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.”

However, according to one point of view, the official version tends to overlook the impact of clauses (8) & (9) in Article 41 of the Constitution, as inserted through the Seventeenth Amendment. These clauses inter alia envisage that, not later than 30 days from the commencement of the Constitution (17th Amendment) Act, 2003, any member or members of the federal or provincial legislatures may move a resolution for vote of confidence “for further affirmation of the President in office by a majority of the members present and voting” of the electoral college consisting of the said legislatures and such “vote of confidence having been passed, the President, notwithstanding anything contained in the Constitution or judgement 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 grounds whatsoever.”

Pursuant to Article 41(8) and (9) which, being part and parcel of the Seventeenth Amendment, took effect from December 31, 2003, the vote of confidence, spoken of in such clauses (8) and (9), did actually materialise, within the 30 days’ time from December 31, 2003 (on January 1, 2004)

In this view of the matter, the current presidential term may be deemed to have commenced not on November 16, 2002, but upon the emergence of the vote of confidence, as anticipated in the above clauses (8) and (9), introduced by the Seventeenth Amendment. The term, thus, may end not on November 15, 2007, but around December 31, 2008, making it implausible for the sitting electoral college to go for another vote before the efflux of its own term, also incidentally expiring on November 15, 2007.

This point of view would, at the minimum, stand whittled down by the fact that per Article 4 of the Referendum Order, 2002, “the democratic mandate to General Pervez Musharraf” for serving as president for five years “shall be computed from the first meeting of” the parliament to be inducted through the general elections proposed for October 2002.

What is more, the general, in contemplation of Article 41(7), above reproduced, relinquished the office of chief executive on November 16, 2002, corresponding with the convening of the National Assembly (not with the “first meeting of” parliament routinely unamenable to a spontaneous composite convening date for its two Houses) thereby assuming “the office of President of Pakistan forthwith”.

Significantly, clauses (8) & (9) of Article 41 operate as “further affirmation” and do not envisage terminus a quo of their own. At any event, clause 41(8) opens with the words, “without prejudice to the provisions of clause (7)” of the same article, thereby subordinating it to such clause (7).

There is, however, another facet of the Seventeenth Amendment which may be noted. The legislative history behind the introduction of the proviso to Article 41(7) indicates that the general had undertaken to eschew the uniform by December 31, 2003, whereafter Article 63(l)(d) per the said proviso was to “become operative” 63(l) (d) envisages that an array of public representatives, inclusive of the president, shall not hold “an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder.”

However, before December 31, 2003, the President to Hold Another Office Act, (VII of 2004), was got passed by the parliament to preclude the sitting COAS’ disqualification under Article 63(l) (d). It is doubtful whether such legislation could be promulgated within the ambit of Articles 63 (1) (d) & 260 of the Constitution. In any case, it is settled law that by a sub-constitutional measure (Act VII of 2004) a constitutional mandate [proviso to Article 41(7)] could not be bypassed. Nonetheless, in the case of Pakistan Lawyers’ Forum vs Federation of Pakistan (Supreme Court appeal d.o. April 13, 2005), where the said questions do not seem to have been addressed, the Another Office Act was validated.

Clause (2) of Article 44 also throws up a possible grey area. It precludes a person from holding the presidential office “for more than two consecutive terms”. Before entering upon office, the president is to make before the chief justice “oath in the form set out in the Third Schedule.” Thus a presidential term begins with the referred oath-taking.

Contextual to the current dispensation, General Musharraf took successive oaths on June 20, 2001, upon wresting the presidency from President Tarar and, again, on November 16, 2002, following relinquishment of office as CEO, coinciding with the meeting of the National Assembly after the general elections.

Can he be administered a third successive oath, each oath an apparent harbinger of a new term, and yet remain within the four corners of Article 44 (2)? Apologists will argue that a presidential term is to be of “five years”. But can’t a shorter term be visualised? The Constitution itself contemplates exigencies such as resignation, impeachment and even death. Interesting, isn’t it? (To be concluded)
Obstacles in the way of another term: The presidential election: an appraisal – II

WE have heretofore scrutinised the official position vis-à-vis the forthcoming presidential election. We may now see the reverse side of the picture. The crux of the current problem is whether the president in office can be re-inducted by the present assemblies and whether there are any other impediments in his way.

Article 41 of the Constitution, which has been grafted and re-grafted since the good old days of Gen Ziaul Haq, is central to this. Such article, in its pristine form, consisted only of six clauses, 41(1) to 41(6). Nearing the introduction of a democracy of sorts, the said general, through the RCO (Revival of Constitution Order, PO 14 of 1985), duly buttressed by the Constitution (Eighth Amendment) Act, added clause (7) to it.

The addition, which operated notwithstanding anything contained in any other article of the Constitution, as a consequence of the referendum of December 19, 1984, projected and deemed the general to become the president of Pakistan on the day of the first meeting of parliament in a joint sitting summoned after the elections to the Houses of parliament and was thereupon to hold office for a term of five years.

Elections were held in February 1985. By the end of May 1988, it was realised that while the constitutional hocus pocus had already ensured Zia a little less than 11 years in the high office, the necessary foresight to guarantee a further term (of five years) was sadly lacking. Article 41 (3), an adjunct of Article 41 (7), apparently to foster credibility, had enlarged the presidential electoral college from the joint two Houses of parliament to one which also operated to include the four provincial legislatures in these words:

“(3) The President to be elected after the expiration of the term specified in clause (7) shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of:

(a) the members of both Houses; and

(b) the members of the Provincial Assemblies.”

