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Supreme Challenge: Pakistan's Presidential Election Goes to Court

JURIST Guest Columnist Moeen Cheema, professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan, says that in its forthcoming ruling on the legal validity of General Pervez Musharraf's candidacy in the country's recent presidential election, the Pakistan Supreme Court is being urged to declare that democracy has a minimal content entailing free and fair voting and the absence of military domination and control over politics...

On October 6, General Pervez Musharraf contested the election for the office of the President of Pakistan and secured more than fifty-five percent of the votes cast by the members of the national and provincial legislatures that form Pakistan's electoral college. However, he cannot take the oath of office until the Supreme Court decides a number of petitions challenging his candidacy: the President-elect is also the chief of the armed forces of Pakistan and has contested the election for the Presidency while continuing to be 'in uniform.'

Given Pakistan's chequered political history — dominated as it is by three long stints of direct military rule by army chiefs that displaced elected governments, including the reign of General Musharraf himself who has been in charge since 1999 and has simultaneously held the offices of the President and Chief of Army Staff since 2001 — it is refreshing that his candidacy has at least become somewhat controversial. It is quite likely though that this phase of refreshing legal controversy shall not last: if the judicial history of Pakistan repeats itself, the court shall once again legitimize the incumbency of a military ruler and validate the façade of democratization carefully erected to hide the real and lasting structures of power inherited from Pakistan's former colonial rulers, upgraded and reinforced over its 60-year history.

The Political Background to the Legal Questions

The most important legal question before the court is simply this: can a serving chief of the army contest the election for the Presidency? Article 63(1)(d) of the Constitution appears to state otherwise: an incumbent President shall be disqualified from holding that office if "he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder." This provision, though originally applicable to the members of parliament only, was made applicable to the President's office through the notorious seventeenth amendment to the constitution. There are two other grounds for the challenge to the general's candidature. First, it may be claimed that the general has already served two terms as President and may thus be barred from seeking a third consecutive term of office. Second, the general is seeking election from a parliament and provincial legislatures that are about to end their terms and thus lacks the mandate to elect a President who may occupy that office for a period of five more years. The answer to the above legal questions may only be sought in a re-appraisal of the political events that unfolded after the coup by General Musharraf on October 12, 1999.

Immediately after the military's takeover of power, Pakistan began to experience the unfolding of a blueprint developed by the earlier military regimes of Generals Ayub Khan (1958-69) and Zia-ul-Haq (1977-88), and ratified by the superior courts. However, this time around the plan had been polished and lacked some of the crudity of the earlier takeovers. Immediately after the coup a Proclamation of Emergency was declared, the constitution was put in abeyance and a Provisional Constitutional Order (PCO) was issued to provide a temporary governing framework; no martial law was declared though and the general assumed the self-styled office of the Chief Executive. In reality, the Chief Executive was a martial law administrator and wielded all the powers of his military predecessors.

In January 2000, when the Supreme Court entertained a challenge to the military coup, the efforts to undermine the independence of the judiciary began in an earnest. The judges of the superior courts were compelled to take a new oath of office pledging to serve under the PCO. Six out of a total of thirteen judges of the Supreme Court refused to take the oath and resigned from the bench, including the then Chief Justice Saeduzzaman Siddiqui and Justice (R) Wajih-ud-Din Ahmad, who is now the most notable opponent of the general in the 2007 presidential elections.

A reconstituted Supreme Court decided the case of Zafar Ali Shah v Pervez Musharraf on May 12, 2000 and validated the coup on the grounds of the doctrine of state necessity. The court granted virtually unlimited powers to the military regime, including the power to amend the constitution so long as its salient features — parliamentary form of government, federalism and the independence of the judiciary — were left intact. The court, however, imposed one potentially meaningful restriction: the military regime had to hold general elections for the national parliament and provincial legislatures no later than three years from the date of the coup.

