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| February 25, 2007 | Sunday | Safar 7, 1428 |
A barbaric act of karo-kari
Fire traps in hospitals
Obstacles in the way of another term: The presidential election: an appraisal – II
WE have heretofore scrutinised the official position vis-à-vis the forthcoming presidential election. We may now see the reverse side of the picture. The crux of the current problem is whether the president in office can be re-inducted by the present assemblies and whether there are any other impediments in his way.
IT’S a win-win situation: the signing of an accord on Friday between Pakistan and India in Islamabad on sharing equal quantities of natural gas to be piped in from Iran in the first phase of the trilateral project is a significant step towards regional cooperation. Iran’s representative was also in Islamabad to witness the groundbreaking India-Pakistan accord. Now that this tricky hurdle has been removed, work on laying the pipeline through Pakistan’s territory is to begin any time soon. The first phase of the project is expected to be implemented in about three years’ time, enabling Pakistan to right away plug into an additional supply of 1.05 billion cubic feet (BCF) of natural gas on a daily basis. This will ease the burden placed on indigenous natural gas whose supplies are depleting as a result of rising demand. The 2,200 kilometre gas pipeline through Pakistan will also enable India to plug into an equal share of a total of 2.1 BCF gas to be supplied by the project initially. India plans to obtain a total supply of 3.2 BCF for the next 30 years, which will necessitate the expansion of the gas pipeline in the second phase of the project.
Pakistan, Iran and India have over the preceding years struggled to arrive at an acceptable formula to see the mega energy project through. Besides an evasive agreement on gas pricing, it was primarily politics that hampered progress on the project for months. India had concerns over the passage of the pipeline through Pakistani territory and an uninterrupted gas supply, for which Iran became a neutral guarantor. This, as in the case of World Bank arbitration through a neutral expert in the Baghlihar Dam dispute, goes to show that involving a third party can help bridge the confidence gap that exists between Pakistan and India. Once both countries accepted Iran’s role as a guarantor of the pipeline, differences with Tehran over pricing were resolved to the satisfaction of all three parties. Iran’s concession over gas pricing to the South Asian neighbours came as a counter move to the pressure the US tried to exert on India and Pakistan, asking them not to go through with the deal. It is good that both Islamabad and New Delhi stood up to American pressure and dismissed any backtracking on a project vital to both the countries’ existing and future energy needs. Not doing so would have made South Asia a party to Washington’s row with Iran over the latter’s nuclear programme which Tehran insists has no military dimension.
The building of the pipeline through Pakistani territory is estimated to cost around seven billion dollars in the initial phase, a project that the country will be able to fund through transit fees to be generated in the initial years by the Indian component of the deal. Any future expansion based on India’s growing needs for energy could likewise be financed, leaving Pakistan with no extra burden in the form of loans from international financial institutions, which are readily influenced by Washington. The successful completion of the Iran-Pakistan-India pipeline project will also mark a new beginning towards regional development and cooperation sidelining the global political ambitions of the sole
superpower trying to reshape the world to suit its own exigencies.
GRUESOME acts of violence against women no longer shock people. How else does one explain society’s indifference to Thursday’s incident in which two young women were hacked to death on the streets of their village in Sanghar district? It is hard to understand how the girls’ own uncles could be the ones who dragged their nieces out onto the streets and murdered them for ‘dishonouring’ their family name. No crime in the world calls for such a violent response, but that makes little sense to those whose false notions of honour prevent them from thinking rationally or humanely. Any streak of independence on the part of a girl must be punished. In this case, the girls were discovered outside their homes at midnight with two men and that led to their death. The murderers then handed themselves over to the police with not an iota of remorse, proud that they had done “the right thing”. What message does that send to young rural women who dream of pursuing their own lives with partners of their own choice? In order to bring about a change, those who hold on to age-old values that have no relevance in today’s context must be enlightened on the evils of their customs. Until that happens, crimes like throwing acid on women, cutting off their noses and killing them for ‘dishonouring’ the family honour will continue, as they do on a daily basis throughout the country.
Laws alone cannot change the situation, though their strict enforcement is vital. Until perpetrators are caught, prosecuted and duly punished, men will believe they can get away with their actions. Women too will refuse to step forward to report crime, for they will believe that there is no recourse to justice. The government must do its job and address this steep rise in crimes against women. Society too needs to step out of its groove and play its role by galvanising communities to take on the oppressors. The intelligentsia must play a more active role in enlightening the people about the primitive customs and traditions they follow. Unless this is done, many deep-rooted problems of violence against women will continue.
