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Democracy and Constitution

By DR FAROOQ HASSAN

The general is plainly wrong when he maintains consistently that there is democracy in Pakistan! In his conception of democracy there is the consolidation of offices of the army chief and the presidency. Even more bizarre is the realisation that in any living democratic country these two offices are really powerless to determine the outcome of any contentious matter involving political issues. These are after all politically non-significant jobs; one is a ceremonial post the other one being one involves merely professionalism. Yet in Pakistan these positions have acquired a significance which is impossible to deny. 
General Musharraf has fundamentally become quite transparent. He is further fooling nobody when he says that every thing is done according to the constitution. His conception of a constitution is the document through which his rule became personalised. Through his self-serving and self-crafted ‘legal instruments’ he stayed on as the head of the country’s armed forces for nearly a decade as well as a head of state since the day he engineered a coup on October 12, 1999. No wonder his immensely talkative once Information Minister and now in-charge of running the nation’s railways said on November 01 that the constitution is like a nose of wax that should be moulded as one pleases.
Now we are told that he would leave the army position ‘if’ he is ‘elected’ as president; factually this would be for the third time whereas the constitution under Article 44 (2) provides that none can keep this office for more than twice! Most astonishingly he is insisting that he took such decisions in national interests.
I have the admiration for our Supreme Court and I would always have the privilege of filing the first petition against the reference filed against the Chief Justice in March. His lawyers filed their case nearly three weeks later than my matter was filed. Since then the courts’ performance has been impressive from the perspectives of the human rights philosophy. For first time in this country’s history it now matters what the court may actually decide. This is the success of democracy. In this phase of our national catharsis the role of the media is always going to be memorable as well. In all these courts matter the losing side had the blessings of the general since his conception of power and authorities are at odds with that of known norms of jurisprudence.
Cooley, according to many authorities the greatest juristic author in the field of constitutional law has said that ‘constitutions’ were made to ‘limit’ executive authorities of despotic European monarchs over three hundred years ago. The retention or the fixation of the tenure of constitutional posts cannot as such be left, as a matter of constitutional principle, to the wishes of the current incumbents! I have not come across such provisions in any written constitutions examined by me to evaluate the comparative integrity of this strange assertion that it is for the incumbent of a military post to determine when he would say it is enough! Even the constitutions of Adolph Hitler and Mussolini did not give them any such powers to hold on to any post regardless of any limitations! 
No definition of any age by any philosopher or jurist worth his name, can possibly justify such a fallacious assertion that a serving army general is the best guarantee of democracy. Two former chiefs of the army in Nigeria and Indonesia are in presently in power but long after they had left their offices and after they were duly elected under the normal constitutional practice in those countries! The oddest aspect of this controversy being that while talking of ‘democracy’ and ‘national interests’ the simple truth is that the general has never been ‘elected’ himself under the popularly understood conception of this matter.
In a country where the constitution’s displacement itself is often ‘protected’ by resorts to theories such as public or state ‘necessities’, it is not realistic to contemplate that such niceties of civilised peoples would be observed. Talking of ‘civilised’ brings to mind a statement that should forever haunt Musharraf. As COAS and the president he labelled the present parliament ‘uncivilised’ in 2002. If the parliament, ex hypothesis, is uncivilised can we have any democracy at all in the country? But this body of ‘ancient privileges’, the national parliament which is an assembly of graduates, did precisely elect him from being the COAS as president on October 6, 2007. What can you say about such an assembly?
While thinking of such issues one must also mention that it is widely reported that the government may now impose emergency, if not martial law, if the Supreme Court’s verdict is somehow unconformable for the general. Several ministers have said that the government is all set to enforce emergency in case SC announces its decision after November 15, when the assemblies will be no more there and president also will be required to shed his uniform. It is also said that there is a greater likelihood of emergency imposition before the SC’s decision. If this occurs the first causality will be the forthcoming elections now due in the middle of January next year.
Once emergency is imposed under Article 232 of the constitution, the tenure of national assembly will be extended with the federal government assuming all powers along with the dismantling of political governments in the provinces. The powers will be transferred to the governors in the provinces while the political elements can be completely isolated. Musharraf may keep a minimum of political facade, engaging political leaders at both centre and in provinces. The idea is to form small governments at the centre and provinces including the political leaders. It is learnt that the government is deliberating upon a legal framework through which the inclusion of pliable political elements in the future governments will be made possible. What will happen to those who do not agree? We shall soon see when the Mian Nawaz Sharif arrives after and as a result of the orders of the Supreme Court.
What about the spirit of the constitution even if it is arguably possible under the current constitution to impose an emergency? The government has by one school of thought taken the US government into confidence over the imposition of emergency in Pakistan in view of the uncertainty and prevailing law and order situation in NWFP. The US had publicly opposed to any idea of imposition of emergency and delay of elections, but is now said to be more willing since the troubles began in Swat. Or were they started with this objective? However, on November 02 Condoleezza Rice while in Ireland and President Bush in Washington said that the American government would oppose any such moves. 
To compound the murky national political landscape on November 01 Benazir Bhutto too has left the country for Dubai, probably foreseeing what is in store in Pakistan; or is her departure based on the realisation that if the Reconciliation Ordinance is declared unconstitutional by the Supreme Court next week she may well be arrested as the country’s junior information has recently said. For the time being the political leaders even the Chaudhrys have gone in the background except for the frequent tirades of the Punjab chief minister who is aspiring to become the next prime minister as well.
If however the SC verdict is against Musharraf then he may well take some extra constitutional steps to buy sometime for political manoeuvring to secure his stay in the presidency for the next five years. In this scenario there would be a different Electoral College for the election of the president after the next election. Musharraf would then try to contest for another term but that too would be called into question in a court of law. His problems are thus far deeper than just contesting. The strategy would then be to undo through a constitutional amendment the mandatory post-service two-year bar on government servants from taking part in politics or getting elected as member of the national or provincial assembly. Getting two-thirds majority in future parliament to amend the constitution as desired seems very implausible! All such steps would be immediately challenged in the Supreme Court. 
Thus the only certainty I see is that lawyers and the law is destined to play a continuing role in the body politic of this country. Musharraf’s actions would be challenged qua any bar to the enforcement of fundamental rights or an emergency imposition per se or any other step that the general may take to undercut the prospect of free elections or his own departure from this country or at least from his current self assumed responsibilities of state!