'Pakistan's Presidential Elections 2007

Constitution must be implemented in letter and spirit not in mere words'

By Amjad Malik

2007 in Pakistan is an election year General election as well as Presidential. History tells us that military rulers translated, exploited and manipulated the voice of silent majority who remain mostly uninvolved in political business until 9^th of March when all the bookies lost their bet and a new leaf in the state of Pakistan emerged which resulted in a struggle for rule of law in the country and as a result Judges  delivered a land mark judgment on 20^th July 2007 restoring the Chief Justice thus inaugurating the road towards independence of judiciary. That judgement for the time being broke the knot of the nexus between military rulers and judiciary which on the common objective of 'law of necessity' legalised military coup de tats and in return render themselves unaccountable to public, NAB or courts.

That one institution is a guarantor of the free press, smooth running of Parliament, institutions  and maintains checks and balances amongst state organs. Military rulers who are blood hungry for power politics took over the governance of the country on the name of holding fair elections, ridding corruption and providing basic needs to common man. In this current case that 'silent majority' is our broken middle class who supports helplessly every one who aspire to bring economic change, social justice and is a reformer in nature and they always fall a prey to this illusionary slogan. They fell for 'Rooti, Kapra aur Makaan' and also fell for General Zia's 'Islamisation and fair elections within 90 days & General Mushrraf's call for enlightened moderation, true democracy and 7 points relief slogan. The founder of the nation Mohammed Ali Jinnah never aspired when he fought for Muslims of sub continent to secure an independent homeland which will in the end be ruled by Generals, in fact whilst addressing soldiers at Staff College in 1948 which was his only address to armed forces warned them to learn their oath with Pakistan fully and understand their commitments and obligations, and declared that they are servants of state not masters.  

We are still in a fix whether to return to democracy or still wait for right time, right environment and right people and there is never a right time. There has been several news reports where President Musharraf assured of taking his uniform off as per his agreement with Parliamentarians and address to the nation by 31 December 2004, instead he introduced 'President to Hold Another Office Act, 2004' which gave him exemptions to hold two offices until expiry of his current term which will trigger unless new Act is passed or amendment to the Constitution is invoked via 2/3 majority to stop 63(1)d triggering though all actions will be subject to proactive judicial scrutiny. However, he never amended or re took his new oath which currently bars him from entering politics being an armed officer and continued addressing PML(Q) gatherings leading an example of his lieutenants to nourish a desire for the top slot as their predecessor in comings days, months and years. This tendency and desire kill the chances of the nursery of democracy getting its roots.

Legal expert are of the view that current tenure of President comes to an end on 16 November 2007, so if we take his latest oath & vote of confidence to start with, then Article 41(5) confirms that Presidential Election(s) can be held 60 days before or 30 days after the expiry of his current Presidency so ideally fresh election time frame will be ideally from 16 September to 16 November or if new assembly is in place then 30 days after the elections under  41(4) which says, “(4) Election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office;

Now legality is the key issue and following may be the hindrances in his election: A candidate for presidency must be eligible to be a member of Parliament to be able to contest Presidential election, under article 41. Which says, “ 41(1) There shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic. (2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly.

Following hinders in him holding two offices: “43. (1) (1) 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.

And the following are relevant disqualifications in respect of the Presidential candidate: “63. Disqualifications for membership of Majlis-e-Shoora (Parliament).  (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:-  (d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or  (k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or

Furthermore, Chief of Army Staff 's oath under art.244 in Third Schedule of the Constitution 1973  also makes the picture clear even if any other argument fails, the oath wording is as following: “Members Of The Armed Forces [Article 244] (In the name of Allah, the most Beneficent, the most Merciful.) I, ____________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (A'meen).

When COAS takes oath that 'I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law' then it makes life difficult if President wishes to retain both offices as that is not desired by the Constitution and it opens up avenues to allow all retired officers to contest and or first secure their candidacy whilst in office and then retire from govt service and in future all Chief of Army staff, Chief Justices and top civil officers may become candidates for vacant President office which will be negation of people's mandate.  Now the issue arises whether he can be re elected in Uniform or not.

If we see the reign of General Musharraf briefly we see his tactics somewhat hasty, he took over the state of business on 12 October 1999 as a result of a military coup and used a term 'chief executive until 2001. In June 2001 he dismissed assemblies and assumed the office of President which became vacant after the doubtful resignation of President Rafiq Tarar.  Mr. justice Tarar maintains that he is still the duly elected President of Pakistan. General Musharaf has the privilege to send twice elected Premier, sitting Chief Justice and duly elected President home for reasons not mentioned in constitution especially in the case of two latter sending backs.

