A presidential election beset by controversy

From left to right: Senator Raza Rabbani, who has boycotted the polls, Justice (retd) Wajihuddin, the PTI candidate, and Mamnoon Husain, the PML-N candidate. — File photo.
From left to right: Senator Raza Rabbani, who has boycotted the polls, Justice (retd) Wajihuddin, the PTI candidate, and Mamnoon Husain, the PML-N candidate. — File photo.

Mamnoon Husain, the government’s presidential nominee, appears to virtually have won the July 30 poll even before the first vote has been cast. But with the main opposition party, the Pakistan Peoples Party (PPP), having boycotted the process, it would almost be a cliché to say that this could well be the country’s most controversial presidential election in recent years.

The ruling Pakistan Muslim League-Nawaz (PML-N) has assured itself of a walkover by first succeeding in changing the schedule of the elections to a date of its own choosing and then by getting “unconditional” support from the Muttahida Qaumi Movement (MQM). But it has also managed to throw into sharp relief the extremely disturbing divides within the polity. By moving the Supreme Court to get the date of the election changed, something which is the exclusive constitutional domain of the Election Commission of Pakistan, the party has revived controversial arguments that the powerful institutions of the state (read, the superior judiciary under the present circumstances) always favour politics of a certain ideological hue, one that stands for a strong centrist national ideology with heavy input from religion.

The parties that stand for any other brand of politics may easily claim that they have never been given a level playing field in national politics. Whether this claim has any merit or is just a ruse by these parties to hide their failures elsewhere in politics, and most specifically in governance, is of little consequence in the larger argument about which way the state and society in Pakistan must move in order to get out of the troubled times they are in. The ruling party’s resort to a judicial order on the election schedule, the PPP’s boycott of the polls, calling them a step against the federation, and the court’s argument that religious obligations, although not mandatory, must trump all other considerations in the business of the state are simultaneously the political conflicts of the future and the ideological clashes of yore.

A bit of history may provide some context. In the last 15 years Pakistan has had three presidential elections, two of which were won by Pervez Musharraf while he was still an employee of the government. The Supreme Court has never entertained any petition which challenges Musharraf’s eligibility to run in these polls. The question of how an army officer, technically subordinate to the secretary of the defence ministry, could go on to head the state has never become the subject of a constitutional case heard by this country’s august courts in the past 15 years. The only time that a case involving Musharraf’s participation in the presidential polls was heard was in 2007 but that too concerned a different question, that of whether the same assemblies could serve as the electoral college for two consecutive presidential elections. Even in this case, the court came up with a strange half-way house decision: Voting could take place but the result could not be notified.

The point of taking this decidedly long and admittedly winded road, to discuss the upcoming presidential polls, is to highlight that the Supreme Court of Pakistan only found its ability to make prompt and unambiguous decisions after the restoration of Chief Justice Iftikhar Muhammad Chaudhry in 2009. It was a time when the most powerful institution in the country, the military, was at its most vulnerable: It was engaged in a war of attrition with religious militants it had once supported and sponsored and it had just relinquished power after almost a decade, with its public persona of an efficient, disciplined and incorruptible institution being in tatters.

Even without going into the much debated subjects of judicial activism versus judicial restraint, and their usages as well as their impacts on a democracy in transition, it is not difficult to argue that the apex court moved extremely quickly in the post-Musharraf era to consolidate its position and to concentrate as much power as it could in the top ranks of the country’s judiciary. In the process, over the last four years or so, it has so radically changed the concepts of rule of law, justice and constitutional jurisdictions that the legal and judicial landscape of the country no longer resembles that of the past – recent and distant both. And this explains why the centre of power has shifted so decisively in Islamabad that no institution of the state feels strong enough to stand up to the diktats of the exalted bench.

All the cases where the Supreme Court has assumed the role of the investigator, the prosecutor and the judge all rolled up in one and where it has extended its jurisdiction to the domains of the executive and parliament have had one definitive impact on the polity. This is that the institutions of the state which – unlike the executive and parliament – did not have any ongoing, historical, real or imagined conflict with the apex court stopped asserting its constitutional independence fearing reprimand by the judges, daunted by their populist attention-mongering and the praise they were receiving from a large part of the media and the chattering classes.

