Archive for the 'General Musharraf' Category

Wardi Special: A History of Failure - The Rise and Fall of the Military “Experiment” in Pakistan

Athar Osama September 23rd, 2007

By: Athar Osama

pk16-generals.jpgIn October 1999, when General Musharraf came to power in a coup and declared himself the Chief Executive of the country, he was met by a silent nod of approval by his 150 million compatriots. He charted a six point agenda that included broad-based accountability of those who had plundered the country’s wealth and political reforms that would rid the country of the shackles of “professional” politicians–which many of us, ordinary citizens, thought was a euphemism for a mix of political and land-reforms aimed at weakening, if not eliminating, the hold of feudal and family dynasties from the country.

I, for one, like many of my compatriots was willing to give the General a chance. The resolve that Musharraf showed upfront won him kudos and inspired a hope–a very naive hope, though–that when the General finishes his Supreme Court mandated 3-year tenure, Pakistan would be in a much better position to develop true sustainable democracy than before.

Then something predictable–something that I had not foreseen then–happened. Musharraf regime took a course that is far too similar to the 2 or 3 (depending upon how you see it) military regimes in the past. It is important to look at and understand this general pattern because I think it makes a very important point that many of us, Pakistanis, have not fully understood and assimilated.

Today, as Musharraf seeks to have himself elected for a second term, it is useful to ask a question: Is military rule the solution to Pakistan’s problems? Is Musharraf any different than his predecessor generals? Answering these questions is critical to charting a new course of democracy in Pakistan for it will address and counter the argument at the very center of the ongoing political saga and the impending presidential elections in Pakistan. 
In this article, I would demonstrate, I hope, that military dictatorship in Pakistan’s context has repeatedly proved itself to be incapable of either providing sustainable and stable governance or for solving the country’s long-term problems.

Therefore, when military generals force the civilian rulers out on the pretext that the latter have played havoc with the governance in the country and that they, and only they, can set things right, that makes a seriously questionable claim given the experience of 33-year military rule in Pakistan.

I will argue that there is a clear “pattern of failure” associated with a military regime that can be divided into three phases.

In the first phase, the regime comes to power and seeks legitimacy for it by making promises of cleaning up the mess and announcing a reform agenda. By the time the second phase begins, the regime is losing steam, legitimacy has remained elusive, and demands for return to civil rule are beginning to appear. This leads to creating a civilian face for the regime. The third phase really sees the crumbling of the artificial civilian order and last-ditch attempts by the regime to hang onto power.   Continue Reading »

Wardi Special: The Presidential Election - An Appraisal

Understanding Pakistan Project Team September 23rd, 2007

Guest Post By: Justice (Retd.) Wajihuddin Ahmad

MUCH has been said and more is likely to be said about the implications and connotations of the constitutional provisions germane to the forthcoming presidential election. The purpose here is to highlight cognate aspects here.

The official version on the subject is simple. They say that, in accordance with Article 41(7) of the Constitution, the presidential term, upon relinquishment of the office of the chief executive by the present incumbent, began on November 16, 2002, and would end on November 15, 2007. Article 41(7), as substituted by the Legal Framework Order, 2002 (LFO), with its proviso inserted by the Constitution (Seventeenth Amendment) act, is as reproduced below:

“(7) The Chief Executive of the Islamic Republic of Pakistan

(a) shall relinquish the office of Chief Executive on such day as he may determine in accordance with the judgment of the Supreme Court of Pakistan of 12th May, 2000; and

(b) having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly:

Provided that Paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2003.”

These being the parameters of the current presidential term, the proponents of the official point of view rely on Article 41(4) of the Constitution to suggest that the ensuing presidential election having been postulated by the Constitution to be held not earlier than 60 days but not later than 30 days before the expiration of the term of the president in office, must take place within the narrow corridor of September 15, 2007, and October 15, 2007. Article 41(4) of the Constitution (continuing unchanged since the inception of the Constitution in 1973) is this:

“(4)Election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office:

Provided that, if the election cannot be held within the period aforesaid because the National Assembly is dissolved, it shall be held within thirty days of the general election to the Assembly.”

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Wardi Special: Ineligibility of the Incumbent

Understanding Pakistan Project Team September 23rd, 2007

Guest Post By: Salman Akram Raja

THE question of General Musharraf’s eligibility or otherwise for re-election as president in uniform will depend critically on the interpretation of Article 43 of the Constitution that is ultimately adopted by the Supreme Court. Article 43 states that “the president shall not hold any office of profit in the service of Pakistan.” It is settled law that candidates for election must be free from conditions that render them ineligible on the date of filing of nomination papers.

Can Article 43 be read as imposing a pre-election ineligibility condition or does it apply only after a person has been elected as president, requiring him to relinquish an office of profit held by him at the time of his election? In answering these questions, the overall scheme of the Constitution must be considered.