EVEN for the fittest of people, escaping a raging inferno can be an ordeal not always rewarded with success. Besides the flames, the perils of smoke inhalation, structural collapse and stampedes are all hurdles in the way of survival. These threats become magnified when buildings lack emergency exits and firefighters proper equipment — something that is sadly the norm across the country. There is no knowing how many lives could have been lost on February 18 had the PNSC building in Karachi caught fire on a working day. Even though there was no dearth of fire engines, none were equipped to tackle a blaze on the upper levels of a 15-storey building. Fortunately for the few people trapped inside, navy and army helicopters were on hand to assist in their evacuation.
Now imagine a conflagration in a large hospital with thousands of patients, attendants and staff members present on the premises round the clock. Consider particularly the plight of those confined to bed, many of whom may not even be fully conscious, and the worst-case scenario does not bear contemplation. What would be the fate of Karachi’s Civil Hospital which lacks not only emergency exits but also adequate fire extinguishing equipment? Awakened to the peril by the PNSC blaze, the hospital’s board of governors decided this week to install fire escapes on a priority basis. While it is a relief that the CHK board has belatedly taken notice of this serious omission, it has to be ensured that the plan is followed through to its logical end. In case there is a shortage of funds, the Sindh government must provide these forthwith. Hospitals and other in-patient healthcare facilities throughout the country need to be surveyed to ascertain whether they conform to fire-related safety standards. Assessments must then be followed up with action.
Article 41 of the Constitution, which has been grafted and re-grafted since the good old days of Gen Ziaul Haq, is central to this. Such article, in its pristine form, consisted only of six clauses, 41(1) to 41(6). Nearing the introduction of a democracy of sorts, the said general, through the RCO (Revival of Constitution Order, PO 14 of 1985), duly buttressed by the Constitution (Eighth Amendment) Act, added clause (7) to it.
The addition, which operated notwithstanding anything contained in any other article of the Constitution, as a consequence of the referendum of December 19, 1984, projected and deemed the general to become the president of Pakistan on the day of the first meeting of parliament in a joint sitting summoned after the elections to the Houses of parliament and was thereupon to hold office for a term of five years.
Elections were held in February 1985. By the end of May 1988, it was realised that while the constitutional hocus pocus had already ensured Zia a little less than 11 years in the high office, the necessary foresight to guarantee a further term (of five years) was sadly lacking. Article 41 (3), an adjunct of Article 41 (7), apparently to foster credibility, had enlarged the presidential electoral college from the joint two Houses of parliament to one which also operated to include the four provincial legislatures in these words:
“(3) The President to be elected after the expiration of the term specified in clause (7) shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of:
(a) the members of both Houses; and
(b) the members of the Provincial Assemblies.”
Worse still, in virtue of Article 41 (4) (earlier reproduced) read with Article 224 (as below) and the fact that the presidential term beginning in 1985 had to end in 1990 [see the words “after the expiration of the term specified in clause (7)” in 41 (3)] well beyond the lives of the assemblies, biding time till the efflux of the accruing term was exposed to the vagaries of politics. Hence the artifice of dissolving the assemblies on May 29, 1988, with the attending option of taming the succeeding ones, was perhaps considered a safer bet. Zia, however, himself unceremoniously departed on August 17, 1988.
Cognisant of this legislative background, the authors of the LFO (Legal Framework Order, 2002) substituted Article 41(7) with that reproduced at the outset here. All conceivable protections in the manner accorded to Gen Ziaul Haq were, in turn, incorporated in the thus substituted Article 41 (7). To ensure re-election of Gen Musharraf by the same assemblies as had earlier returned a vote of confidence for him, the LFO proceeded to affect a supposedly vital amendment in Article 224, aforementioned.
Under Article 52 etc., an assembly, national and by extension also a provincial, is to have a five-year term “from the day of its first meeting and shall stand dissolved at the expiration of its term.” Because, not unlike the presidential term [see Article 41 (4)], continuity of the legislatures was also contemplated, Article 224, in its original text, provided as follows:
“224. Time of election and bye-election. (1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately preceding the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.”