In December 2000, a new local government structure was launched with a view to lay the foundations of the facade of democratization, and to cultivate a new breed of loyal politicians who may use their new-found powers and the control over public resources to influence a general election in favour of the regime. In June 2001, General Musharraf dismissed the lame duck President and assumed that office through a decree. In April 2002, he held a stage-managed referendum claiming to win 96% of the votes cast and securing the office of the President for a five-year term ending in October 2007. In August 2007, just prior to holding the general elections mandated by the court, he issued a Legal Framework Order (LFO) which barred the leaders of Pakistan's two main political parties from contesting and revived the notorious Article 58(2)(b) powers of the President to dismiss the incoming parliament at will.

The general elections were held on October 10, 2002. Despite the best efforts of the intelligence agencies and the unqualified use of the local government resources, the so-called 'King's Party' of the general's loyalists, the Pakistan Muslim League (Q), failed to win an outright majority in the national legislature. An alliance of religious parties, the now much maligned Muttahida Majlis-e-Amal (MMA), emerged as the prime beneficiary of the regime's efforts to undermine the mainstream political parties and won a substantial presence in the legislatures for the first time in the country's history. The MMA also won the right to form the provincial governments in the two provinces bordering Afghanistan that are now the centre of the attention in the War on Terror.

For over a year the MMA and the other opposition parties succeeded in disrupting the business of parliament, thereby denying the military regime the satisfaction of the masquerade of a stable legislature and a popular elected government. Questions regarding the legal validity of the LFO, the referendum and other actions taken during the three-year long 'state necessity' phase also hounded the regime. In December 2003, the regime finally reached an agreement with the MMA and with its support mustered the two-third majority in parliament necessary to pass the seventeenth amendment to the constitution. The seventeenth amendment validated almost all of the actions taken during the state necessity phase, including the referendum and the revival of the presidential power to dismiss the parliament. In return the MMA secured a promise from the general to give up the office of the army chief by end of year 2004. The seventeenth amendment formalized that understanding by making Article 63(1)(d), mentioned above, applicable to the office of the President as of the first day of 2005.

In November 2004, the general reneged on his promise to give up the command of the armed forces and the efforts to provide legal cover to the simultaneous occupation of the offices of the President and army chief culminated in the passing by parliament of the President to Hold Another Office Act, 2004 (PHAA). Without the support of the MMA, this time the regime could only muster a simple majority to pass a simple legislation which stated that the office of the Chief of Army Staff (CoAS) was, under this law, declared to be an office that did not disqualify its holder from assuming the office of the President. This neat piece of legalism was made applicable to only one person, General Musharraf, and for one term of presidential office only.

The 'Doctrine of Perpetual Transition and Indefinite Democratization'

In the Pakistan Lawyers Forum case the Supreme Court was called upon to judge the validity of this seventeenth amendment as well as the PHAA 2004. The court validated the above on the basis of arguments which were termed by many in the legal fraternity as an extension of the doctrine of state necessity. I believe that the doctrinal basis of the Pakistan Lawyers Forum case is sufficiently distinct, and arguably more sinister than the doctrine of state necessity, to merit in the least a separate and more glorious title. I propose the christening of the 'Doctrine of Perpetual Transition and Indefinite Democratization'.

In the above case, the court refused to question the validity of the LFO and other actions undertaken in the first three years of the regime since these had been validated prospectively by the Supreme Court in the Zafar Ali Shah case and retroactively by parliament via the seventeenth constitutional amendment. The court dismissed the arguments that the LFO was violative of the Zafar Ali Shah case since it altered the salient features of the constitution, particularly the parliamentary form of government, and that the seventeenth amendment fell foul of the 'basic structures' doctrine referred to in some recent Supreme Court cases. The court stated that Pakistan had evolved (in the aftermath of the eleven-year long rule of General Zia-ul-Haq) a mixed parliamentary-presidential form of government. The idea of executive control over parliament was supported by references to constitutional mechanisms in several Western states which enable the executive offices of the President or the Governor General to dismiss legislatures or refuse assent to legislative measures. It was also mentioned, rather disingenuously, that until recently the Queen of England also enjoyed similar powers.

