Playing with basic law: Devolution Plan of Musharraf - 2

Part 2

DEVOLUTION IN PAKISTAN: REFORM OR REGRESSION? 22 March 2004


III. THE MUSHARRAF DEVOLUTION

A. DOMESTIC AND EXTERNAL IMPERATIVES

On 12 October 1999, Pakistan's military deposed Prime Minister Nawaz Sharif's elected government. Accusing Sharif of destabilising the army and creating dissension within its ranks, Army Chief, General Pervez Musharraf claimed that the armed forces had "no intention to stay in charge any longer than is absolutely necessary to pave the way for true democracy to flourish in the country". Primarily driven by the need to legitimise the coup, Musharraf quickly announced a seven- point democratic reform agenda to address Pakistan's institutional decay. This included rebuilding national confidence and morale; strengthening the federation while removing inter-provincial disharmony; reviving and restoring investor confidence; ensuring law and order and dispensing speedy justice; reconstructing and depoliticising state institutions; ensuring swift across-the-board accountability; and devolving power to the grass roots level. Like his military predecessors Musharraf quickly seized upon the idea of using local government to advance regime survival and consolidation. Creating a National Reconstruction Bureau (NRB) under retired General Tanvir Naqvi in November 1999, he made devolution and diffusion of power a main policy priority of his military government. While the NRB had a broad national reconstruction agenda, Naqvi and his team of mainly donor-financed consultants concentrated on this. The Bureau produced a broad local government blue print that Musharraf announced on 23 March 2000. He claimed devolution was "the beginning of a constructive, democratic, dynamic revolution whose sole objective is to place in [the] hands of the people the power to shape their own destinyÂ….an unprecedented transfer of power will take place from the elites to the vast majority". In "devolving powers", Musharraf was actually replicating the attempts of his predecessors to circumvent popular aspirations for representative rule. He and his fellow generals faced special constraints, however, in the context of the October 1999 coup. Pakistan's military rulers have traditionally relied on U.S. diplomatic and economic support to prolong and consolidate their power but both Ayub and Zia had taken over when external conditions were conducive to military rule.

Having deposed an elected government in a post cold-war environment where electoral democracy has emerged as the preferred form of government, Musharraf's need to dispel international apprehensions was far more acute. Says an analyst, "the military's decision to devolve substantial powers to local levels was informed in no small part by the need to assuage international concerns about political democracy, which could no longer be satisfied merely by creating nominal local bodies". Despite reservations over misrule and corruption, the international community had opposed the October 1999 military takeover, and the U.S., EU and Japan imposed trade and economic sanctions. Keen to end its isolation, the military government's strategies included the ostensible devolution of power to civilians at the local level even as it maintained control of the real levers of state power, those at provincial and national levels. Local governments were intended to establish the military's democratic credentials and confirm its intent eventually to restore civilian rule. Announcing his local bodies plan on the eve of U.S. President Clinton's visit, Musharraf declared, "Democracy starts here at the district and local governments, from here we will move up step by step to provincial and federal (elections) in due course". The devolution decision was also aimed at co-opting domestic and external constituencies that favour decentralisation and local empowerment. Since donors as well as influential sections of civil society such as the media and NGOs have long blamed bureaucratic corruption and centralisation for Pakistan's political and administrative malaise, Musharraf distanced his government from the discredited machinery.

In his 23 March speech, he stressed that "the entire administration system has been distorted, and interference by the Federal Government in local affairs has been extreme". Another key motivation was to create new elites so as to undermine and marginalise political adversaries. Ruling through non-partisan local bodies is a time-tested strategy employed by Pakistan's military rulers. Echoing the military's traditional distrust of party politics, Musharraf made it clear in August 2000 that local elections would be non-partisan, ostensibly to discourage petty political rivalries at district level. A multitude of scattered local power centres dependent on patronage are easier for the military to deal with than four, relatively more cohesive provincial governments. By creating a democratic façade at local levels, Musharraf hoped to circumvent constitutional provisions for provincial political, administrative, and fiscal autonomy. Under the 1973 constitution, Pakistan is a federation, and local government is a provincial responsibility. The leaders of Pakistan's mainstream parties, including the PPP and the Pakistan Muslim League-Nawaz (PML-N), say Musharraf, like others before him, has employed devolution merely to extend military control over the provinces. "Real devolution", a PPP leader said, "would entail transfer of powers from the centre to the provinces, resulting in substantive provincial autonomy". PML-N's Ahsan Iqbal, former head of the Federal Planning Commission, agreed: "The provinces are already weak with the centre usurping many of their powers under the concurrent legislative list, and local governments will be one more step in this direction".

