Crisis Of Governance In Pakistan Politics Essay

The concept of governance is as old as human civilization. The word governance has its origin in Greek and it means to steer. In simple words the governance is the process of decision making and the process by which it is implemented (or not implemented). Good governance means that the affairs of the state are managed honestly, with every system in place, where merit is never ignored, rules are meticulously followed and where everyone is equal before law. This could only be achieved if public institutions are strong, independent and responsive to the sentiments of the public.

Governance is generally conceived as the exercise of economic, political and administrative authority to improve the quality of life of the people. Governance is a continuous process where divergent opinions and desires are satisfied through compromise and tolerance in a spirit of cooperative action for the mutual benefit of the masses. The basic objective of good governance is to improve the quality of life of people, to ensure that their needs are met equitably.

Politics is about the creation and distribution of power among organizations, tribes, communities or society at large. Governance is the mechanism, which controls the relationship between the two extremes – the governed and the governors. The political process lies at the core of governance and this can be said to be efficient only if elections are free and fair, the elected are accountable, whereas authority is divided between the legislature, the bureaucracy and the judiciary with decentralization of power.

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1.2 Why did I select this topic?

Although there are a number of studies on the subject, yet they are generalized in nature and only a few researches have been made relevant to Pakistan. Therefore, emphasis of thesis would be on crisis of governance in Pakistan with special reference to the alien perception (to me, a misperception) of as a failed state because of its bad or misgovernance and its legal aspects.

It will include the current situation, its causes and effects, its socio-economic and strategic aspect, the plight of common man and the causality between bad governance and incapacities of the state apparatus responsible for public service delivery and criminal justice system, as well as prospects of course of correction through reforms and institution building.

For the preparation of this paper, numbers of research articles, journals and books written by national and international researchers and authors, and different case laws of the apex courts have been consulted. The concept of governance and crisis of governance have been discussed at length in these write-ups. Since the concept of governance in Pakistan has very recently gained focus, there are a few studies on this subject, available in public libraries. Some of the significant studies are briefly reviewed here. The Crisis of Governance and Human Development in South Asia [2] explains some of the main crisis of governance in South Asia, its causes and suggests ways to eradicate them. Panandiker has explained the main problems faced by the South Asian countries specially India and Pakistan relating to governance system [3] . Ehsan Niaz has discussed cultural aspect of the country right from 1947 and its affects upon governance. He has also explained the role of civil society, politicians and bureaucracy to solve the problems of governance [4] . Jan Mohammad Dawood has explained the role and function of superior judiciary in the politics of Pakistan [5] . These views will be discussed with special reference to Pakistan.

1.3 Hypothesis/Research Question?

Root cause of the crisis of governance in Pakistan is the failure on the part of our successive governments who did not focus their attention on institutional development. Instead, they weakened, corrupted and politicized the existing institutions to an extent that they have become almost non-functional.

Research Questions

What are the root causes of crisis of governance in Pakistan?

What is good Governance and absence of it in Pakistan?

Is the state willing to restrict itself to the sovereign functions and to restructure and reform the institutions of governance?

What are the controls over Governance?

How governance can be improved in Pakistan?

1.4 Scheme of the thesis

The research has been divided into five chapters. Chapter 1 is introductory which explains the whole paper with its national and international context, its importance and objects etc. Chapter 2 explains how Pakistan has been facing governance problems right from its beginning. These problems were due to many reasons such as incompetent civil bureaucracy, frequent military interventions, incompetent politicians, lack of accountability system, and non independent judiciary. All these problems have not allowed to flourish Pakistan to become a developed state irrespective of that it has been blessed with both human and natural resources. Chapter 3 deals with the consequences of bad governance and problem of governance. Chapter 4 deals with the role of civil society, judiciary, media and other state building institutions. Chapter 5 deals with the conclusion and recommendations to improve the good governance.

Pakistan has faced governance problem right from its very beginning. While most of the comparable countries of Asia which have prospered, started from a comparable low initial level of socio-economic conditions, but have over the period of several decades, created much more sound and stable social conditions. Even India has managed to come out of the classic image of low performance and governance ills, while Pakistan deteriorates on a continuing basis, despite claims of good performance and success.

1.5 Statement of the Problem

Problems of governance have been endemic in our country ever since the unfortunate death of the father of the nation, Quaid-e-Azam Mohammad Ali Jinnah, only a year after the creation of Pakistan. Problems of governance seem to emanate from the unholy alliance between the then so-called political elite and the bureaucrats involved in politics.

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This state of affairs has adversely affected the quality of life of over 180 million people of this country, making their life and liberty miserable. This situation warrants an in-depth study of the causes and their effects on lives and liberties of our people to establish objective face of current crisis of governance and the prospects of reforms and institutions building.