Take, for instance, the Election Commission of Pakistan (ECP). The last time the head of an election commission tried to assert his independence vis-à-vis an ever ascendant Supreme Court was in 2011-2012 but, riding the crest of media popularity, the judges were still able to have their way, ordering the election officials to come up with revised electoral rolls within weeks even when it meant bypassing constitutional procedures.

Chief Election Commissioner Fakhruddin G Ebrahim, meanwhile, has surrendered the independence of the ECP before the apex court without so much as a murmur. When the government wrote a letter to the ECP immediately after it had issued the schedule for the presidential elections, Ebrahim’s subordinates were firm that this was a matter on which they would not budge but then hastened to add that they could crawl if the Supreme Court ordered them to walk on changing the schedule. What has resulted from such omnipresence and omnipotence of the Supreme Court among state institutions is a democracy which is definitely not presidential as it was under Musharraf but at the same time is also not parliamentary with trifurcation of powers between parliament, the judiciary and the executive. It is a quasi-democratic setup in which a group of unelected judges enjoy a veto over everything that the executive and parliament do.

If this is in reaction to what happened to the judges during Pervez Musharraf’s military regime, they seem to be punishing those very politicians who stood by them during their hour of trial. If the current hyper-activism on the part of the court is a case of compensating for letting Musharraf become the head of the state and the government while still being in the military uniform, it is clearly overkill.

Regardless of the reasons for this power shift, its implications have been immense. Many constitutional concepts – including international immunity for heads of the state and the government – have either been redefined or done away with; the scope of fundamental rights now extends to national security (as in the memo case) and religious affairs (as in the lone hearing and subsequent decision over the schedule for the presidential election); and the tenets of natural justice have been recreated by the court openly becoming a party in investigating many corruption cases by appointing officers of its own choice to prosecute the accused and by starting trials at the top of the judiciary rather than working as the court of ultimate appeal.

If nothing else, the apex court having become the arbiter of the first and last resort in all issues concerning state and society is sharpening existing political divides and creating new ones as well. The opposition and the government don’t see eye-to-eye on most political, economic and even constitutional issues but the court has left no proverbial stone unturned to make it clear whose side it is on, creating the possibility of destabilising political agitation in the coming months.

If the president of the republic is to be the symbol of the federal nature of the state then the only sensible way of going about electing him would be a non-confrontational, non-controversial one. Disregarding all other opinions and letting religious reasons be the only ground for rescheduling the presidential election is a dangerous reassertion of a national ideology that has harmed the state and society like nothing else.

The political class, the intelligentsia and civil society can ignore all these developments and possibilities only at their own peril – as some sections of the polity have already found out since 2009.

— By Badar Alam

— Statistics by Zafarullah Khan (Head of Centre for Civic Education, Pakistan)

Exclusive interview: Raza Rabbani speaks out

PPP Senator Raza Rabbani handing in his nomination papers, prior to his party's boycott of the presidential election. Also shown are PPP members Rehman Malik, Aitzaz Ahsan and Khursheed Shah. — AFP Photo.
PPP Senator Raza Rabbani handing in his nomination papers, prior to his party's boycott of the presidential election. Also shown are PPP members Rehman Malik, Aitzaz Ahsan and Khursheed Shah. — AFP Photo.

The Pakistan Peoples Party decided last week to boycott the presidential election, articulating a number of objections. The party’s presidential candidate before the decision was announced, Senator Raza Rabbani, spoke to Dawn.com about why the PPP decided to take this stance. His main concern: The election, Rabbani says, will be producing a president of ‘one unit’ – not the president of a federation who takes all provinces into account.

Q: what political objectives is the PPP achieving by boycotting the election?

