he presides the meetimgs of the Council of Minister; he deals exclusively with foreign and defence matters provided that the two offices do not belong to the same partry in Parliament, a state of position called ‘co-habitation’ and it happened during Presidency of Francios Mitterrand, a socialist, and Priministership of Jacques.Chirac, a new Gaullist(right wing), from 1986 to 1988; it is found in practice that President, on account of his becoming the topmost leader in the party, becomes more powerful when both the Prime Minister and the President belong to the same party; he is elected by universal direct suffrage for a term of seven years.

While writing the modern French constitution of the fifth Republic in 1958, Charles Degaulle asserted confidently that the head of state should embody ‘the spirit of the nation’ for the nation itself and the world.’ In fact, articles dealing with the powers of the President of Franch bear a glaring proof that s/he rules as well as reigns. Michel Bebre, the chief architect of the Constitution, had unequivocably maintained that the parliamentary system was the only one suitable for Franch. The system of government the Constitution of 1958 establishes in France has two basic features. First, the executive is divided in two organs, the Head of State, and the government, which led by the Prime Minister, is reponsible for policy-making and policy recommendation. Second, the government is collectively responsible to the National Assembly. It is General De Gaulle who, after the fall iof the third and fourth Republics, vissioned timely and rightly that in the name of so-called Parliamentary system, a titular head of state cannot be a solution to achieve the national unity, political and economic development to move with the pace of unity and developments of other nations in particular in Europe. His slogan was simple and straightforward that ‘French now needs a strong President’. And it was a sound resoning indeed in the then French perspective. The system is also known as semi-presidential.

Turkish model: A parliamentary model with a dominance of defense forces.

The Constitution of Turkey was framed in 1923 under the direct supervision of military Commander Mustafa Kamal Attaturk meanuing fater of the nation,with a secular, democratic, forward-looking parliamentary state. Defence forces of Turkey, from the beginning of the operation of the Constitution, sided with the principles greatly. Deviation from the principles, later after death of Attaturk came to be lebelled as Kamalism, as enshrined in the Constitution, in the name of religion or any other plea, is intolerable to the defence forces which has further been qualified on the question of territorial safeguard and intregity because of geopolitical and geostrategic position and location of Turkey. Creation of a national security council in 1960 is, in fact, a requirement in Turkish perspective. The country so far faced three martial law in 1960,1971( widely called a ‘martial law by memorandum’ because of the armed forces warning letter to Prime Minister Solaiman Demirel to step down) and 1980. Influence or dominance of defence forces over the politics and administration can be understood from a comment of General Dogan Gures, Chief of general staff of Turkey, in 1992 who uttered with a vanity that ‘ Turkey is a military state’.

Turkish Constitution draws attention of many because of its containing provisions for martial law--- unprecedented and unique in the context of democratic practice, norms values and conventions--- and national Security Council. But the amended-Constitution of 1982, the Seventh reform package in 2003, and further amendments in 2004 and 2007 have either dropped or reduced a number of provisions following ‘Copeanhagan criteria’ on question of its becoming a member of Eropean Union. So, a careful attention to the recent development and reforms also needs to be given to while talking about Turkish Constitution.

Models in south Asian countries:

In south asian contexts, Srilanka has a semi-presidential model, which has, apart from borrowing from french model, its own characteristies emanating from its own perspective.Truly speaking, President of Srilanka is more powerful than that of Franch. Maldives has recently switched over to a presidential system, similar to that of United States of America, in August 2007. Nepal now runs with a constitutional monarchy almost akin to Westminister model but, pro-China left political parties, mainly the Maoist gurrelas demand the full abolition of monarchy. Bhutan is also on the way to constitutional monarchy from the long-lasting traditional monarchy and in March 2005,a draft constitution was released but it is yet to be put to a referendum. Elections, first of its kind in Bhutan, are scheduled to be held in early 2008 and Lyonpo Kinzang Dorji has taken-over as interim prime minister while the Republic of India, a quasi-federal union, can boost in true sense of maintaining a Westminister model with necessary ‘adjustments, readjustments and tailorings’ in its own perspective.

Case of Pakistan:

But the case of Pakistan is something different, peculiar and bewildering because of play and counterplay of the political forces full of intrigues, muddlings, and disregards for democratic norms and practice, feudal dominated political culture, lack of instutionalezed political frames and frequant occurrence of military interventions and external threats since its independence on 14 August, 1947. This is very much a fact that on account of the not-so-sound appeal of the ‘two nations theory’ as a bond of unity also between the muslims of the East Pakistan and West Pakistan, post-partition Pakistan became bifurcated with the independence of Bangladesh, comprising the then East Pakistan, on 16 December, 1971. Bangladesh has, subjecting article 48(2) to articles 48(3) and 55(2) of its Constitution, now a parliamentary system with a figurehead President. It is prominently a call of the time and of the majority people that for a smooth, durable functioning of the government a balance of power essentially needs to striken as early as possible.

It is widely held that French model, striking a balance between parliamentary and presidential systems, has meanwhile strengthened and consolidated its position as a dependable system of government but, paralelly, attention needs to be given to the fact that striking a balance of power between President and Prime Minister is also possible, theoritically and pragmatically, being within the fold of parliamentary democracy without taking resort to French model. It may very soon emerge as a new line of thought in politics and political science.

Constitution (Seventeenth Amendment) Act, 2003 of the Constitution of Pakistan: A landmark formula for striking balance of powers between President and Prime Minister.

