October 1, 2007	Monday	Ramazan 18, 1428

Dawn’s front page headline on 29th September 2007 used the words “The day of the General” to sum up the 6-to-3 Supreme Court verdict given a day before, dismissing on technical grounds the maintainability of petitions challenging the eligibility of a serving army officer to be a candidate for the Presidency of Pakistan.

The headline was explicit as well as subtle, evoking several associations. If headlines are sometimes to be commentative rather than factual or narrative then a second, equally prominent headline should have been “A darker night for the nation”. All nights are dark. But the night after this judgment was darker than most — even with a full moon! An ominous new precedent is sought to be created in a history already full of weird precedents given legal sanction by the judiciary.

Of the previous three military heads who occupied the Presidency — Ayub Khan, Yahya Khan, Zia-ul-Haq — none served simultaneously in an army command position and in the Presidency, while also being a candidate in a competitive election, one, moreover, where the other candidates were civilian.

Only one instance comes close. But not close enough. An adage says that a Field Marshal never retires. But Field Marshal Ayub Khan ceased to work in a command position in the army when he became a candidate for election contested also by Ms Fatima Jinnah for the post of president in January 1965: General Musa had already been appointed commander-in-chief.

Detailed comment will have to wait till the detailed judgement is released. But the short order of the court casts a long shadow. By declaring that the petitions could not be entertained under Article 184 (c) of the Constitution, the majority of 6 judges out of 9 appear to have focussed on the letter of the law, whereas wisdom demanded that the focus be on the spirit of the 1973 Constitution and on the essence of its principles. That essence survives despite the distortions injected into the Constitution both by elected civilians and by military officers. That essence draws a clear, unmistakable line between, on the one hand, the civil and the political spheres, and on the other, the military sphere.

Non-maintainability is an issue that can be decided at the level of the Supreme Court virtually in a single hearing. Instead, the court forced several lawyers to invest dozens of hours and arguments on the merits (which, in any case, the court was not considering!) and kept tens of millions of people in Pakistan and overseas engaged in an ultimately futile waiting game.

During the hearings, one of the honourable Judges, perhaps expressing views held by some of his colleagues as well, wondered why the Supreme Court was expected to come to the rescue when the original sins — e.g. the 17th Amendment, the dual office law, etc — were actually the products of an elected parliament. In effect, the Court — or part of it — was saying: “Nations get the judicial verdicts they deserve based on the laws enacted by their elected legislatures.”

Such a view about the responsibility of the judiciary is, with respect, myopic and evasive. In countries such as the USA and India, to cite only two, legislatures are, by and large, freely and fairly elected, credible and strong. They are seen as legitimate forums fully empowered to make laws. Yet even where the bona fides of such legislatures are not in question, the Supreme Courts in the USA and India have ruled that the judiciary has the right, if not a duty, to protect the basic structure of the Constitution from deviationist, destructive legislation.

In Pakistan there is recurrent controversy about the fairness of elections, about the fairness of legislation that is sometimes contrived and enacted by covert deals between the ruling and opposition parties. Further, in Pakistan, unlike the USA and India, the military continues to encroach into the political process.

Thus, more than anywhere else in the world (except Myanmar, and a couple of other places) it is in Pakistan that the judiciary needs to go beyond literalism and technicalities. The majority of judges seem to be of the view that one of the major reasons for non-maintainability was that none of the petitioners is a candidate for the presidency. Therefore, none of them faces a violation of his fundamental rights in view of the imminent candidacy of a serving army officer.

So basic is the issue of a uniformed officer-candidate being antithetical to the essence of the 1973 Constitution that every citizen of Pakistan, leave alone just two or three petitioners, face a violation of their fundamental rights. Above all, the right to benefit from the distinct separation of the institutional roles of the civil and the military as defined by the 1973 Constitution.

The offensive implications of the statement -- “If elected, I will quit as Chief of Army Staff before taking oath of office” -- were instantly exposed by the other statement: “If held to be ineligible, the General will continue as Chief of the Army Staff.” (with the absurd addendum to the effect that there is no limitation to the tenure of an Army Chief as per the Army Act). Therefore, if Mohtarma Benazir Bhutto can be elected “Life Chairperson” of her party, so too can a General be a “Life Chief!”. There can be no better expression for the fait accompli approach of: “Heads I win, tails you lose”. Come what may, “I will keep power, either in one or the other post”.

There is then our own version of the chaos theory. Apologists justify the eligibility of a uniformed president or a retired General in the interest of a ‘smooth transition’. The question is transition for whom? Certainly not for the nation. Transition applies to only one individual’s change of status — while still retaining a high office.

The transition theory, to put it as crudely as its real nature, is pure bunk. Even the mutilated version of our Constitution today enables a smooth transition. Remember how well it worked on 17-18 August 1988. General Zia-ul-Haq perished in an air crash. Within hours, as per the Constitution, the Chairman of the Senate, Ghulam Ishaq Khan, took over as president. The Armed Forces, including the army, under a new Chief abided by the Constitution. Elections were held within about 90 days. An elected civil, political government took over on 2nd December 1988.

Fortunately, the 6-3 verdict is the first stage of a struggle that, hopefully, will continue — in the courts of the judiciary, and in the court of public opinion and through peaceful public action.

Having served with General Musharraf in his cabinet for about one year in the first year of his government (1999-2000) this writer has no regrets at being associated with a military-led government. That entity came into existence in freakish, bizarre circumstances and one participated in that process on the explicit understanding that the military intervention would be limited and precise, respectful of the three-year limit given by the Supreme Court. And there was not even a hint at that time that a serving officer, civil or military, would be a candidate for election to a political office. This is not the occasion to dwell in detail on why I resigned from the cabinet in October 2000. Suffice it to say that what one regrets today is how the same fine General and several citizens in a country so rich in human resources have succumbed to the indispensability syndrome.

In his eventful tenure, notwithstanding all the compromises and other flawed policies, General Musharraf has rendered some valuable services to Pakistan. Three are particularly notable, economic growth (despite the persistence of poverty and inequality); the proliferation of private electronic media and increased pluralism; the creation of reserved seats for women in district, provincial and national legislatures.

Yet it is now time for the General to go with honour and cease to be both army chief and president, to enable a fully civilian, political, democratic process to re-establish itself. Even as a retired General occupying the Presidency, his present in the transition to a truly civilian authority will be restrictive and stilted. And as for the hour and time of his departure with dignity, he should go in full daylight, befitting the commando he is proud to be, not in the stealth of a dark night.