A FEW weeks ago the federal cabinet was said to have decided that General Musharraf would be re-elected as president by the present assemblies. The report provoked a storm of protest from opposition spokesmen, who assert that the intended move would be unconstitutional, politically inexpedient and immoral.

Dr Sher Afgan, Dr Khalid Ranjha and several other federal and provincial ministers on the other hand, maintain that the general’s re-election, even if he is still wearing an army uniform, would not only be legal but also indispensable for the country’s stability and continued progress. These claims would bear scrutiny.

Let us first see what the Constitution has to say on the subject. Article 41 stipulates that the president is to be elected within 30 to 60 days before the expiration of the current incumbent’s term by an electoral college consisting of the two Houses of parliament and the four provincial assemblies. If this election cannot be held because the National Assembly stands dissolved at the relevant time, it is to be held within 30 days of the new assembly’s election.

Article 41 is “tailor-made” for General Musharraf as a result of the Seventeenth Amendment to the Constitution. Referring presumably to the referendum held on April 1, 2002, clause 7 (b) says that “having received the democratic mandate” to serve as president for five years, he (General Musharraf) “shall, upon relinquishing the office of the chief executive, notwithstanding Article 43 (which forbids him to hold another office at the same time), assume the office of president forthwith,” hold that office for a term of five years, and Article 44 (which says the president has a term of five years starting from the day he enters upon office) and other constitutional provisions shall “apply accordingly.”

Clause 8 of the article provided, without prejudice to the provisions of clause 7, for a vote of confidence by the presidential electoral college “for further affirmation of the president in office.” It provided further that “the vote of confidence having been passed, the president...shall be deemed to be elected to hold office for a term of five years.”

Clauses 7 and 8 of Article 41, put in place by the Seventeenth Amendment, make a terrible muddle from which it is not easy to emerge with a clear head. Let us hope the courts, if the matter ever reaches them, are able to untangle it. I can do no more than identify some of the troubling issues arising from these clauses. The main question here relates to the starting and expiration dates of General Musharraf’s term as president.

Having announced that Mr Mohammad Rafiq Tarar had ceased to be the president of Pakistan, the general quit the office of chief executive, appointed himself president, and took the oath of office on June 20, 2001. I don’t recall if the term for which he would hold office was specified at that time, but if it was to last the usual five years, it would expire on June 19, 2006. That did not happen. Apparently, other developments overtook this first appointment and oath of office. I am not sure what they were.

Clause 7 (b) regards the “democratic mandate” (referendum) of April 2002 as having authorised him to be president and requires him, upon relinquishing the post of chief executive, to assume the office of president forthwith, and his five-year term is to begin from the day he enters upon that office. The clause creates confusion because the general was, and had been, holding the office of president since June 20, 200l. It is not made clear whether its requirements are to be treated prospectively or retrospectively. It is written in the future tense, implying that the moves it requires are still to be made, but some of them had already been made (for instance, the general’s relinquishing of the post of chief executive and assumption of the president’s office).

The Seventeenth Amendment, of which this clause was a part, was adopted by the National Assembly on December 29, 2003 and by the Senate the following day. General Musharraf had taken his second oath of office more than a year earlier (November 16, 2002).Clause 8 refers to a vote of confidence in the general as having been passed where it was still to be passed and was passed on January 1, 2004 (a day or two after the Seventeenth Amendment’s adoption). As a result of the vote of confidence, the general was to be deemed to be elected to hold the office of president for a term of five years.

It did not name the date from which the term was to begin but it may have been assumed that it had already begun on some previous day. He was to assume the office of president “forthwith” after the referendum. He was occupying that office, but he does not appear to have taken a new oath of office until November 16, 2002. I don’t know how this lapse of several months between the referendum and the oath-taking is to be explained.Nor am I sure what event required his oath-taking on November 16, 2002, In any case, it seems to be generally agreed that General Musharraf’s current term as president will expire on November 15, 2007. Ms Sherry Rehman of the PPP says it will not expire until December 31, 2008, but in this she is mistaken; she may be counting his term from January 1, 2004, the date on which the electoral college passed a vote of confidence in him, but that would not be the right thing to do, for he did not take still another oath of office following this event.

