Published in the 28 September-04 October 2007 issue of The Friday Times
Taimur Malik
Tom Paine wrote in his famous work ‘Rights of Man’ that, “a constitution is a thing antecedent to a government, and a government is only the creature of a constitution….a constitution is not the act of a government, but of a people constituting a government, and a government without a constitution, is power without a right.”
In the backdrop of the latest legal crisis, the importance attached to the constitution and its status as a sacred text has been widely highlighted, discussed and accepted. All questions surrounding President Pervez Musharraf’s re-election bid converge in one direction and relate to a single fundamental concern: whether the Constitution of the Islamic Republic of Pakistan enjoys the supreme status attributed to it, unequivocally, by all concerned or whether the basic law of the country can be adjusted to meet present day counter-terrorism and post 9/11 realities?
Article 5(2) of the Constitution of Pakistan (hereinafter referred to as the ‘Constitution’), which is much less frequently cited than it should be, states that “obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan.” This requirement of ‘inviolable’ obligation for obeying the Constitution is upon all citizens of the country and, therefore, also applies to the President, Parliamentarians and even the Election Commission of Pakistan.
Since it is generally accepted that with elevated power comes a higher responsibility as well, it can be said that this provision places a more serious obligation on important office holders entrusted with the continuance, protection and implementation of the Constitution itself. If one adopts a literal approach for interpreting the wording of this introductory article of the Constitution, obedience will mean submission, deference and compliance. Any amendments to the Constitution, which are unnecessary as far as the implementation of the rest of the provisions of the Constitution is concerned, should therefore be deemed illegal. A more purposive approach towards interpretation will lead to a situation where any amendments, unless rendered necessary by the development of law and society, would be considered void and utmost ‘obedience’ to the original text would be expected.
Unfortunately our Constitution has been revamped by successive rulers for political reasons. This disregard for the ‘obedience’ of the Constitution has been committed by military and civilian rulers alike, who continuously set a wrong precedent for each successive regime.
All eyes are once again set on the Supreme Court of Pakistan to act on behalf of the nation and uphold the sanctity of the Constitution. However, while it is hoped that the days of invoking the ‘doctrine of necessity’ to justify extra-constitutional acts are over, it is unreasonable to expect the Supreme Court to undertake what should ideally be the role of the elected Parliament. By the time this article goes to press, the Supreme Court would most probably have announced its short decision on the ‘dual-office’ petitions.
The President’s legal team is arguing that the legal issues raised by the petitioners have already been decided by the apex Court in its earlier judgments. Whereas the petitioners are contending that the earlier judgments did not discuss the issues raised exhaustively or in any detail at all. The honourable Court has already rejected certain petitions in this respect; however, the main petitions are still being heard on a daily basis. Whatever the outcome, the daily hearings of the petitions since last week at least signify that the members of the larger bench do not entirely agree with the government’s position that earlier judgments have fully ascertained the issues under discussion.
The petitioners are relying upon various legal arguments apart from the provisions of the Constitution and reference will also be made to the oath taken by President Musharraf as an Army officer which states, inter alia, that a member of the armed forces will ‘uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, and will not engage in any political activities whatsoever’.
Moreover, oath of the President of Pakistan includes, inter alia, the undertaking that he will ‘preserve, protect and defend the Constitution of the Islamic Republic of Pakistan’. The exact constraints that the word ‘preserve’ may place on the office holder are a matter of debate.
Article 41(2) further 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. While Article 43(1) puts the additional obligations 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.
Furthermore, the Election Commission of Pakistan in a recent move has made an amendment, with the approval of the President, in clause (a) to sub-rule (3) of Rule 5 of the Presidential Election Rules, 1988, which relates to discretionary summary inquiry to be conducted at the time of scrutiny of nomination papers.
The amendment effectively curtails the powers of the returning officer for the election as he can no longer conduct a summary inquiry or reject any nomination paper if the candidate is subject to disqualification from being elected as, or from being, a member of the Parliament as provided in Article 63 of the Constitution.
The Election Commission has cited compliance of Supreme Court’s judgments as the reason behind this last minute amendment and relied upon the decision of the Supreme Court of Pakistan in the cases of “Pakistan Lawyers Forum and others v. Federation of Pakistan and others” and “Qazi Hussain Ahmed v. General Pervaiz Musharraf, Chief Executive and another”. The Election Commission like the Government has taken the position that according to the above two judgments, the President is only required to be qualified to be a Member of Parliament as provided by Article 62 and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. Article63(1)(d) states that, “a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if he holds an office of profit in the service of Pakistan other, than an office declared by law not to disqualify its holder”. Earlier the Parliament had passed the ‘President to Hold Another Office Act’ in 2004 enabling the President to hold another office of profit in the service of Pakistan.
Since under Article 190 of the Constitution, all executive and judicial authorities throughout Pakistan are required to act in aid of the Supreme Court, it was perhaps essential for the Election Commission to make this amendment, if this is what the Supreme Court had indeed intended. However, since there is also another presumption that compliance with the judgments of the apex court should be immediate and unhindered; the amendment should have been done much earlier. In a way, this lapse in amending the Rules to bring them in conformity (allegedly) with the judgments may be viewed as a Contempt of Court. Nevertheless, it is a stark example of the failure of the President’s legal aides to attend to the finer details in his best interests. Had this amendment been done two years ago, it would not have attracted the same scrutiny and criticism.
Moreover, since the President is a declared candidate for the upcoming Presidential elections, propriety perhaps demanded that he should not have himself approved the amendment to the Presidential Election Rules, which are evidently beneficial to his person. Chairman Senate, performing functions of the office of the President under Article 49 of the Constitution, in the absence of the President from Pakistan, may have been called upon to approve the same at an earlier occasion to avoid the criticism of having a conflict of interest.
In the present scenario, despite all the legal and political challenges, unless the Supreme Court expressly prohibits President Musharraf from contesting the Presidential Elections, he is likely to be re-elected for a term of five years. Whether he will remain in uniform or get elected as a civilian President may ultimately be his own political choice. Similarly, whether the President should get elected from the present assemblies, themselves breathing their last, remains a question of conscience.