B. THE BLUEPRINT

The NRB presented its full draft Devolution of Power Plan in May 2000. The plan revived Zia's three-tiered system of local governance at the union, tehsil and zila levels, but envisaged unprecedented administrative and developmental functions for elected officials. One of the most radical measures was subordination of the district administration and police to the elected chief mayor. District governments were also to be vested with significant financial resources through federal and provincial grants and tax powers. The plan envisaged a district assembly comprising chairmen of all union councils in a district. The assembly was made responsible for approving bylaws, taxes, annual development plans and budgets. To improve service delivery and monitor citizen rights, it would oversee governmental departments through its monitoring committees. A
tehsil council, comprising union councillors from the tehsil, would perform functions at its level. The lowest tier, the union council, would have its own chairman and 26 councillors. Members of the union council were to be elected directly by adult franchise and would also act as the electoral college for reserved seats. The main function of the union councils was to undertake local development projects and monitor "citizens' rights, security and services". The plan expanded the franchise by reducing the voting age from 21 to eighteen, while 50 per cent of the seats in union councils were reserved for women. Joint electorates were proposed for minorities in order to address long-standing demands from women and minority rights' groups.

1. Administrative Decentralisation

The plan proposed to abolish the posts of deputy commissioner and assistant commissioner, who
traditionally controlled executive, judicial and revenue functions in a district, and establish a new
administrative structure led by a district coordination officer (DCO). Magisterial and legal powers were transferred to the district and sessions judge and police oversight powers to the nazim. The divisional tier of administration headed by the commissioner was abolished, and the nazim received the power to appoint and remove the DCO, albeit with the approval of the district assembly. Justifying this restructuring, the NRB claimed that concentration of authority, particularly in the office of the deputy commissioner, creates the potential for "arbitrariness, incessant delays, management and corruption in government operations". But critics say its most significant change was designed to weaken the civil service's elite district management group (DMG), which had virtually controlled district administration, as well as top tier posts in the provincial and federal governments. The military's decision to dilute its authority also resulted partly from strong opposition to the DMG among senior police and income tax officials, who occupied key posts in Musharraf's secretariat. Targeting the DMG was also an attempt to capitalise on divisions within the civilian bureaucracy in order to expand direct military control
over administration.

This was reflected in an NRB document:

The civil service is effectively controlled by the DMG. The group has close relations with international donorsÂ…Other groups in the public administration chafe under the control of one group and would welcome a democratisation of civil service structure as a basic element of civil service reform. The end of the domination of the bureaucracy by one group is a necessary pre-condition for the attainment of administrative power by the Army and the creation of conditions for national reconstruction (emphasis added). The restructuring included devolution of provincial line departments to district level and creation of new departments of law, literacy and information technology. Each district department was placed under a district officer, assisted by a deputy (DDO) at sub-district levels. The tehsil (sub-district) government was to have overall responsibility for basic municipal services. Under Zia's local bodies system, rural and urban areas were separate political entities, divided into union and zila councils for the former and town committees, municipal and metropolitan corporations for the urban areas. With the ostensible aim of mitigating this rural-urban divide, the devolution plan proposed that tehsils (towns in city districts) would include the rural as well as urban union councils. In the words of the plan, "the integrated tehsil government will mitigate the prevailing rural-urban frictions by providing opportunities for representation in proportion to the population and taxation in proportion to the services". To involve people in community development, the plan also called for creation of citizen community boards (CCBs) in both urban and rural areas. Also planned were village (and neighbourhood) Councils for changing popular attitudes from a "reactive to a proactive mindset".