Article 41(2) states that a person shall not be qualified for election as president unless he is qualified to be elected as member of the National Assembly. Qualifications for election as member of the National Assembly are given in Article 62 while applicable disqualifications are listed in Article 63. For a person to be elected as member of the National Assembly he must fulfil the qualifications of Article 62 and be free of the disqualifications of Article 63.

On this basis it can be reasonably argued that a person may not be elected president unless he is both qualified in terms of Article 62 and not disqualified in terms of Article 63. Article 63(1)(d), if read with Article 41(2), disqualifies any person from being elected the president of the country if “he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder.”

Since Article 63(1)(d) would, if applicable to the president’s election, disqualify a person holding an office of profit from being a candidate the possibility of a person becoming president-elect while holding such an office would stand obviated.If this interpretation is accepted then pre-election candidature requirements stand entirely determined by Articles 62 and 63 while the role of Article 43 in the constitutional scheme is narrowed down to a specification of post-election restrictions applicable to the office of the president.

This, however, is not the interpretation accepted by the superior courts of Pakistan.

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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.

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Complete Text: The Constitution (Seventeenth Amendment) Act, 2003.

Understanding Pakistan Project Team September 23rd, 2007

The Constitution (Seventeenth Amendment) Act, 2003.
ACT NO. III OF 2003

An Act further to amend the Constitution of  the Islamic Republic of Pakistan

WHEREAS it is expedient further to amend the Constitution of the Islamic Republic of Pakistan for the purposes hereinafter appearing ;

It is hereby enacted as follows :-

1. Short title and commencement.-(1) This Act may be called the Constitution (Seventeenth Amendment) Act, 2003.

(2) It shall come into force at once.

2. Amendment of Article 41 of the Constitution.-In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, in Article 41,-

(1) in clause (7), in paragraph (b), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely :-

“Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004.”; and

(2) after clause (7) amended as aforesaid, the following new clauses shall be added, namely :-

“(8) Without prejudice to the provisions of clause (7), any member or members of a House of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, individually or jointly, may, not later than thirty days from the commencement of the Constitution (Seventeenth Amendment) Act, 2003, move a resolution for vote of confidence for further affirmation of the President in office by majority of the members present and voting, by division or any other method as prescribed in the rules made by the Federal Government under clause (9), of the electoral college consisting of members of both Houses of Majlis-e-Shoora (Parliament) and the Provincial Assemblies, in a special session of each House of Majlis-e-Shoora (Parliament) and of each Provincial Assembly summoned for the purpose, and the vote of confidence having been passed, the President, notwithstanding anything contained in the Constitution or judgment of any court, shall be deemed to be elected to hold office for a term of five years under the Constitution, and the same shall not be called in question in any court or forum on any ground whatsoever.

(9) Notwithstanding anything contained in the Constitution or any other law for the time being in force, the proceedings for the vote of confidence referred to in clause (8) shall be regulated and conducted by the Chief Election Commissioner in accordance with such procedure and the votes shall be counted in such manner as may be prescribed by the rules framed by the Federal Government :

Provided that clauses (8) and (9) shall be valid only for the forthcoming vote of confidence for the current term of the President in office.”.

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After Lal Masjid, A Battle for Pakistan’s Soul

Understanding Pakistan Project Team August 29th, 2007

Guest Column* By: Ibn-e-Khuldun
 
pk12-20070817_06.jpgIn this piece, witten in the immediate aftermath of the Lal Masjid Episode but being published for the first time, Khuldun talks about the challenges posed by the dual extremism of Taliban-style theocrats and the promoters of Enlightened Moderation who are tearing the Pakistani society apart…. 

The Lal Masjid episode that had–quite predictably–eaten up the media bandwidth for several months ended in a somewhat predicted–although still very deplorable–blood bath–on last Tuesday. The high drama that came to its (anti-) climax that day has left more questions unanswered than answers it may have provided. Whether or not this was really, as alleged by the Opposition and many in the media, a diversionary tactic on the part of the Musharraf Government to sideline the epic constitutional battle being faught just across the road on the Constitution Avenue, one can only speculate.
 
pk5-20070519-122652-5463.jpgIt did, however, once again put Musharraf and his brand of “saviors” firmly in charge of the “savage” millions in Pakistan and has established, in the eyes of the West and its media, the often-repeated (by his government) “indispensibility” of his dictatorial rule in Pakistan. Add on top of that the fact that there are serious allegations that the two brothers in Lal Masjid had been in the pay of the agencies, and that it is next to impossible for anybody–no matter how slick or smart he was–to operate with such imputiny in the heavily “watched and monitored” city of Islamabad for years, and the conincidences just get too many for most of us to digest.     
 
