WRITING in these columns on March 3, I had suggested “.... President Musharraf might consider legitimizing his appointment and agenda in a manner that none of his predecessors have dared to do.

“.... A general election normally attracts around 40% of the voting public. A vote of confidence, if obtained by the president from the nation, can be the only possible sanction for Musharraf’s vision. .... A free and fair referendum in secret ballot, under the eyes of the world, will give the president a legitimacy that none of his military predecessors had. The president should offer to resign, if the electorate rejects him...”

Of last Saturday’s press conference, two remarks are selected, which appear to sum up the presidential intentions.

Dawn reported on March 31:

“In his opinion once he (the president) had the mandate from the people he would have an upper hand over the elected Parliament and “they would not be able to blackmail me as they did to General Zia.”

The News reported on the same day:- “I will not follow Ayub or Zia models, he added... When asked how would he ensure ground support for ensuring respectable turnout in the proposed referendum, the general said: “Nazims and union councils will bring voters.”

The President’s men are inclined to subsume a positive vote in the referendum will not only be a vote for continuance in office for five years but also an approval of the president’s constitutional agenda.

This could be a legal hornet’s nest. For once the ultimate magician of the courtroom, Syed Sharifuddin Pirzada, may be daunted by the enormity of the task ahead. To deliver President General Musharraf of the pitfalls of sanctioning basic constitutional change by referendum in the high courts is like climbing the vertical south wall of Nanga Parbet.

I do not think President Musharraf has the guile and political adroitness of General Zia-ul-Haq. And thank goodness for this. When a soldier in khaki turns politician, better that he be guided by the ethics of his profession.

President Musharraf does not like comparison with his military predecessors. But like it or not, he faces exactly the same problems of legitimacy as his three predecessors in khaki. Two of them lived long enough to see the Pakistan of their dreams collapse in their life times; the third simply vanished in thin air. There is something to be learnt from the past.

Let us pause for a moment on the constitutional requirements of a Referendum. Article 48(6) declares ‘that if it is desirable that any matter of national importance should be referred to a referendum the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by a “Yes” or “No”.’ Therefore, by a long legal shot, the president can seek his affirmation to office by referendum for it is a matter of ‘national importance’ and ‘capable’ of being answered by a “Yes” or “No”.

What arises from a plain reading of Article 48(6) is the fairness of the question. The acceptance of a referendum verdict depends on the level of voter participation and the absence of unfair means.

Here the president shows a streak of political naivety; if he thinks the nazims can bring in more than 5-7% of the voting population to the referendum booths, he is mistaken. The voters, as we well know, have to be pampered to be brought to the booths by politicians who have a vested interest in getting elected. All the king’s men and all the king’s horses cannot do that.

Meaningful participation is only possible if the referendum is simultaneous to the general election. And the earliest that a general election could take place is probably this July before the monsoon. The president’s most credible option would therefore be referendum-cum-general election as a single day same booth event. In sum, a referendum won but marred by low attendance or allegations of fraud will present a more negative image for the president than simply being an un-elected military ruler as present.

Courage is required on the part of President Musharraf to submit himself to what would then be the nearest thing to an election to the presidency. A moth-eaten legitimacy will put the president on the defensive internally and externally for his period of rule. Let the voter take the risk of removing one who has indeed served the nation honestly these past two and a half years, if not always brilliantly.

A more vexed and complex a question is the constitutional “baggage” that the president desires to carry with his affirmation. I, for one, am persuaded to change my mind on this issue.

On March 3, I had stated in these columns:-

“The President should clearly spell out his constitutional deviations e.g. the composition and power of the National Security Council for he intends this Council to be an apex body with power to dissolve assemblies and decide on vital matters affecting the state.”

A multiple loaded constitutional amendment agenda posed as part of a referendum question is against the letter and spirit of Article 48(6). Besides, it could create a precedent for future abuse. However, I enter a single caveat in the interest of practicality.

In our system power does not reside in the office of the president. Substantial ‘de facto’ power even under normal constitutional rule is the visible or invisible asset in the office of the Chief of Army Staff.

To expect President Musharraf to undertake this monumental exercise so as to become a lame duck Constitutional president under the ‘73 dispensation is a non-starter. Therefore, the question that should be posed to the electorate is: Do you or do you not accept President Musharraf as President of Pakistan and Chief of Army Staff for a period of 5 years w.e.f. October 2002? Yes or No. After all, why shouldn’t he try to juggle principle and expediency, as we all do?

The president could preface his ideas for constitutional reform in the referendum, which should influence the parliament in due course, but no more.