As hinted earlier, the object prima facie being to cater to re-election of Gen Pervez Musharraf from the same assemblies the word “preceding” in Article 224, through the LFO, was substituted with the word “following”. Plainly, if under the original dispensation in Article 224 the electoral process for general elections to the National Assembly or provincial assemblies had become simultaneous with the re-election of the sitting president by the outgoing assemblies, a predictable hue and cry may have ensued. As a result and for that reason, the word “preceding” in the original Article 224 was substituted by the word “following” thereby protracting the assemblies’ elections and putting such elections out of sight.
The question, however, is whether the purpose has been achieved. Apparently not. The current office holder, much like Gen Zia, is an Article 41 (7) president. It has been demonstrated that there was a purpose behind using the words, “the president to be elected after the term specified in Clause (7)” in Article 41 (3). Correspondingly, and upon the expiry (“after the term”) of such term a new electoral college of members of both Houses of parliament and of the provincial assemblies was to come into being.
By fiction of law, the same incident would apply to the current Article 41 (7) president, and the electoral college in contemplation of Article 41 (3) would not be available till, not unlike Gen Zia, the ongoing presidential term is out of the way. In consequence, it may not be constitutionally permissible to go for the election of the president from the present assemblies.
Does it look like an anomaly? Yes. But this is in the nature of such things. We have seen that Article 41 (3), as substituted in 1985, altered the presidential electoral college from the two Houses of parliament to one that also came to embrace the provincial assemblies.
However, Article 41 (4) & (5), somehow, remained unaltered providing that in cases where the presidential election fell at a time the National Assembly stood dissolved, “it shall be held within thirty days of the general election to the Assembly”. What are the implications? A presidential election may yet go through on schedule even if one or all of the provincial assemblies stand dissolved! This may, technically, render the MMA threat to derail the presidential electoral college by prematurely dissolving the NWFP assembly toothless. But at what political price?
Anyway since re-election of the president from the same assemblies is clearly not in consonance with the elements of political morality, there may be a very intriguing manner and mode whereby the establishment is given a taste of its own medicine. The procedure for “Election of President”, pursuant to Article 41 (3), is incorporated in the Second Schedule to the Constitution. The relevant part of its paragraph nine runs thus:
“9. If a candidate whose nomination has been found to be in order dies after the time fixed for nomination, and a report of his death is received by the Presiding Officer before the commencement of the poll, the Presiding Officer shall, upon being satisfied of the fact of the death of the candidate, countermand the poll and report the fact to the Chief Election Commissioner, and all proceedings with reference to the election shall be commenced anew in all respects as if for a new election.”
All that the democratic forces, in order to preclude presidential election from the sitting legislatures, need to do is to nominate a few terminally sick candidates for the presidential election one or more of whom may naturally meet their Creator during the ongoing exercise. The electoral process shall, then, have to recommence de novo.
Correspondingly, before the process to be undertaken afresh comes to its logical conclusion, the national and provincial assemblies would have run out their course and the presidential election would have to await the emergence of the new electoral college. On the other hand, no constitutional impasse would follow because the proviso to Article 44(l) takes care of the situation in the following words:
“Provided that the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office”.
Before parting, there is another aspect of the current presidential election which may be adverted to. We have already seen that for the accruing term Article 41 (7) exempts the holder from the effect of Article 43 and other articles of the Constitution. Upon the expiry of such term, according to the same provision, “Article 44 and other provisions of the Constitution shall apply accordingly”.
Now Article 43 (1) postulates that “the President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services”. Even if the Another Office Act, in the scenario of Article 63(l)(d), is considered to be valid, the incumbent’s, with the resurrection of Article 43, occupying the position of COAS (carrying the right to remuneration for rendering of services) would come in his way to seek any further presidential election.
It may be argued that the present COAS is not seeking any remuneration or may refrain from accepting any remuneration and thereby escape the incidents of the later part of Article 43 (1). This may not be an easy way out.
The words in the clause are, “occupy any other position carrying the right to remuneration for rendering of services”. Remuneration, according to Article 260. “includes, salary and pension”. A person may decline to receive remuneration but he cannot thereby extinguish either the right to remuneration or the fact of occupancy of the position carrying such right. It, therefore, follows that for any future election of the president, whenever it may be, the aspirant shall have to relinquish the office of COAS.
(Concluded)
The writer is a former Supreme Court judge.