May 14, 2006	Sunday	Rabi-us-Sani 15, 1427

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LAHORE, May 13: Senator S.M.Zafar, a leading constitutional expert, has said that the present assemblies can re-elect Gen Musharraf president for another term if they are not dissolved prematurely and the president also resigns from his office before the completion of his term on Nov 16, 2007.

“To put it simply, if the president were to resign in September 2007, or earlier, and if the present electoral college is not dissolved by then, he may, after a contest, be re-elected for another term of five years, which will start from the day he takes oath”, the former law minister said in an interview to Dawn on Saturday.

He said a Chief Election Commissioner, once appointed, could not be removed before the completion of his term, except if he resigned voluntarily. The Supreme Judicial Council, he pointed out, was the only forum which could remove the CEC.

What Mr Zafar said implied that the opposition parties would have to ‘tolerate’ the new CEC, appointed by the president without taking them into confidence.

The following are the excerpts:

Q: A controversy is going on about when Gen Musharraf’s term as president had started. Some say it is the first term, others are of the view that he will be completing his second term as the head of state on Nov 16, 2007. What’s your opinion?

A: Gen Pervez Musharraf had taken over power on Oct 12, 1999 as the country’s chief executive. But he relinquished this office on Nov 16, 2002, and took the oath as the president. His five-year term as president will continue till Nov 16, 2007.

There’s no ambiguity about his term, as it has now been further clarified by the 17th Amendment which declared that Gen Musharraf would be deemed to be elected for a term of five years after having received a confidence-vote from his electoral college.

Q: What was the status of the period when he became the president after removing Mr Rafiq Tarar and was administered fresh oath on Nov 16, 2002 along with the new assemblies?

A: President Tarar had continued as president in spite of Proclamation of Emergency and the army takeover. He was then removed through Proclamation of Emergency by Amendment 2 of 2001, issued on June 20 that year.

By this order Mr Tarar ceased to hold office.

With the office of the president having fallen vacant, another Presidential Order was issued in pursuance of Order of Emergency, declaring that the chief executive shall be the president and shall perform all functions assigned to the president by/under the Constitution. This means, from June 20, 2001 to Nov 16, 2002, he was the president under the Proclamation of Emergency, performing functions by/under the Constitution but not the president as envisaged by Article 41 of the Constitution.

Q: Can the present assemblies elect him as president for another term? How?

A: Let it be clear that coterminus of the tenure of the president need not be the same as of the National Assembly.

The NA is constituted for a fixed term of five years from the date its members take oath. It can be dissolved earlier. Likewise, a president takes his office from the date he takes oath under the Constitution for five years. But the post may become vacant if he resigns, is removed because of his incapacity, or if he dies.

Thus the life of the NA and the term of the president may not necessarily coincide.

If the president has to seek re-election from the present assembly, whose term lasts till Nov 16,2007, he can do so by resigning any time earlier than that day. Such a step will be in accordance with the Constitution and the law, and the present assemblies can elect the president after following the procedure of the election as envisaged in Second schedule of the Constitution.

To put it simply, if the president were to resign in September 2007, or earlier, and if the present electoral college is not dissolved by then, he may, after a contest, be re-elected for another term of five years which will start from the day he takes oath. The new assemblies will be elected subsequently. Thus the concurrence of the term of the present and the assemblies will come to an end.

Q: If he resigns as president before the completion of his term to seek reelection, would he be entitled to stay on as the army chief till Nov 16, 2007?

A: In view of the Two Offices Act, also approved by the Supreme Court, he can legally continue as the army chief.

Q: Some constitutional experts are of the view that if President Musharraf wants to be re-elected president, he should have taken off his military uniform in November 2005.

A: If the Two Offices Act had not been passed by parliament, he would and should have donned his uniform.

Q: What situation do you visualize in case the opposition legislators, in an attempt to prevent Gen Musharraf from seeking re-election from the present assemblies, quit their assembly seats or the chief minister of a province, NWFP, for example, advises the governor to dissolve the legislature, to make the electoral college of the head of state incomplete?

A: If such a situation arises, or if the electoral college is partly not in place and the CEC thinks that the electoral college is not complete, then in spite of the expiry of his five-year term, the president will continue to hold the office till a new president is elected and sworn in.

Q: Opposition parties have consistently been demanding that a new CEC should be appointed in consultation with them. But the president has appointed Justice Qazi Farooq as the CEC. Is there any provision in the Constitution to remove the CEC before the completion of his term and bring in another man to satisfy the opposition?

A: The CEC, once appointed, cannot be removed unless he voluntarily agrees to resign. The Supreme Judicial Council alone can remove the CEC through a procedure laid down for the purpose.

My information is that the government did informally contact opposition leader Maulana Fazlur Rehman to bring in a man with a consensus. Had the opposition responded, I am confident, the present incumbent would have won the bet even then.

Q: Opposition parties say that the caretaker government should comprise people who don’t take part in the elections. Since the Senators don’t have to contest the elections, can the members of the Upper House in the cabinet be retained in such a setup?

A: Under the Constitution, only the prime minister or the chief ministers heading the caretaker governments are not eligible to contest the election.

In terms of the letter of the Constitution, this condition does not appear to apply to the rest of the members of the cabinet.

However, the CEC, or the Election Commission, may like to, mutatis mutandis, extend this disqualification to the rest of the cabinet members.