Aspects of re-election

THE Constitution of Pakistan lays down three clear requirements for the office of president. The first is that he will be elected. The second requirement is that he should hold office for a term of five years. The third requirement is that he should not be eligible for re-election after remaining president for more than two consecutive terms.

The first requirement (the source of the current president’s power), in the event of his non-election, derives from the democratic mandate he received from the people of Pakistan in the referendum of April 2002 in which he was the sole candidate. The president subsequently received a vote of confidence by the parliamentary electoral college through a special session of each House of parliament and each provincial assembly in January 2004. Neither of these actions could satisfy the election requirement stipulated in Article 41 of the Constitution until this article was given a soft landing by adding clauses (7), (8) and (9) through the Constitution (Seventeenth Amendment) act 2003. Thankfully, these clauses are valid only for the current term of the president’s office.

On the second requirement, there is a great deal of confusion over when it began and when it would expire. This is because General Musharraf has been in power for more than seven years and has worn several hats during this period, including that of president.

The establishment view is that the current term of president began on November 16, 2002, and is set to expire on November 15, 2007. The next president of Pakistan should be chosen by the assemblies some time between September 15 and October 15, 2007.

As former Supreme Court judge Wajihuddin Ahmad’s recent appraisal of the Constitution has shown, there are several intentional or residual anomalies in Chapter 1 of Part 3 of the Constitution. When the time comes to invoke these in the application of law, these are most likely to lend themselves to political interpretation instead of standing on their own legal ground.

Like the act pertaining to the president’s holding of another office, the current parliament can be called upon to give legal cover to a political interpretation of how the issue of the term of president and his re-election is to be presented to the nation. Given the record of past legislation, it is most unlikely that the parliament will deny the government what it wants.

So how can politics influence a debate which is purely a matter of law? The previous occupiers of this post have not left a healthy precedent to guide the nation in this regard.

There are a number of models to choose from if past performance, or the lack of it, is to be taken as a guide. The original 1973 Constitution provided that the president shall be elected by members of parliament in a joint sitting, and that elections would determine the beginning of the term of president.

The Constitution (Eighth Amendment) 1985 changed this procedure. While introducing an expanded electoral college which was a positive development, it also ensured that only General Ziaul Haq and no other person became president of Pakistan on the day of the first meeting of parliament in a joint sitting summoned after the next elections to the Houses of parliament.

A third model is the 2003 development which amended the 1973 Constitution substantively, except the three areas which the Supreme Court of Pakistan in its judgment of May 12, 2000, prevented the government from altering. General Musharraf’s constitutional advisers seem to have borrowed a leaf from the Eighth Amendment when they drafted the additional clauses 8 and 9 of Article 41 as amended by the Constitution (Seventeenth Amendment) act 2003. According to clause 8 of Article 41, General Musharraf is deemed to have been elected to hold office for a term of five years from the day he received a vote of confidence in parliament. Since this vote of confidence was taken on January 1, 2004, his term of office should be deemed to begin on this day and should be deemed to expire on December 31, 2008, thereby requiring the next president to be elected or re-elected some time between November 1 and December 1, 2008.

This interpretation is not only legally defensible but also politically feasible. It would enable General Musharraf to oversee an election which is devoid of election boycotts, dissolution of any provincial assemblies and negative publicity and which removes opportunities where parliamentarians demand a share in the already expanded cabinets or other powerful positions in the country in return for favours exchanged.

At this delicate point in Pakistan’s “disciplined” and still nurturing democracy, the political leadership cannot afford to take too many chances at one go but play them each at its own pace.

The prospects for the forthcoming parliamentary elections to go smoothly as planned by the election commission for 2007, and for their results to be acceptable to all political parties without any major disputes (assuming elections are fair and violence-free) will be brighter if these elections are kept separate from the issue of the president’s term of office in 2007.

The mathematics of calculating the president’s current term of office is not as simple as it sounds. The official version of the term having begun on November 16, 2002, can be disputed on two additional counts. General Musharraf could be deemed to have started his term as president from the day he removed President Rafiq Tarar and entered upon his current office by taking an oath on June 20, 2001.

General Musharraf’s term can also be deemed to have started from the date of the referendum of April 30, 2002, which gave him an overwhelming popular mandate to continue as president. No parliamentary decision can stand in the way of the people’s direct mandate, especially if they have spoken through a formal election exercise such as the referendum.