Worse still, in virtue of Article 41 (4) (earlier reproduced) read with Article 224 (as below) and the fact that the presidential term beginning in 1985 had to end in 1990 [see the words “after the expiration of the term specified in clause (7)” in 41 (3)] well beyond the lives of the assemblies, biding time till the efflux of the accruing term was exposed to the vagaries of politics. Hence the artifice of dissolving the assemblies on May 29, 1988, with the attending option of taming the succeeding ones, was perhaps considered a safer bet. Zia, however, himself unceremoniously departed on August 17, 1988.

Cognisant of this legislative background, the authors of the LFO (Legal Framework Order, 2002) substituted Article 41(7) with that reproduced at the outset here. All conceivable protections in the manner accorded to Gen Ziaul Haq were, in turn, incorporated in the thus substituted Article 41 (7). To ensure re-election of Gen Musharraf by the same assemblies as had earlier returned a vote of confidence for him, the LFO proceeded to affect a supposedly vital amendment in Article 224, aforementioned.

Under Article 52 etc., an assembly, national and by extension also a provincial, is to have a five-year term “from the day of its first meeting and shall stand dissolved at the expiration of its term.” Because, not unlike the presidential term [see Article 41 (4)], continuity of the legislatures was also contemplated, Article 224, in its original text, provided as follows:

“224. Time of election and bye-election. (1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately preceding the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.”

As hinted earlier, the object prima facie being to cater to re-election of Gen Pervez Musharraf from the same assemblies the word “preceding” in Article 224, through the LFO, was substituted with the word “following”. Plainly, if under the original dispensation in Article 224 the electoral process for general elections to the National Assembly or provincial assemblies had become simultaneous with the re-election of the sitting president by the outgoing assemblies, a predictable hue and cry may have ensued. As a result and for that reason, the word “preceding” in the original Article 224 was substituted by the word “following” thereby protracting the assemblies’ elections and putting such elections out of sight.

The question, however, is whether the purpose has been achieved. Apparently not. The current office holder, much like Gen Zia, is an Article 41 (7) president. It has been demonstrated that there was a purpose behind using the words, “the president to be elected after the term specified in Clause (7)” in Article 41 (3). Correspondingly, and upon the expiry (”after the term”) of such term a new electoral college of members of both Houses of parliament and of the provincial assemblies was to come into being.

By fiction of law, the same incident would apply to the current Article 41 (7) president, and the electoral college in contemplation of Article 41 (3) would not be available till, not unlike Gen Zia, the ongoing presidential term is out of the way. In consequence, it may not be constitutionally permissible to go for the election of the president from the present assemblies.

Does it look like an anomaly? Yes. But this is in the nature of such things. We have seen that Article 41 (3), as substituted in 1985, altered the presidential electoral college from the two Houses of parliament to one that also came to embrace the provincial assemblies.

However, Article 41 (4) & (5), somehow, remained unaltered providing that in cases where the presidential election fell at a time the National Assembly stood dissolved, “it shall be held within thirty days of the general election to the Assembly”. What are the implications? A presidential election may yet go through on schedule even if one or all of the provincial assemblies stand dissolved! This may, technically, render the MMA threat to derail the presidential electoral college by prematurely dissolving the NWFP assembly toothless. But at what political price?

Anyway since re-election of the president from the same assemblies is clearly not in consonance with the elements of political morality, there may be a very intriguing manner and mode whereby the establishment is given a taste of its own medicine. The procedure for “Election of President”, pursuant to Article 41 (3), is incorporated in the Second Schedule to the Constitution. The relevant part of its paragraph nine runs thus:

“9. If a candidate whose nomination has been found to be in order dies after the time fixed for nomination, and a report of his death is received by the Presiding Officer before the commencement of the poll, the Presiding Officer shall, upon being satisfied of the fact of the death of the candidate, countermand the poll and report the fact to the Chief Election Commissioner, and all proceedings with reference to the election shall be commenced anew in all respects as if for a new election.”

All that the democratic forces, in order to preclude presidential election from the sitting legislatures, need to do is to nominate a few terminally sick candidates for the presidential election one or more of whom may naturally meet their Creator during the ongoing exercise. The electoral process shall, then, have to recommence de novo.

Correspondingly, before the process to be undertaken afresh comes to its logical conclusion, the national and provincial assemblies would have run out their course and the presidential election would have to await the emergence of the new electoral college. On the other hand, no constitutional impasse would follow because the proviso to Article 44(l) takes care of the situation in the following words:

“Provided that the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office”.

Before parting, there is another aspect of the current presidential election which may be adverted to. We have already seen that for the accruing term Article 41 (7) exempts the holder from the effect of Article 43 and other articles of the Constitution. Upon the expiry of such term, according to the same provision, “Article 44 and other provisions of the Constitution shall apply accordingly”.

Now Article 43 (1) postulates that “the President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services”. Even if the Another Office Act, in the scenario of Article 63(l)(d), is considered to be valid, the incumbent’s, with the resurrection of Article 43, occupying the position of COAS (carrying the right to remuneration for rendering of services) would come in his way to seek any further presidential election.

It may be argued that the present COAS is not seeking any remuneration or may refrain from accepting any remuneration and thereby escape the incidents of the later part of Article 43 (1). This may not be an easy way out.

The words in the clause are, “occupy any other position carrying the right to remuneration for rendering of services”. Remuneration, according to Article 260. “includes, salary and pension”. A person may decline to receive remuneration but he cannot thereby extinguish either the right to remuneration or the fact of occupancy of the position carrying such right. It, therefore, follows that for any future election of the president, whenever it may be, the aspirant shall have to relinquish the office of COAS.

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The writer is a former Supreme Court judge. This piece was originally published in The Daily Dawn and is being republished here for the purpose of generating a dialogue.

• General Musharraf , Democracy , 2007 , Military , Constitution , Politics , Guest Post