Presidential Election a critical overview
05 April, 2007
By Amjad Malik
Next few months in Pakistan will determine whether we can still come on the road to real democracy or the nation will have to wait further. Its long exhaustive wait and democracy is long over due in Pakistan. Our establishment needs to think rationally to bring Pakistan back to its original route for which Quaid e Azam made Pakistan without the assistance of an established military force and with the aid and support of commoners who opted out for Pakistan instead of United India.
This was achieved solely on sheer determination to safeguard the interest of Muslims of United India and on ‘one man one vote’ rule which is extinct since the country’s birth in a short political history of Pakistan which is clouded by military regime(s) in General(s) Ayub, Yahya, Zia and now Musharaf’s form covering around 4 decades out of 60 years of Pakistan’s physical life.
There has been several news reports where President assured of taking his uniform off as per agreement but he did not keep his promise to which lawyer community has found unease upon this kind of unconstitutional decision making which has kept Pakistan derailed from real civilian rule so far and that may not be the intentions of SC in Zafar Ali Shah case when SC gave Gen Musharaf 3 years to hold elections post military coup on 12 October 1999. Furthermore, independent and fair elections are impossible if President of the nation who defiantly violates the constitutional position of Federation and solidarity to all irrespective of their stance of opposition is addressing only one party functions and as the elections are nearer, it is very difficult not to take them as ‘political processions’ in the run up to election thus making him partisan linked with the aspirations of PML(Q) his own brand of political party which was assembled as a result of suspending one clause of Constitution, by horse trading and using NAB is a switching tool after coup to counter PML(N) alone. This tendency of lack of respect of the rule of law, unconstitutional mannerism undermine the effective role of judiciary.
The whole nation is trying to digest the insistence of General Musharaf to retain his uniform post 31 December 2004 in violation of his pledge to nation which is keeping Pakistan away from true civilian rule and there is no contingency either in place. He is retaining his second cap against the agreement with MMA one of the main alliance emerged as a result of 2002 elections who supported the General in legalizing his former acts in the form of 17th amendment to the constitution and since are regretting to believe the dictator on uniform issue as per Senator S M Zafar’s book ‘Dialogue on the Political Chess Board.’ This insistence is also in contravention to article 63(1)d of the Constitution of Pakistan 1973. Article 63(1) d says as following: 63 (1) A persona 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” If we see his reign 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 resignation of President Rafiq Tarar. To date Mr. Tarar is of the view 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 unknown constitutionally 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. Under this amendment article 41 was changed which deals with the Presidential Election. Now legal expert are of the view that his tenure comes to an end on 16 November 2007, some constitutional experts dispute that but to advance the discussion we take his latest oath & vote of confidence to start with. Article 41(5) confirms that Presidential Election(s) can be held 60 days before or 30 days after the expiry date of his current Presidency so ideally fresh election time frame will be ideally from 16 September to 16 December 2007.
Now the issue arises whether he can be re elected in Uniform, if we see the Article 63(1) d the answer is no, if we keep in view the overall intention of the 1973 Constitution of Pakistan, again the answer is no as ‘Uniformed Presidency’ gives a horrific picture of a Democracy only 3 countries out of over 166 countries in the world who have similar tendencies & regime, Burma is an other and Thailand recently joining the club. However, if we look at his 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, it does not seem impossible that he will definitely attempt for the top slot.
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 44(2) & Article 63(1)d the issues will need to be decided whether he can retain his uniform whilst going to electoral college and will it be his second or 3rd term. 17th Amendment brought back in the Constitution most of the ‘8th amendments’ provisions which were originally introduced by former military dictator and were repealed by the Civilian Prime Minister unanimously. 17th 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 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 readily passed a bill in Parliament to allow
him to keep ‘two offices’ then 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. I feel personally that he may struggle to gather this kind of support due to disadvantage to political parties except Q league but the air tells that deal is negotiable and is available with certain sections of our current political Parties. In that situation uniform will be an issue and ‘two offices Act of Parliament’ may be used to counter that argument 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). Or President announces and holds fresh General elections before his own Presidential election is due either on the advice of Premier or by dismissing current assemblies if the ‘resignation(s)’ of opposition parties mature and brings new electoral college ideally of his own choice and numbers before his election is due from 16 September to 16 December 2007.
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 and throws election as a bait, that 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 once the new electoral college 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 loose 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.
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 if he does decide for that before General 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 under care taker set up and independent election commissioner on one point agenda.
There is an attacking strategy too ideally as Mian Nawaz Sharif former premier 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 judges as very few political stalwarts are left untarnished by our military regime(s) whom the political parties jointly will trust for holding election. In effect, the names of 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 under independent care taker set up where Election Commissioner is neutral and independent and judiciary needs to play its role.
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 started. * 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 and in particular article 63(1)d which is effective from 31 December 2004 and can a simple majority Act of Parliament with supra constructional intentions override the operation of Article 63 as opposed to the requirement to amend the Constitution with 2/3 majority. Supreme Court’s ruling will be very crucial & if not given in time 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 dictator in Zafar Ali Shah case and its 4 years beyond that 3 years limit and there is no sign of him going and there is no one to ask the man when will you leave. 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.’