I find nothing in the Constitution which stops a given set of assemblies (electoral college) from electing the same person as president twice in their one and the same term. I am therefore inclined to the view that the general’s re-election by the present assemblies would not be illegal. We may then turn to the question of whether it would be immoral and politically inexpedient.

The argument that such re-election would be immoral can be made from two perspectives. The general has never been elected president. He took power through a coup, appointed himself chief executive and then president. The referendum which was supposed to have confirmed him in office was widely regarded as fraudulent and therefore of no consequence. The vote of confidence in the electoral college was likewise not an election. That he would be deemed to be elected president as a result of this vote was an assertion arbitrarily placed in the Seventeenth Amendment. His occupation of the office of president is, thus, wanting in legitimacy. His re-election would further extend a whole train of illegitimate acts.

The argument that his re-election by the present assemblies would be immoral because it would be done during the last few weeks of their tenure is not sound. Electing a president is one of their functions. There is no reason why they should not perform this function when their term is about to expire if it is proper for them to perform other functions: let us say, passing a supplementary budget or authorising war against a foreign foe.

The immorality of their action, if they take it, will arise from their own dubious status. These assemblies resulted from elections that were believed to have blatantly been rigged. The people of this country accepted them and their work for lack of an option. They might get away with re-electing General Musharraf but that will not make them blameless or their action worthy.

General Musharraf’s proponents are saying not only that his seven-year rule has produced progress and prosperity, but also that his uniform has served to protect and preserve the country’s institutions. The claim to progress and prosperity is admittedly controversial, but that regarding institutions is simply preposterous. There can be little doubt that the political institutions (assemblies, parties, elections) have decayed to the point of ruin during his rule. The bureaucracy is wounded and extensive civilianisation may have impaired even the nation’s military capability.

It is evident that the country’s politics are in disarray. An insurrection is raging in Balochistan, there is severe disaffection in the north-western tribal areas and widespread alienation in Sindh. Some of this political turmoil can surely be attributed to military rule. General Musharraf’s re-election, especially if he retains his army post, will further intensify the current chaos.

The opposition parties say they will do all they can to prevent the present assemblies from re-electing General Musharraf. Street power in the requisite amount cannot be generated. But the MMA’s plan to have its chief minister in the NWFP ask the governor to dissolve the provincial assembly, and that at an opportune time, may well work.

As mentioned earlier, Article 41 of the Constitution says a presidential election cannot be held if the National Assembly stands dissolved at the time. This provision is made presumably because the National Assembly’s absence from the scene impairs the integrity of the electoral college. It is then not whole; it has lost its prescribed identity. The Constitution does not accord the National Assembly a higher status than that of any other of the college’s components (the Senate and the four provincial assemblies).

It follows that if the provincial assembly in the NWFP stands dissolved around the time when the presidential election is scheduled, there will be no electoral college to proceed with the election. It will have to be deferred until after a new NWFP assembly has been elected. But elections to the National Assembly and the other provincial assemblies will have to be held when they are due to be held, meaning that a new electoral college will have come into being by the time the presidential election can be held.

The writer is a visiting professor at the Lahore School of Economics for the spring semester.
anwarhs@lahoreschool.edu.pk

LESS than a year to the elections many doubts linger and questions keep arising about the polls being fair and open to all individuals and parties. There is also the overhanging fear of polls being put off because of a presumed or real emergency. Suicide bombers, Baloch rebels, the Taliban, boycotting politicians and angry clerics are there to provide a pretext.

Pakistan is a parliamentary democracy but, ironically, its parliamentarians are all the time battling over the election of the president. While Gen Musharraf, or someone on his behalf, has yet to declare his candidature for another term, his chief political supporter, Chaudhry Shujaat, and the loquacious parliamentary affairs minister, Sher Afgan, say often and emphatically that he will be elected by the present assemblies.

