Understanding Pakistan Project

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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• General Musharraf , Democracy , 2007 , Military , Constitution , Politics , Guest Post
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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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• Elections 2007 , Democracy , General Musharraf , Military , Constitution , Politics , Guest Post
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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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• Elections 2007 , Democracy , Martial Law , General Musharraf , Politics , Military , Constitution
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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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• Complete Texts , Democracy , General Musharraf , Military , Politics , Constitution
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Understanding Pakistan Project Team September 16th, 2007

Guest Post By: Brig (Retd.) Shaukat Qadir 

Part 1: Operation Gibraltar: Battle that never was

Unfortunately most of our history, particularly that relating to the conduct of military operations, remains shrouded in mystery, since none of the actual details is made public. Consequently, even those like myself who possess some knowledge of the actual events need to piece these together with educated speculations to fill in the gaps. Today, 40 years after this war, the true story remains untold.

Within the military an effort has been made to detail and analyse the actual events, but even these efforts might not be the whole truth, nor have they been made public. Therefore, those who choose to read this version with skepticism might be more sensible than those who consider this an accurate version, but I will attempt to relate the events as I am aware of them. If these read like a comedy of errors, I can only suggest that occasionally truth is indeed stranger than fiction.

Early the same year Pakistan army had successfully defended itself against the Indian attempted incursion in the Rann of Kutch, but that chapter was closed since the dispute had been referred for arbitration. Why therefore should Pakistan embark on a venture that might lead to war remains an unanswered question to date, particularly when we were aware that such a venture in which we were considered the aggressor would result in the severance of aid from the US, which ultimately happened?

It is a matter of historical record that Zulfiqar Ali Bhutto, then foreign minister, convinced Ayub Khan, the president, that the Indian response to our incursions in Kashmir would not be across the international boundary and would be confined to Kashmir.

He must have offered powerful diplomatic arguments as forcefully and articulately as he could, but despite that I find it difficult to comprehend how Ayub accepted such an argument which was militarily untenable and, while Ayub could be accused of many things, he was far from being militarily unwise.

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• Relations with India , Ayub Khan , Military , 1965 , Guest Post
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Athar Osama September 15th, 2007

By: Athar Osama 

In the first of this three part episode, we looked at the War in Kashmir that began as a precursor to the broader conflict between India and Pakistan. Hostilities began on August 5th and 6th 1965 when Pakistan army regulars infiltrated the Cease Fire Line (CFL) in Kashmir. On August 7th 1965, Pakistani forces carried out a raid in the Kargil area to cut off the road links between Srinagar and Ladakh. Between August 12th and 16th, Pakistan continued its attack on an Indian Army post in Kargil accompanied by shelling in the Chhamb sector. Increasingly, both countries were employing their regular forces in these operations and a low-intensity localized war was already underway.

(Figure: A Map of Pakistan-India War of 1965: The Ground Battles created by the author is on the next page. Please click below.)

 Brian Cloughley, in his “A History of Pakistan Army: Wars and Insurrections”, notes:

“There were statements in the respective parliaments, letters to the UN, and briefings of international media, but there was sense of buying time. On the Pakistan sided, it was still hoped that the actions of the Mujahids would persuade the population of the valley to rise up, whereafter the Pakistani regular troops could be deployed with a semblance of legality. The Indians were not averse to escalation of the conflict as it would, in their view, provide an opportunity to make up for the humiliation in the Runn of Kutch and settle things once and for all with their recalcitrant neighnour. They wanted to “get at and smash the Pakistani war machine’” (Cloughley, 1999, p. 63)

Here are a few videos of the 1965 War. The first of these is a typical motivational video (with a Pakistani-bent) that puts together a collage of pictures from the war itself. The second video (next page) is an Indian video of similar nature. The difference between how same events are potrayed by the popular press and public in the two countries couldn’t have been more stark. The third video (next page) is a brief actual clip of the War, perhaps taken from a Pakistani news report. (Courtesy: YouTube.com)

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• Foreign Policy , Relations with India , Ayub Khan , Military , 1965 , History in a Nutshell
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Athar Osama September 8th, 2007

By: Athar Osama        

Today, over a hundred and fifty million Pakistanis celebrate the 42nd Defense of Pakistan Day. It was 6th of September 1965 when Pakistan’s armed forces faced off against India’s in the first full-scale war between the two countries. Much to the credit of the brave men (and women) in uniform that day–and for next 2-3 weeks following that–the enemy attack on the City of Lahore was repulsed and the General J. N. Chaudhary’s dream of having his drink at Lahore Gymkhana on the evening of September the 6th was squashed.

