IT WAS said that the writer Agatha Christie planned her mystery novels in reverse — she conceived their denouement first and then constructed the story backwards. There is an increasing body of Pakistan’s electorate which suspects that President Musharraf’s referendum of April 30 was plotted in the same manner. Its ending — no surprise to anyone — had been determined well before the actual conduct of the referendum began.

In a sense, that was to be expected, for throughout recorded history no person in power has ever called for a referendum on a question to which he did not already know the answer. Similarly, no one has ever called a referendum with an intention to lose. What was in doubt, therefore, was not the result per se but the extent of its success.

What should be a credible level of turnout, the planners must have asked themselves. What ought to be the desirable percentage of votes in favour? And how many votes to the contrary should we be prepared to concede? One can almost hear the inner cabal when formulating the strategy debating amongst themselves: Should the turnout percentage be in the nineties? No, that would be too obvious. What about 51 per cent? No, that might be too low, and in any case such a figure would imply that the other half of the country did not want him. This might explain how the final figure of 70 per cent, a happy compromise that is coincidentally midpoint between 50 per cent and 90 per cent, was formulated.

According to the results declared by the Chief Election Commissioner, 43.39 million citizens at home and abroad exercised their right to ballot, of whom 40.09 million endorsed President Musharraf and his policies. The Commissioner further confirmed that 883,676 votes were cast against the president, and that 282,935 votes were deemed to be invalid. The only interpretation of these results must be that the all the opposition parties in Pakistan combined — the Pakistan People’s Party, the fragmented remnants of the Muslim League, the various Jamaat parties, the MQM, and every other party marginalized by the present government — together could not muster more than 883,676 votes.

If so, party leaders need to make their party members stand in line (they obviously failed to do so at the polling booths on April 30) and then to castigate them for being such impassive non-entities. Party strategists need to worry, for those of them who divine meanings from the entrails of such occurrences, this referendum was less an award of a superfluous five-year term to President Musharraf, but a dress rehearsal by the Election Commission for its performance at the forthcoming general election, scheduled to be held on or by October 12, 2002, less than five months away. If the conduct of this referendum is a measure of the authority and efficiency of the Election Commission, it merits serious scrutiny.

Many older taxpayers (assuming that the newest band of enfranchised voters between the ages of 18 and 21 do not earn enough to pay tax yet) had expected that during the hiatus since the last general elections, the Election Commission had invested its time preparing authenticated lists of registered voters, streamlining polling procedures, training its staff and educating the electorate. Instead, the Pakistani voting public was left to fend for itself. The Election Commission could not muster a reliable electoral list of registered voters, abdicating that critical responsibility to the ingenuity of every ID card-holder (old or new NADRA) and to the self-restraint of gazetted officers who could with a stroke of their pen certify eligibility.

Schools were emptied, teaching a future generation of voters that the gravest of their responsibilities as Pakistani citizens was synonymous with a free holiday. Polling stations mushroomed at every street corner, providing a windfall for tent suppliers whose booths resembled those set up for the collection of skins at Eid-ul-Azha. It was not a free and fair referendum as much as a free-for-all referendum. Everyone above the lowered age-bar of 18 could vote anywhere, and many did — multiple times. If this referendum could be regarded in any way as a prelude to the conduct of the elections at the provincial, national and Senate levels, it is for every Pakistani a sinister augury of things to come.

An Indian politician once, when complimented on India’s achievement in holding so many elections successfully, replied that holding elections was not what counted. Voting was simply a matter of logistics. The true test was not the election but the acceptance of its result by all contestants and more importantly the transfer of power afterwards.”We knew we had achieved democratic maturity,” he explained, “when Mrs Gandhi lost in 1977 and handed over to the Janata Party, and when Janata lost in 1980, they handed power back to Mrs Gandhi’s Congress (I) party.”

