The President's club
The day Mamnoon Hussain was elected as Pakistan’s next president, talk show hosts and their guests were having a field day. Some were aghast that a political nobody was set to enter the presidency, others were making snide remarks about the president-elect’s culinary talents whereas a few saw his election as a welcome continuation of the democratic process. There was also a class dimension to all that — a common man beating the system. However, the one serious underlying point in the media circus was that a docile or – harshly put – a ‘dummy’ president was being installed by Prime Minister Nawaz Sharif. We all know that a ‘dummy’ president is a bad president, or is he?
Pakistan’s early years and the first two presidential tenures, in particular, need to be looked at in some detail to understand the historical context that has shaped the lens with which we view the office of the president today. India and Pakistan both inherited the office of the Governor General from their colonial masters, and for the first nine years of Pakistan’s existence, the country did not have the office of the president. It was only when the 1956 Constitution was promulgated that the last Governor General, Iskander Mirza, became the first president.
Under the 1956 Constitution, the executive authority of the federation was to be vested in the president who was to act in accordance with the advice of the cabinet, “except in those matters in which he was empowered to act at his discretion”. The discretion was generally limited to making administrative appointments but its most significant part was to appoint a prime minister from amongst the members of the National Assembly — a task performed by the Crown in the United Kingdom. The president could impose an emergency or remove the prime minister if, in his opinion, the prime minister had lost the confidence of the assembly. That may seem to give undue power to the president but, to give it some context, the presidential office was after all a metamorphosis of the Governor General’s position which combined the powers of the head of state and the head of government.
The 1956 position was bang in the middle of extremes that we were to see starting from General Ayub Khan right up to Hussain.
After kicking out Iskander Mirza, Ayub Khan abrogated the constitution and became Pakistan’s first chief martial law administrator. Soon, he installed himself as the president without any election. Without a trace of irony, he introduced a system of local government named Basic Democracy in 1959. The elected Basic Democrats were to also act as an electoral college in a referendum to legitimise his assumption of the office of the president and give him the mandate to make a constitution. In 1960, these Basic Democrats were required to vote by a secret ballot on a brief yet slickly phrased question: “Have you confidence in President Field Marshal Mohammad Ayub Khan, Hilal-i-Jurat?”
This process undid the system of electing the president as given in the 1956 Constitution, and also reintroduced limited voting rights instead of universal suffrage. In hindsight, Basic Democracy, the allowance to make a new constitution and the referendum question were indicative of the time warp we are in. Basic Democracy systems would keep coming back with different names, and both General Ziaul Haq and General (retd) Pervez Musharraf would have recourse to Ayub Khan’s toolkit of constitutional changes and referendum.
The 1962 Constitution, framed under Ayub Khan’s ‘guidance’, completely altered the scheme of the previous constitution, introducing a presidential form of government. Ayub Khan’s presidency was certainly the high point of presidential power in our history. The president was elected independently of the legislature and exercised all executive power. Ayub Khan remarked about this new scheme by saying, “We have adopted the presidential system as it is simpler to work, more akin to our genius and history, and less liable to lead to instability, a luxury that a developing country like ours cannot afford.”
Simple over complex, stability over debate — again, the precedent set by Ayub Khan was to be used in the future to deny the unaffordable luxury of complexity and debate to the country. Ayub Khan’s bid to get re-elected in 1965 saw probably the most controversial, farcical presidential election in our history. He went head-to-head with Fatima Jinnah, with the electoral college being the newly-elected, controlled Basic Democrats. Ayub Khan won the election through methods “akin to our genius and history”, using force and bribes in turns to woo the Basic Democrats to his side. His eventual decline through a popular revolt led another army chief – General Yahya Khan – to become the president without an election.
Yahya Khan was followed by Zufikar Ali Bhutto as president, for a brief period of time, until the 1973 Constitution was adopted. The new constitution, once again, upended the previous constitutional scheme as far as the office of the president is concerned. The all-powerful president was now not even a shadow of himself — nothing but a figurehead, a rubberstamp and, perhaps, a dummy. Chaudhry Fazal Elahi became the first president under the 1973 Constitution. He was a seasoned politician but hardly a stalwart, much like Hussain. Jokes of his helplessness and obedience to the prime minister still echo in the political annals. The presidency – apart from the comic literature that arose from it – was without event.
In 1977, when General Ziaul Haq took over power, he retained Elahi as the president. The constitutionally elected president was happy to be a prisoner in his own palace, and it was only the prospect of signing Bhutto’s death warrant that prompted him to resign — he was not loyal enough to resign when his party leader was arrested but was not disloyal enough to sign his death warrant. This led Haq to appoint himself the president, initially unelected but later endorsed in a sham referendum.
The details of Haq’s rule are not the subject here. He, however, did transform the office of the president for many years to come. He did so by inserting the Eighth Amendment in the 1973 Constitution, more specifically, Article 58 (2)(b), which allowed the president to dissolve the National Assembly when, in his opinion, the constitutional machinery of the country had broken down. Haq hardly needed any constitutional provision to allow him to do that (although he did use that article when removing Mohammed Khan Junejo’s government), but the presidents following him, namely Ghulam Ishaq Khan and Farooq Leghari, did. After Haq’s exit, the president was largely irrelevant in the everyday running of the state but with Article 58 (2)(b) still a part of the constitution, he had an ultimate and fatal power to inflict a deathblow on the elected governments.
