Strategically Speaking
Constitutional reforms: CA has hit the nail on the head
IN the midst of remarks of persons in positions of responsibility, the CA's assertion that the caretaker government (CTG) is not contemplating amending the Constitution is a sagacious comment. He has hit the nail on the head by articulating the very important fact that it is not even his government's job to do so. The clarification is very welcome, since it has assuaged many misgivings in people's mind.
Indeed, it is not the mandate of the current government to tinker with the Constitution. His comments, one is certain, shall allay fears of many, who were led to believe, from the out of turn comments made by some of his advisors and indeed by one of the election commissioners, that the government may have its eyes on amending the Constitution.
In as much as it is felt that there are articles in the Constitution that need a fresh look, nobody can take issue with the view of the CA that it was time that thought was given to constitutional reform. And nobody will contest the fact that the Constitution, while it is sacrosanct in so far as its basic structure is concerned, may be suitably amended to accommodate the changes dictated by the need of the time.
However, our experience with constitutional reforms is not a very pleasant one. None of the 14 amendments, with the exception of one perhaps, reflected the will of the people, since none of those were debated at any length on the floor of the parliament. Except for the amendment dealing with the shift from the presidential to the cabinet form of government, in 1991, all the others were either pushed down the throat of a hapless opposition, where there was one, or romped home by the force of the brute majority. Tinkering with the constitution without extensive public debate may benefit only a particular party or group.
It will be well for all those who are given to rushing into things -- albeit with honest intention to do public good, to remember the very important but often overlooked fact that there are always the right forum and the right people to do it, and of course the appropriate environment. And neither is now the time, nor is there the right forum at the moment, nor are the council of advisors the right people -- to think of constitutional reform.
As it is, the CTG has already taken too many things on its plate, many of which were not within its mandate. But if the people have not demurred to those, it is perhaps because there was a popular assertion that obligated the caretaker government to take up those matters in hand. But one is not certain that there is a demand from the people in general for the CTG to involve itself in constitutional amendment exercise -- being fully aware that it is not its job.
But why has the idea of constitutional amendment been bandied about in the first place? In fact, it is one of the two issues -- the other being the electoral college of the president -- that are being discussed among a particular quarter, and it may be worthwhile to dwell on the first that has to do with the future tenor of our politics.
The discussion on constitutional reforms originated from views amongst a few, on the need to balance power between the prime minister and the president, and which cannot be implemented without bringing in the necessary changes to the Constitution.
Admittedly, the executive branch had indeed assumed a very powerful position, during the last government in particular. The protagonists of the idea of power balance reinforce their suggestion by the argument that the prime ministers, particularly the immediate past, had assumed an authoritarian stature, and ran the show very much as dictators.
I wonder whether one should even think of balancing power -- when the power of the president under a parliamentary form of government run by a cabinet headed by a prime minister, is very limited. Of course there was a government inside the government, which made the cabinet dysfunctional. But it has nothing to do with the system so much as with the people who ran it. If the ministers lacked the nerve to stand up to the prime minister, it is they that are responsible for allowing the PM to become what she did. Also, if the past prime ministers went about imperiously, it was not because of the flaws in the Constitution but in the performance of the two other organs of the state -- the legislature and the judiciary.
In a parliamentary democracy, it is the parliament that must exercise checks and balance on the government. The power that the PM derives is accorded by the parliament -- and one finds it rather strange that one should be talking about the powers of the PM -- when it is really the powers of the parliament, and how that is exercised, that one should emphasise upon.
Regrettably, the legislature had become dysfunctional. First, the opposition was stifled by the force of the brute parliamentary majority, made so much easier by the blatantly partisan role of the speaker -- who became oblivious of the fact that once on the hallowed chair, he/she should purge all thoughts of party affiliation. The situation was compounded equally by the opposition which abdicated its bounden duty -- of representing those that elected them -- choosing to boycott the parliament and finding the streets more suitable to ventilate their views rather than the floor of the parliament. The role of the standing committees was equally pathetic, losing sight of the substantive issues, and most often hamstrung by the unhelpful attitude of the ministries.
As for the judiciary, while its primary task is to adjudicate, and for the higher judiciary to interpret the constitution as well, one would have liked to see it take suo moto cognisance of the government's acts of commission -- particularly of those that might have had to do with the violation of the Constitution.
In suggesting a balance of power between the prime minister and the president one is actually suggesting that the president, elected by an electoral college (MPs) should work as a check and balance to the PM elected on the basis of universal adult franchise. The danger of such an arrangement is that there will be two centers of power, with the prospect of more turmoil than resolution of issues. And while there is the parliament that the PM and the cabinet are answerable to, who will the president be accountable to for his acts -- of commission or omission?
The president has certain powers like nominating judges to the higher courts. These must be strengthened and broadened. And instead of going for an arrangement that is most likely to create two power blocks, the existing parliamentary institutions and practices must be strengthened so that the prime minister can be made more accountable to the people -- through the parliament.
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