Crisis Of Governance In Pakistan Politics Essay

Published Date: 23 Mar 2015

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.

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 any court whatsoever in Pakistan.

This decision along with Article 6 the Constitution of Pakistan 1973 is a good sign for good civil governance in Pakistan.

2.8 Judicial System and Governance

Right from the independence the judiciary has been working in the hands of government except after the renaissance of judiciary in 2009. Whenever any complaint was lodged against mal-administration or bad governance of government, the judiciary has not tackled this problem independently and titled its weight towards governments. Because of this bad administration and corruption raised in the country, the people confidence was lost in the judiciary. History of role of judiciary in Pakistan in governance issues has been summarized below.

In Pakistan, by October 1958 the judicial and legislative aspects of rule of law were effectively subordinated to executive at district level and there was no separation of power at district level. These powers were not acquired with violence and bloodshed but carried through to fruition with the active collusion of senior members of judiciary led by the then Chief Justice of the Federal Court, Muhammad Munir28.

28. Nia ahmad, Carvan publications Ed: 1998 " The Culture of Power and Governance" p178.

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Chief Justice Muhammad Munir, Justice Sharif and Justice Rehman upheld the dissolution of the Assembly and reversed the Supreme Court verdict. Justice Akram abstained while Justice A.R Cornelius dissented and observed that the assent of the Governor General had not been considered necessary and bills became laws through the will of the people exercised by their elected representatives in the Assembly followed by the President of the Assembly signing them and getting notified in the official gazette29.

Thus having saved his mentor, Justice Munir's decision plunged the country into a legal limbo as dozens of acts of assembly stood repudiated by virtue of the lack of the Governor General's assent. Ghulam Muhammad issued in the manner of an imperial addict the Emergency Powers Ordinance-IX of 1955 that enabled him retrospectively to validate laws passed by the constituent Assembly. This ordinance was challenged before the Federal Court in the Yusaf Patel Vs the Crown Case. The executive was challenged on the ground that it did not have the power under law to make changes to the constitution, of its own free will. The Federal Court accepted the appeal and rejected the Governor General's exercise of emergency into an even more inflexible crisis. The legal machinery of the state faced ruin as challenges to its legality mounted.30

2.9 Judicial activism and problems of governance

The question of "judicial activism" is of an increasing relevance to us in Pakistan; more so following the judicial "revolution" epitomized by the restoration of the Chief Justice of Pakistan.

29. Jan Mohammad Dawood, Karachi: Royal Book Company, Ed: 1994 " The Role of Superior Judiciary in the Politics of Pakistan" p. 18.

30 Ibid. 21

Judicial activism derives its existence from the judgments of the Chief Justice of the US Supreme Court John Marshal in the early 19th century. In the landmark case of Marbury vs. Madison31. Judicial activism means that the spirit of the times and the needs of the nation can legitimately influence judicial decisions. The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers. Judicial activism can be narrowly defined as three possible actions:

Overturning laws as unconstitutional,

Overturning judicial precedent, and

Ruling against a preferred interpretation of the constitution

John Marshall. Once said;

"If a law written by the legislature conflicts with the Constitution, the law is "null and void." Only laws which shall be made in pursuance of the constitution are to be the supreme laws of the land."

According to Black's Law Dictionary

"Philosophy of judicial decision-making whereby judges allow their personal views about public policy, to guide their decisions".

2.10 Utopian view of governance under judicial activism:

Trend of Judicial activism has imparted an utopian view of governance in Pakistan. Things which seem easily applicable by judiciary some times have different scenario on reality.

31. 5 U.S. (1 Cranch) 137 (1803)

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For instance, on October 11, 2010 a three-judge bench comprising Chief Justice Iftikhar Mohammad Chaudhry, Justice Jawwad S. Khawaja and Justice Ghulam Rabbani, setteled sugar price at rupees 40 per Kg and observed. [Pakistan Sugar Mills Association and the federal and provincial governments Vs. Public At large (Oct 11, 2010 LHR)]

"We consider it appropriate to appoint a commission for the purpose of determining the price of sugar after taking into consideration the cost of production, undoubtedly a technical job to be performed by an organization having sufficient infrastructure to deal with the issue,"

But if go by ground realities, it was impossible to sell sugar at rupees 40 per Kg, and it was unmanageable for the government to implement the decision. Such impracticable decisions affect the governance and results in bad governance.