A: Let me make one thing very clear – we didn’t boycott the polls to achieve any political objective. Our main objective was to save the federation and to side with the smaller provinces who are feeling left out because of this situation. After the 18th Amendment Pakistan has become a true federation. This [however] is an election process which will bring forward a president of one Unit. We have been fighting against this kind of thinking all along. The smaller provinces are feeling alienated because of this decision and they are feeling cornered. Secondly, this decision has imposed a time constraint on the election campaign and because of this, presidential candidates will not be able to reach the provincial assemblies because of the short span of time given to them for campaigning. The18th Amendment gives the provincial assemblies a status equal to that of Parliament in the presidential election. Here we have a situation where the presidential candidates will not be able to reach out to the provincial assemblies. So this means, this election will be producing a president of one unit and not of the federation.

Q: Does the PPP boycott mean that Sindh assembly will be boycotting the election?

A: No, it doesn’t mean that. The PPP is a federal party. We have representation in Punjab, in Khyber Pakhtunkhwa, in Sindh and in the National Assembly and Senate. Besides, this is not a boycott of PPP alone. Awami National Party has also boycotted the polls, Pakistan Muslim League-Quaid (PML-Q) has boycotted the poll and Balochistan National Party-Awami (BNP-A) has boycotted the poll. In this way we can say that this will be a boycott of the federation and all the federating units.

Q: Partially, your strategy to make this boycott a broad base boycott has failed. Your old ally MQM has decided to participate in the polls – so the Sindh assembly, where you have a majority, will not be unanimous in the boycott of the presidential election?

A: MQM has its own politics. Since the general elections, MQM is not with us. They are not part of the Sindh government. They have their own politics. I respect their decision. But let me make one thing very clear – that the PPP has re-affirmed its credentials as a true opposition party and as a true believer in Pakistan as a federation. PPP has a long struggle for true democratic federation to its credit. And we believe that we will take our allies along in this struggle which lies ahead of us.

Q: When you say that you will not accept the president elected as a result of this election process, what does it mean practically?

A: We are boycotting the polls, but the exercise will take place nevertheless. But as I have said, this election will produce the president of one unit and not of the federation. The five year tenure of this president will be tainted. We don’t accept this flawed election process. The fact of the matter will remain there that the five years tenure of the new president will be a tainted presidency.

Q: Is it easy for (your party) to criticise the Supreme Court while you are not in the government? You were restrained in speaking against the SC while you were in power.

A: I don’t think much has changed. Many of our leading lawyers were quite harsh in criticising the Supreme Court while we were still in power, although I didn’t subscribe to this kind of harsh criticism. We have been expressing our point of view on this issue quite openly while we were in power and now we are doing the same thing. In a temperate way we will continue to put our viewpoint forward on this issue. I don’t think much has changed in this regard.

Q: Do you fear this situation will cause any damage to the federation? Do you fear any rollback of the 18th Aamendment after all this?

A: In fact, PPP has saved the federation from damage by boycotting the polls. This is a situation where the smaller provinces started to feel that they would again be mistreated by the centre. But PPP protected the federation again by raising voice on this issue. I don’t feel comfortable in saying this again and again. But this is a fact that this situation in an indication that the federation as we know it today could be altered. Let me reiterate again that any attempt to perpetuate the rule of Islamabad, any attempt to roll back the 18th Amendment, will have disastrous consequences for the federation. The kind of external and internal situation the country is facing must be kept in mind. I mean the rampant terrorism and the regional security situation. In this situation any attempt to alter the federal structure will have disastrous consequences.

Q: You have been quoted saying that by-elections have not taken place and as a result a large number of provincial and national assembly members will not be able to vote in the presidential election. This would not have changed, even if the elections were held according to the original schedule.

A: The general elections were held on May 11 and everybody in the election commission knew that the president’s term will end on September 9, 2013. In such a situation they should have planned the by-elections in such a manner that all the members of the provincial and national and senate should have been able to cast their votes in the presidential elections. Right now 42 by-elections have to take place. And this is no small number. This means 42 members of provincial and national assembly will not be able to cast their votes in the presidential election.