Constitutional sanction for a National Security Council and protection to devolution laws etc. should be attempted through the nitty gritty of political compromise in the parliament. The president is mistaken when he says, “we would not allow the politicians to blackmail him as they did to General Zia.”

It is worth recalling the salient features of President’s Order No. 14 of 1985 leading to the passage of the 8th Amendment in 1985:

In reviving the Constitution of 1973, President Zia issued a President’s Order No. 14 in 1985 making several hundred changes to the Constitution on its revival; the likely effect of which was a new constitution.

One of the important controversies of the time is worth recalling. President Zia desired a National Security Council (NSC) in much the same composition and power as is in discussion these days, as well as discretionary powers to dismiss the National Assembly. What ensued was a tug of war between the president and his men and the members of the National Assembly (in particular the small Independent group). The ‘tug’ was largely won by the assembly members. This, with due apologies to President Musharraf, is a political compromise, not blackmail. The NSC proposal was dropped by Zia and a settlement reached on the famous but now defunct Article 58(2)(b).

In the ensuing debate President Zia showed a willingness to give up his powers under Article 58(2)(b) to dissolve assemblies provided discretionary powers were invested in the NSC. In hindsight, I think President Zia was right. A wider council might have prevented hasty actions on the part of President Zia himself and his successors and eliminated a great deal of legal bickering.

Is history likely to repeat itself? If it is an indication by the president that the NSC issue might be resolved by a fresh referendum, Assembly members will be more amenable to compromise.

What if the President fails to win the vote in a general election referendum? The president by resigning all his offices will prove himself to be a greater democrat than any ruler of Pakistan since its founding fathers. This will not be lost on the nation. Better to leave the high office of the president with one’s reputation for honesty and democracy in tact, than to cling to office and leave an unsavoury legacy behind.

The writer is a former member of the National Assembly of Pakistan.

SINCE the day the military seized power for the fourth time in our short history, it has desperately sought legitimacy for its action. The apparent cause of the coup could not possibly justify an act which otherwise would amount to high treason under the Constitution of Pakistan.

There being no other justification, General Musharraf promised to address the malaise which afflicts the nation. He presented an ambitious agenda which included rebuilding national confidence, strengthening the federation, reviving the economy, improving the law and order situation, providing speedy justice, depoliticizing state institutions, devolution of power and accountability.

Although more than two-thirds of his allotted time has expired, these goals remain as distant as they were on October 17, 1999. Much has been claimed about the reforms but the hard truth remains that these are ephemeral and have little more than a cosmetic effect. Life has never been more insecure on the streets. Corruption is as rampant as ever. Economic indicators present a dismal picture. The only issue that preoccupies the general’s mind today is his own future. While the military may not have succeeded in redeeming the pledge it had made, nothing has tempered its ambitions.

Legitimacy still eludes the general. As the deadline for holding general elections is approaching fast, he is gearing up to transform his administration into a representative one. With no visible constraints elsewhere, the Constitution remains the only irritant to his vision of real democracy. Thus, the Constitution would be suitably amended to meet his needs. He has taken out the copybook of his predecessor general.

Like Zia he has spent much of his earlier term in discrediting the politician who elevated him. Again like Zia he was initially treated as pariah by the West. The events in Afghanistan reversed their fortune overnight. The coup makers were suddenly elevated as statesmen. Both exploited the situation to entrench their power.

Zia discovered his raison d’etre in Islamization. He divided the society into feuding militant factions. That is his enduring legacy. All this was done with the active connivance of the liberal West. Ultimately when events beyond his manipulative skills compelled him to widen his power base, Zia sought mandate under the garb of Islam. The affirmative reply resulted in a presidential term of five years for him.

Musharraf too has now discovered his mantra in secularism. He wants real democracy as against sham democracy. He believes that the people of Pakistan are not mature enough to survive without his stewardship. Indeed there is a real risk that if the people are given an opportunity to make a free choice, they may ignore the king’s party which is being promoted, and once again opt for sham democracy. To prevent this, Gen Musharraf must remain president.

Musharraf believes that democracy is too fragile a system to be entrusted to civilians. We need a National Security Council headed by him to guide the elected representatives. We need a president who is willing to send the elected representatives packing home if they refuse to be guided by his wisdom. We have to protect the country from politicians who may rein in our intelligence agencies and demand a free hand on issues of national security and foreign policy.

We also need to stall the entry into parliament of people who may dare to demand accountability of the custodians of our ideological as well as territorial frontiers. We need to ensure that the next parliament does not dare to debate Hamoodur Rehman Commission’s report. The corrupt politicians have to be barred from politics.

