The re-election Jugglery

Society Pakistan & World Affairs
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Babar Sattar

The swirling debate over the eligibility of General Musharaf for being ‘reelected’ president is confusing because both sides cite constitutional provisions to support their arguments. The general’s latest legal eagle, Attorney General Malik Qayyum, argues with a straight face that there is no legal barrier hampering our army chief’s reaffirmation as president under Pakistan’s fundamental law. Other more independent constitutional experts like Justices Wajeehud-in and Nasir Aslam Zahid have vociferously maintained that the general is constitutionally debarred from being a presidential candidate. Is our constitution really this vague that we cannot even develop a consensus over whether or not the army chief can simultaneously be the president of the country?:slight_smile:

It is actually not bizarre for reasonable lawyers and judges to disagree about legal rights in hard cases? On the contrary it is extraordinary when there is a complete consensus of legal opinion on an issue, like was witnessed during the judicial crisis in favour of the Chief Justice. There were a handful of lawyers (the present Attorney General included) who argued in support of the general’s position, but not for a moment was the legal fraternity persuaded by the merit of their arguments. Is the issue of a uniformed president much different then? Does the Constitution, even in its existing garbled form, allow the same person to run for president while being the army chief? Is it a hard case where reasonable legal minds would draw different conclusions? Further, what responsibility do able lawyers like Sharifuddin Pirzada and Malik Qayyum shoulder in helping to interpret the Constitution?

There are a few articles of the Constitution that need to be understood to follow the reelection debate. Article 41 outlines the timing of the presidential election and sub-clause (2) requires that the president be “qualified to be elected as member of the National Assembly”. Article 41(7) is the grandfather clause in our Constitution that has been used to reaffirm the position of dictators as constitutional presidents when the constitution stands revived after a coup. This clause was originally introduced by General Zia-ul-Haq to guarantee him self a five year presidential term. It was amended in 2002 on General Musharaf’s behest through the 17th Amendment to reaffirm the general’s position as president for five years after he chose to relinquish his position as Chief Executive.

The amended Article 41(7) also states that Article 63(1)(d) – that disqualifies a candidate from being elected member of the parliament if “he holds an office of profit in the services of Pakistan other than an office declared by law not to disqualify its holder” – shall become operative on December 31, 2004. This language was a product of the deal between the general and the MMA, wherein he promised to shed his uniform by the end of 2004 in lieu of MMA support for the 17th Amendment. The president then had a change of heart and decided not to quit the army chief position. To provide legal cover to his vault-face the parliament passed the President to Hold Another Office Act, 2004, that came into force on December 31, 2004, and stated that holding the office of army chief shall not disqualify the president under Article 63(1)(d) read together with 41(7).

There are at least two other articles of the Constitution that are relevant to this debate. The first is Article 43(1), which states that “the President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.” It must be noted here that Article 63(1)(d) endows the parliament with some discretion in determining which office of profit does not disqualify its holder for purposes of eligibility as a candidate for Parliament. However, Article 43(1) unequivocally states that holding an office of profit or position that endows the president with a right to remuneration is simply prohibited.

Neither can the parliament exempt the president from requirements of Article 43 nor can he exempt himself by not receiving two salaries, for the operative word is the ‘right to remuneration’ and not whether he actually exercises such money. The last provision of the Constitution that needs mention in this debate is the oft-quoted Article 244. This requires each member of the armed forces to swear a solemn oath that he/she shall not “engage in any political activities whatsoever”. In view of this provision it is hard to claim that the Constitution is confused about the political role of members of the armed forces. If a military man can simply not engage in political activities, do we even need to look at the qualifications prescribed by the Constitution for the president or members of parliament who occupy political offices after running political campaigns to seek public mandate?

Before getting immersed in the merits of the re-election debate, an initial puzzle of why the term of the president is expiring prior to that of the National Assembly (creating this unsavoury situation where one Parliament might be in a position to impose a president on its successor) must be solved. The general’s five-year term under the 17th Amendment started to run from the date he picked to relinquish the office of the Chief Executive after appointing himself president through a referendum, as opposed to the date on which he was reaffirmed as president by the electoral college under the Constitution. The general kept such flexibility in the language of the constitutional amendment to bolster his bargaining ability at that time and not commit to a fixed date.

**Such molestation of the constitutional process has created a lacuna upsetting the scheme of the Constitution wherein the presidential election is supposed to follow the general elections and not precede them. Notwithstanding the legality or lack thereof of this plan, its consequences are disturbing. One, re-election of the general by the present assemblies turns the concept of parliamentary sovereignty on its head by defeating the underlying principle that no parliament can bind a successor parliament. Unlike a prime minister, a president once elected cannot be replaced if he loses a vote of confidence in the parliament. He can only be impeached by a two-thirds parliamentary majority if he is guilty of gross misconduct or of violating the Constitution.

Equally disturbing is the fact that should the general be re-elected by the present assemblies and successive assemblies continue to complete their constitutional terms, the sequence of parliamentary and presidential elections will be skewed for all times to come. Thus lame-duck parliaments will get to elect the president of the country right before such time when the Constitution requires them to seek fresh mandate from the people. The credentials of such presidency will remain suspect, not to mention the likely rift between the parliament that will be representative of people and the public mood in the present and a president who will represent an electorate that existed five years back.

**(To be concluded next Saturday)

The writer is a lawyer based in Islamabad. He is a Rhodes Scholar and has an LL.M from Harvard Law School. Email: [EMAIL=“[email protected]”][email protected]

Comment

The constitution of Pakistan has been molested more tham Mukhtaran Mai. Its time that constitution be provided political asylem overseas.