2.11 Lack of System of Accountability

Accountability as defined in the Oxford Advanced Learner's dictionary means "Responsible; expected to give an explanation of one's actions". 32 The public administration dictionary has defined the term accountability as "a condition in which individuals who exercise power are constrained by external means and by internal norms". 33 Accountability as a phenomenon has been present in this world from the time immemorial. There was always someone superior who could hold his subordinates accountable for their misdeeds.

As for as accountability in government institutions is concerned, various mechanisms are in existence which can broadly be divided in to two categories i.e. administrative accountability and financial accountability.

32 A.S.hornby, F.V. Galbany, Oxford publication,second edition, "The advanced Learner's Dictionary of Current English"p18

33 Jonathan G. S. Koppell Cambridge University Press ed: 2003 "Public administration dictionary" p,44

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The Government has promulgated the Government Servants (Conduct) Rules to regulate the conduct of the officers/officials in government departments /institutions. In addition there are Efficiency and Disciplinary Rules which regulate the process for taking action against any Government Servant who has been charged with any irregularity. The financial accountability is regulated through the mechanism of audit. The carrying out of systematic audit of the departments/ institutions is responsibility of the Auditor-General, an independent constitutional body, directly responsible to the Parliament and the Chief Executive.

2.12 Incompetent Politicians

Incompetent politicians have also adversely affected the governance system in Pakistan. The basic problem is with politics. This is both systemic and generic. Systemic in the sense that our political system is not designed to perform the type of functions it is entrusted with. Generic in the sense that the political apparatus (Parliament, the government or the cabinet) designed for performing certain functions, essentially the sovereign functions does not have the capacity to discharge the duties assigned to them.

There is a sharp difference between our political culture and governance. They do not mix well. In some cases it does but in many it does not. Merit, social justice, transparency, good governance, effective economics and enterprise management do not find a place anywhere in our politics. Politicians have a one-point agenda to attain power and that too, not for the purpose for which they are elected, but for their narrower and even personal agenda34 .

34. Subhash C. Kashyap, Institution of Governance in South Asia (Delhi: Konark Publishers Pvt. Ltd., 2000), 47-82.

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Corruption, land grabbing, arms trading, smuggling, drug trafficking, human trafficking, money laundering and extortion, almost all the tactics of an organized crime have become the hallmark of our political governance. Politicians do not do what they are mandated to do; instead they try to do what they are not supposed to do, i.e. interfere in the functions of the executive and at times judiciary as well. The civil service is invariably heavily politicized whereby the bad coins often drive out the few goods. Resultantly the civil service has become highly politicized, weak, inefficient, corrupt and almost dysfunctional.

This problem again is systemic in nature, as the political activities have become capital intensive. Lot of money is needed to run political parties, to conduct election campaigns and purchase votes during and after elections to come to power. This leads to corruption and criminalization of politics and the role of drug peddlers, land grabbers and rent seekers in the democratic process.

2.13 Demographic challenges to Governance

Demographic challenges to governance in Pakistan are horrendous. The problems of governance, Pakistan is facing are due to a variety of reasons. But the immediate problem is that of enormous pressure on limited resources of the country due to demand and supply. To face this challenge Pakistan needs to proceed faster on economic development, especially in large scale human resource development initiatives which are labour intensive. That perhaps, may be an attempt, whereby we can take advantage of this demographic dividend and can turn an adversity into an opportunity.35

35. http://blogs.cgdev.org/globalhealth/2013/01/pakistans-demographic-challenges.php accessed on 28th October 2012

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2.14 Ethnic Problems of Governance