On 30 April 2002 he held referendum and declared himself the President with people's vote of confidence. On 24 August 2002 General Musharaf announced constitutional reforms package widely knows as LFO (Legal Frame Work Order) and as a result of new elections General Musharf took new oath as President on 16 November 2002.In December 2003 his constitutional reforms were affirmed by the Parliament under Constitutional Amendment No 17. Under this amendment not only his LFO was made part of Constitution but his Presidency was confirmed too. Now the log book of General Zia is silent as to second tenure and Courts will be ready to interpret the law. If we see the overall intention of the 1973 Constitution of Pakistan, the answer is no as 'Uniformed Presidency' gives a horrific picture of a Democracy only handful countries out of over 166 countries in the world have similar tendencies & regime, Burma and Thailand are few examples to this exception. However, if we look at President Musharraf's previous trail of unconstitutional reforms marathon which include, his PCO, Judges sacking & oath under PCO, Referendum, Legal Framework Order, 2002 Elections, Local bodies system & polls and WPB Act 2006, and his use of NAB as a political revenge tool, it does not seem impossible that he will definitely attempt for the top slot, yet again careless of public anxiety.

His elections will be held under article 41 (3) & (7) of the Constitution. Now whether the President gets himself elected from the current assemblies which is unprecedented act as no assembly in the past voted twice for the President is one question. The other question is the political and constitutional implication of such election on the state of play as under Article 43(1), 44(2) & Article 63(1)d the issues will need to be decided at earlier stages by courts as

whether he can retain his uniform whilst going to electoral college and will it be his second or 3^rd term. As under 41(6) The validity of the election of the President shall not be called in question by or before any court or other authority. Therefore the timing to challenge any election will be on the outset at the time of nomination papers.

17^th Amendment brought back in the Constitution most of the '8^th amendments' provisions which were originally introduced by former military dictator and were repealed by the Civilian Prime Minister unanimously. 17^th amendment as well as an Act of Parliament to allow a General to remain in Uniform in contravention to Constitutional provision of art 63(1)d and may be declared ultra vires as it hits the basic intention of the constitution and are unconstitutional mechanism where COAS an employee of state takes the role of head of state. However as President kept his uniform post 31 December 2004 at a time when article  63(1)d became effective and decided otherwise to his promise to nation and current Parliamentary party Q league readily passed and strongly support any action including an Act of  Parliament to allow him to keep 'two offices.' In theat case, we may expect the following from the President in coming days:

a)      President may rely on his current strength in the shape and form of Q league and may bargain with the one of the main political parties one way or the other and get himself elected from these assemblies. Political parties on the name of 'giving exit to army' may opt out to vote him for next term. There will be disadvantages to political parties except Q league. However any party who accepts wheeling dealing will be subject to anxious scrutiny of free media and proactive judiciary which in return may expose those black sheep who bring law of necessity in the Parliament. But the meeting of President in UAE with a opposition leader which is neither accepted nor rejected tells that deal is negotiable and is available with certain sections of our current political Parties who have their own inherited problems. In that situation uniform will be an issue and 'two offices Act of Parliament' or amendment via 2/3 majority may be used to counter the legality issue thus paving the way for civil rule and this will be an ideal situation for President which will allow him to have his Presidency and command of armed forces to do whatever he likes with 2007 General election(s).

b)   Alternately, President may dismiss the current assembly upon resignations of opposition parties if they get together and or on the current prevailing situation in the country very nearer to the expiry of his term so that he avoids his election, announces elections under care taker set up of his own choice and throws election as a bait and open bargain business to buy and sell, this way he takes the sting out of any opposition movement and his own election and uniform issue goes in the back drop of fresh elections. In that situation his own election will be held 30 days after the new assembly is formed and that will again be his wishes to retain maximum powers & numbers. In that situation if he places his bet on Q league for future his election then unprecedented rigging may be in the offing and Punjab may be under a 'chowdry' in a care taker set up. That will be very alarming as fairness will not suit him as he may lose election, may not be Presidential candidate and on top of that may be asked to lay off his uniform as well by the coming Premier.

c)   President may impose emergency under Article 232 & 233 upon advice of Premier on the name of external security leading to martial law on the name of internal de-stability if total defeat on all sides is envisaged by the defeated soldier. Both proclamation(s) though will be subject to strict judicial scrutiny and un acceptance of the lawyers and civic society.   