1.6 INTRODUCTION TO GOOD GOVERNANCE

Recently the terms “governance” and “good governance” are being increasingly used in modern literature. Bad governance is being increasingly regarded as one of the root causes of all evil within our societies. Major donors and international financial institutions are increasingly making their aid and loans depending on the condition that such reforms should be made that ensure “good governance”.

Following paragraphs will try to explain, as simply as possible, what “governance” and “good governance” means.

1.7 Governance

Meanings of governance:

The World Bank defines governance as;

“The exercise of political authority and the use of institutional resources to manage society’s problems and affairs”. 6

An alternate definition suggests that governance is;

“The use of institutions, structures of authority and even collaboration to allocate resources and coordinate or control activity in society or the economy”. English-speakers sometimes erroneously confuse the term governance with the term government.

6 David Bigman oxford publication ed:2011 “The exercise of political authority and the use of institutional resources, p.1

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According to the UNDP’s Regional Project on Local Governance for Latin America: “Governance has been defined as the rules of the political system to solve conflicts between actors and adopt decision (legality). It has also been used to describe the ‘proper functioning of institutions and theft acceptance by the public’ (legitimacy), and it has been used to invoke the efficacy of government and the achievement of consensus by democratic means (participation). The concept of “governance” is not new, it is as old as human civilization. Simply put “governance” means: the process of decision-making and the process by which decisions are implemented (or not implemented). Governance can be used in several contexts such as corporate governance, international governance, national governance and local governance7.

Since governance is the process of decision-making and the process by which decisions are implemented, an analysis of governance focuses on the formal and informal actors involved in decision-making and implementing the decisions made by the formal and informal structures that have been set in place to arrive at and implement the decision.

Government is one of the actors in governance. Other actors involved in governance vary depending on the level of government that is under discussion. In rural areas, for example, other actors may include influential landlords, associations of peasant farmers, cooperatives, NGOs, research institutes, religious leaders, finance institutions, political parties and the military etc. The situation in urban areas is much more complex.

7. Khan, Hamid Carvan publication ed: March 4th 2004 “Constitutional and Political History of Pakistan”, p.1

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At the national level, in addition to the above actors, media, lobbyists, international donors, multi-national corporations, etc., may play a role in decision-making or in influencing the decision-making process.

All actors other than government and the military are grouped together as part of the “civil society.” In some countries in addition to the civil society, organized crime syndicates also influence decision-making, particularly in urban areas and at the national level.

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Similarly formal government structures are one means by which decisions are arrived at and implemented. At the national level, informal decision-making structures, such as “kitchen cabinets” or informal advisors may exist. In urban areas, organized crime syndicates such as the “Land Mafia” may influence decision-making. In some rural areas locally powerful families may make or influence decision-making. Such, informal decision- making is often the result of corrupt practices or leads to corrupt practices. 8

1.8 Good Governance

Good governance has eight major characteristics. It is participatory consensus oriented, accountable, transparent, responsive, effective, efficient, equitable, inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society. 9

8 http://www.unescap.org/pdd/prs/ProjectActivities/Ongoing/gg/governance.asp accessed on 23rd October 2012

9 Ibid. 7

1.8.1 Participation is key cornerstone of good governance

Participation by both men and women is a key cornerstone of good governance. Participation could be either direct or through legitimate intermediate institutions or representatives. It is important to point out that representative democracy does not necessarily mean that the concerns of the most vulnerable in society would be taken into consideration in decision-making. Participation needs to be informed and organized. This means freedom of association and expression on the one hand and an organized civil society on the other hand. 10

1.8.2 Rule of Law

Good governance requires fair legal frameworks that are enforced impartially. It also requires full protection of human rights, particularly those of minorities. Impartial enforcement of laws requires an independent judiciary and an impartial and incorruptible police force. The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance.

In continental European legal thinking, rule of law is associated with a Rechtsstaat. According to Anglo-American thinking, hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty the principle of legitimate expectation and equality of all before the law.11

10. G.W.Chaudhary Oxford publications Ed:2007 “Constitutional Development in Pakistan”, p.180

11. Sir Henry Wheeler, Report of the Government of India Secretariat Committee, ( Delhi: Government of India Press, 1937), p.1

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Some authors, as J. Shklar, claims that “the phrase ‘the Rule of Law’ has become meaningless due to ideological abuse and general over-use.” Samuel Rutherford was one of the first modem authors to give the principle theoretical foundations in Lex, Rex (1644), and later Montesquieu in The Spirit of the Laws (1748). Rule of law is opposed by authoritarian and totalitarian states. The explicit policy of those governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Dictatorships generally establish secret police forces, which are not accountable to established laws, which can suppress threats to state authority. 12

Critiques on rule of law

The rule of law, i.e., the application of the body of law to the government, does not restrict the government in any way since any desired government privilege can be made by the government into a legal provision. The rule of law should be seen as a bureaucratic hope for the government to jump through, rather than as a material restriction on government power. This criticism is though mostly relevant where the principle of the separation of powers is not respected (i.e., where the legislative power and the executive power the government-are held by the same body).

