AT PENPOINT
The Constitution of Pakistan is creaking, and showing signs of breaking down. It is not simply a matter of the big things, like elections being held on time. Even the little things, like the presidential assent to a bill, are now being thrown into doubt. Both are not to be ignored, because they show an underlying malaise, a desire to undermine the Constitution.
Perhaps it can be counted an advance that the postponement of the elections is being justified on legal, indeed constitutional, grounds. When General Ziaul Haq took over on 5 July 1977, he promised to hold elections in 90 days. That should have meant by October 4. He didn’t. The first elections he conducted were local body polls in October e1979. The National and Provincial polls he had promised were not held until 1985.
In the same way, the murkiness over the matter of assent contrasts with how Presidents have been treated. If the example of President Fazal Elahi Chaudhry is any guide, perhaps Dr Alvi should count himself lucky that he has not been simply brushed aside. At least Chaudhry was allowed to complete his five-year tenure, and then Zia took over. President Rafiq Tarar was simply brushed aside in 2001, midway through his term, allowing Gen Pervez Musharraf to take over as President, and then attend the Agra Summit with Indian PM A.B. Vajpayee while holding that office.
The President’s assent corresponds to the monarch’s assent in the UK, which is now by convention not to be refused. Indeed, the last refusal of assent was in 1708, and some constitutional experts have no idea of what would happen if the monarch was to refuse assent. The monarch is a component of Parliament, and the President has acquired that status. Another indication is that the President addresses a joint session of Parliament at the beginning of every parliamentary year.
The President’s assent is not just a formality. It was originally meant that way, for the original constitutional period have him seven days to assent, following which it was deemed to have received assent. Now, he has 10 days, either to assent or to return the Bill to Parliament, asking that it be reconsidered. He has to give reasons, no matter how frivolous. He could have objected to the Official Secrets Act amendment on the ground that the caretaker Interior Minister was ugly. Whatever the objection, Parliament could reject it in a joint session.
Reconsideration has not been a problem in provincial assemblies, which just have to re-pass the bills, but for Parliament, it involves summoirst carrying out in a joint session, something that will only be possible after elections.
Elections are to be held by the Election Commission of Pakistan, but it is also responsible for delimitations. It is not so much a matter of choice, but obligation, that it must carry out fresh delimitations. However, the document so obliging it, the Constitution, does not specify when those delimitations are to be carried out. Indeed, the relevant statute provides no timeframe as it does for elections.
It is not enough to hold elections. Those elected must be assured that their positions will be duly regarded. If an elected official is to throw a state dinner, he should not have to count the spoons afterwards. However, anyone who merely wails about lost spoons without having the waiters searched, has only himself to blame.
The ECP might find itself in a booby trap if there is to be any reallocation of seats between the federating units. There is already a demand for an increase in the number of seats in Islamabad. Such a redistribution is impossible without Parliament amending Article 51 of the Constitution. No amendment is at the moment possible, again because the National Assembly is dissolved.
Of course, in the presence of a new census, the old delimitations are displeasing to the observer. However, there does not seem any obstacle to the conduct of the election and then for the ECP to conduct delimitations almost immediately. It might do well then to wait for Parliament to amend the Constitution to allow Islamabad to increase a seat, and for there to be a seat reduced for some other federating unit.
By first carrying out delimitations, the ECP is also creating difficulties for itself in the presidential and Senate elections, which are inter-linked, because the Senate Chairman is the official supposed to act as President in the event of the vacation of the office.
However, the Senate Chairman does not take over automatically. Indeed, according to Article 44, even if his term expires, the President is supposed to remain in office until his successor enters upon it. The election is supposed to take place between 30 and 60 days before the term expires, but if the National Assembly is dissolved, then it is to take place 30 days after the election it is not a bar if a provincial assembly is at the time dissolved. It should be noted that even if the election is being held, the absence of the National Assembly is.
However, while the President may continue in office, the Senators due to retire in March cannot. Unless provincial assemblies are in place by then, fresh Senators cannot be re-elected. If the Senators are elected later, when will their six-year term be considered as having started? From the date of the vacancies being created or their taking oath as members? There is the separate issue of the Senate Chairman and Deputy Chairman, who have to be elected as soon as the Senate is completed. The Speaker National Assembly continues in office, so if the President and the Senate Chairman vacate their offices because there has been no election, at least the Speaker is there to act as President.
The present President has meanwhile sent the Secretary to President back to the Establishment Division, and given the name of the replacement he wants (someone who had previously served in the job). The officer concerned, Ms Humera Ahmed, has rejected the assignment, while the sacked incumbent, Waheed Ahmad, has denied any impropriety.
The whole affair is in a way greater than two deviations from the constitutionally established norm, abhorrent as that might be. It is also about the unravelling of the constitutional fabric, an attack centred around the heart of the constitution, of any constitution for that matter, the system of government.
It is almost as if there are two axes of advance against the Constitution: the sanctity of elections, and the sanctity of elected officials. Elections are not about a single assembly, but about virtually all elected offices. If one thread is pulled out of the fabric, there is the danger of the whole cloth unravelling. And the President’s complaint about his officials must not be ignored; he is an elected official, who must be obeyed by permanent officials.
It is not enough to hold elections. Those elected must be assured that their positions will be duly regarded. If an elected official is to throw a state dinner, he should not have to count the spoons afterwards. However, anyone who merely wails about lost spoons without having the waiters searched, has only himself to blame.
