Source: PK Politics

By Ashfaq Hussain Shah

Self-preservation is the first law of nature. So was applied on 3 November. It was Justice (retired) Wajeeh ud din who made the then serving Chief of Army, General Pervaiz Musharraf, feel insecure – in Musharraf’s flight to the presidency – by filing the Constitutional petition challenging his candidature. According to the New York Times, on 2 November, an eminent lawyer, Shareef ud din Perzada was consulted, who advised Musharraf if the shoe fitted wore it. The next day, a saviour appeared from the person of Musharraf to save the country – with all ‘honesty’– from committing suicide. Thereafter, the emergency was slapped, the judiciary was packed, and the media was gagged. That was how Pakistan successfully entered into the third phase of democracy which had been envisaged by Musharraf on 12 October 1999. In the post-November 3 scenario, if there could be an aggrieved party, it would be Wajeed ud din who lost an opportunity to be an elected president. The more he stirred the scenario, the worse it stunk.

Shareef ud din should not have been bothered to elaborate a simple point: a serving government servant could not contest elections for a public office. For that matter, an incumbent president could not seek re-election for another term. Now, both of the points have been addressed in the amendments introduced to the Constitution validating the authenticity of the Constitutional petitions of Wajeed ud din. Undoubtedly, in the pre-November 3 scene of the episode, the Supreme Court was all ears to Wajeeh ud din. Now is the new scene with a new Supreme Court – of course, with a new mandate. Suspension of fundamental rights also went against Wajiah ud din as his case was based on his that right. During the emergency, the fundamental rights remained suspended until the amendments were not introduced.

Supposing these amendments are to stay, the face of the Constitution is bound to give a different look. It cannot be called a Constitution catering for the needs of a Parliamentary system of government. Instead, the amendments have offered a room to a public officer to be a vigil on the elected representatives. According to the new (proposed) amendments, a government servant, whether military or civil (including the judges), can be elected as a president. The story does not end here. There is a power of Article 58-2b vested in the presidency to dissolve the parliament. Further, the president will be a head of National Security Council and of National Command Authority where the prime minister is second to him in each case.

With its present characteristics, therefore, the Constitution projects a de facto presidential structure. In the next five years, to bring a constitutional amendment to do away with the 58-2b related powers of the president is nearly impossible as the Senate enjoys presence of a majority of the pro-Musharraf supporters. In the same vein, to reject the amendments introduced through the PCOs-2007, two-thirds majority in both the houses will be required to be attained by the opposition which will be near impossible thing. In that case, Musharraf will be staying as the President. Moreover, even if the pro-Musharraf supporters are not able to bring a constitutional amendment to validate his post-November 3 acts, Musharraf will be staying as the President. The situation presents a bleak scenario for the next Assembly. It also means that there will be done more desk-thumping and less work in the Assembly.

The most interesting aspect is that the amendments cannot be challenged in any court. That is how the ‘exemption culture’ has flourished in Pakistan from the tip of the pyramid of power to the broad base of the masses. The situation has made Pakistan a country where the might rules: the jackboot can trample on a sacred document called Constitution after putting it ‘in abeyance’ and the proposed changes cannot be called into question in any court. If this is not lawlessness, what is that otherwise? In such a country, if people in general do not abide by law that should not come as a surprise. The trend descending from the higher echelons is supposed to be followed. The question is: if the Constitution is no more a sacred document to be respected and followed, how can the law that is derived from the Constitution can be deemed respectable? That is how the trickle down effect of the ‘might is right’ is ravaging the society.

The other side of the picture is: Musharraf has also landed himself in trouble. He could have entered into a deal with Benazir Bhutto to introduce a Constitutional Amendment before November 15. By so doing, he could have got a legal cover to his presence at the helm, even if the Supreme Court had decided against his candidature. In past, Musharraf got endorsement of the Assembly to stay as a President but did not get elected by it. Now, even if the next Assembly may not remove or impeach him, his stay will remain controversial giving rise to discussions and mayhems. Moreover, if the new Assembly will be fighting for its supremacy by denouncing the de facto presidential system, the third phase of democracy enunciated by Musharraf is bound to be frustrated. As the events are unfolding, where the anti-Musharraf campaign is taking ground and where the anti-military sentiment is growing around, the immediate future is not without upheavals: the voice of the people is the voice of God. Of course, when things are at the worst they begin to mend.

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Tags: , de facto, Democrcy, Emergency, Musharraf