Army and the President

General Musharraf has been "elected" by the National and Provincial Assemblies of Pakistan for a term of five years in office. At the beginning of his term i.e., November 16, 2007, if he sticks to his submission before the Supreme Court through his counsel, Musharraf will leave the post of army chief and become a civilian president pursuant to the terms and provisions of the Constitution, i.e. if one buys the argument that Article 63 does not apply to the candidacy of the President of Pakistan.

Article 41 of the Constitution of 1973, which deals with the eligibility of the president holds that the president must be the following: 1) Muslim; 2) No less than 45 years of age and 3) Qualified to be elected a member of the National Assembly.

It is point three that is the main point of contention. Article 62 of the Constitution gives the qualifications for a member of the National Assembly. Article 63 gives the disqualifications for the same. Both articles 43 and 63 bar the President from holding the office of profit in the service of Pakistan but the latter gives a way out when it states "(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder". Making Article 63 the basis, the National Assembly passed the "President to Hold Another Office Act" (hereinafter the "PTHAOA") which empowered President General Pervez Musharraf to continue to be the chief of the army staff as well as president of the country indefinitely.

Here I am not going to go into the speciousness of the argument as to whether or not 63 applies to the election of the President, let us consider what precedent this current election has set under this constitution:

A uniformed official in the service of Pakistan, who doubles as the president, through the PTHAOA, has been elected the President of the Republic for five years. The president-elect has promised to take off his uniform for good and becoming a civilian on November 15, 2007, on the eve of the beginning of his new term in office. Given Musharraf's track record, let us assume that he won't. The claim that he will no longer be allowed to keep his uniform beyond November 15 constitutionally under the logic given by Musharraf himself to assure the people that he indeed will be changing into a suit (or a sherwani) in my view is no more believable or logical than the assumption that Musharraf would have hung up his uniform on December 31, 2004. Consider the last line of the PTHAOA which I alluded to above:

"Provided that this provision shall be valid only of the present holder of the office of the President"

If I were to take a guess, Musharraf's side could well argue somewhere in and about November 15, 2007, that there was never any constitutional compulsion for him to remove his uniform, because it is perfectly legal for the present holder of the office of the President to hold the office of the chief of army staff. In that case, if Musharraf decides to leave the post of army chief and retire as planned, it will be said to be his own desire to take the country to complete democracy and not because of any compulsion. Or he might even continue to wear the uniform and hold the office of president, which will keep the current order in power indefinitely.

Now, on the other hand, let us consider what may happen if he does indeed leave the post of army chief on November 15, 2007, and start anew as the civilian president of this Republic. Let us assume -- though it sounds unlikely -- that the view that Musharraf cannot hold two offices beyond November 15 is accepted as the correct legal view, has anyone given thought to the precedent that will set? I don't think enough people have pondered over the question of what next.

In the event that this comes about -- Pakistan will have on November 16, 2007, an elected civilian president who contested elections in uniform and was elected in uniform, which he subsequently took off pursuant to Article 43 of the constitution because -- arguably – the PTHAOA did not extend beyond November 15, 2007. Since -- whatever his legal status -- a president-elect was elected as a serving official, could we then assume that Article 63, particularly sub-clause (1)(k), no longer applies to the election of the president. Article 63 (1)(k) states that a person is not qualified to be elected as a member of parliament if "he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service". If the argument is that some how Article 63 -- which speaks essentially of disqualifications and not qualifications of a member of parliament -- is not applicable to the president of Pakistan, then where does that leave the intervening period between December 31, 2004 and November, 15, 2007? And more important, does that mean anyone who holds an office of profit in the service of Pakistan may contest the presidential election, provided that upon successful election such a person would leave that other office of profit? If this is how things are going to go, the possible outcome might just be that the Pakistan army may from time to time field a serving officer as the presidential candidate to contest elections. Could there be any other party willing to take on the Pakistan army's candidate? Perhaps in a new set up Pakistan's presidential election may become an intra-army affair, with perhaps more than one candidate from the army coming forward. We have once again managed to position ourselves between a rock and a hard place.

An aside: Contrary to the claims made by one TV Channel however Musharraf is not the first serving general in the history of the world to seek election from an elected assembly. Indeed the final separation between military and civilian establishments in a democratic set-up is hard to pin-point. It may be recalled that Mustapha Kemal Ataturk was a serving brigadier-general of the Turkish Army, when he was first elected president of the Turkish Republic. He was elected through a grand national assembly which consisted of elected deputies, many of whom were serving Turkish army officers. It was not until seven years later that Ataturk became a civilian President. But Musharraf is not Ataturk, the Pakistan army is not the national army that the Turkish Army was and for Pakistan, a country founded through a civilian constitutional process with a history of British representative institutions, such a system is a step backwards.