It is a recoded fact that Pakistan began its journey as an independent dominion with the British constitutional monach as head of state represented by a Governor-General of Pakistan untill.the Constituent Assembly of Pakistan, after a long nine years of exercises, adopted a parliamentary democracy with a President as head of state in the Constitution of 1956; this Constitution was not a reflection of the copy of Westminister model, rether a combinations of a number models including South Africa, USA, Canada. President was made a ceremonial head of State largely in line with the concept of British constitutional monarch and his power to dismiss the Prime Minister followed by the dissolution of Parliament (National Assembly in Pakistan context) was also made subject to the advice of Prime Minister;but before its official putting into opreartion in 1958 martial law was declared and General Ayub Khan, then Chief of the Army, took over. A new Constitution was framed in 1962 mainly modelled on United States of America , and continued untill the institution of a Paliamentary system in 1973 under the direct supervision of Zulfiker .Ali Bhutto, the person who romantically coined the concept of ‘ two majority party’ in the context of post-1970 elections to National and Provincial Assemblies of Pakistan that also played a role in the bifucation of Pakistan

Z.A. Bhutto, then President of Pakistan, won the plurality in the Parliament and became Prime Minister of truncted Pakistan. This Constitution did not create a balance of powers between President and Prime Minister and it was again put in abeyance by the 3rd martial law by the Army Chief General Ziaul Haque in 1977 ,and continued untill his death by a plan crush in 1988. Election to the National Assembly, as promised by Zia-ul-Haq in 1985, after the referendum held in April 1985, took place in October, 1985 and Md. Junejo became Prime Minister and then Pakistan National Aseembly, to give validation of the functions of the martial regime of General Zia-ul-Haq, passed the Constitution (Eight Amendment) Act, 1985 and two of the leading aspects of the amendment were:

a. It formalised the President’s order no. 14 of 1985 that revived the Constitution of 1973 that contained a Parliamentary system.

b. It struck a so-called balance of powers between President and Prime Minister by adding, under the head ‘Reserve power’, a new sub-clause (b) to clause 2 of article 58 in the Constitution as follows:

Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. With this provision, administration took a shape of Semi-presidential system

It is really interesting to see that Junejo government became the first victim of the article 582(b) because, on charges of maladministration , corruption etc., President Zia-ul-Haq dismissed him followed by the dissolution of National Assembly in 1987; Golam Ishaq Khan, Chairman of the Senate, after the sudden death of Zia-ul-Haq, became President and elections to the PNA were, as scheduled during Zia’s time, held in 1988; Benazir Bhutto, leader of the Pakistan People’s Party and daughter of Z.A. bhutto,, became Prime Minister who also met with same fate of Junajo of being dismissed within two years in 1990;. Benazir was defeated in the election of 1990 and then in the 1990 elections Newaz Sharif became Prime Minister and met with the dismissal followed by dissolution of Parliamen in 1993; Benazir Bhutto again became Prime Minister after elections in 1993 and she was also dismissed in 1996; then in the elections of 1997 Newaz Sharif became Prime Minister for a second term. Then, in 1997, National Assembly passed the Constitution (Thirteenth Amendment) Act, 1997 that also ommited sub-clause (b) in clause 2 in article 58.

Again on October 12, 1999 4^th martial law, overthrowing the Newaz Sharif fovernment, was declared by the army Chief General Musharraf Newaz Sharif putting the the Constitution in abeyance . On June 20, 2001, he took the title of President of Pakistan. He was the chief execitive from October 12, 1999 to November 23, 2002 ( de facto till 14 October, 1999 and de jure till from October 14, 1999). Elections were held on October 10, 2002 leading to the return of the position of Prime Minister.

In 2003, the newly elected National Assembly, validating the Martial law regime of General Musharraf, passed the Constitution (Seventeenth Amendment) Act, 2003. This time again giving a weight to the office of the President sub-clause (b) in clause 2 in article 58 was revived in an amended form with a cheek on the use of President’s ‘Reserve power’ or discretion to dismiss the Prime Minister ( also calling for a new election) subjecting it to the Supreme Court approval or veto within thirteen days of the dismissal. In the language of the Constitution it reads as follows:

The President in case of dissolution of the National Assembly under paragraph (b) of clause (2) shall, within fifteen days of the dissolution, refer the matter to the Supreme Court and the Supreme Court shall decide the reference within thirty days whose decision shall be final".

In fact, the 17^th amendment can be considered as a more accommodative and democratic formula for creating a balance of power not between President and Prime Minister with the Supreme Court of Pakistan as the final watchdog, it also creates a harmonious balance among the three branches of the Government.

Such harmonious balance between the three organs of government within the fold of parliamentary system may be treated as new approach to parliamentary system of government.

The contents of the 17^th amendment to the Constitution of Pakistan may efficiously be taken into account by our politicians, lawmakers, constitutional experts, political scientists and thinkers and others to strengthen the office of the President of the People’s Republic of Bangladesh.

Elections to the PNA and MPAs are scheduled held on 1 January, 2008 under the revived amended Cstitution of 1973 that also contains the Constitution(Seventeeth Amendment) Act, 2003. Now it is a matter to be seen in future that how the lawmakers in the ninth Parliament of Pakistan view this amendment or whether they devise a formula to replace it.

Let us see how the system now works in Pakistan and to what extent the parliamentary democracy be befitted by this arrangement.