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Re: The re-election Jugglery

^ i agree

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Re: The re-election Jugglery

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Re: The re-election Jugglery

Another on same issue by Ghazi Salahuddin

***‘If you want to keep the army out, you will have to bring it in’. Does this make any sense to you? Well, General Pervez Musharraf and his advisers earnestly proposed this tortuous formulation in early 2002, to justify some constitutional changes and the formation of a military-dominated National Security Council. Musharraf was also aiming to go for a national referendum to supposedly legitimise his rule.

I am reminded of that convoluted logic at this time with reference to the ‘deal’ that the United States is prodding a not unwilling Benazir Bhutto to make with Musharraf. The idea, come to think of it, is that if you want to keep Musharraf out, you will have to bring him in. At least Benazir would like to sell the possibly unmade deal in these terms. In that sense, the real issue is whether Musharraf is going to be in or out.

Meanwhile, in addition to trying to bolster Musharraf’s chances of remaining president, the US is also calling for free and fair elections in Pakistan. Indeed, this has become the refrain of the American administration. The elections must be free and fair and all should respect the results of the democratic exercise. A lot of effort and financial allocations are being invested in ensuring that elections are credible and that America is finally seen to be rooting for democracy in a country where the military dictator is its trusted friend.

But are free and fair elections possible if Musharraf remains at the helm of affairs? Can any genuine democrat approve of a presidential candidate who insists on continuing to wear his military uniform? Again, there is this remarkable instance of ‘double-think’ in how the Americans respond to Musharraf’s plans. On Thursday, visiting US Assistant Secretary of State Richard Boucher avoided a direct comment on the uniform issue and only invoked Musharraf’s assurance that he would abide by the Constitution.

What does this mean? Incidentally, Boucher used a very useful expression in his press briefing in Islamabad. “It means what it means”. Though this was his response to a question about what the senior American functionaries have been saying about the possibility of US air strike inside Pakistan on the basis of ‘actionable’ intelligence about the presence of high-value Al Qaeda targets. So what does our Constitution say about Musharraf’s election by the present parliament while still in uniform?

**We now have another leading player in the tragedy that is being enacted in Islamabad. Enter Malik Muhammad Qayyum, the new Attorney General of Pakistan. That someone like him, a retired judge, should be playing the role that he is playing in the wake of the historic struggle for justice by the legal community is the bane of our polity. Moral principles and democratic values can be conveniently set aside when you become a part of the power structure, a structure founded on deceit and duplicity – ranging from referendum to the manipulation of the 2002 elections --not to mention the foul attempt to get rid of the chief justice of the Supreme Court.

**As for the scope for free and fair elections when Musharraf is still there, one is intrigued by the position that the Americans have taken. The idea behind the proposed alliance between Musharraf and Benazir is to strengthen the moderate and liberal forces in the country. But the truth of the matter is that Musharraf no longer has any support from the moderate and liberal elements in the country. This is one ‘actionable’ intelligence that should be present to the White House and the State Department.

Benazir has had liberal credentials, mainly because of the support that the Pakistan People’s Party has retained through all these years. Her image has already suffered and if the deal does come through, it would be a great tragedy in Pakistan’s political history. And in this bargain, she could betray the hopes and aspirations of a very large number of sincere and committed political activists.

Fortunately, there is still some hope that the deal will not finally happen. Benazir may not be totally aware of the great fall that Musharraf has suffered since March 9. But she is a very astute political leader. I see some hope in how she analysed the dynamics of our politics in her remarks to the Council on Foreign Relations in New York on Wednesday.

She said: “I am here this afternoon to tell you that as far as we, the Pakistan People’s Party is concerned, the choice in Pakistan is not really between military dictatorship and religious parties; the choice for Pakistan is indeed between dictatorship and democracy. And I feel that the real choice the world also faces today is the choice between dictatorship and democracy, and in the choice that we make between dictatorship and democracy lies the outcome of the battle between extremism and moderation in Pakistan”. So, why choose an alliance with a dictator?

The argument that Musharraf just cannot preside over free and fair elections does not require any deliberation. You can look at his track record. One headline on Friday was: “I will be re-elected ‘at any cost’: Musharraf”. At any cost? On Saturday, another headline: “Pakistan needs me: Musharraf”.

Pakistan, we must all agree, needs democracy and rule of law and induction of moral values in the conduct of our public affairs. The hope for this transformation, painful though it must be, was given to us by the popular upsurge and the lawyers’ campaign after March 9 and by the inspiring Supreme Court verdict of July 20. Those who are in power at this time are striving to erase this revolutionary impetus for change and a meaningful revival of the spirit of our independence.

This, of course, was the week when we celebrated sixty years of our freedom. The dominant though was whether Pakistan can be reborn – or if deviation from democracy and social justice would make its survival even more precarious. The title of my column last week was: time is running out. Benazir also used this expression in her ‘conversation’ with the Council on Foreign Relations. All of us feel it in our bones that time is certainly running out.

Irrespective of other challenges, the immediate imperative is the holding of free and fair elections. This does not seem possible under Musharraf. We can expect Nawaz Sharif to say that he is a downing man, warning Benazir not to deal with him. But let me quote these words from Johann Hari’s report in the Independent, London, under the heading: ‘We must pay attention to Pakistan’: “Musharraf is now left as a bleak clown, trying to juggle preventing a liberal rebellion, preventing an Islamist rebellion, and pleasing the US. It cannot be done.”