Q: Would things have been different in case the Pakistan Tehrik-i-Insaf also supported your boycott?

A: Yes it would have been better if PTI had also boycotted the Presidential elections. But they have their own politics. I respect their decision. However, I read that Imran Khan has also said that he wanted to boycott the elections. But his candidate wanted to contest the elections.

— By Umer Farooq

A glance at the presidential candidates

PML-N presidential candidate Mamnoon Hussain

File photo
File photo
Nawaz Sharif’s candidate for the Presidency, Mamnoon Hussain, is a Karachi-based businessman serving as senior vice-president of PML-N. He was born in Uttar Pradesh, India, in 1940 but migrated to Pakistan where he completed his higher education. Hussain is an alumni of the prestigious Institute of Business Administration in Karachi, where he graduated from in 1965.

He is known to be a long time loyalist of Sharif and was associated with the Muslim League through the 70s and 80s. In 1993, amidst the drama surrounding Sharif’s removal from Prime Ministership by Ghulam Ishaq Khan, there was much speculation surrounding Hussain’s possible leadership of the party.

This ultimately failed to materialise, although he was the acting PML-N President in Sindh at the time. He also previously served as an adviser to then chief minister of the province, Liaquat Jatoi. Hussain served a short stint as Governor Sindh from June to October 1999 and was removed after the military coup of General (retd) Pervez Musharraf. Many analysts claim this was a pivotal moment in his career, seeing the candidacy as a reward for his loyalty to Sharif during the tumultuous times for PML-N in 1999. However, he generally maintained a low profile in the party after Musharraf’s rule ended.

In 2002, Hussain contested the elections from Karachi’s NA-250 but remained unsuccessful.

Currently, Hussain runs a textile business in Sindh and is based in Karachi. Political analysts and civil society have been claiming that his appointment by the PML-N is a response to calls from PPP and others to look to provinces other than Punjab in appointing individuals to high offices.

“I belong to Karachi. If elected, I’ll try to resolve Sindh’s issues and restore peace in Karachi,” Hussain has said. “Development and progress will begin from Sindh,” he added.

The PML-N member has also claimed that if he is elected president he will resign from the party membership. He was also quick to dissociate himself from his would-be predecessors, saying he doesn’t want to be like President Asif Ali Zardari or ex-president Ghulam Ishaq Khan.

Sharif has referred to the PML-N nomination of Hussain as choosing someone who is ‘non-controversial’. He has also pointed out that the Karachi businessman belongs to ‘a smaller province’, perhaps in response to criticism relating to Punjab-centric politics.

-Research and text by Sameer Tayebaly

PTI presidential candidate Justice (retd) Wajihuddin Ahmed

—AFP Photo.
—AFP Photo.
Justice (retd) Wajihuddin Ahmed is a former member of Pakistan’s superior judiciary and is the Pakistan Tehrik-i-Insaaf's candidate for the 2013 Presidential Election.

Wajih was born in 1938 in Delhi where his father Justice Wahiduddin also practiced law. Wajih completed his Matriculation in 1955 from the well-reputed Sindh Madrassatul Islam in Karachi and his B.A. in 1959 from Lahore’s Forman Christian College. He obtained his Law degree with Honours from the Sindh Muslim Law College where he has also taught several classes.

Wajih has served as a member of the legal system on various positions. He was elected unopposed as President of the Sindh High Court Bar Association in 1977 and 1978 and has also served as President of the Karachi Bar Association in 1981. The retired judge has held the post of Standing Counsel for the Federal government in 1984 and Advocate General, Sindh, in 1986. Wajih was also the Chief Justice of the Sindh High Court from 1997 to 1998 after which he moved to serve on the bench of the Supreme Court of Pakistan.

Having resigned from his Supreme Court position in 2001 over signing under the Provisional Constitutional Order of 2001, Wajih was a prominent member of the lawyer’s movement which contributed to the ouster of former military leader Pervez Musharraf.