While Zia defaced the Constitution with his distortions, General Musharraf is now equally determined to rewrite it in his own image. Both were empowered by the Supreme Court to amend the Constitution. The people are entitled to ask whether the Supreme Court which is itself the creation of the Constitution could legitimately confer such power on a dictator. There is little doubt that in due course when General Musharraf is overtaken by events beyond his control, the judgment of the Supreme Court in Zafar Ali Shah’s case would be reconsidered by a new generation of judges.

As far as amending the Constitution is concerned, there is indeed an overwhelming case for doing so. Though a sacred document which lays down the basic law of the land, the fact remains that the Constitution is a human artifact which needs continuous re-examination by each generation to meet its needs. Nawaz Sharif’s arbitrary rule has demonstrated the dangers of entrusting unbridled power into the hands of even the elected government. There should be institutional constraints against concentration of power. The most formidable check against arbitrary power comes from independent judiciary. A country will never fall into the hands of the autocrats if the judiciary is truly independent. We also need constitutional term limits for every elected office. The political parties need to be developed as institutions rather than personal fiefs. The constitutional amendments imposed by Zia need to be repealed en masse. If our judiciary could have proved itself to be a bulwark against abuse of power, the military could have been kept at bay. Politicians and judges have been a dismal failure on that account. Our politicians would only agree to amend the Constitution if it enhances their power and weakens the judiciary. Though there have been some fiercely independent judges, the judiciary as an institution still has a long way to go.

The Constitution of a country is its most fundamental legal as well as political document. It sets the basic structure of society. It confers power on various institutions of the state and at the same time, it also guarantees fundamental rights of the people and limits the power of the state functionaries. Being a normative document it is an expression of the aspirations of the people.

Though framed at the birth of a political society it seeks to regulate, the Constitution is a living document which must continue to respond to the contemporary needs of society. A mythical wisdom is always attributed to the founding fathers, yet the Constitution’s legitimacy must be latched not merely to its antiquity but to its ability to respond to the contemporary needs. Each generation is, therefore, entitled to reinterpret and if necessary to amend the Constitution.

It is our misfortune that for over a quarter of a century, our country was without a Constitution. Our founding fathers could not agree on the fundamental issues and bickered for so long that the whole process appeared farcical. This encouraged the authoritarian forces to usurp power. By the time the framers of the Constitution of 1973 agreed on our basic law, we were reduced to half. Military interventions had distorted the evolutionary process. That distortion continues to haunt us till today.

The real question is not whether the Constitution needs to be amended but whether an unrepresentative government can do so. Does a person who overthrew the Constitution have sufficient credentials to amend the Constitution? He seeks a permanent role for the military in the political structure and wants to continue as president irrespective of the will of the people. He will hold referendum to legitimize what he has already decided. He wants the power to shift away from elected representatives to an unelected and unaccountable National Security Council. He wants to empower the president to dismiss elected government and dissolve the assembly at will.

He wants the kings’ party to share power with him. He wants to disqualify the politicians who may challenge his power. He wants military officers to act as judges. He makes somersault on vital national policy issues on just a phone call from the United States. He ventures the nation into military adventures and then retrieves with mind boggling speed. Can such an individual be allowed to rewrite the nation’s destiny? There is no substitute for collective wisdom. The Constitution represents the collective wisdom. Whoever has attempted to be wiser than the people has invariably caused irreparable damage to the country.

General Musharraf is not creating institutional checks on power. He is merely shifting power away from the elected to the unelected body. The elected representatives would be constitutionally held hostage to the whims of the Establishment. A constitution based on mistrust of civilians and politicization of the military would hardly usher in an era of real democracy.

While the military has directly intervened on four occasions, its indirect interference in politics has not ceased for a moment. Political process has never been allowed to evolve freely. Nawaz Sharif’s rule did indeed reflect the weakness of our politics. But Nawaz was not a product of our political process. He was imposed by the military on the political system. That distorted the political process.

General Musharraf is now planning to impose another outsider on our political system. He is profoundly mistaken if he believes that the country can be democratized by weakening the real political forces. Instead of cobbling political alliances and engineering election, the military should retreat from the political arena and let the process take its own course.

The military must restrict itself to its primary obligation to defend the territorial borders of the country. That itself is a formidable task given our geography. If allowed to develop freely, the political process would generate its own dynamics. In due course the institutions would strengthen. The middle class could not be kept out from the process for too long. As for amending the Constitution, the general should refrain from doing so. This is the only Constitution which reflects the real will of the people. It has already been distorted enough. Any further distortion would cause irreparable damage to the federation.