Law Unto Himself

President Musharraf won from a Parliament stacked with his supporters, and the Opposition resigned in protest.



Pervez Musharraf’s victory is dependent on the Supreme Court’s verdict.

EVENTS of the past few months in Pakistan have driven politically-conscious people of this country to ask themselves and others despairingly why they cannot have “normal” elections as in other places; why their President’s term of office should be such a controversy; why no one can say with certainty whether the years he spent in office since 2002 were in his capacity as an “elected” President, and whether his new term should be called his first, second, or third. The timing of the presidential election too became a subject of controversy, and no one was sure until the day of the election whether it would be held at all.

But, if anyone thought the confusion would subside after the October 6 election, they could not have been more mistaken. General Pervez Musharraf won, as expected, from a Parliament stacked with his Pakistan Muslim League (Quaid-e-Azam) supporters. The Opposition parties resigned in protest, with the largest of them, the Pakistan People’s Party (PPP), abstaining in token protest after the deal between its leader Benazir Bhutto and the General. But the victory is dependent on the Supreme Court’s verdict on petitions challenging his candidacy.

Adding to the prevailing uncertainty, the agreement by which Bhutto gave tacit support and legitimacy to Musharraf’s election by keeping the PPP away from the Opposition’s moves, in return for a power-sharing arrangement in the next dispensation, has run into difficulties.

The National Reconciliation Ordinance (NRO) was promulgated by Musharraf a day before his election. Mainly, it gave Bhutto, her husband, her friends and confidantes from the time of her second term in power, amnesty from corruption charges in about a dozen cases against them. It also provided for the withdrawal of criminal cases against political activists from 1986 to 1999, a provision benefiting another Musharraf ally, the Muttahida Quami Movement (MQM).

No sooner did the NRO come into being than it was challenged in the Supreme Court as discriminatory, as it is intended only for a section of the people, and therefore ultra vires of the Constitution that guarantees equality before the law. Admitting the petitions, Chief Justice Iftikhar Chaudhary directed that the benefits drawn under the ordinance would be subject to the court’s decision. This means that Bhutto can be arrested on her return to the country. The case is to be heard in November.

With the Supreme Court’s sword hanging over two of the principal players, the political situation in Pakistan is back to where it was a few weeks ago – up in the air.

The challenges against Musharraf’s candidacy pre-date the election. A majority 6:3 decision by a Supreme Court Bench declared that a previous set of petitions, challenging Musharraf’s plan to seek re-election while retaining his post as the Army Chief and the laws that allowed him to hold the dual office, were not maintainable.

The Supreme Court’s decision led to an angry outburst by anti-Musharraf lawyers outside the court and the police broke up their protest with an inordinate show of force, injuring several lawyers, journalists and policemen.

The Supreme Court heard arguments on the merits of the case in daily hearings over two weeks, and its short order on September 28 dismissing the petitions was widely seen as the judiciary’s reluctance to take on the President and the military. The government had shown its contempt for an earlier decision of the court by bundling former Prime Minister Nawaz Sharif into a plane back into exile when he tried to return to Pakistan armed with the Supreme Court ruling against restrictions on his entry.

With the detailed judgment yet to come, the legal reasoning for the dismissal of petitions is not yet known. One guess is that the Bench may have held the Election Commission to be the appropriate forum to adjudicate on the issue of Musharraf’s eligibility to contest the election. The Bench may have also decided that there had to be an aggrieved party, someone whose own candidacy was threatened by Musharraf’s participation in the election. However, none of the petitioners was a candidate.

As a consequence, the court did not even rule on an egregious last-minute change by the Election Commission to the rules of the presidential election that did away with the disqualification clauses, which meant that Musharraf’s candidacy could not be challenged on the grounds that he was still in government service.

In arriving at its verdict, the Supreme Court may have wanted to steer clear of another collision, especially one that went to the heart of Musharraf’s desire for a new term in office. But the decision angered the legal community and the Opposition parties. They believe that had the Bench decided the case instead of copping out, it would have solidified the foundations of an independent judiciary that were laid on July 20 with the court’s reinstatement of its own Chief Justice.

In the event, all that the Supreme Court did was to postpone the matter for another day. The legal community fielded Wajihuddin Ahmed, a respected former judge of the Supreme Court as a candidate for the presidential election so that there would be an aggrieved party who would come back to the Supreme Court for redress. And that is exactly what happened.

Foregone conclusion

After the changes to the election rules, it was a foregone conclusion that the Election Commissioner would reject Ahmed’s objections to Musharraf’s candidacy. The retired judge knocked on the doors of the Supreme Court, raising more or less the same issues as the dismissed petitions and demanding a stay on the presidential election.

Two others joined him, one of them was PPP’s vice-chairperson Makhdoom Amin Fahim, who had also entered the presidential race as a candidate with the apparent purpose of challenging Musharraf’s nomination. At the time, Bhutto had still not sealed the deal with Musharraf, and the PPP wanted to keep its options open in case the deal did not come through.

The petitions were filed less than a week before the presidential election. In a nail-biting hearing on October 5, a day before the election, the Bench comprising nine Judges, decided against a stay. But perhaps in deference to the public mood, it ruled that the results of the election would not be notified until it settled the petitions.

A Pakistani human rights activist protests against President Musharraf outside the Parliament building, in Islamabad on October 6.

The mood in the government was triumphant. For all practical purposes, the court had given a green signal to the election and to Musharraf’s candidacy. The petitioners took comfort from the small opening that the Judges had left for doubts on this score. But most observers were of the opinion that it was unlikely the court would do anything after the election to derail the process of Musharraf’s transition to another term.