Ethnicity has been and is an endemic source of problems for governance, it can be religious, linguistic, regional or other identities including social identities. Pakistan, these days is passing through a crucial era of multifarious ethnic problems, multi-lingual and regional problems. Province of Punjab has three distinct ethno-linguistic groups i.e. Punjabi, Potohari and Saraiki speaking. There is a nascent rise of Saraiki consciousness with a demand for a separate Saraiki Province comprising of Saraiki speaking areas. In Baluchistan the Baluch , Brohi and Pakhtoons are dominated ethnoligual groups. In the North-Western Province of Pakistan, apart from Pushtu, Hindku and Saraiki are also spoken in some parts of that province. The Pustoons as an ethnic group are integrating with the economic life of the rest of the country. The issue of Kalabagh Dam has arisen out of the same ethnic issue and provincial disharmony of Pakistan in the province. 36

The struggle for Pakistan was a unique historical experience with few parallels in the annals of history. It transcended ethnic, linguistic, cultural and regional differences and united into a powerful movement culminating in the creation of an independent homeland for the Muslims of the sub-continent. It even defied the geographic compulsions. However, Pakistan after its creation gradually turned into ethnically plural society.

Different ethnic groups can reside in one nation peacefully if there is less discrimination and good dovernance, but if the struggle to win ethnic rights is constantly hampered, it transforms into a movement for an independent nation.

36. Ayesha Jalal, pub Karachi: Cambridge University Press, 1995 "Democracy and Authoritarianism in South Asia" , p239

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In a country like Pakistan, where economical and political instability prevails, ethnic differences augment with a ferocious pace and the consequences can be dreadful, thus preventing measures through good governance must always be taken to reduce these conflicts. History concurs with this notion as ethnic differences comprising of economical and military disparities and "language controversy" lead to a war in 1971 between East and West Pakistan. It resulted in separation of East Pakistan which became Bangladesh. "Urdu-Bengali conflict "was one of the primary factors which gave birth to Bengali National Movement.37

Summing up, what has been said earlier, it is evident from the terrorist activities in KPK, and insurgency in Baluchistan, extortion and target killing in Karachi, that regional and linguistic ethnicity is on the rise in Pakistan, posing a serious threat to law and order situation in the country. Resultantly, this unrest and lawlessness has given rise to crisis of governance in Pakistan.

2.15 Role of Civil Society Organizations (CSOs)

Good governance is critical in reducing poverty through transparent and effective use of public resources, improvement in public service delivery and enforcement of government rules and regulations. Socio-economic development is the prime duty of the state in resource-constrained countries like Pakistan, Bangladesh, India, Nepal and Bhutan. This can be achieved by participation of all segments of the society. The limited capabilities of the governments have made it difficult to respond effectively to the growing needs of population at grass roots level. 38

37. .H. Qureshi, pub University of Karachi, 1965 "The Struggle for Pakistan", p 242

38 http://theroleofngosinpakistan.blogspot.com/ accessed on 2nd November 2012

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To improve governance, a practical approach can be developed partnership with NGOs. In this regard about one million NGOs working in the South Asia can play a vital role in achieving the social objectives. NGOs can play a significant role to ensure good governance in a country. The custodian of good governance remains the civil society, essentially the citizens. Civil Society Organizations can inculcate a feeling among the citizens to exercise their rights of franchise in order to vote for people who are responsible for fulfilling their needs. These organizations may also be expected to keep the elected representatives accountable with regard to the quality of public services and the state of law and order. 39

NGOs are growing quickly in numbers and areas, but their potentials have remained unutilized because of the cynicism towards their role. These are becoming vital players in rural development and poverty alleviation through their micro-financing programmes, while playing important role in lobbying in the field of environment and developmental policy-making. 40

The NGOs are of varying types such as community-based organizations, intermediaries and support/international NGOs. They have basically, the same agenda of helping people to come out with self-sustainable socio-economic programmes with the difference of levels at which they work. Similarly, in Pakistan, the Rural Support Programmes (RSPs) and other NGO contributions in the Northern Areas and in all the four provinces are visible. 41

39. http://theroleofngosinpakistan.blogspot.com/ accessed on 2nd November 2012

40. Ibid.

41. Ibid.

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Hence, these NGOs at their own levels, without state's open-arm policies are playing important roles in achieving social targets, though at micro level. Grass roots organizations and intermediary NGOs are making numerous contributions to the sustainable development. They are mobilizing local people and resources to support projects with a motive to enable people to improve quality of life. As a result, people may link all the elements of sustainable development including ecology, economics and politics.