The presidential tenures of Ghulam Ishaq Khan and Leghari were steeped in the stories of intrigue, like the rest of the country at the time. They both used Article 58 (2)(b) as a final act in their showdowns with the elected prime ministers. The irony is that the Supreme Court upheld all their government dismissals and parliament dissolutions, except one. In 1993, in the sole exception to the usual course, both the president, Ghulam Ishaq Khan, and then prime minister, Nawaz Sharif, had to go home, even after the court had restored the assemblies and the government.
Justice Rafiq Tarar – like Elahi before him, and like Hussain after him – was a gentleman, and to paraphrase P G Wodehouse, once you had said that about him, you had said all that could possibly be said. Tarar’s election as the president had a troubled start when his nomination papers were rejected by the acting chief election commissioner on the grounds that he had made remarks in the past which brought the “judiciary into ridicule”. The Lahore High Court later suspended the order of the acting chief election commissioner, allowing the election to go ahead. (The more things change, the more they remain the same, or maybe they do not change at all. Consider the judiciary’s intervention in the latest presidential election.)
Musharraf, not bothering about constitutional niceties, appointed himself as Chief Executive of Pakistan, as if the country was a private limited company. Like Haq, he did not remove Tarar, and like Elahi, Tarar watched his party chief get arrested, sent to prison and, later, to exile before his own removal which allowed Musharraf to become the president (initially without so much as even a mention of an election but, later, endorsed through a Zia-esque referendum). His later election, while he was still the army chief, was uniquely scandalous and shameful, even by our basement standards. Musharraf, however, did not use Article 58 (2) (b) even when it was present on the statute books during his regime. It was later scrapped by the 18th constitutional amendment. When Asif Ali Zardari became the president, Article 58 (2)(b) was still valid, and that may explain why he chose to become the president rather than the prime minister — a president bent on mischief could have used that article against his party’s government, to dismiss it before the expiry of its constitutional term.
Now comes Mamnoon Hussain, all set to replace Tarar as the harmless loyalist. His election journey got off on the wrong foot. The Supreme Court was petitioned by a member of the ruling Pakistan Muslim League–Nawaz to have the election date changed because the originally scheduled date was falling on the 27th of Ramzan, when members of the electoral college would be busy with spiritual obligations. In an unprecedented move, the Supreme Court accepted the petition on the same day and changed the date of the election without hearing the opposition candidates.
Prima facie violations of natural justice aside, the Supreme Court practically made the Election Commission of Pakistan (ECP) defunct. Only the ECP is constitutionally empowered to decide or change the presidential election schedule. As a first casualty of such trespassing of the ECP’s powers, Fakhruddin G Ebrahim, the chief election commissioner, resigned. The larger implication of the court’s intervention, however, is that it has dented the credibility of the election process as well as that of the office of the president and the Supreme Court itself. And it was unnecessary. Hussain would have won, in any case.
The purpose of this not-so-brief history is to understand wherefrom the office of the president derives its power. If one generalises, three broad categories of presidents can be made — the powerful: Ayub Khan, Haq and Musharraf; the dummies: Elahi, Tarar, and now, Hussain; and finally, the intriguers: Ghulam Ishaq Khan and Leghari.
These categories do not include all presidents but they do illustrate a basic point: The powerful presidents have had their source of strength outside of the electoral process and inside the barracks and the General Headquarters (GHQ). Zardari could, arguably, make it into the powerful category, his power being primarily derived from an external source — his position as the co-chairperson of the Pakistan Peoples Party. The dummies were appointed by the heads of their political parties, and perhaps, deliberately chosen because they were cut off from an independent political powerbase. The intriguers were, basically, like the dummies but enjoyed the powers of Article 58 (2) (b), and perhaps, the GHQ’s helping hand.
With the source of strength not being the office of the president itself, does the electoral process for the president become unimportant? Historically, it has not been terribly important in power play. Now, however, we find ourselves in a unique situation. For the first time in Pakistan’s history, there was a president and a ‘president-elect’. No overthrows, no intrigues — one president departing as another is elected. And that makes the Supreme Court’s decision all the more damaging and depressing. Even if Zardari falls in the category of powerful presidents, his political credibility emanated from the electoral process that had installed him in the presidency.
Unlike the men in khaki, he had a stake in the democratic process. Even if for self-interest, Zardari was history’s agent for a democratic transformation. These are baby steps, perhaps, but certainly in the right direction. Now all of this risks being undone by the Supreme Court judgment. Hussain was never going to be De Gaulle, yet, he necessarily needed not be Elahi or Tarar, which he will be now. Dummies have been better than strongmen hands down, yet that is not saying all that much.
Both the dummies of the past did not put up a fight at all (or even resign) when military adventurers took over. The docile tend to be docile even when their core values are attacked. Nonetheless, while constitutionally elected Elahi and Tarar are ridiculed as dummies, Ayub Khan’s portrait adorns many a truck plying on G T Road and his ‘decade of prosperity’ is still eulogised in textbooks, never mind his usurpation of power.
Malcolm Gladwell in his book, Blink: The Power of Thinking Without Thinking, identifies the “Warren Harding Error” of how Harding, probably the worst and the most ill-informed president of the United States, made it to the White House because he looked “presidential” — handsome, vague, simple and having a wonderful voice. We persist with the error. Commandos and field marshals still look ‘presidential’ to us. Hussain’s election was an opportunity to set out (or perhaps continue) on the very long journey to rectify it, and it stands squandered.
The president still has an extremely important role as the head of state, particularly with regard to the federation, and particularly in a federation as fragile and divided as ours. Formal constitutional powers have little importance in such a state of affairs but the perception of relative neutrality and political credibility is what matters. That perception of a neutral president elected through a credible electoral process has, perhaps, been irredeemably damaged by the Supreme Court order, even before it could have been built.
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