A controversial move

Published : Dec 06, 2002 00:00 IST

"SOME 35 years ago, General Pervez Musharraf took oath as a commissioned officer of the Pakistan Army to uphold and protect the Constitution. In 1999, while serving as the Army chief, Musharraf violated his oath and suspended the Constitution he had sworn to protect and uphold and issued the Provisional Constitution Order (PCO) to replace it. On November 16, 2002, Musharraf was administered a `fresh oath' of office and secrecy as President of the Islamic Republic of Pakistan, less than two hours before the inaugural session of the National Assembly.

Hours after the oath-taking ceremony, a spokesperson for the Pakistan People's Party (PPP) said: "In the year 2001, the General threw out the constitutionally elected President Rafiq Tarar and got himself administered the oath once again, this time as President under the Provisional Constitution Order. The oath taken on Saturday, November 16, 2002 (to continue as President for another five years) under the mixture of the 1973 Constitution and the Legal Framework Order (LFO) is the third oath taken by him in his life".

The spokesperson further said: "Only God knows how many more oaths of office the General contemplates to take and how many more oaths will satisfy his ambition for power. And going by his record of violating his own oath, only God knows whether the General will even abide by the oath he took today."

Undoubtedly, the PPP is biased and has a grudge against Musharraf for his refusal to strike a `deal' with party supremo and former Prime Minister Benazir Bhutto, on her terms. But, for a change, there was no exaggeration in the statement issued by the PPP; every word of it is factually correct. The statement articulated the sentiments of several other political parties, constitutional and legal experts, independent observers and an overwhelming section of the media.

Musharraf's decision to take the oath as President for another five years is bizarre by any standard. It was made at a time when the country was in the midst of a political crisis as there was no government in sight even five weeks after one of the most regulated general elections. Political parties had started questioning the plethora of Ordinances promulgated by Musharraf in his capacity as President, many of which impinged on the sovereignty of Parliament.

Even pro-Musharraf parties were in agreement that the military regime's controversial amendments to the suspended Constitution were an impediment to any understanding on government formation. The circumstances and manner in which Musharraf rushed to be confirmed as President for another five years have serious implications for the transfer of power from the military to a civilian set-up. Restoration of democracy, which is the basic objective of the October 10 general elections has been undermined.

Unless impeached by Parliament or unseated by courts, Musharraf will continue to be President until November 16, 2007. And he would be no ordinary President, as he would continue to command the Army.

Thanks to the sweeping powers that Musharraf has bestowed on the office of the President through the amendments to the suspended Constitution, he can dissolve the National and the Provincial Assemblies at will.

For the first time in Pakistan's history, a National Security Council (NSC) that will represent all the service chiefs has been created. The job of the Council, which will be headed by Musharraf, is to ensure that the government and the National and Provincial Assemblies do not act against `national interests', a highly subjective term. Little wonder then that most parties believe that the new government and Parliament will be no more than `dummies'.

Ironically, Musharraf was administered a fresh oath of office by the Chief Justice of the Pakistan Supreme Court, Justice Shaikh Riaz Ahmed, at the Jinnah hall of the Aiwan-e-Sadr (presidential palace). In this context, two developments relating to the judiciary merit mention. It was the Supreme Court Bench headed by Justice Ahmed that had upheld the October 1999 military take-over by invoking the `doctrine of necessity'.

A day before the general elections, Musharraf extended the tenure of all Judges from Supreme Court downwards by three years, through a presidential decree. The Supreme Court Bar Association and some other legal bodies in Pakistan denounced the measure as patently illegal. Of course, there is no connection between the enhancement of the retirement age of Judges and the assumption of office by Musharraf as President for a second time.

Musharraf's oath came as a surprise. As announced by Dr. Khalid Ranja, Law Minister in the military government, Musharraf was to have taken oath as President only after a new Prime Minister assumed office. But it seems that it was not the case. There is no other explanation why Musharraf chose November 8, the day scheduled for the inaugural session of the National Assembly, which was postponed to November 16.

What is the basis for a fresh term of five years as President for Musharraf? It is the controversial April referendum. For the purpose of the referendum, the whole country was treated as one constituency. Every person above the age of 18 (for the first time) could vote anywhere by producing any identity card. Voters were asked to answer whether they were "for the survival of the local government system; establishment of democracy; continuation of reforms; end to sectarianism and fundamentalism; and fulfilment of Quaid-e-Azam's concept of Pakistan" - and of course, whether they wished to see Musharraf continue as President.

According to the Pakistan Election Commission, a record 60 per cent of the electorate voted in the exercise and 98 per cent of those who voted favoured the General. Political parties, independent observers and the media denounced the referendum as illegal and disputed the turnout figures. While there is a provision in the Constitution for a referendum on any issue of national importance, it is certainly not meant for the purpose of electing a President.

The Pakistan Constitution is clear on the procedure for election of a President. The electoral college consists of members of the National Assembly and the Senate (equivalent of India's Rajya Sabha) and those of the Provincial Assemblies. More important, a government servant, leave alone an Army Chief, is not eligible to be a candidate for the august office.

Parties opposed to the continuation of Musharraf as President under the present arrangement had offered to validate his term provided he came before Parliament for election. This was made clear to General Musharraf by senior leader of the Muttahida Majlis-e-Amal (MMA) and chief of Jamaat-e-Islami (JI), Qazi Hussain Ahmed, at a two-hour-long meeting he had with Musharraf on November 11. Incidentally, this was the only acknowledged contact that Musharraf has had with the leader of any political party after the general election.

Yet Musharraf decided to go ahead with the oath. Obviously, he did not want to take any chances about his continuation as President, given the complicated permutations and combinations in the National Assembly and the numerical superiority of political forces opposed to him. Besides, the logic behind the seven-month delay in giving effect to the referendum held in April is unclear. Legal experts have serious doubts about the validity of the term of Musharraf as President, particularly once he fully revives the Constitution, although the amendments made to it specifically provide him with a five-year term as President as well as Army chief.

The referendum was contested in the Supreme Court in May by none other than Jamaat-i-Islami chief Qazi Hussain Ahmad. However, the apex court refused to give a ruling on whether the election of the President through a referendum was valid or not by observing that "we cannot anticipate the course of future events".

On the petition of the Jamaat-i-Islami chief, the Supreme Court refused to pass any judgment, saying: "We leave the same to be determined at proper forum at the appropriate time." With regard to the consequences of the referendum, the court held: "We would not like to go into these questions at this stage and leave the same to be determined at proper forum at the appropriate time". It was observed that the best forum to debate the issue was Parliament.

However, the court held that the referendum order had been issued validly under the Provisional Constitutional Order (PCO) or the military constitution. The court held that the Chief Executive/President had not acted under Article 48(6) of the Constitution to hold a referendum but had promulgated the referendum order in pursuance of the Proclamation of Emergency and the Provisional Constitution Order No. 1 of 1999. It is bound to come before some court or the other sooner than later and all eyes would then be on the judiciary.

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