It is obvious that President Musharraf’s twin purpose in calling this referendum now was to obtain a vote of self-confidence and at the same time to remind the electorate that general election results notwithstanding, he intends to remain for the foreseeable future the fount of all political beneficence. He has obviously been reassured by his acolytes that the same machinery which stamped an endorsement on April 30 can be relied upon to malfunction again and to provide ‘democratically elected’ assemblies that will obediently parrot his pronouncements and mimic his policies.

President Musharraf, like the singular superpower from whom he derives his strength, stands aloof and impervious to the blunted stabs of criticism. He is at heart a benign Caesar, willing to bequeath his orchards to the public — but only after he has gone. Meanwhile, like every Caesar conscious of his heightened position, one step away from divinity, he believes that Destiny has chosen him to fulfil a role in Pakistani politics. And convinced as he is of his motives being above question, his cause being just, he cannot allow lean and hungry men to cause him to fail, even if that is at the cost of democracy itself.

“A key test of democracy, then,” Dr. Henry Kissinger had once written in an early essay on politics while he was still at Harvard, “is not the claim to justice — this can be made by any system — but the limits to which this claim is pressed. A free system, whatever its formal institutions, cannot function unless it is based on self-restraint. There must be some mechanism for dealing with dissent other than by destroying it. To be meaningful, self-restraint must set limits even to the exercise of righteous power.”

October this year, therefore, will be a crucial time — for during that autumn we shall see how much power Caesar is prepared to shed — to the Senate, to the assemblies, and in a real sense back to the Pakistani electorate, and what shackles if any he intends to clamp upon himself. The role (if it is allowed one) of the opposition (if there is allowed to be one) remains to be determined. It would be imprudent to dismiss their silent minority as an acquiescent one. His advisers must know that ‘you have not converted a man because you have silenced him.’

Every Pakistani patriot must view with dismay the increasing polarization that has been the unfortunate residue of this referendum. Gratuitously, lines have been drawn across the country, for and against. At a time when an intransigent Indian government has ordered its army to stand on full alert along the border of our country, what is needed is national unity, not nationwide division.

Whatever may have been the camouflage under which the Pakistan army snatched power in October 1999, today its purpose, especially after the conduct of the referendum, is transparently clear. It is determined to remain as the Fifth Estate in the polity of this nation — a government in waiting when it is not a government in possession. Can any military in modern times, though, serve its countrymen best by being in a state of confrontation, if not actual war, with its own people?

“It has been said,” Victor Chenoy once wrote in an essay on Lenin, “that war is a continuation of politics, though employing different means. Lenin would undoubtedly have reversed this dictum and said that politics is the continuation of war under a different guise. The essential effect of war on a citizen’s conscience is nothing but a legalization and glorification of things that in times of peace constitute crime. In war all means are good, and the best ones are precisely the things most condemned in normal human intercourse. And, as politics is disguised war, the rules of war constitute its principles.”

Those with a recollection of history will recall a similar situation when the Indian army stood on the border of Pakistan, and the Pakistan army, buttressed by the United States, stood in a state of military confrontation with its own civilian populace. We are too vulnerable a nation to repeat that trial, and commit the same errors.

CERTAIN problems get more tangled with the passage of time. Both Kashmir and Nagaland would have been easier to sort out if they had not been allowed to accumulate the dust of convenience and callousness.

India could have won the plebiscite it promised to the people of Jammu and Kashmir until 1952 when Sheikh Abdullah, who had helped integrate the state with the Indian Union, was detained without trial. Phizo in Nagaland was more tractable in 1950 after the Shillong accord that promised autonomy to the Nagas. Both the Sheikh and Phizo felt betrayed when New Delhi tried to sell the illusion of power.

India has been impaled on the horns of a dilemma for a long time. It cannot let Kashmir go even though the links are more legal than emotional. After repeatedly saying that the state is part of the motherland, it has to reckon with public repercussions. Nagaland’s case is still more curious. It was never part of India during the British period. Having declared it as a state in the Union, how can New Delhi allow it to break away or justify even something closer?