When the government is not also the legislative body, the principle of the rule of law may hold. Another critique is that the principle of legal equality can be easily subverted since many laws affect different people in different ways.

12. Rowland Egger, Pub: Karachi: The Inter-Services Press, 1953 “The Improvement of Public Administration in Pakistan”; p.10

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A law giving the legislators a raise, for example, affects the legislators in a different way than it affects the rest of the public. But since such laws are not necessarily made in accordance with the rule of law, it remains unclear if this criticism is really aimed at the principle of the rule of law itself rather than to actual legislatures.

Marxist theory analyzed the capitalist state as an instrument of oppression of the people at the hands of the bourgeoisie, which set the laws to suit it. Following this, some critical theorists analyze the “rule of law” as a judicial fiction which aims at disguising the reality of violence and, in Marxist terminology “class struggle.” This theory presumes that the “bourgeoisie” holds the power to set the laws13.

The Italian philosopher Giorgio Agamben argues that the state of exception is at the core of the concept of sovereignty, and not the “rule of law” as liberal thinkers have it. While the sovereign claims to follow the “rule of law”, any protection the people have, however fundamental, can be thrown away once the government finds it convenient to do so.14

1.8.3 Transparency

Transparency means that decisions taken and their enforcement are done in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. It also means that enough information is provided and that it is provided in easily understandable forms and media.

13. Rowland Egger, Pub: Karachi: The Inter-Services Press, 1953 “The Improvement of Public Administration in Pakistan”; p.18

14. Rowland Egger, Pub: Karachi: The Inter-Services Press, 1953 “The Improvement of Public Administration in Pakistan”; p.10

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1.8.4 Responsiveness

Good governance requires that institutions and processes try to serve all stakeholders within a reasonable timeframe.

1.8.5 Consensus oriented society

There are several actors and as many view points in a given society. Good governance requires mediation of the different interests in society to reach a broad consensus in society on what is in the best interest of the whole community and how this can be achieved. It also requires a broad and long-term perspective on what is needed for sustainable human development and how to achieve the goals of such development. This can only result from an understanding of the historical, cultural and social contexts of a given society or community15.

1.8.6 Equity and Inclusiveness

A society’s well-being depends on ensuring that all its members feel that they have a stake in it and do not feel excluded from the mainstream of society. This requires all groups, but particularly the most vulnerable, have opportunities to improve or maintain their well-being.

1.8.7 Effective and efficient administration

Good governance means that processes and institutions produce results that meet the needs of society while making the best use of resources at their disposal. The concept of efficiency in the context of good governance also covers the sustainable use of natural resources and the protection of the environment. 16

15. Syed Mujawar Hussain Shah, Pub: West view Press, Ed: 1995 “Religion and Politics in Pakistan”, p.68

16. Ibid

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1.8.8 Accountability

Accountability is a key requirement of good governance. Not only public institutions but also the private sector and civil society organizations must be accountable to the public and to their institutional stakeholders. Who is accountable to who varies depending on whether decisions or actions taken are internal or external to an organization or institution. In general an organization or an institution is accountable to those who will be affected by its decisions or actions. Accountability cannot be enforced without transparency and the rule of law17.

Now it should be clear that good governance is an ideal which is difficult to achieve in its totality. Very few countries and societies have come close to achieving good governance in its totality. However, to ensure sustainable human development, actions must be taken to work towards this ideal with the aim of making it a reality.

1.9 Good governance: an ideal which is difficult to achieve in its totality

However, to ensure sustainable human development, actions must be taken to work towards this ideal. Major donors and international financial institutions, like the IMF or World Bank, are increasingly basing their aid and loans on the condition that those reforms ensuring good governance are undertaken13.

1.10 What does Good Governance Ensures?

Governance ensures that corruption is minimized, the views of minorities are taken into account, and the voices of the most vulnerable in society are heard in decision-making.