The supporters of November 16, 2002, date as the start of the president’s term point to the fact that it was the date when General Musharraf relinquished the office of chief executive and took an oath as president of Pakistan.

However, if it is the oath which is the point of law for starting the term of president, which is indeed followed in other democracies such as exemplified by the ruling of the supreme court of Sri Lanka on former President Kumaratunga’s case, then the president stands on a weak ground because of his earlier oath of June 20, 2001.

Counting his term from the beginning of the date of the first oath, General Musharraf has already completed his first term. If the point of distinction is relinquishing the office of chief executive, it can be equally argued that he still holds another important and potentially more “powerful” office which he has not given up yet.

Taking this argument further, one can build a bizarre case for counting the president’s first term from the date he will relinquish the post of chief of army staff and retain only the office of president of Pakistan.

An interesting feature of the president’s term compared to the term of the assemblies that elect him through a parliamentary electoral college is that if the election of the next president cannot be held for reasons stipulated in the Constitution, the present incumbent’s term does not come to an end automatically and can continue until the general election of the next assembly. However, for this condition to be met, the assemblies need to run out their life or be dissolved prematurely before their term. The general has already claimed credit for allowing the current assemblies to run their full course.The interpretation that the president’s term of office does not end in 2007 gives General Musharraf the advantage of benefiting from this constitutional provision as well, should this be necessary in the interest of stability and the smooth running of democratic institutions.

Whatever the outcome of the debate on the start and finish of the first term of the office of president, the government should avoid the temptation to bring any quick-fix legislation which further complicates the process and is deemed to be yet another violation of the spirit of the Constitution and the rule of law. Only political farsightedness can keep the magicians away from writing and re-writing our laws again.

The writer is a former special adviser on political affairs to the Commonwealth Secretariat, London.

A nightmare without end

HOW does a young man from west London find himself landed in a Kenyan police station, hanging from his wrists, his feet tied to buckets of freezing water? How does he find himself, soon after, being dined by MI5 officers at a Nairobi hotel one moment, then imprisoned underground in the desert the next?

The story of Shahajan Janjua, a British Asian, is a little window into the "war on terror". As with the cases of the three young men from Tipton who ended up in Guantánamo Bay, MI5 officials in this case showed themselves apparently incapable of making a judgment of young British Asian men's likely links to terrorism. So, another has come back from an innocent overseas trip traumatised. Would it have happened if he had been white and middle-class?

The backstory is to be found across Kenya's eastern border, in Somalia. That country's state weakness, acute poverty, and strategic position on the Red Sea made it a handy client for both sides in the cold war. In 1993, 18 US soldiers were killed there in an ill-advised UN mission. Subsequent years of warlordism and state collapse were ignored abroad. Then, last year, came six months of peace under the Union of Islamic Courts. The US responded recklessly, instigating - and aiding with spy satellites and a special operations unit - an Ethiopian attack that involved airpower and 15,000 troops. The Islamic government was brought down in days. Needless to say, it was all cast as a war against terrorism.

On Christmas Day, Janjua was in Mogadishu for the wedding of a childhood friend to a Somali woman. He was the only guest from London. Janjua, a young man who had put a troubled inner-city past behind him, planned to leave the country on December 31, stopping over in Dubai to see friends before returning to London to celebrate his 22nd birthday in January.

But he fainted at the wedding on Christmas Day, and was admitted to hospital with malaria. Mogadishu was under bombardment, and his passport was stolen. Within days he was taken from the hospital, still linked to his drip, and put in a van with cans of tuna, a gravely wounded Zimbabwean on a stretcher, another wounded Somali, and foreign fighters. It was a grim two-day trip to the southern port city of Kismayo, where the Islamic Courts were still in control and the streets seethed with men carrying AK-47s.

When Janjua was offered the chance to head for the Kenyan border, he leapt at it, desperate as he was to find a British consulate. Still weak from malaria, he was put in one of two crowded vans along with the two wounded men.

The border was closed and they split into three groups to walk. As an argument broke out about carrying the stretcher case, the Zimbabwean took a direct hit from Ethiopian troops. Janjua saw a Tunisian and Swede dead, too. Everyone ran. Janjua's group of 13 then began a two-week walk with no food and only muddy water to drink. After two days, during which time he heard them speak nothing but Arabic, he discovered that three were British.