Regardless, however, of whether the Lal Masjid espisode was a bold and audacious attempt on the part of a bunch of Mullahs and their naive followers to enforce their brand of Shariah on a country of 150 million or a creation of Masharraf and his agencies themselves, what is amply clear is that it represents a society on a collision course with itself.
 
I am not complaining that establishing the writ of law within the country–something that the Lal Masjid Mullahs and their followers had repeatedly flouted over the last few months by taking the law in their own hands or by attempting to establish a parallel judicial system–is not an important objective. I think it is absolutely important to do so and nobody must be allowed to flout our laws. What I am complaining, however, is the more-than-just-suspicious and brutal manner in which Operation Silence was carried out and, more importantly, how and why did we let the things reach this far in the first place?

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The Constitutionality of Government - Sharif Family “Exile Agreement”

Understanding Pakistan Project Team August 23rd, 2007

By: Athar Osama

When I was writing this post this morning, the Supreme Court of Pakistan had not decided this case in the favor of Nawaz Sharif and his family’s “inalienable and unqualified” right to return to Pakistan. Then Understanding Pakistan’s long-planned switchover from its servers to the new (much faster one!) ran into some glitches and the site remained inaccessible for several hours. I wanted to comment upon and archive the original copy of Nawaz-Government deal. Now, with the decision already made much of the post has been made redundant but I will do so anyway to if only to archive this agreement on Understanding Pakistan. So, here is my post, as it stood in the morning (I shall return to it later to update it with new developments)

When Chief Justice Iftikhar Chaudhary was reinstated several weeks ago, I predicted–and prayed–that this would usher in a new era of judicial independence in Pakistan (here). Several ground breaking cases, I said, were likely to come before the Chaudhary Court. Among these cases was the the likely challenge to the exile of the Sharif family and the challenge to the constitutionality of General Musharraf’s dual appointments. The first of these challenges is now before the court.

While the legal battle has only started, one interesting thing that has recently come to light is the copy of the agreement between the Government and the Sharif family. The Government–for the first time in Pakistan’s history–has submitted something of value before the court and Dawn, to its credit, has made it publicly available for all of us to see and comment upon.

(Figure: Copy of the document signed by Nawaz Sharif on December 2, 2000. Source: Dawn.com, August 23, 2007)

The document titled “Confidentiality and Hold Harmless Agreement” shows that the Sharifs had also agreed not to engage in any business or political activities or any other activities of any nature against the interest of Pakistan, or relating to their incarceration, for a period of 10 years. They had also undertaken not to disclose to any party either the name of the ‘gentleman’ or of the country involved in their release from Pakistan and relocation, without their consent.

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Fast Forward: Democracy, Bhutto-Style - Is the Charter of Democracy Dead?

Athar Osama August 3rd, 2007

By: Athar Osama

Just over an year ago, Pakistan’s two democratically elected Prime Ministers of the last decade–Ms. Benazir Bhutto and Mian Nawaz Sharif–signed a Charter of Democracy (Please take a few minutes to read the text of the document below) in London vowing to wage a joint struggle against military dictatorship in Pakistan. The Charter–a document, though with its own faults and failings, is perhaps one of the finest Charters of anything ever developed by Pakistani politicians, and thus deserves to be studied in its entirey and digested–was welcomed, albeit with some bit of skepticism by most political observers and perhaps even the general public in Pakistan. After all, it was these very leaders who were atleast partially responsible for giving the Army an opportunity to step into politics. At the time of the signing of the Charter they had argued, and many took their words on face value, that they have become wiser today than they were yesterday and that they deserved a second (third?) chance to bring real and meaningful democracy back to Pakistan’s politics.

bb-book380.jpgLike many others, I too, was willing to give them a third chance, if only because there was no other alternative. However, deep down in my heart, I was very skeptical of how comprehensive and thorough their “education” in democratic values has been. True, adversity is a great teacher but our politicians have repeatedly shown a tendency not to learn from their own mistakes and Nawaz and Benazir were probably no exceptions. I was concerned that this alliance between these leaders was only temporary in the sense that once either of them came to power, he or she will forget all the lofty democratic values expressed in this Charter. Transplanting meaningful and stable democracy in Pakistan requires not only that our learders learn how to handle the “power” of the government (”absolute power corrupts absolutely!”) but also that they learn how to sit on the opposition benches and engage constructively, critically, and meaningfully with the government. Above all, it requires a certain temperament that will only come when our leaders will truly understand what democracy really is–as a system–and develop the right democratic values to sustain and nourish it.

Of course I was totally wrong in predicting that either of the two leaders are likely to renege on the demands of the Charter once they got back into power for little did I know that I would be writing an obituary of the Charter of Democracy even before elections would be held in Pakistan.

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