From the opposing side many parties, the most vehement of them being Nawaz Sharif’s Muslim League and the Jamaat-i-Islami, have let it be known that in such an event they would not take part in the general elections nor allow them to be held -- that is if they can help it.

If the views and wishes of the president’s men prevail, the election of the president and parliament may be held valid under the Constitution (as it stands after the Seventeenth Amendment) but the representative character and moral authority both of the president and parliament will be constantly called into question throughout their five-year terms – or as long as they last. It would be a classic case of being legally right but morally wrong and politically messy.

To resolve this conflict between what is viewed by the government as the constitutionally mandatory and what is considered by its opponents as the politically absurd, I.A. Rehman in this paper suggested recently that the prime minister and the four chief ministers should advise the president/governors to dissolve the assemblies two months before the expiry of their five-year term. Elections to the new assemblies could then be completed before Gen Musharraf’s election comes up between September 15 and November 15.

The prime minister and the president should give serious thought to this perfectly sensible and constitutional remedy suggested by Mr Rehman to put democracy in the country on a stable footing. The president would not command respect if he were to be elected by the old, dying assemblies, and the new assemblies would not be truly representative if elections to them were boycotted by one or more major political parties. Of particular importance are the president’s elective credentials in the administrative arrangement that has come to stay. He is not just head of the state but also in charge of the country’s foreign policy and its nuclear arsenal though under the Constitution both lie in the domain of the prime minister. Further, it would appear absurd if the president were to dissolve the National Assembly (which he can constitutionally) that had a later and wider mandate.

One is justified in assuming that the ministers in the present parliament are keen on electing Gen Musharraf not out of love for him but for the sake of their own advantage. His election beforehand, they imagine, would vastly improve their prospects of returning to the new parliament. The coalition of parties in power is thus lending credence to the charge of the opposition that elections to the assemblies with Gen Musharraf in the saddle will be rigged. Even if they are not, the voters, who have to be generally chaperoned or even hectored by party bosses or clan chiefs, are bound to be impressed by the presidential patronage to sitting members.

Gen Musharraf has been assuring his own people and, more significantly, America that even if he does not give up the army command, elections to the assemblies under him would be fair and free. This assurance cannot be relied on if he himself were to get elected first and then also appoint the interim government and the election commission to conduct polls to the assemblies. Gen Musharraf considers the Q League as his own party. He directs its affairs and also presides over its meetings. Chaudhry Shujaat as president of the Q League sits in the councils of the government as if it were his right.

The power of the president under the Constitution to appoint an interim government to conduct elections is based on the premise that the president is above party politics. That Gen Musharraf, by his own admission and conduct, is not. So if he must get elected by the present assemblies as a quid pro quo he should give up his right to appoint the interim prime minister and chief election commissioner. The selection of both, instead, should be made by a board of reputable citizens who are not involved in politics and after consulting the heads of all those parties who agree to participate in the polls and have also been represented in the legislatures in the past -- just to keep out minor and mushroom parties.

For the interim government and election commission to be neutral and unrelenting would be more important in the next elections than ever in the past because now the nazims and councillors, though they are members of political parties, enjoy penal powers, provide civic services and disburse development funds. They control field officials of revenue, education, health, police and many other departments who can influence the voters and harass the recalcitrant among them and, as polling officers, can also tamper with the ballot.

The nazims cannot be trusted with any kind of role in conducting the polls or the campaign preceding these because almost all of them, district nazims in particular, belong to powerful political clans. The members of their families or tribes would either be among the contestants or actively backing them. Previously, if professional civil servants sided with a candidate or connived at unfair means like the stuffing of ballot boxes or falsifying the count it was only under pressure or inducement. Now the councillors and nazims would be doing it on their own to favour their families and parties.

The fairness of the next polls is bound to be called into question -- more than it has been in the past. Having assured his own election for another term, the least that the president can do is to give a fair and equal chance to all others. He should be wary of sycophants who promise to elect him 10 times over. One has a feeling that if elections are rigged the country may relapse into dictatorship or anarchy that could prove worse and be in place far longer than in the past.