Generations after generation, boys and girls have grown up in India with the belief that Kashmir and Nagaland are integral parts of the country. No government at the centre has ever conveyed any other impression. Nor has any political party had the conviction or courage to say anything different. People are convinced that all the territory — from Kashmir to Kohima — is India’s and anyone raising a doubt about it is a “traitor.”

Consequently, the attempts to solve the two problems have been limited to certain parameters: how to reconcile the demands of sovereignty by certain sections with a status within the Union. The demand for secession or independence has been derided, never put on the agenda.

Over the years, national sentiments on both Kashmir and Nagaland have got so hardened and so entrenched that any concession suggesting a status beyond India is sure to be considered a ‘betrayal.’ All governments and political parties know that. True, there is a consensus not to disturb the status quo, if nothing else is possible. The stationing of the armed forces in the two states — Kashmir and Nagaland — have strengthened the feeling that those challenging the integration have to be crushed forcibly. Any eruption is looked upon as the violation of India’s security. Different army commanders posted in the two states have said that the solution to the situation is political, not military.

New Delhi tends to agree with that. But what does it offer to the militants in Kashmir or Nagaland, which satisfies them without impinging on the country’s unity? No out-of- the-way solution, much less radical, seems possible because the nation has never been presented with the alternatives. Nor is it prepared for them.

India’s first prime minister, Jawaharlal Nehru, who did probably realize the problems the country would face in Kashmir, sent Sheikh Abdullah to Pakistan to meet General Ayub Khan. It was a bit late because by then the Indian opinion had hardened, particularly when Nehru had himself said that Kashmir was part of “our motherland.”

It is difficult to believe what Ayub’s close aide, Altaf Gauhar, has written about the meeting between the Sheikh and Ayub. Gauhar has said in his book, Ayub Khan, what the Sheikh told Ayub: “The future of Kashmir lies with Pakistan.” There was nothing in the Sheikh’s activities after his return from Islamabad in 1964 to indicate that he could have said so. In fact, after sweeping the polls in Kashmir in 1977, he said that the vote in his favour was “for accession to India.”

The Nagaland problem too saw some activity. The then Assam chief minister, Chaliha, headed a team to talk to the Nagas. An official ceasefire was announced and a white flag was flown over a place to underline that the two sides would begin talks in an atmosphere of peace. But nothing concrete took shape.

As days went by, Nehru transferred to the home ministry the charge of Nagaland, which was looked after by the Ministry of external affairs. This ended even the semblance of belief that Nagaland was not a domestic problem. Phizo, desperate and disillusioned, went to London, sensing that New Delhi was not yet prepared for political negotiations. The nation could not suspect anything. The Nagas participated in elections for parliament and the state assembly — the voting was always above 50 per cent. The violence in the area was considered part of hazards a country faced on its frontiers.

Kashmir at least showed its resentment over the status quo through the boycott of polls. Since the major part of militancy was from across the border, the Kashmir movement, at one time mostly indigenous, lost its ilan and sympathisers in India. Human rights activists did point out the excesses committed by the security forces. But the rightists pounced upon them as if what they were doing was anti-national.

Fortunately, the government has again begun probing to find out if there is a possibility to move further in Kashmir and Nagaland. It has sounded influential segments within the Nagas to know whether a settlement of sorts is possible. But New Delhi’s predicament is that it is not sure what it can ladle out to meet the expectations, which are high both within Kashmir and Nagaland.

The Hurriyat in Kashmir appears once again determined to boycott the election. Its argument is that its participation would harm its cause of independence because as candidates, they would have to affirm their loyalty to India’s unity and integrity. The Hurriyat leaders are unnecessarily stretching the point. If they could give a similar affirmation while applying for their passports, why not do so while contesting elections? Ayub rejected the idea of condominium or confederation between India, Pakistan and Kashmir when the Sheikh mentioned it to him. Ayub believed that all federations came to be dominated by the major parties.