Musharraf’s undertaking to the court during the hearing of the earlier petitions that he would step down as Army Chief if elected to another term and before his swearing-in, has understandably created fears that the alternative can only be martial law. Musharraf has already announced that General Ashfaq Pervez Kiani, recently promoted and appointed as the Army’s Vice-Chief, will be the next Army chief. This is sure to play on the minds of the Judges, who may believe that by allowing him to continue, they can ensure a transition to civilian democracy.

Pakistan’s return to civilian democracy, at least as envisaged by its Anglo-American backers, was supposed to have two elements: Musharraf staying on as President, and the return of Bhutto in a power-sharing arrangement with Musharraf, to provide him with a more credible power base of moderate Pakistanis. Bhutto’s support would create the enabling atmosphere in which Musharraf could prosecute the war on terror better, and implement his agenda of “enlightened moderation”. The PML(Q), packed with religious conservative elements, is seen as an obstruction to this agenda. Hence the deal with Bhutto allowing her to return to the country and lead her party in the general elections without the fear of arrest.

But the hugely unpopular NRO has not made it any easier for Bhutto. Not only has it been challenged in court, the PPP leader is also being vilified for making a self-serving deal with Musharraf, in the process splitting the Opposition and not getting any of the promised concessions for a transition to democracy. Most importantly, the ordinance specifically left out Nawaz Sharif from the amnesty, which meant the “level playing field” that Bhutto had said she was bargaining for on behalf of all political actors, does not exist.

The ordinance includes one change to election laws so that results, cannot be tampered with. But there was nothing about restoring the powers of Parliament vis-a-vis the President, nor anything about lifting the bar on two-time Prime Ministers such as herself running a third time for the office. Bhutto declared that those concessions would come in stage two, after the presidential election.

But with the PML(Q) leadership making clear its antipathy to any arrangement that would enable Bhutto to make a comeback, it appears that she will now have to fight every inch of her way back. A day after the presidential election, PML(Q) president, Chaudhary Shujat Hussain, described the ordinance as a political move to gain Bhutto’s support for the presidential election. Now that the election was over, the government was not serious about implementing it, he said.

While the legal challenge to the NRO opened up the possibility that it may even be struck down, Musharraf began saying openly that Bhutto should not return until his own case had been decided by the court.

It is possible that even Musharraf does not want too strong a showing by Bhutto’s party in the general elections, and would ideally want her to return only after it is over. As a civilian president between the army and politicians, and himself in a vulnerable position, Musharraf would prefer to deal with weak political parties.

As the date of Bhutto’s return approached, the government also played up the threats to her security. Bhutto too said that she was on Al Qaeda hit-list. Despite the PPP leadership’s assertions that she would return as planned on October 18, doubts lingered until days before that given the circumstances, Bhutto would put off her homecoming.

PPP activists were praying that she would not change her plan. Already despondent about the ordinance and forced to defend it as something that would benefit the nation and not just Bhutto, many in the party were of the opinion that not showing up in Karachi as planned, and to be perceived once again as toeing the government’s line, would effectively torpedo her prospects, and her party’s.



It would no more be a surprise if the general elections threw up exactly the same kind of political forces in the driving seat as in 2002, perhaps with just one change. The Muttahida Majlis-e-Amal (MMA or United Coalition for Action), the religious right-wing coalition may split any day with differences between Qazi Hussain Ahmed’s Jamat-e-Islami and Maulana Fazlur Rehman’s Jamiat-e-Ulema Islam (JuI) coming out in the open. The JuI was in the forefront of the anti-Musharraf agitation, while the Maulana ran with the hares and hunted with the hounds.

In JuI’s hands rested the power to disrupt the presidential election. The party was in the driving seat of the North West Frontier Province Assembly where the MMA has a majority, and by dissolving the Assembly the party could have disrupted the electoral college for the presidential election.

As in the Indian system, the President is voted in by an electoral college comprising parliamentarians and provincial legislators. But by delaying the decision to dissolve the Assembly, the JuI gave enough time to pro-Musharraf legislators in the Assembly to move a no-confidence motion. The Assembly could not be dissolved until this was decided, and the presidential election went ahead with the electoral college intact.

It is now expected that Maulana, who is pro-Taliban, but equally politically pragmatic and savvy, could secure more say in the next government, particularly if the PPP does badly. The PML(Q) would also be more comfortable with him, rather than with Bhutto. How this serves the British or American cause in the “war on terror” in Afghanistan will become clear only as the story unfolds.

Preparations are on to receive PPP leader Benazir Bhutto in Karachi, on October 9. A Pakistani court dismissed Bhutto’s request for pre-emptive bail against any arrest ahead of her return.

For Musharraf, the situation is advantageous, unless the Supreme Court rules against him, which seems unlikely. There is plenty of soul-searching within the Opposition ranks about how they managed to snatch defeat from the jaws of victory. Many in the Opposition see the aborted return of Nawaz Sharif on September 10 as a turning point.

The former Prime Minister’s Pakistan Muslim League (N) exposed itself thoroughly on that day as a party unable to mobilise people to come out on the streets, which was greatly encouraging to a beleagured government. As it put him back on a plane to Saudi Arabia, the Supreme Court too got the message that the government would not hesitate to flout its orders when push came to shove.

After the reinstatement of Chief Justice Iftikhar Chaudhary, anti-Musharraf political forces put too much faith in the ability of the Supreme Court to correct the system. But there is now the realisation that the judiciary has its limitations, and it was probably too much to ask it to adjudicate on political battles.

Even now, the Supreme Court faces an unenviable task: if it rules against Pervez Musharraf, it must carry the can for what may follow, such as martial law; if it rules in his favour, it will be once again blamed for succumbing to the military and the doctrine of necessity. •

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