A zila mohtasib (district ombudsman) was to give the public an independent mechanism for addressing complaints against local government officials.Acknowled ging in principle the different administrative, policing and municipal needs of large cities, the plan also envisaged creating city district governments.

2. Fiscal Decentralisation

Pakistan has a highly centralised fiscal system with the federal government raising some 90 per cent of tax revenues. Provincial governments rely overwhelmingly on federal transfers, which are some 80 per cent of their revenues. Under the proposed Local Government Plan, local governments would receive revenue through formula-based provincial transfers and the decentralisation of specified taxation powers. While the plan remained vague on the exact modalities of fiscal decentralisation, it proposed a provincial finance commission (PFC) for the transfers, and envisaged that district and tehsil Councils would have legislative authority to levy specific taxes.

3. Law Enforcement

Under the Police Act of 1861, the district superintendent of police was subject to the operational control of the deputy commissioner in addition to the provincial police hierarchy. With the proposed abolition of the office of deputy commissioner, the district police chief was made responsible to the elected chief mayor. While the province remained the designated level for "raising, training and equipping" police, the plan called for revising law enforcement functions. District (and provincial/national ) safety commissions were proposed to monitor police performance and redress public grievances. Watch and ward functions were separated from investigation. An independent prosecution service and a provincial police complaints authority were also envisaged.

C. MILITARY EXCEPTIONS

Following the 1999 coup, the military swiftly put its own people into key civil service institutions in the name of reducing corruption, introducing accountability, and monitoring government. This
insertion of 3,500 military people into civilian bodies at the national, provincial, divisional and district levels as "army monitoring teams" promoted official abuse and belied the official rhetoric of citizen empowerment and devolution of power. The spirit of devolution was also negated in a far more significant way. The local government plan was to be applied to the four provinces, but not to some 41 largely civilian populated cantonments (military garrisons) in towns and major cities, which would remain under the control of military station commanders. The issue of integrating cantonments with elected local governments was left to the future since "local government already exists in the cantonments in the form of cantonment boards". That is simply untrue. Cantonments are run under the Cantonment Act of 1924, which vests statutory control to the army. Under the act, the army station commander is, ex officio, President of the Cantonment Board, which has a nominal elected component but can be dismissed by the president. Dating back to colonial times, this act mainly concerns the orderly administration of military lands and garrisons. Says a former elected member of the Rawalpindi Cantonment Board, "the devolution plan only reinforces the non-elected nature of governance in cantonments where civilians have little or no voice or representation" .

Even freedom of movement is often severely restricted in cantonments by military checkpoints. Official sources confirmed to ICG that the initial decision to include cantonments in the plan met with stiff resistance from army corps commanders, who justified their opposition on national security grounds. According to a federal official, "the army is loath to abdicate control over the cantonments, which contain lucrative army real estate and installations under its exclusive administrative control since independence" . Exclusion of the cantonments meant that the station commander could continue to exercise colonial-style control over civilian populations while the entire district administrative structure was being abolished, ostensibly to empower citizens. The Federally Administered Tribal Areas (FATA) was also not included in the devolution system, although this was left open for future review. Opposition from tribal leaders was cited as the main reason but critics say the federal government's traditional aversion to public participation in the strategic border region played a part. The Federal Capital Territory (Islamabad) was likewise left out.

