They all want a Tarar!

Mamnoon Hussain was elected the country’s twelfth President as expected. However not quite expected before Raja Zafarul Haq’s petition to the Supreme Court to bring the date of the election forward to 30th July (instead of 6 August announced by the Election Commission of Pakistan) was the controversy that dogged an election of a figurehead who was likely to win with ease in any case because of PML (N) support in the national and provincial assemblies.

Hussain has impeccable credentials: a record of honesty, which Javed Hashmi, suffering from foot in the mouth disease as far as his own party is concerned, endorsed, as well as his ethnicity (from an Urdu-speaking family settled in Karachi) which made him a politically feasible choice. What clinched his nomination was his long time association with the PML (N) expected to prevent any intrigue against the elected prime minister.

This is not the first time that presidential elections have been dogged by controversy. Military dictators have shown a penchant for effortlessly manipulating (through bribe and/or intimidation) the relatively small electoral college consisting of members of the two houses and the provincial assemblies in marked contrast to the general electorate; and therefore have invariably preferred to occupy the presidency rather than the office of the prime minister thereby periodically turning our parliamentary system into a presidential one. And to ensure compliant assemblies our dictators relied on the recently defunct Article 68 2(b) which gave the power to dissolve assemblies to the president. This particular article, repugnant to democrats in Pakistan, was first revoked in 1997, during Nawaz Sharif’s stint in government, and again in 2010 as part of the 18th Constitutional Amendment when the PPP-led coalition was in power. While analysts claim that the exclusion of this particular clause has reached finality however this may be a bit premature as it maybe subjected to a vigorous test in the future. It is perhaps this specific concern that dictates, above all other factors, how elected prime ministers relate to the powerful establishment.

What is unfortunate is that during the late 1980s to 1990s civilian presidents too invoked this article and dismissed civilian governments that had either elected them or allowed a sitting president who was not a party loyalist to continue because the ruling party did not have the numbers to impeach the president; and the almost visceral hatred between Benazir Bhutto and Nawaz Sharif during the 1990s invariably acted as a mitigating factor to the sitting president’s dismissal. By end 1990s Nawaz Sharif had learned his lesson and appointed a party loyalist, Rafiq Tarar, but those enamoured of his choice must recall that he also appointed Musharraf out of turn as Chief of Army Staff. In short Nawaz Sharif’s selection of Mamnoon Hussain is on the same pattern as Tarar’s with an additional benefit relating to his ethnicity.

President Zardari turned past precedence on its head so to speak: he not only took over as the country’s President but supported the revocation of the clause allowing the president to dissolve the assemblies; and yet he undoubtedly exercised the full powers of a chief executive till the end of term of the PPP-led government. The reason: he selected compliant chief executives on the same pattern as Rafiq Tarar who did his bidding. President Zardari also took the decision to defer to the establishment on matters important to it including relations with the US, India and Afghanistan. His survival for five years bears ample testimony to the success of his policy of reconciliation with other political parties on the one hand and deferring to the establishment on the other; however the price was galloping corruption and visible lack of governance. And need one add that President Zardari has also been controversial and millions regard him as a partisan president.

So what is different and what is similar with respect to the current controversy surrounding a civilian’s election as president? The similarity is visible for all to see: a pliant President – or as it appears to the chief executive at the present time of appointment – who would follow the Tarar pattern, a pattern supported by a constitution sans a constitutional clause giving the president the power to dismiss the assemblies.

And what is different? This is the first time that the ECP and the judiciary are accused of a bias in favour of one party. The ECP has been targeted by the opposition because of the May 11 election results and for allowing the Supreme Court to bring the presidential elections forward. Perhaps not surprisingly no political party has cried foul where it won, thus Imran Khan has not complained about rigging in Khyber Pukhtoonkhwa, focusing on urban Sindh and Punjab, the PPP has accused the ECP of rigging throughout the country except Sindh and ANP and Maulana Fazlur Rehman have accused the ECP of rigging in KPK.

Stories began to surface this week past that the Chief Election Commissioner had written a note declaring the court’s decision to bring forward the date of the election to 30 July as an attack on the independence of the ECP; however he was refrained from doing so as the four provincial members with one voting right each argued that he should have acted earlier. He has since resigned amidst allegations by the opposition that he was neither independent nor able to ensure free and fair elections.

The judiciary has been accused of allowing the presidential election to be brought forward, a prerogative that rests with the ECP, and disposing of the petition in a day without taking the views of other interested parties. Other complaints against the judiciary quickly followed with the PPP saying it has no hope of justice as the judiciary has a bias in favour of PML (N) – a view endorsed by Imran Khan who went a step further and accused the ECP and judiciary of being “shameful and dangerous” with respect to the May 11 and presidential elections – a charge that led to a contempt of court proceedings against him. There is intense debate in the country whether freedom of speech can be compromised with the power to issue contempt notices. Constitutional experts argue that while freedom of speech is a fundamental right (Article 19 A of the constitution), Article 204 (2) and (3) confer on the Supreme Court the power to punish contempt which “maybe regulated by law and subject to law by rules made by the Court”. Or in other words the matter is of fundamental rights versus the exercise of power.

PML (N) counters criticism of being the court’s favourites by citing two arguments: (i) the PPP during the past five years rarely went to court to seek justice and the only two cases that stand out are the Asghar Khan case and the presidential reference on Z A Bhutto. Both are dated and hearing for the former remains subject to investigation, which the PPP-led coalition government did not initiate, while hearing on the latter case has been postponed indefinitely. None of the cases filed by the PML (N) were dated and all were current; and (ii) recent appointments made by Prime Minister Nawaz Sharif were declared invalid by the court followed by their resignations in compliance with the court orders, clearly anti-PML (N) verdicts.

Be that as it may, the court has taken some decisions which were not implementable and include decisions relating to price of specific items including sugar. In addition, the Supreme Court has frequently taken suo motu cases against the government of Pakistan since 2009 including cases of violence in the country (Karachi and Balochistan), corruption (implicating federal ministers including prime ministers and provincial ministers and their families) and of course contempt. Wikipedia notes that “the extent to which the court should exercise this authority is a matter of intense political debate in Pakistan.”

To conclude, restraint is within the ambit of those donning the judicial robes while lawyers are trained not to ruffle the feathers to an extent that would compel the judiciary to abandon restraint and statements by Aitzaz Ahsan on bringing forward of the election date amply reflect that. But politicians are a different cup of tea – Yousuf Raza Gilani, Raja Pervez Ashraf and now Imran Khan were all sent show cause notices and there is a growing consensus that three is one too many.

Khan has so far taken the Gilani route by not only refusing to tender an apology for stating that the judiciary and the ECP were complicit in rigging the elections but, like Gilani and Ashraf, he was also accompanied by hundreds of his supporters and hangers-on which disrupted traffic in the capital. Such arrogance smacks of a leader unwilling to admit he is wrong, a dangerous trait reminiscent of a dictator as opposed to one who claims to be democratic. One can only hope that better sense prevails till the date designated for the submission of his response on August 28.