17. Dr. Rafique Ahmad, Pub: Asia Publishing House, 1964 “Pakistan: Political History”, p.102

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It also makes certain, the participation by both men and women, participation could be either direct or through legitimate intermediate institutions or representatives. Participation also means freedom of association and expression on the one hand and an organized civil society on the other hand, other factors that good governance guarantees are full protection of human rights, particularly those of minorities, independent judiciary, an impartial and incorruptible police force.

1.11 International Pledges:

Through United Nations Convention against corruption in its resolution 55/61, the General Assembly recognized that an effective international legal instrument against corruption, independent of the United Nations Convention against Transnational Organized Crime was desirable. The text of the Convention was negotiated during seven sessions held between 21 January 2002 and 1 October 2003. The Convention was adopted by the General Assembly on 31 October 2003, and Pakistan is signatory of it. 18

18. http://www.unodc.org/unodc/en/treaties/CAC/ accessed on 26th October 2012

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CHAPTER 2

PROBLEMS OF GOVERNANCE IN PAKISTAN

Pakistan inherited a well functioning structure of judiciary, civil service and military but a relatively weak legislative oversight at the time of its independence. Over time the domination of civil service and military in the affairs of the state disrupted the evolution of the democratic political processes and further weakened the legislative organ of the state. The judicial arm, with a few exceptions, clump along to purify the dominant role of the military and the civil service.

2.1 Constitutional Aspects

Criterion of governance, as provided in the Constitution of Pakistan, 1973 is incorporated in the following articles.

Article 4 of the constitution guarantees rule of law in Pakistan and it makes Government duty bound to deal with the rights of the individuals in accordance with law, it is to be noted that the article uses the word “in accordance with law” not “in accordance with the law” which means the framer of the Constitution wished to give this rule of law clause a wider scope rather than to be limited to some specified laws.

Articles 8 to 28 provided in the Constitution are not only rights provided to the citizen but auto-limitations in these rights also provide guiding principles to the Government to go for Good Governance remaining within the auto limits of these Fundamental Rights. For instance in Benazir Bhutto vs. Federation of Pakistan19 it was held that the Constitution has provided auto-limitations, or in-built restraints, on the exercise of the Fundamental Rights guaranteed the Constitution.

19. PLD 1988 SC 416

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Such auto-limitations or inbuilt restraints not only provide protection to the rights themselves, but also further the interest of social solidarity, sought to be achieved by the makers of the Constitution.

Articles 78 to 88, and Articles 118 to 127 and Articles 160 to 171 provides practical procedure for the Financial Governance of the Government both at the Federal and Provincial level, the exact follow-up of the procedure results in Good Financial Governance.

2.2 Kinds of governance in Pakistan.

Governance by Federal Government

The Constitution provides Articles 90 to 100 for the Federal Governance for Federal Government.

Governance by Provincial Government

The Constitution provides Articles 129 to 140 for the Provincial Governance for Provincial Government.

III- Governance by Local Government

The Constitution provides Articles 140/A for the Local Body Governance for Local Government.

2.3 Conflict of Governance and their Constitutional Solutions:

The conflict of governance and their solution are dealt in Articles 141 to 144, and article 143 especially deals with Federal, Provincial and District governance

Article 152/A, and articles 153 to 159 also provide means to resolve conflict of governance. Here the council of common interest is worth mentioning. It also provides a plane to resolve conflict of Governance amount Federal and Provincial Governments.

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The Council of Common Interest is a vital constitutional body. Its main object is to care for the common interest of all the provinces. It is the best tool available to resolve the differences, problems and disputes between the Provinces and the Federation. It regulates the policies in relation to the matters in Part II of the Federal Legislative list. The limits of the Council of Common Interest can be understood by the following Case Law.

Shamsuddin Qurashi Vs. Finance Member, Railway Board20 It was held that functions of the Council of Common Interests is to formulate and regulate policies with regard to the matters relating to the affairs of the Federation. It has nothing to do with power of the Parliament to legislate or the executive authority of the Federal Government to deal with the employees of the Federal Government.

2.4 The Quran as a Guide line for Good Governance read with Article 227 of the Constitution of Pakistan 1973:

“O ye who believe! Stand out firmly for Qist (justice), as witnesses to God, even as

against yourselves, or your parents, or your kin, and whether it be (against) rich or

poor: for Allah can best protect both. Follow not the lusts {of your hearts), lest ye

swerve, and if ye distort (justice) or decline to do justice, verily Allah is well acquainted

with all that ye do. [4/135]”

“And O my people! Give measure and weight in Qist (justice) and reduce not the

things that are due to the people, and do not commit mischief in the land causing

corruption. [Prophet Shoaib (PBUH) to the people of Madyan 11:85]”

20. 1980 PLC (C.S) 207

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2.5 Civil Bureaucracy and Governance