D. DOMESTIC REACTION

Major political parties, independent human rights groups, the media and analysts opposed the draft devolution plan. Most political parties believed the military's scheme was little more than a ploy to ensure regime survival. Another aim, according to the opposition, was to deflect international attention from the need to restore democracy even as the centre extended its direct control over local politics and administration. Said an opposition politician, "with generals controlling state authority from the top, the devolution plan is an attempt to cover up and postpone the main issue of transferring power to elected representatives" . Party leaders from across the political divide shared this view. "The federal government encroaches on a number of provincial subjects which it controls through central ministries", said the PML-N's Ahsan Iqbal. "Devolution from the centre to the district will further undermine the principles of federalism and provincial autonomy". According to the PPP's Senator Raza Rabbani, "the NRB's devolution system completely bypasses provinces to create over 100 districts that could be directly controlled and manipulated from Islamabad. Provinces have been made redundant". The fiercest opposition came from ethno-regional groups in Baluchistan, Sindh and the NWFP, who have traditionally demanded the provincial autonomy guaranteed to Pakistan's federal units by the 1973 constitution. In Baluchistan, where the centre's usurpation of provincial political and economic rights had resulted in an armed insurgency in the mid-1970s and opposition to the Punjabi-dominated military is strong, the plan was suspected to be a cover for army efforts to consolidate control over provincial affairs. "The already limited powers of the provinces are being forcefully transferred to the district. The real aim is to undermine provinces, fragment political power and ensure direct control of the military over governance", warned Abdul Hayee Baloch of the Baluchistan National Movement (BNM). In the NWFP, where demands for political and fiscal autonomy have also been traditionally suppressed, the Pashtun-dominated Awami National Party (ANP) rejected the plan and compared it to earlier failed military experiments.

"The fact that the federal government is taking the decision to hold local elections", said ANP leader Asfandyar Wali Khan, "is indicative of further centralisation of powers and negates the concept of local governance". These critiques remain relevant. In 1971, centralisation of power and authoritarian government resulted in bloody civil war and Pakistan's dismemberment. In 2004, the military's propensity to concentrate all power in its hands and its aversion to democratic governance are exacerbating regional divisions and promoting internal tensions. Instead of empowering citizens, the devolution scheme has exacerbated the Pakistan state's institutional crisis by rooting the military in local politics. The independent Human Rights Commission of Pakistan (HRCP) has rejected the military's devolution plan on the ground that its main aim is to "depoliticise governance and to earn a lease of life for the (military) government behind a sort of democratic facade". The Commission has also called upon the military-led government "to develop a consensus with political parties on a strategy for its own withdrawal and the country's return to democratic rule".

IV. FINE-TUNING THE PLAN

Some of the more radical reforms envisaged in the draft Local Government Plan were diluted in the final version released in August 2000. The nazim lost the crucial powers to appoint and remove the district coordinating officer, the district's most senior civil bureaucrat, for instance. While government sources cited "institutional stability" concerns for this, the military was clearly reluctant to forgo the option of using the civil bureaucracy to control elected officials, particularly potential opponents. "The military would have been left with no levers to control the districts in case of political surprises", says a senior government official privy to NRB policy meetings. NRB advisors recommended to Musharraf and his corps commanders that the centre control civil service transfers and postings, and thus retain power over local decisions. The initial scheme had also envisaged repeal of the separate electoral system for minorities but the final version retained it, with five per cent of seats reserved. It also reduced reserved seats for women from 50 per cent to 33 per cent. Both steps, analysts say, were to accommodate the religious right, traditional allies of the military. At the same time, academic qualifications of not less than a secondary school certificate or equivalent were made mandatory for all nazims and naib nazims, ostensibly to create a "more educated and well informed" elected leadership. The Final Local Government Plan 2000 also introduced a far-reaching change to the election method for the zila and tehsil nazims and naib nazims. The draft plan had recommended direct elections for both offices on a joint ticket. However, army corps commanders overruled the NRB, and the final plan replaced this with indirect elections whereby directly elected union councillors would choose the nazim and naib nazim. The official justification given was that as the district in many cases was much larger than a National Assembly constituency, direct elections could produce complications when national elections were held. Otherwise, the crux of the reforms remained more or less intact. The district administration remained answerable to the nazim; provincial line departments were devolved to districts (including education and health); and the divisional tier of administration was abolished. As a result of the new delimitation of administrative boundaries, 97 districts and four city districts, one in each provincial capital, were created.

