M B Naqvi
The writer is a well-known journalist and freelance columnist
mbnaqvi@cyber.net.pk

The main aim of all political restructuring now underway is to ensure that Chief of Army Staff General Pervez Musharraf, also the Chief Executive and President of Pakistan, remains five more years in the office of the President beyond October 2002, with or without ceasing to be COAS. And after these eight years in authority, there will be time enough to examine whether he would then feel like serving one more term as President. Everything else is calculated to facilitate that, including the October polls and the various reforms in the political and electoral system. Also it is commonly understood that he will not be a President like Ch Fazle Elahi of 1970s but more like General Zia after he withdrew his Martial Law: all powers as hitherto.

The reforms are to be finally incorporated in the Constitution by amending it. Here a few questions arise. The President, the apex of the political system, must seem to have legitimacy through, and for commanding, popular consent. The Constitution, the basic law of the land or grundnorm, must also retain its respect by the people that enables it to confer legitimacy on a ruler. Hence the importance of procedures in general and of amending the Constitution in particular. Clumsily made or incorporated amendments can make the Constitution itself sullied or corrupted which, by losing general acceptability, introduces a radical sort of instability in the entire political system. Specifically who is to amend the organic law, how and on what authority?

Functionally, only General Musharraf can, and is likely to, amend the Constitution. Thus there is a special sensitivity attached to how is he going to amend the suspended -- whatever that means other than being dead -- constitution, especially when elected Assemblies do not exist. The latter is meant to do this job in accordance with a set procedure. Thus, the question of questions is: is the authority of the COAS-CE enough to amend whatever is likely to be made amended(?). The apex Court supposedly limited nature of the CE's authority (to amend the constitution) is neither here nor there. It virtually had no option but to justify the October 12 takeover. Since the CE's takeover has been sanctified by it, it can have no serious objection to enlarging the scope of the amendments due to the requirements of the emerging situation or if the needs of CE's regime, the doctrine of state necessity, so dictate.

The question still remains: how will the CE amend the Constitution and make the changed document retain its sanctity -- and acceptability? The impression that one man has amended it in his own interest can destroy the Constitution's inviolability on which rests its popular respect and acceptability. That will vitiate not only the political system, as noted earlier. But will discredit and weaken the very regime for prolonging and strengthening of which the changes are required to be made. Despite all the history of military coups and the Army Chief's unsanctioned but effective powers, all dictators have felt the need for legitimacy, even a fig leaf of it, for fear of their rivals or enemies and for keeping the Army united and disciplined, if nothing else. None of these considerations is unimportant.

Since there is no alternative way of amending the Constitution save the CE doing it himself by decree, the changes will have to be duly (in accordance with laid down procedure with minimal, or no, tampering of them) reenacted or ratified, along with the necessary indemnification of all the acts of CE, his associates and subordinates that were illegal (being outside the constitution) -- another compulsory requirement of a military regime trying to cover up its tracks. Hence, the due process of amending the Constitution, and various other regularisations of illegalities, require Provincial and National Assemblies and the Senate that command respect and authority by virtue of being elected in a transparently fair polls.

That puts the focus of attention on the elections that Justice Irshad Hasan Khan is to organise by October 11, 2002. These elections had better be transparently free and fair. Otherwise, the Assemblies that come into being as their outcome shall lack credibility and moral authority. Everything they do will look like rubber stamping -- for those who called them into being; all concerned will get little benefit out of the October exertions. Most things of high value in public life are not to be had by virtue of command from on high. Legitimacy, the most precious attribute of a ruler, is a largely independent category, emanating from an unviolated Constitution and a free legislature's authority. Assemblies that ratify someone's power, in order to give some permanence to it, have to have the moral authority and power -- not in mere theory but credibly in public eye --- to refuse it.

That, through various linkages, puts accent on (a) the Constitution remaining inviolate -- which is now unattainable -- and (b) the Assemblies should have sharp teeth. That in part is a function of the human material that gets elected, in part on the fairness of the polls in all respects and in part on the level of electors' awareness. In this country and at its level of awareness, everything will turn on the particulars and procedures relating to polls. Auguries however are not good.

Questions have already been raised about the appointments of not only the CEC but also about several judges of the apex court. This writer had occasion to suggest getting out of the rut of appointing only Judges to Election Commission; it is a relic of the past when common people venerated the superior Judiciary. The sad and unfortunate reality is that much of that love and respect has been lost because of superior judiciary's own behaviour. People have widely noticed the tendency of superior courts generally not accepting the pleas of those who annoy the government of the day and the readiness with which Advocate General's and Attorney General's, stands are upheld or the way junior judges get elevated to higher levels, leaving behind their senior brothers without a blush. The judges' politicking and the kind of behaviour that some SC Judges displayed in 1997 vis-‡-vis the CJP and the latter's own conduct, have influenced the public mind. Who can retain the trust in the unimpeachable integrity and high honour of such Judges? Hence there was the need to take persons of proven competence and high integrity -- but not from the Army - but from elsewhere. Anyhow, there is the current circularity: how are the elections to take place if there is no firm political framework in the country, such as a Constitution provides?

Constitution's absence, it seems, is likely to be compensated either by a Legal Framework Order of some description or by the full or partial restoration of an already amended (by the CE) Constitution, to be reenacted or ratified later by the Assemblies to be. But how soon such a Constitution or LFO can be available? The regime has increased the number of seats in all Assemblies on an ad hoc basis -- but not of the Senate. Why? Controversies are likely to start about the basis for increasing the seats. What is it? Are all the new numbers related to the demographic changes recorded in 1998 Census? If not, why not? Anyway, new numbers require fresh delimitation of all the constituencies. Can the full, usual procedure of doing it will be completed in the next, say four months, to give enough time for electioneering after such a long lapse of time in the freshly known constituencies? As it happens nothing is yet firmly known, about how many (more) reforms are on their way.

Then, how precisely will the President put himself in the Presidential Office on Oct 13 next for the next five years? Who or how will anyone elect or ratify him? Who knows. Will he get himself elected from a new college of electors, say all the Nazims and Naib Nazims? Or will he organise a referendum as General Ziaul Haq did? Or will he wait for his own ratification from the electoral college prescribed in 1973 Constitution. In the absence of firm knowledge of the road the CE intends taking, little meaningful can be said about the future prospects of Pakistan politics.

Considering the volume of work that has still to start -- on the assumption that all the usual procedures and safeguards are to be employed -- the six clear months left at the disposal of the CEC to hold the polls by the known deadline seem insufficient. It is becoming clear that the CE might be forced to go to the SC to get an extension in the three years 'limit' of staying outside the basic law of the land -- the Constitution being the source of the legal system. That would also deeply influence public opinion adversely. That the SC can scarcely fail to see why this extension is necessary can only increase cynicism. Confidence in, and respect for, the new system are liable to get further diluted.

What appears to be clear is that the CE is determined to prevent not only Benazir Bhutto and Nawaz Sharif, the two best known vote catchers, but also quite a large number of the politicians of ancient regime, no matter by which trick. The fact that the CE expects to remain in office until Oct 2007 at least -- and backed as he is by US President Bush and IMF and World Bank Group -- and he is the one who is holding "free" elections in Oct 2002, from which new Assemblies will come into being, requires special scrutiny by the people as well as international community. These Assemblies are to endorse all the new changes and political rearrangements, including the Presidential 'election' for another term, the question of not only his legitimacy but of the whole political system is thus on the line. One can only hope the CE knows what he is doing.