In the power realm it’s a new Pakistan. The practice of unaccountable exercize of power by State institutions and individuals in authority, has now been definitively questioned and curtailed. There is no issue, other than general Musharraf’s re-election as president, on which this change has impacted so significantly and so comprehensively. What began changing in March 2007 onwards now presents itself as a study of contrasts in Pakistan’s power realm. We are now witnessing a radical change in the exercise of authority. Pakistan’s power wielding individuals in high positions no longer enjoy the almost total freedom to do as they wish. The cumulative impact of Constitutional and legal parameters, the power of an informed discourse and the media’s tenacity to bring all key decisions, actions and motives to the public domain, is the inability of those in power to ‘get away’ with every thing.
Today, General Musharraf’s re-election is under unprecedented scrutiny. The Supreme Court is hearing petitions against his holding two offices, article 63 poses a major hurdle too, the Opposition wants nothing less than Musharraf’s ouster. Musharraf’s political future is now dependant on multiple factors. In a context of multiple power centers in the country including the Supreme Court, the professional groups, the politicians and the media, Musharraf survival is far from guaranteed. Recognizing this and seeking to guarantee his future presidency, general Musharraf has characteristically taken U-turns on many of his earlier decisions. Those range from working on a political deal with the PPP chairperson leader Benazir Bhutto and deciding to remove his uniform before taking oath if re-elected. Incase there is pressure on the president to file his papers as a civilian candidate general Musharraf may even give up his army chief post before filing his papers.
Such are the pressures of an alive accountability context on a man, who many had thought early in the year, would sail through as another term president elected by the current assembly. The presidential camp is holding back on filing his nomination papers. Nervous steps like prompting an Election Commission’s notification on amending rules for the presidential elections making article 63 inapplicable, are being taken by the president’s camp. Behind the scenes government is still trying to see how to back-peddle on the Benazir Bhutto’s corruption cases. The minimum the president requires from PPP right now is its commitment that its parliamentarians will not resign from the Assemblies. Against this back drop for a key member of the President’s legal camp to believe that general Musharraf is in "a formidable position" is illogical.
Within less than 72 hours, a clear picture will emerge on the legality of General Parvez Musharraf’s candidacy for the presidential elections. All eyes are fixed on the Supreme Court. Even as general Musharraf addresses the uniform issue through his lawyer by announcing his decision to remove his uniform, the issue of a two year bar before holding a public office remains intact. The earlier two judgments of the 2002 Qazi Hussain Ahmad case and the 2005 Peoples’ Lawyers Forum endorsed the non-application of article 63 on a presidential candidate. The ruling justified the 1998 candidature, proposed by Prime Minister Nawaz Sharif ,of Justice Rafique Tarrar a recently retired judge of the Supreme Court.
Those opposing the earlier judgments argue that the pre-March 2007 Supreme Court and High Courts functioned in a less than independent ways. Their plea is now for a judgment in the Musharraf case which is more in keeping with the spirit and the letter of the Constitution. General Musharraf has already been in public office for four years. This therefore makes it a case for not merely simple application of Constitutional law but a case for interpretation of law on an unusual situation.
The factors influencing the Supreme Court’s interpretation will also include the learned judges own proclivity for a purist application of the Constitution or an application that does not compromise on the spirit of the law but is influenced by the context in which law is being applied. The context-specific interpretation of law would overlook the violations of his oath, the Army Rules and the Constitutional provisions by general Musharraf by factoring in the political situation prompting those violations. More importantly the context specific interpretation would acknowledge the role of Pakistan’s political forces which facilitated and indeed indemnified these violations through Constitutional amendments. For example the ruling coalition and the Opposition parties like the MMA used their legislative powers to pass the Seventeenth Amendment providing legal coverage to Musharraf’s previous actions.
Both approaches, the purist and the context-specific, given the Constitutional prerogative for interpretation of the learned members of the Bench, would be equally valid. The purist approach would have specific impacts. One, it would signal the Court’s adherence to almost an unprecedented strict and literalist application of Constitutional law. Two, it would have undertaken unprecedented legal and political accountability of a serving army chief. Three, it would hand down, through legal means, a political victory to anti-Musharraf political forces. Four, unless the present Assembly would constitutionally amend article 63 of the Constitution to waive the two year bar for general Musharraf, it would initiate the end of general Musharraf’s political career.
Five, with the Court disqualifying him as a presidential candidate and initiating the abrupt of his political career, it would also end the possibility of Musharraf playing the bridging role in Pakistan transiting from military-led democracy to genuine civilian democracy. With ruling Musharraf out of the political calculus Pakistan’s politics would be put on the radical path seeking an abrupt change. This approach would not factor in the special circumstances of this case and of Pakistan’s current political situation. in which the Bench is called upon to give its judgment.
The impact of the context-specific approach in interpreting law would be numerous. One, the survival of general Musharraf , at least for now, as a political player. Two, it does not completely rule out the possibility of Musharraf being the ‘transition bridge’ between the khaki and the civilian democracy and between the civilian and khaki forces. Three, for the politicians seeking Musharraf’s ouster from Pakistan’s civil and military power scene, the context specific approach would shift the onus of battling Musharraf back on the politicians’ shoulders. Four, it will disappoint those who insist that removal of general Musharraf is either the magic solution that will either solve Pakistan’s acute security problems or will ensure the perfect landing into genuine civilian democracy. Five, strong political contestations will continue with the political temperatures remaining high.
Even if the judgment favors Musharraf his challenges do not end. From the domain of the Courts the challenges will move to the active political sphere. Power, passions, rhetoric and rage will invoke principles, legitimacy, reality and myth to craft multiple perceptional realities that will become handy ‘weapons’ for power contestants.
The media, in keeping with its business of ‘tell it all’ will give it all full play. The public will remain riveted by the continuing narrative of a presidential election! In the realm of sheer political play Musharraf will need more than just a simple majority votes to become a legitimate president who can qualify as an Honorable head of the State.
Clearly, for smooth sailing and credible elections, Musharraf cannot afford two things. One, empty opposition seats when the voting takes place. Mass resignations would underscore the Opposition’s no-confidence in the presidential elections and would reinforce Musharraf as the polarizing figure. Although, winning presidential candidates nowhere get all the votes, yet it is the strict adherence to the Constitutional process that earns the winner a largely non-controversial status. That seems missing in Pakistan.
The other political challenge for Musharraf is widespread street protests. APDM has called for protests and strikes on September 21.Massive protests can further diminish Musharraf’s political stature. However given the complete non-show of street-power, the government’s harsh clamp down notwithstanding, on September 10 by the PML-N-led opposition when the PML-N Nawaz Sharif arrived, the possibility of any significant show of street power appears unlikely.
The reluctant military coup-maker of 1999 is now an adamant presidential candidate in 2007. But in a changed Pakistan, a general’s candidacy and election as president is no longer an inevitable affair.
If general Musharraf’s candidacy is rejected by the Supreme Court there is the Constitutional option to follow. He should dissolve the assemblies and go for the immediate holding of general elections by setting up a consensus caretaker government. The care-taker set-up would oversee the holding of the general elections. The presidential elections would follow the general elections in a changed political scenario and with new political figures.