New Delhi can sit back and wait for the contradictions to appear within the Hurriyat and the Nagas. It can even encourage them but it will be a shoddy spectacle, which may tangle the problem still more. Perhaps one way can be to hold free and fair elections in both the states in the presence of human rights activists from within India. Some groups in Kashmir and Nagaland may boycott but New Delhi’s declaration that it would discuss the future with the elected representatives will go a long way to persuade many.

As far as Nagaland is concerned, a close associate of Phizo, Khodao-Yanthan, told me in London in 1990, when I was India’s High Commissioner there, that Phizo had wanted to settle the Nagaland question with the Indian leaders and he wanted to advise his friends to give up violence and seek solution within the framework of India. I passed on the information to New Delhi. Why this point is not on the agenda of talks with the Nagas is something I really do not understand. Why has it not been included?

Still it looks as if it may be possible to bring round political parties to give Kashmir — as well as Nagaland — a special status. They will have complete autonomy except in the areas of defence, foreign affairs and communications, as was the Kashmir Maharaja’s original instrument of accession. But this can be the final solution, not the starting point. The nation is in no mood to accept anything else. Against the backdrop of the resurgence of Hindu fundamentalism, it may be tough going for the Muslim- majority Kashmir and the Christian-majority Nagaland.

The writer is a freelance columnist based in New Delhi.

THE judgment of the Supreme Court in the referendum case has given rise to sharply contrasting responses. The government has welcomed it and the opposition has expressed its dismay. Both responses were predictable. However, the object of the present article is to examine a third possibility; does the judgment have a significance and ramifications other than those which are apparent. In other words, does it operate at more than one level?

The facts of the case do not require a lengthy narration. By means of Chief Executive’s Order No. 12 of 2002 (“the Referendum Order”) provision was made for the holding of a referendum on April 30, 2002, in which every person above the age of 18 would be eligible to vote. Article 4 of the Referendum Order provides that notwithstanding anything contained in the Constitution, if the majority of the votes cast in the referendum turns out to be in the affirmative, the people of Pakistan would be “deemed” to have given what has been described as a “democratic mandate” to General Pervez Musharraf, to “serve the nation” as president of Pakistan for a period of five years. This opportunity to “serve the nation” has been stated to be for various reasons including, specifically, “the establishment of genuine and sustainable democracy.”

Before we examine the legal implications of the above, two brief comments may not be out of place in relation to the extraordinary manner in which Article 4 has been drafted.

Firstly, it will be noted that the word “deemed” has been used. This word is a term of art in legal terminology and means (as repeatedly held by the superior courts) that by fiction of law something is assumed to be true, which, in fact, is not so. In other words, Article 4, by necessary implication, accepts that in actuality a “democratic mandate” has not been given to the general, but by fiction of law, it will be “deemed” to have been so given.

Surely this is an extraordinary legislative admission which has been made. Has the government pondered the implications flowing from its use of the word “deemed.”? Does it accept and admit that the “mandate” is in fact fictional? If so, (quite apart from its legality) what is its moral authority? Can a fictional mandate be translated into constitutional validity? These are serious questions.

Secondly, it will be seen that the language does not state that General Pervez Musharraf will be either “appointed” or “elected” to the office of president of Pakistan. Instead it states that he will be given an opportunity “to serve the nation.” For what purpose has this opportunity to serve the nation been given? The answer is for various reasons specified in Article 4, including the establishment of what has been described as “genuine and sustainable democracy.”

The question as to whether there was perhaps a simpler and more constitutional method to establish genuine and sustainable democracy — to hold elections for the office of president as prescribed by the Constitution — has of course been left unanswered. So also, has been the more basic constitutional objection, namely, that to give someone an opportunity to serve under a chief executive’s order is not equivalent to “electing” or “appointing” him to that post under the Constitution. This is a question to which the Referendum Order furnishes no answer.

After noting these preliminary points we can now proceed to the main findings in the judgment. After summarizing the arguments of the counsel for the petitioners and the respondents the findings are given in just two paragraphs.

