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Pakistan’s constitutional thriller

It is as good as — actually better than — a John Grisham. A military ruler bends the laws to stay in power. Using those bent laws, he intends to contest an election that will perpetuate his rule even though he is extremely unpopular in the country. The politicians who helped him bend the laws are now opposed to him and want the Supreme Court to stop him. The Supreme Court, thought to have freed itself from the clutches of the military ruler recently, asks why i t should pull the politicians’ chestnuts out of a fire of their own making. Politely aggressive lawyers remind the judiciary of its role in starting the fire, and ask it not to abdicate its duty to uphold the Constitution. Now playing in a courtroom of a country near you.

Once again this momentous year in Pakistan, all eyes are on the Supreme Court as it hears a set of petitions seeking to prevent Gen. Musharraf from contesting the presidential election, which, in the meantime, has been controversially fixed for October 6. If Chief Justice Iftikhar Chaudhary’s petition earlier this year to his own court seeking relief against his removal was seen as key for the future of Pakistan’s judiciary, the present legal battle is seen as critical for the future of the country itself.

The mother question inherent in the case is one that Pakistan has agonised over for nearly as long as its existence, about the military’s overarching role in its politics.

“If you remove the army from politics, the whole country will come back on the rails,” a lawyer representing the Pakistan Lawyers’ Forum, one of the petitioners, argued as he presented his case to the nine-member bench. “Politics is forbidden fruit for the soldiers, a fruit which expelled Adam from heaven and divided the country into two,” he said, referring to East Pakistan cutting away to become Bangladesh in 1971.

The legal questions before the court are more specific, and whether the verdict will have a long-term impact on the army’s role in running the country is unclear. But it will certainly affect the coming presidential elections and the general elections, and the character of next dispensation in the country. And it will give a clue to all concerned, military included, about the minds of the higher judges, especially after the reinstatement of Chief Justice Iftikhar Chaudhary. It is also bound to start a debate on what an “independent” judiciary really means. Does “independence” mean all judgments have to be against the government?

The petitions variously challenge President Musharraf retaining the army chief post beyond the retirement age of 60 years, and his holding two offices at the same time. They seek to stop him from obtaining a new term under the laws that permitted him to retain two offices all this while, on the ground that these laws do not apply for a fresh term of office. They also plead for striking down these laws.

The two laws being challenged are the 17th Amendment, adopted by Parliament in December 2003 which, among other things, kept on hold until December 2004 Article 63 of the Constitution that lists disqualifications for the office of President, among them holding another office of profit, and the President to Hold Another Office Act 2004, passed weeks before the disqualification provision in the Constitution was to become operative again.

Undoubtedly the villains of the present constitutional tangle, these two laws have introduced mind-boggling changes to the basic book. Consider this: under the original, a general election had to be held within a two-month period before the term of parliament ended. Thanks to the 17th amendment, it has to be held within two months after. Why this change? Because presidential elections must be held before the expiry of the incumbent’s term. In 2002, President Musharraf and Parliament were sworn in on the same date in November. The sleight of hand ensures that the outgoing parliament will always vote in a new President, bestowing a mandate to a person beyond the term of its own mandate.

Or take the ambiguity of the 2004 President to Hold Another Office Act, which says it will be “valid only for the present holder of the office of President.” Does that mean a one-term limit for the validity of the Act? Or does it mean that if the present incumbent continues in office for another term, the Act will continue to apply? As President Musharraf’s term in office ends only on November 15, is he entitled to use the Act to contest another term?

In fact, there is constitutional confusion over the entire period of President Musharraf’s tenure. Has he served one term or two terms? If he wins another term, is that a re-election or his first election? Lawyers for the petitioners have argued that he has served two terms, and will attract the constitutional bar on holding the office for a third term. They count his terms in office from 2001 — the first began when he sacked incumbent Rafiq Tarar to assume the presidency, and the second when he was sworn in in November 2002 following a controversial referendum.

Since September 17, when the hearings began, most of the judges on the bench have been telling off politicians for assisting military rulers to make amendments to the Constitution, and later running to the courts for relief. They have also been reluctant to accept that they have powers to provide remedies. The bench has commented that the petitions are “premature” as President Musharraf has not yet filed his nomination papers, and that the petitioners should approach the Election Commission, “the right forum” for this sort of grievance, “at the right time.”

Go back to Parliament, the remedy lies in an amending Act, said one judge. Another mocked at parliamentarians for framing ambiguous laws. Still another commented sharply that it was the politicians who had resorted to “extra-constitutional means” to strike a deal on the 17th amendment.

It was the Muttahida Majlis-e-Amal, the religious right wing coalition, that helped pass the controversial amendment. It is one of the ironies of the current situation that the Jamat-e-Islami, an important constituent of the MMA, is the principal petitioner in the case before the Supreme Court.

But the lawyers for the JI quickly reminded the bench that it was the honourable judges who created the enabling environment for the 17th Amendment with their “permission to one man to make amendments.” A 2000 judgment justified Gen. Musharraf’s military takeover. Subsequent key judgments in 2002 and 2005 did not rule against the presidential referendum or his dual offices.

As in the line in the Noel Harrison song — “like a tunnel that you follow to a tunnel of its own” — the government and the Election Commission are now quoting the very same 2002 and 2005 judgments to justify the recent change to the constitutional provisions governing the presidential election. The change in the rules means that no objections may be raised against President Musharraf’s nomination — or any other candidate’s for that matter — on the ground that he holds another office. Thanks to the Election Commission, the field is now absurdly open to any government official to run for President. The amendment is now another question that the Supreme Court has to take a decision on.

It is all working up to a nail-biting finish. The bench is expected to come up with a verdict this week. What if it rules against President Musharraf? Analysts believe the answer to that question came in the statement that he would relinquish his army post “if” elected for another term, interpreted by many as a warning to the court to pave the way for the election or else prepare to face emergency, or worse, martial law. It is entirely possible that if disqualified from the election, he may choose a saner third alternative — dissolve the National Assembly and go for general elections, and take his chances before the new electoral college.

But there are signs that for the first time this year, it could go President Musharraf’s way in the court. An early setback for the petitioners was the turning down of a plea for a full bench to hear the case and the nine judges named to the bench was a further disappointment.

For those reading the tea leaves, it was the first sign that the judiciary was trying to avoid another confrontation with the executive. The observations by the judges have reinforced the impression in legal and political circles that the bench, or a majority of the judges, is inclined to pave the way for President Musharraf to seek another term. Whether his election to another term will restore political stability in Pakistan is another question.

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