The need for NGOs and the potential they have in mitigating the problem arising from this inadequacy is evident, yet the NGOs have emerged as a better alternative in tackling some of the basic issues facing human kind today, such trend should be encouraged by the government in order to achieve good governance. 42

Participation of civil society in checking the government's power, voicing their concern for the people, protesting against the state atrocities and keeping officials accountable is even more important in developing countries like Pakistan.

Civil Society Organizations (CSOs) are not delivering their best in Pakistan, the reason of their failure can be studied in two folds, one is internal constrains and the second is external constrains.

2.15.1 Internal Constraints

CSOs are mostly funded by foreign countries, so they are widely condemned. The donor dependence of the CSOs for local development is not appreciated, but still the states in the region are responsible for this state of affairs of the CSOs. Since, the state is primarily responsible for social development; it has funds and development plan, which can be shared with the CSOs.

42. http://theroleofngosinpakistan.blogspot.com/ accessed on 2nd November 2012

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CSOs claim that there only task is to create social awareness but when people feel that CSOs are not helping them concretely, they lose interest and merely social awareness is of no use to them. Some of the clever participants turn this opportunity to their own favors by manipulating different CSOs to get funds in the name of social work. They know that projects are foreign funded and there is no commitment and sincerity behind it. Most CSOs have more or less become family business, making big profit. As it is discussed above that CSOs receive funds from abroad but nobody knows where and how these funds are utilized. So, people don't trust CSOs as they consider them as fraud.

2.15.2 External Constraints

Foreign interest in Pakistan and non state actors involved in proxy wars, wish bad governance in Pakistan so that their propaganda flourish, the role of CSOs in Pakistan help to develop good governance and discourage foreign role and proxy war. Terrorist groups in Pakistan are external constrains to the CSOs. The best example is case of "Malala Yousafzai" she was fighting for the cause of women education and enlightenment, but the active terrorist group, shoot her to stop her noble cause.

2.16 The Role of Media in Good Governance

After Pakistan came in to his existence, a number of newspapers were published, but due to financial problems and many other reasons, they did not continue their publication such as ROSHNI, INQALAB and MUSALMAN. The first news agency was APP (Associated Press of Pakistan). It was established in 1947. It was a private news agency since 1947 to 1961. Government took its control on 1961 by an ordinance. 43

43 http://www.pkhope.com/history-of-media-in-pakistan/ accessed on 2nd November 2012

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Pakistani media started its role of public awareness, soon after the creation of Pakistan and gradually developed into a strong fourth pillar of the Government.

In Pakistan, media is working freely and independently. In case of electronic media there are, a number of channels which are working including news, sports and entertainment channels. It is the responsibility of media to highlight those issues which are good for the public and discourage unethical factors of the society.

Modern Media in Pakistan has played a positive role in highlighting the issues of national interest and starting a public debate which subsequently resulted in change of government policies. The clamor in the assembly over the rental power projects as well as mismanagement and corruption in key state enterprises like steel mills and sugar sector have been media driven eventually leading to unearthing of financial scams.

The debates on Kerry-Lugar Bill in the media forced the parliament as well as the other stake holders in the government to initiate a debate and reconsider the terms and conditions in the proposed Kerry-Lugar Bill which were detrimental to the security and sovereignty of Pakistan. The media also exposed the strong sugar mafia within the corridors of power for which the journalist who exposed the mafia had to face the wrath of a sitting powerful minister.44

A responsible media and good governance go side by side. In the present democratic set up, the Pakistani media is not only helping to nurture proper and strengthen democracy but at times political agenda is increasingly being set by the media.

44 http://jang.com.pk/thenews/may2011-weekly/nos-22-05-2011/pol1.htm accessed on 9th November 2012

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The media is filling a political vacuum created by lack of informed or sustained debate in the Parliament. All issues of national importance are being discussed in the prime time TV talk shows among the politicians, political analysts and researchers which greatly influence the public opinion and change the way people think about politics and policies of the government. 45

45. http://jang.com.pk/thenews/may2011-weekly/nos-22-05-2011/pol1.htm accessed on 9th November 2012