The first finding relates to the question of the removal from office of Mr Rafiq Tarar and holds that the chief executive had the power to do so and consequently dismisses the petition in so far as it questions his removal. The second question, namely, the legal status of the Referendum Order, is then considered and in a finding of the utmost importance, the challenge to its constitutionally is rejected on the ground that “it has rightly been conceded by the learned counsel for the Respondents (i.e. the government) that the said Order does not have the effect of amending the Constitution of Pakistan.”

The third finding is essentially a corollary to the second finding and holds that since the government has conceded that the Referendum Order does not have the effect of amending the Constitution, all further questions relating to the consequences flowing from the holdings of the referendum are academic and hypothetical and consequently are not capable of being determined at this juncture. These questions are therefore left open to be determined “in a proper forum and at the appropriate time.” The petitions have accordingly been dismissed.

The question about the removal from office of Mr Rafiq Tarar is of little constitutional significance and requires no discussion. The all-important question is about the constitutionality of the Referendum Order.

It will be recollected that Article 4 of the Referendum Order begins with the following words: “Notwithstanding anything contained in the Constitution or any other law for the time being in force...” The Constitution of course lays down a specific method, to the exclusion of any other method, for the appointment of a person as president through a process of elections to be held in which members of the national and provincial assemblies vote. The Referendum Order clearly lays down a different methodology.

Hence the necessity for the words “notwithstanding anything contained in the Constitution to the contrary.” This is obvious. Why then did the government concede that the Referendum Order did not have the effect of amending the Constitution? It is this crucial concession that the court seized on and, on the basis thereof, gave the finding that it logically followed from it that since the Referendum Order was not even being claimed to be in derogation of the Constitution, it necessarily entailed that its issuance did not, per se, lead to a constitutional violation.

But sceptics would be entitled to aver that surely, despite the government’s concession, the necessary implication of the language utilized in the Referendum Order was to the contrary. The court has answered this, in effect, by observing that this question ought more appropriately to be raised at that point of time when the Constitution had been restored — that is, when the new president sought to take office under the Constitution, and not under the Provisional Constitutional Order, which prevails at present. This it has done not expressly but by necessary implication by referring to the “appropriate time.”

It is worth analyzing the government concession at a deeper level. It is the routine practice in Pakistan for the government to deny, as a matter of routine, whatever is alleged in a petition irrespective of the underlying position. Apparently this is what has happened in the present case. The petitioners contended that the Referendum Order by, in effect, seeking to amend the Constitution was unconstitutional by definition. Indeed, this is what the language of the Referendum Order implies. The government, however, denied this despite the language of the Referendum Order to the contrary.

The court stated, in effect, that allright, we have accepted your point of view, but since you (the government) yourselves do not contend that the effect of this Order can be to amend the Constitution, it necessarily follows, and this is the critical point, that there is no conflict between the Constitution and the Referendum Order. From this a further inference which can be drawn is that the Referendum Order must be deemed to be subservient to the Constitution. Furthermore, the consequences flowing from it ought more appropriately to be determined at a subsequent stage.

When will that subsequent stage come? Obviously after the general elections in October. And what then? Equally obviously, as a result of the Supreme Court judgment, it will be open to any citizen in Pakistan to challenge the validity of the appointment of the general as president of Pakistan for the next five years at that point of time. It appears, apparently, that the government has adopted a flawed strategy both in its resort to a wholly unnecessary referendum and then in acquiescing in an indefinite delay. Instead of stating what it sought to achieve clearly, it has adopted a circuitous and convoluted approach which has proved to be self-defeating.

The court has taken advantage of this, and extricated itself from the difficulty of deciding this highly charged and contentious issue at this point of time when the country is functioning under the umbrella of military rule, and left the matter to be resolved in the future after the restoration of the Constitution. The dexterity shown by the court is certainly commendable.

What has the government achieved in all this? It has lost that most precious of all political commodities — credibility and goodwill. What has it gained? A temporary win which has merely postponed the real contest till after the elections when the potential legal challenge is bound to be stronger because it will be under the Constitution and not the Provisional Constitution Order.

The writer is a former federal law minister of Pakistan.