September 30, 2007

Breather for Musharraf

By B. Raman

In an article of September 11, 2007, titled "Musharraf Throws Down The Gauntlet At Judiciary", which is available at http://www.saag.org/papers24/paper2367.html, I had stated as follows:

Quote Thus far and no further.

"That is the message that Pakistan's President General Pervez Musharraf has sought to convey to Pakistan's Supreme Court and its independent Chief Justice Iftikar Mohammad Chaudhry by his action of September 10, 2007, in arresting and deporting to Saudi Arabia, Mr. Nawaz Sharif, whom the Army overthrew as the Prime Minister in October, 1999, shortly after his arrival in Islamabad from London.

"Musharraf has taken this action in total disregard of the recent judgement of the Supreme Court upholding the right of Mr. Nawaz to return to his country. Possible fear of another embarrassing conflict with the judiciary has not deterred him from taking this action. He is now prepared to put the judiciary in its place, even if he has to impose a state of emergency or proclaim the Martial Law for this purpose.

"It is significant that as the drama over Nawaz Sharif continued for over two hours after his arrival and that even as private Pakistani TV channels were speculating that deportation to Saudi Arabia was one of the options being considered by Musharraf, the Supreme Court did not consider it necessary to intervene with an anticipatory order prohibiting his deportation.

"In some of the recent comments of the reinstated Chief Justice while hearing arguments on various petitions relating to the proposed re-election of Musharraf, there were indicators that the Chief Justice was worried over the possibility of a constitutional paralysis should the court come in the way of Musharraf's getting himself re-elected as the President by the outgoing National Assembly even while holding the office of the Chief of the Army Staff (COAS).

"Whether these indicators prove to be correct or not, Musharraf is determined that the judiciary should not be allowed to come in the way of his re-election by insisting that he should resign as the COAS. Musharraf is right when he says that he was given special dispensation by the elected National Assembly in 2003 to continue to hold the office of the COAS and that, therefore, he would not be committing any illegality by getting himself re-elected under this law. Neither the judiciary nor the political parties tried to have the unconstitutionality of this law established for four years. The political parties kept their campaign against this law confined to the streets instead of trying to get a favourable judgement from the judiciary. Now to challenge Musharraf's re-election under this law, which continues to be on the statute book, eight weeks before Musharraf's term is due to expire could create a constitutional deadlock and add to political instability in the country.

"Musharraf is hoping that his determined action against Nawaz Sharif and fears of a constitutional crisis would induce second thoughts in the judiciary about the wisdom of interfering in the electoral process not on grounds of irregularity in procedure, but on grounds of the unconstitutionality of a law passed four years ago. If the judiciary continues to question his actions in constitutional matters, he is prepared to proclaim an Emergency or the Martial Law. The indications from reliable sources in Islamabad are that he continues to enjoy the support of the senior army officers in this regard. Unquote (Citation from the previous article ends)

2. In a six to three judgement on September 28, 2007, a nine-member bench of the Pakistan Supreme Court headed by Justice Bhagwan Das dismissed the petitions filed by the Jamaat-e-Islami (JEI) and other opponents of Gen. Pervez Musharraf questioning the legality of his contesting for re-election as the President even while holding charge as the Chief of the Army Staff (COAS). Under the electoral laws of Pakistan, a Government servant cannot contest elections during his service and for a period of two years after leaving Government service. In 2003, Musharraf had got a special dispensation enacted in his favour by the present National Assembly exempting him from this provision. It is under this dispensation, he is now seeking re-election while continuing to hold office as the COAS. During the hearing on the writ petitions, he had conveyed a message to the court that if re-elected he would take the new oath of office as the President after resigning as the COAS. Government spokespersons had also indicated that if not re-elected, he would continue as the COAS under the new President. Thus, he made it clear that he was determined to continue in office either as the President or as the COAS, whatever be the decision of the court on the petitions.

3. The US and other Western countries are keen that whatever be the nature of the next Government, Musharraf should continue to be associated with it so that he could continue to direct the fight against Al Qaeda and pro-Al Qaeda organisations. Though the US is dissatisfied with the way the fight is being waged under Musharraf's leadership, it is concerned that any other Government with which he is not associated in any capacity may be even less effective. They would, therefore, have reasons to be happy with the breather given by the judiciary to Musharraf.

4. However, it needs to be underlined that the Supreme Court has not yet pronounced itself on the merits of the law which had granted a special dispensation to Musharraf. What the ruling of September 28 means is that so long as that law continues to be in the statute book, it would be quite in order for Musharraf to seek re-election even while continuing as the COAS. The merits of the law itself and its constitutionality will be decided later. Whatever be the final decision on the constitutionality of the law granting the special dispensation to Musharraf, it would not affect Musharraf continuing as the President if he is re-elected.

5. While thus granting a breather to Musharraf, the court has at the same time by a separate order restrained Musharraf from creating difficulties for his opponents during the Presidential election by arresting them. It has ordered the release of those arrested. His opponents are determined to disrupt a smooth holding of the Presidential election by resigning from the National Assembly and through demonstrations etc. But, their efforts may not come in the way of his re-election.

6. Musharraf is expected to honour his commitment to the court by resigning as the COAS after getting re-elected. Since all the present Lts.-General and Generals have been closely associated with him and owe their rise in their career to him, his nominating some other officer---whoever it may be--- as the COAS in his place is unlikely to weaken him in the short term, but in the medium and long-terms it could lead to a conflict between him and the new COAS, if Musharraf keeps interfering in promotions and postings. Will the new COAS be as responsive to American expectations and interests as Musharraf was? If not, can there be a conflict on this issue? The answers to this would depend on how the ground situation in the Pashtun belt evolves. If the situation continues to be as serious as it is today and if the Army continues to suffer severe reverses, there could be a conflict between Musharraf as the President and the COAS over the wisdom of continuing the present policy.

(The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai. E-mail: seventyone2@gmail.com)

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