Civil Service in Pakistan is a permanent institution and has to be above party politics. Bureaucracy as a whole remains unchanged with the change of political governments barring transfers with the Ministries / Departments. The history of bureaucracy is not up to the mark, the years in which an elected civilian executive exercised control over bureaucracy. Later on the civilian bureaucracy more or less dominated at all levels of governance. After that the military bureaucracy assumed more or less direct command of all policy making. Then there were years when nobody was really in charge. In terms of performance, the period between 1947 to 1969 was probably the best. Pakistan overcame severe initial challenges and embarked upon an impressive modernization program. The Ayub’s regime was better in terms of the country’s economic conditions but bureaucracy take over the key positions of the country which mostly proved to be corrupt and they adversely affected the governance of the country21.

During the Zia era, bureaucracy was little comfortable with him and a marginal recovery of the conditions of service brought some stabilization in civil service. Bureaucracy was in line with government but it totally failed to provide justice, fair play and merit to the people of Pakistan. In both Benazir and Nawaz Sharif era bureaucracy was fully involved in politics and merit was totally ignored, Corruption was at its peak. As mostly bureaucrats were incompetent so they failed to deliver good governance in the country.

During post 1999 era, bureaucracy was the worst hit segment of state apparatus. Musharraf in pursuit of perpetuation of his illegitimate rule tried to bulldoze anything and everything that he thought may hinder his adventure for power.

21. Panandiker, Sudha publishers Ed: 2009 “Problems of Governance in South Asia”, p 212-213

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By introducing PCO judges in superior judiciary, he involved his military in routine administrative matters ranging from collection of electricity bills to managing state owned public enterprises. He introduced the Devolution of Power Plan 2000, doing away with the centuries old time-tested administrative service, without realizing its adverse consequences. Placing the civil bureaucracy subordinate to a local government representative namely Nazim of the district was an attempt to put the cart before the horse, which did not work22.

2.6 Frequent Military Interventions

From the ancient centers of civilizations in China, Egypt, India and Persia to the classical Hellenic and Roman empires, feudal domains, medieval aristocracies and more recent enlightened despotisms of Europe, it was the sword that dominated the spirit18. It shows that whenever military interfered in the civil government, it has destroyed the whole system of governance the same holds truth for Pakistan.

Military has interfered the country many times, much to the destruction of whole democratic system and governance. It has never allowed the state building institutions to flourish so that they could help to maintain good governance in the country. Had military not frequently intervened in the internal administration of the country, we would have a fully developed system of administration in the country and we would have not faced the governance problem. Once the military acquainted itself with the taste of political power, the entire fabric of the constitutional development came crashing down. 23

22. Ilhan Niaz, Karachi: Oxford University Press, Ed: 2010, The Culture of Power and Governance of Pakistan p138-141

23 Ibid 18

Due to clash of legitimacy and prudence, Pakistan has been trapped in a cycle of instability with the military and civilian political leadership destabilizing each other24.

The age old Doctrine of necessity has paved the way for military for martial laws. The history of these doctrines can be traced in following cases. Dosso Vs. Federation of Pakistan25, In Dosso’s case (1958), the Pakistan Supreme Court used jurist Hans Kelsen’s theory that a “revolution can be justified when the basic norm underlying a Constitution disappears and a new system is put in its place”.

Molvi Tamiz-ud-din Khan Case26, in Molvi Tamizuddin Khan case, the Supreme Court headed by Chief Justice Mohammad Munir backed Governor General Ghulam Mohammad’s action to dissolve the first Constitutional Assembly. This judgement of the Supreme Court is always strongly criticized by all democratic parties of Pakistan and is referred to as a root-cause of unstable democracy in Pakistan.

Nusrat Bhutto Vs. Chief of Army staff and Federation of Pakistan27 On November 10, 1977 the Supreme Court unanimously validated the imposition of the martial law, under the doctrine of necessity. The law of necessity recognized and upheld by Pakistan’s highest judicial body, has proved an honorable protection for military adventure in civil government.

24. Shahrukh Rafi Khan, Fozia Sadik Khan and Aasim Sajjad Akhtar, Initiating Devolution for Service Delivery in Pakistan: Ignoring the Power Structure (Karachi: Oxford University Press, 2007), 4

25. PLD 1958 SC 533

26. PLD 1955 F.C 24

27. PLD 1977 SC 657 19

2.7 End of Doctrine of Necessity in Pakistan a good sign for governance in Pakistan

In PCO Judges case on July 31, 2009, the full bench of the Supreme Court of Pakistan, decided once and for all that the doctrine of necessity is absolutely inapplicable in Pakistan and such precedent can never be cited in