They were arrested by the Kenyan military after villagers turned them in. Janjua was smashed in the face with a rifle and his nose fractured. In police cells in Nairobi those in authority assaulted and interrogated him. Next he was taken to expensive hotels and quizzed by six different British MI5 officials. They showed him pictures of British men he mostly did not recognise, and asked him repeatedly: "Who sent you? Who funded you? Who are your friends? Which mosque did you go to?"

His lucky break came when he persuaded a Kenyan policewoman to lend him her phone and alerted lawyers in London. Kenyan lawyers then tried to visit the prison, but were not allowed in. MI5 had ample time to confirm his account of his visit to Somalia, but on February 2, police in London were telling his family that he had been caught on the Kenyan/Somali border with guns.

Janjua and three other British men were flown back to Somalia and held for three days in an underground desert cell.

Then he was flown back to Kenya, and on to London, where he was questioned by police, but not charged. It should all be over, but he has nightmares and headaches, and is haunted by the men he left in Kenyan or Somali jails. He, and they, are yet more casualties in a mindless, misbegotten "war on terror" which the US and Britain cannot win militarily. —Dawn/Guardian Service

The writer is the co-author, with Moazzam Begg, of “Enemy Combatant: A British Muslim's Journey to Guantánamo and Back.”

A blind eye to bigotry

FIVE years ago this week, across the Indian state of Gujarat, the stormtroopers of the Hindu right, decked in saffron sashes and armed with swords, tridents, sledgehammers and liquid gas cylinders, launched a pogrom against the local Muslim population.

They looted and torched Muslim-owned businesses, assaulted and murdered Muslims, and gang-raped and mutilated Muslim women. By the time the violence spluttered to a halt, about 2,500 Muslims had been killed and about 200,000 driven from their homes.The pogrom was distinguished not only by its ferocity and sadism (foetuses were ripped from the bellies of pregnant women, old men bludgeoned to death) but also by its meticulous advance planning. The leaders used mobile phones to coordinate the movement of an army of thousands through densely populated areas, targeting Muslim properties with the aid of computerised lists and electoral rolls provided by state agencies.

Much of the violence unfolded with the full collaboration of the police. In some cases, police fired at Muslims seeking to flee the mobs. When asked to help a group of girls being raped on the roof of a building, police officers demurred, explaining: “They have been given 24 hours to kill you.” Subsequent investigations confirmed that police knew in advance of the pogrom and had been instructed not to interfere with it.

Indian and global human rights organisations have singled out Gujarat's chief minister, Narendra Modi, of the Bharatiya Janata Party (BJP), as the principal culprit. As a result of his alleged complicity in mass murder, he was denied a visa to the US and cannot visit Britain for fear of arrest.

Yet Modi remains chief minister and has become not only the BJP’s most popular figurehead, but also a poster boy for big business, foreign and domestic. Gujarat, which contains five per cent of India's population, now boasts 18 per cent of its investment and 21 per cent of its exports. At this year’s Vibrant Gujarat conclave, the showpiece of the BJP regime, the great names of Indian capitalism – Ambani, Birla, Tata – sang Modi's praises, echoed by delegations from Singapore, Europe and the US.

Anxieties about dealing with a politician accused of genocide have been allayed by the appeal of Gujarat's corporation-friendly environment, not least its labour laws, which give employers hire-and-fire rights unique in India.

Five years on, Muslims in Gujarat still live in fear. About 50,000 remain in refugee camps. Most of the cases filed by victims of the violence have never been investigated. Witnesses have been intimidated. No more than a dozen low-level culprits have been convicted. None of the major conspirators has been brought before the courts.

The events of 2002 did not conform to the paradigm of the war on terror, in which India was a prize ally, so never achieved the infamy in the West they deserved.

An array of interests – in New Delhi, London and Washington – is dedicated to ensuring the atrocity is consigned to oblivion. For them, the release of “Parzania”, a feature film centred on the violence, is an uncomfortable development. Despite dramatic flaws, it accurately depicts the savagery of the anti-Muslim violence, its planned, coordinated character, and the complicity of the police and the state government. Cinemas in Gujarat, under pressure from the Hindu right, are refusing to screen the film.

If and when “Parzania” reaches audiences in Britain and in the US, it will offer a necessary counter-tale to the fashionable fable of the Indian neo-liberal miracle, exposing the brutality and bigotry that have gone hand in hand with zooming growth rates and hi-tech triumphalism. — Dawn/Guardian Service