Wajih also contested the presidential election of October 6, 2007 against Musharraf, as a candidate of the lawyers’ community. At the time, he said it was his national obligation to contest the poll, saying: “This is something you cannot refuse.” At the time, he was not associated with any political party.

At the same time, however, he declared the election completely illegal, saying: "It is not fair by any means to allow one candidate (Musharraf) to use state machinery and billions of rupees from taxpayers' money while others have not been provided an opportunity even to address their electoral college.”

In December that year, the former judge was arrested while going to take part in a protest organised by lawyers. Wajih joined the PTI in January 2011 and is currently on the Central Executive Committee of the party. As a member of the party, he took a strong stance on the Raymond Davis controversy, stating at the time that Davis was not entitled to diplomatic immunity.

The PTI is now seeking Jamaat-i-Islami’s support for Wajih in the presidential election.

- Research and text by Ahsan Chawla

Comments (10) Closed
Jul 29, 2013 06:09pm
what a drama everybody knows the result,election are not fair and what most disturbing is all is happening in month of ramzan
Recommend 0
azmat khan
Jul 29, 2013 07:44pm
Great Badar Alam, you have done your duty gracefully. You have shown the mirror to almost many at the helm of affairs.Very realistic article. Best of luck.
Recommend 0
Jul 29, 2013 08:02pm
Very well versed sir . Totally agree with your views . Of the opinion that Had Chowdhury Iftikhar shown the same resolve when he was part of the bench which not only upheld his coupe But also gave him 3 years and (not even asked for powers ) to amend the constitution , Perhaps , Perhap , there would have been a chance to have a better destiny for the nation , I some times wonder , if what is now being done as an overkill on part of the SCP, is to try to get some satisfaction of the crimes it commited by allowing Musharaf !!!! Certainly the new order based upon the religion's rights is an over kill and a new mode of "doctrine of necessity" introduced . The first one introduced by Hon Justice Muneer , made the country suffer under 4 long Military dictatorships , This 2nd one now introduced by Hon Justice Chowdhury , will cause the nation how much harm ! one can have a sharp shiver in one's spine .
Recommend 0
Jul 29, 2013 08:35pm
Judicial branch especially Supreme Court is totally out of control in Pakistan. We may not like the politicians, however, there is question in my mind that Supreme court is overreaching and is becoming a bit of a laughing stock. Why couldn't the election happen right after Ramzan? We now know who the SC aka Iftikhar Chaudhary was waiting to come into power so they can agree with them all this time.
Recommend 0
M. Asghar
Jul 29, 2013 09:42pm
As one looks around , one finds that there is only one constitutional organ of the country : the Apex Court, that operates in an accountable way and all the others are messed up through a festering culture of feudalism mired in corruption as a profession.
Recommend 0
Syed Imran
Jul 29, 2013 11:29pm
Another strange (maybe not in case of Pakistans twisted realities!) event Under what provisions did th Spreme court take this decision and enforced it. There is supposed to be an independent election commission whose task is to scehedule, manage and implement the election process What this amountsis mainipulation by the PMN L to suit its purposes The presidential elections havethus become a farce and meaningless with most of the opposition boycotting it. It has no crediblity. Call it a nomination rather and election
Recommend 0
Naveed A.Jami
Jul 30, 2013 01:21pm
Does it make any difference.
Recommend 0
Dr Emile Unjom.
Jul 30, 2013 04:48pm
It is not Pakistan that Quaid envisioned, but Pakistan where interests are pursued without any regard for national interest or national vision, if any. Money power and muscle power has it's say. We are nearing a peril as hope is not on the horizon.
Recommend 0
mehmood bhanji
Jul 30, 2013 07:55pm
The only good thing about the pie chart is that it is very colorful hard to read and get a accurate reading. Plus it is difficult for overseas Pakistanis to follow. Please keep it simple if you can.
Recommend 0
A Pakistan
Jul 31, 2013 08:34am
Presidential Elections were fair but scheduling of election date was mismanagement at the level of government, PSC, and PEC. There was over reaction from PPPP while PTI role was sensible.
Recommend 0