I think whichever option he chooses it will be vigorously opposed by political parties in streets and lawyers in Courts and if Courts do not allow him to contest elections in Uniform his civil presidential aspirations may suffer too as at that time his election will be challenged overall keeping in view the overall intention of the constitution. Opposition may resign en masse and resort to nationwide protests which may result in any way as the gulf between civil society and the military may not bring them to a win win situation and in the end political process may be derailed which is not in the best interest of the state of Pakistan. Though it will suit to United States to deal with rulers with questionable legitimacy and lack people's confidence and President Mushrraf has the key to avoid all that. For the President the best possible way to resolve this situation may be as following:

·         Unilateral, unconditional and voluntary 'cut date' of shedding uniform in advance of his presidential election; or announcement to take his uniform off on any next national day;

·         Allow unilateral, unconditional and voluntary return of exiled leaders to come to Pakistan and unconditional amnesty before Court allows them relief and allow them to face trials without interference and let the ball go to court decide their fate and public to hold them accountable by vote;

·         Take all opposition in confidence via APC to hold free and fair elections, including appointment of Chief Election Commissioner, care taker set up of clean people or ideally non PCO judges as no political stalwart is left unopposed or untarnished

·         Let 2 party system take shape which is in best interest of Pakistan and pave way towards United Muslim League as it was before 12 October 1999 even if it means to limit or eliminate Q League which is in the best interest of Pakistan,

·         Once all is agreed, hold General election first and then seek his re-election 30 days after the new assembly and if the parties are willing to make him a candidate

·         Alternately, if he wishes to get elected from current Parliament, take his uniform off at the time of nominations coupled with necessary amendments to allow him to go for election under 41,43,44,244:

·         Allow free and fair elections to take place which are not only free but appears to be free and independent monitors and courts confirm its fairness and allow the political exit of military from politics peacefully without fail and any derailment.

In all these situation what opposition can or can't do will be very crucial. The only option which is strong and viable is that the electoral college is vacated by current opposition the moment current President announces his Presidential election though it will be a defensive position but opposition after resigning may initiate strong struggle to stop that election and demand for fresh general polls on one point agenda. Opposition may lodge along with lawyers community necessary petitions to Supreme Court to clear this ambiguity as to whether amendments to law for one man can override the intentions of Constitution.

There is an attacking strategy too ideally as Mian Nawaz Sharif former premier earlier proposed to opposition parties to vacate the house now and continue up right struggle for free and fair elections under impartial care taker set up, to me ideally under non PCO judges. In effect, the names of civil care taker set up nominees may further divide the opposition, and judges may be the best bet, in office or retired judges may be decided. In that situation, President will have no choice but to get elected from the next electoral college and opposition demands for fair elections under a neutral care taker set up and independent Election Commissioner as agreed by all parties where 'Judiciary' as a monitor is free to dispense justice independently without cloud of PCO's fair to all parties. At that time if with sheer will fair elections are held, that will close the chapter of current military regime in Pakistan for the time being. To end it completely politicians will need to show political maturity, will and sacrifice in the interest of Pakistan. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held.

Time has come that before any so called 'Act of Parliament' is presented yet again and or a supra constitution mechanism is adopted like referendum to request the military dictator to retain his status in violation of the constitution's true intentions thus allowing a General to hold his own office of profit as 'Chief of Army Staff' as well as the office of 'President of Pakistan' thus depriving the national parties to elect their own civilian President.  Supreme Court must put it aright what they initially directed. In all this process Supreme Court's role will be crucial as SC will be asked to determine few questions which are following:

• Whether General Musharaf's first reign of President from June 2001 to 16 November 2002 in which he held referendum on 30 April 2002 to legalise his stay at office as well may be classed as one and whether he has finished his two tenures if that regime was legal under Article 44(2) of the Constitution.
• What is the actual date from which his first or current tenure as President of Pakistan commenced.
• Finally, the most important of all is, can General Musharaf retain his uniform and contest next Presidential Election against the letter and Spirit of the Constitution 1973.

Supreme Court's ruling will be very crucial and will be subject to Article 190 of the constitution which binds all executive and judicial authorities through out Pakistan to act in aid of the Supreme Court and if that ruling is not given in time, it  will lead to  prolong one man's rule against the wishes of millions of Pakistanis whose will is already negated. SC gave 3 years to the military man  in Zafar Ali Shah case and its 4 years beyond that 3 years limit and I think its time that 'one man one vote' principle and an in born right of the people is restored and establishment lay back and let the people decide what they want, and who they want and democracy in its true form is allowed to as Abraham Lincoln said' Government of the people, for the people and by the people.' If bold decisions are not taken at this juncture, then we must be ready for unconstitutional rule for a long time which may create further unrest, emergency, civil disobedience, and martial law as civic society and lawyers are not going to digest anything less than rule of law and justice and true implementation of the Constitution in letter and spirit, and no ultra vires Act of parliament will be accepted to override the true intentions of the Parliament. General sahib must call it a day and pave way for true democracy in Pakistan, enough is enough. 

Amjad Malik is a life member of SCBA & a Solicitor-Advocate of the Supreme Court of England and Wales, member of English Law Society's Immigration Law committee, and Chair of Association of Pakistani Lawyers (UK): contacts: amjadlaw@hotmail.com.