Tomorrow, the country celebrates the Airforce Day to pay tribute to the defenders of the country’s air space. PAF’s performance during the 1965 War was truly remarkable given the comparative state of balance between the two airforces. It managed to shoot down 110 of India’s aircrafts while itself incurring the loss of only 18 of its own. Not only did PAF establish itself as a qualitatively superior airforce in the 1965 War but also established its credentials as one of the best airforces of the world.  

(Figure: The Supreme Commander, Field Marshall Ayub Khan, with one of his favorites, Maj. General A. M. Yahya Khan who was appointed as a last-minute replacement of Maj. General  Akhtar Hussein Malik, for an important operation in Kashmir, presumably to allow him an opportunity to “outshine”. The delay caused due to this un-anticipated change in command botched that operation, and the War)

While much has been written, by official and unofficial quarters, on the history of the 1965 War and a lot more continues to be written every year, there are several gross misconceptions about this event in Pakistan’s history that need to be tackled with and addressed. In Pakistan, ever since (or soon after) its creation in 1947, the writing of history has been an almost exclusive domain of the establishment whereby an official “doctrine” or “mythology” is often disseminated to ensure a homogeneity of thought and conformity of actions.  

Murder of History?

Noted historian, K. K. Aziz, in his “Murder of History: A Critique of History Textbooks Used in Pakistan” (1998) notes that “In Pakistani schools and colleges what is being taught as history is really national mythology, and the subjects of Social Studies and Pakistan Studies are nothing but vehicles of political indoctrination. Our children don’t learn history. They are ordered to read a carefully selected collection of falsehoods, fairy tales and plain lies.”  The myth and mystery around the 1965 War is no exception.

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• Ayub Khan , Military , 1965
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Athar Osama September 6th, 2007

By: Athar Osama

The origins of the 1965 War between Pakistan and India, its conduct over the course of several weeks, and its consequences are quite complex for one to be able to do justice with it. Add on top of that the fact that countries engage in one-upmanship to try to make exaggerated accusations of who started the war and claims of victory after it ends, primarily in order to manage “public opinion” at home, and it really gets very difficult and tricky. One additional unfortunate factor in lack of quality reporting on the 1965 War was the attempt by Pakistani leadership—both military and civilian—to attempt to destroy the evidence of the circumstances that actually led to this war. General K. M. Arif, in his biography “Khaki Shadows: Pakistan 1947-97” for instance writes that in the immediate aftermath of the 1965 War:

“Pakistan suffered a loss of a different kind…Soon after the War the GHQ ordered all the formations and units of the Pakistan Army to destroy their respective war diaries and submit completed reports to this effect by a given date. This was done…Their [the war diaries’] destruction, a self-inflicted injury and an irreparable national loss, was intellectual suicide.”

                                    — General Khalid Mehmood Arif, Vice Chief of Army Staff, Pakistan Army

While unofficial accounts of the 1965 War by several Pakistani figures that participated in that war, including Ayub’s biographer Altaf Gauhar, Major General Shaukat Riza, Lt. General Gul Hassan, and General Mohammad Musa have since come to the fore, the “official” version of Pakistan’s military plans and objectives from that and how the performance of our commanders and troops differed from these have not surfaced.

Additionally, no effort has been made to systematically evaluate Pakistan’s strategic and operational plans and attempt to learn some lessons from the preparation and conduct of the war. Much of this remains an official secret protected by the Official Secrets Act that does not allow anyone to compromise such information due to a perceived “national interest”. Even General K. M. Arif’s book, for instance, carries only a copy of a map depicting an Indian military plan but none from Pakistan which could have been easily accessible to a person of his stature and position.  This then sets the backdrop of this analysis of the preparation and conduct of the 1965 War between India and Pakistan.

Rationale and Preparation for the War

Several events such as the Sino-Indian War of 1962, the frustrations over lack of progress in the Kashmir dispute, and Pakistan’s own victory in the limited Runn of Kutch Affair, contributed to the events that led towards the 1965 War between India and Pakistan.

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• Foreign Policy , Kashmir , Relations with India , Zulfiqar Ali Bhutto , Ayub Khan , 1965 , Military , History in a Nutshell
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