A. LOCAL ELECTIONS

The government's actual motivation for indirect elections was soon revealed by the local government elections. Indirect choices lend themselves better to rigging. Simply put, it was far easier for the military government to manipulate a constituency of a few hundred union councillors than face the unpredictable vote of over 1 million voters (the mean number in a district).Political parties were formally banned from the elections. However, most fielded candidates unofficially to take advantage of the partial electoral opening and retain a degree of leverage through the nazims in case the military decided to use them as an electoral college for the national presidency. Army corps commanders knew full well the risks of a direct election in light of the PPP's largely intact strength. In fact, the direct elections for union nazims and councillors, held from December 2000 to July 2001, proved their worst fears. PPP-backed candidates were returned in large numbers to union and tehsil councils across the Punjab and Sindh and even the NWFP. According to a former NRB consultant, "Opting for indirect polls was a calculated move to prevent the PPP (and PML-N) sweeping the district nazim polls in their traditional strongholds" . The local elections were held in five phases, over almost nine months.

This allowed careful monitoring of each phase so that "surprises" could be managed accordingly. Opposition parties say the indirect elections were selectively rigged to install pro-military nazims, especially in the Punjab. Rigging took both direct and indirect forms. First, the military manipulated official electoral mechanisms. Since local government is a provincial responsibility under the 1973 constitution, provincial authorities traditionally conduct local bodies elections. However, the Local Government Elections Order 2000 bypassed the provinces, entrusting the task to the Election Commission of Pakistan (ECP), which operates, for practical purposes, under federal control. On the eve of the elections, it threatened to disqualify candidates with party affiliations in what was widely seen as a politically motivated move to strengthen military-backed candidates. The military also used coercion and cooption. On 6 July 2001, for example, senior leaders of the pro-military PML-Q were reportedly summoned to the Presidency to help identify suitable zila nazim candidates for key Punjab districts. Instructions were then issued to corps commanders and heads of military and civil intelligence agencies to ensure their victories. In Rawalpindi, home to Army Headquarters, pro-PPP or PML-N candidates for district and tehsil nazim were pressured to withdraw and support military-backed candidates. Sheikh Rashid Ahmed, then a PML-N leader and now Federal Information Minister in the PML-Q cabinet, withdrew citing his inability to win under the "circumstances" . In Jhelum district, the elected nazim was "motivated" to switch to the PML-Q.

In Gujarat district, the brother of Chaudhry Shujaat Hussain, now PML-Q parliamentary leader, was chosen nazim despite a clear PPP majority among the elected union councillors. In Lahore, Punjab's provincial capital, pro-PML-Q candidates openly solicited votes on the basis of support from the military. District administration officers were changed to influence the outcome in PPP Punjabi strongholds. Deputy commissioners and police superintendents were instructed to "encourage" union councillors "to vote for the party committed to General Musharraf's agenda of national reconstruction" , a clear euphemism for the PML-Q. Similar tactics were deployed in Sindh, the NWFP and Baluchistan. As a consequence, rather than creating the conditions conducive for electing a credible local leadership, the military made further incursions into civil society and undermined the rule of law. Its bid to sideline party politics through non-partisan elections also encouraged the politics of patronage based on tribal, ethnic and sectarian affiliations or even just monetary considerations. An official reports that, "a curious process of political realignment took place at the district level with party loyalties subordinated to the goal of winning the elections". According to Ahmed Rashid, "the non-partisan nature of the elections and the military's manipulation of the process has exacerbated caste and biradari divisions, further undermining already weak political parties and their representation at the lower levels". Since these elections bypassed political parties and weakened party loyalties, electoral competition took place along caste lines. With caste-based candidates pitted against each other, the elections reinforced traditional hostilities at the local level. Another political commentator said, "the non-party elections for district councils have destroyed the organisational credibility and institutional ethos of political parties. Compromised candidates of expedient multi-party alliances will neither represent policies nor issues nor ideologies". "The flawed local electoral process", according to Nasim Ahir, PPP politician and former federal Interior Minister, "has created new divisions in Pakistani society. The military had left no doubt in anyone's mind that only abiding loyalty to the establishment can pay off politically" . President Musharraf's oft-repeated pledge to create a new, more credible leadership notwithstanding, his government relied on established but pro-military politicians to win the district nazim elections. A vast majority of the district and tehsil/town nazims elected in the Punjab and Sindh were party activists or belonged to well-known political families. Once the military government created the PML-Q as an alternative to the PPP and PML-N, local elections became merely "a spring board for creating an avowedly party-less elite that could be politicised as and when the military needed its support".

Cont/P-3