Wardi-Special: Aspects of Re-Election
Understanding Pakistan Project Team September 23rd, 2007
Guest Post By: Syed Sharfuddin
THE Constitution of Pakistan lays down three clear requirements for the office of president. The first is that he will be elected. The second requirement is that he should hold office for a term of five years. The third requirement is that he should not be eligible for re-election after remaining president for more than two consecutive terms.
The first requirement (the source of the current president’s power), in the event of his non-election, derives from the democratic mandate he received from the people of Pakistan in the referendum of April 2002 in which he was the sole candidate. The president subsequently received a vote of confidence by the parliamentary electoral college through a special session of each House of parliament and each provincial assembly in January 2004. Neither of these actions could satisfy the election requirement stipulated in Article 41 of the Constitution until this article was given a soft landing by adding clauses (7), (8) and (9) through the Constitution (Seventeenth Amendment) act 2003. Thankfully, these clauses are valid only for the current term of the president’s office.
On the second requirement, there is a great deal of confusion over when it began and when it would expire. This is because General Musharraf has been in power for more than seven years and has worn several hats during this period, including that of president.
The establishment view is that the current term of president began on November 16, 2002, and is set to expire on November 15, 2007. The next president of Pakistan should be chosen by the assemblies some time between September 15 and October 15, 2007.
As former Supreme Court judge Wajihuddin Ahmad’s recent appraisal of the Constitution has shown, there are several intentional or residual anomalies in Chapter 1 of Part 3 of the Constitution. When the time comes to invoke these in the application of law, these are most likely to lend themselves to political interpretation instead of standing on their own legal ground.
Like the act pertaining to the president’s holding of another office, the current parliament can be called upon to give legal cover to a political interpretation of how the issue of the term of president and his re-election is to be presented to the nation. Given the record of past legislation, it is most unlikely that the parliament will deny the government what it wants.
So how can politics influence a debate which is purely a matter of law? The previous occupiers of this post have not left a healthy precedent to guide the nation in this regard.
There are a number of models to choose from if past performance, or the lack of it, is to be taken as a guide. The original 1973 Constitution provided that the president shall be elected by members of parliament in a joint sitting, and that elections would determine the beginning of the term of president.
The Constitution (Eighth Amendment) 1985 changed this procedure. While introducing an expanded electoral college which was a positive development, it also ensured that only General Ziaul Haq and no other person became president of Pakistan on the day of the first meeting of parliament in a joint sitting summoned after the next elections to the Houses of parliament.
A third model is the 2003 development which amended the 1973 Constitution substantively, except the three areas which the Supreme Court of Pakistan in its judgment of May 12, 2000, prevented the government from altering. General Musharraf’s constitutional advisers seem to have borrowed a leaf from the Eighth Amendment when they drafted the additional clauses 8 and 9 of Article 41 as amended by the Constitution (Seventeenth Amendment) act 2003. According to clause 8 of Article 41, General Musharraf is deemed to have been elected to hold office for a term of five years from the day he received a vote of confidence in parliament. Since this vote of confidence was taken on January 1, 2004, his term of office should be deemed to begin on this day and should be deemed to expire on December 31, 2008, thereby requiring the next president to be elected or re-elected some time between November 1 and December 1, 2008.
This interpretation is not only legally defensible but also politically feasible. It would enable General Musharraf to oversee an election which is devoid of election boycotts, dissolution of any provincial assemblies and negative publicity and which removes opportunities where parliamentarians demand a share in the already expanded cabinets or other powerful positions in the country in return for favours exchanged.
At this delicate point in Pakistan’s “disciplined” and still nurturing democracy, the political leadership cannot afford to take too many chances at one go but play them each at its own pace.
The prospects for the forthcoming parliamentary elections to go smoothly as planned by the election commission for 2007, and for their results to be acceptable to all political parties without any major disputes (assuming elections are fair and violence-free) will be brighter if these elections are kept separate from the issue of the president’s term of office in 2007.
The mathematics of calculating the president’s current term of office is not as simple as it sounds. The official version of the term having begun on November 16, 2002, can be disputed on two additional counts. General Musharraf could be deemed to have started his term as president from the day he removed President Rafiq Tarar and entered upon his current office by taking an oath on June 20, 2001.
General Musharraf’s term can also be deemed to have started from the date of the referendum of April 30, 2002, which gave him an overwhelming popular mandate to continue as president. No parliamentary decision can stand in the way of the people’s direct mandate, especially if they have spoken through a formal election exercise such as the referendum.
The supporters of November 16, 2002, date as the start of the president’s term point to the fact that it was the date when General Musharraf relinquished the office of chief executive and took an oath as president of Pakistan.
However, if it is the oath which is the point of law for starting the term of president, which is indeed followed in other democracies such as exemplified by the ruling of the supreme court of Sri Lanka on former President Kumaratunga’s case, then the president stands on a weak ground because of his earlier oath of June 20, 2001.
Counting his term from the beginning of the date of the first oath, General Musharraf has already completed his first term. If the point of distinction is relinquishing the office of chief executive, it can be equally argued that he still holds another important and potentially more “powerful” office which he has not given up yet.
Taking this argument further, one can build a bizarre case for counting the president’s first term from the date he will relinquish the post of chief of army staff and retain only the office of president of Pakistan.
An interesting feature of the president’s term compared to the term of the assemblies that elect him through a parliamentary electoral college is that if the election of the next president cannot be held for reasons stipulated in the Constitution, the present incumbent’s term does not come to an end automatically and can continue until the general election of the next assembly. However, for this condition to be met, the assemblies need to run out their life or be dissolved prematurely before their term. The general has already claimed credit for allowing the current assemblies to run their full course.The interpretation that the president’s term of office does not end in 2007 gives General Musharraf the advantage of benefiting from this constitutional provision as well, should this be necessary in the interest of stability and the smooth running of democratic institutions.
Whatever the outcome of the debate on the start and finish of the first term of the office of president, the government should avoid the temptation to bring any quick-fix legislation which further complicates the process and is deemed to be yet another violation of the spirit of the Constitution and the rule of law. Only political farsightedness can keep the magicians away from writing and re-writing our laws again.
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The writer is a former special adviser on political affairs to the Commonwealth Secretariat, London. This piece of was originally published in The Daily Dawn and is being republished here to generate a dialogue.
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