Most significantly, the court ruled that it would not question the seventeenth amendment as it had been passed by an elected legislature, nor would it take any measure that might de-track the transition to democracy in Pakistan. The court appeared to have bought the arguments of the then Attorney General to the effect that there is no definite meaning or content of democracy beyond the basic requirement that elections of some sort be held for some posts. This relative and minimalist notion of representative democracy was satisfied, according to the court, by the facts that there had been general elections in the country, national and provincial legislatures were functioning and the structures of parliamentary democracy were in place, even if some of the spirit were lacking. It was also hinted that although this transitional democratic set-up fell somewhat short of the ideal notions of democratic rule, Pakistan is not unique in this respect for such is the case with every modern state: all modern democratic constitutions are imperfect in some ways, some more imperfect than others, and all are perpetually evolving towards more democratic forms.

These notions of the vacuousness of democracy and the value of transition, no matter how slow in its progression, were then employed to validate the PHAA 2004. The court found no cavil with the Act that declared the CoAS eligible to hold the office of the President since it was a law validly passed by parliament and accorded with the literal interpretation of Article 63(1)(d). The court thereby appeared to hold that any law passed by parliament would qualify the holder of any office in the service of Pakistan to simultaneously hold the office of the President — for example, the CoAS, any Corps Commander or other army official, any bureaucrat, any employee of a semi-government organization, and so on — and that would not be contrary to the constitution. The absurdity of this pronunciation is further appreciated if one understands that by the same logic other office holders may also simultaneously occupy the office of the President: for example, the Prime Minister may also hold that office as well as any member of Cabinet, so long as parliamentary approval is forthcoming. Likewise, any serving bureaucrat or army officer may contest the general elections and become a member of parliament if the legislature were to validate that opportunity through a simple Act. According to the court, neither the constitution nor some ethereal notion of democracy bar such possibilities.

Deligitimization of Military Takeovers

President-elect General Pervez Musharraf is on the verge of achieving what no military dictator has previously achieved in Pakistan: namely, a third term, a successful transition from military to semi-democratic rule and the possibility of a somewhat honourable exit. In late 2005, the cycle of local government elections then Presidential elections then general elections was re-initiated: pro-Musharraf local governments are well-entrenched and ready to throw their weight behind the loyalists in the upcoming general elections. The general, however, made the mistake of prematurely and aggressively seeking compliance from the superior judiciary through a failed attempt to dismiss the Chief Justice of the Supreme Court in March 2007. It is this act which led to a movement by lawyers and civil society, triggering a wider political awakening in the country, and resulting in a wave of judicial activism beginning with the reinstatement of the Chief Justice by the Supreme Court. If the general had not made that false move, it is likely that the Presidential elections would have been won by now, a caretaker government of his liking would already have been in place, and the regime would be all set to stage-manage another general election.

Instead, the Supreme Court has now to decide whether the general's candidacy for the presidency, while holding the office of the army chief, was valid even though he has promised to give up that office prior to taking the oath of the office of the President and has even nominated a successor. The court is being pressed to hold that the PHAA 2004 was unconstitutional to begin with, or in the least does not entitle the general to contest for another term in the Presidency while holding the office of the army chief. It is also being argued that the general has already served two consecutive terms, the first prior to and the second beginning with the referendum, and thus may not serve another term in the Presidency. Lastly, the court is being asked to undo the scheme of holding presidential elections prior to the general elections, thereby facilitating the maintenance of presidential domination over the incoming assembly, and require the president to seek election from the new parliament after a free and fair general election.

In essence, the court is being asked to declare that there is a minimum content of democracy which entails free and fair elections and the absence of the military's domination and control over politics. The court is also being asked to commence the process of the delegitimization of military takeovers by dismantling first the doctrine that proffers legal validity to the controlled democracy put in place by successive military regimes and ultimately disbanding the doctrine of state necessity.

Moeen Cheema is an Assistant Professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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