Rashid Ahmad Khan*

 

Introduction

          

ith the swearing in of Mir Zafarullah Khan Jamali as the elected Prime Minister of Pakistan on 21 November 2002, the fourth military regime of Pakistan came to an end.[1] The Proclamation of Emergency announced by the Chief of the Army Staff (COAS) on 14 October 1999 and the Provisional Constitution Order (PCO) of 1999 were rescinded.[2] General Pervez Musharraf, who assumed power on 12 October 1999, relinquished the office of Chief Executive and was sworn in as President of Pakistan on the basis of the mandate he secured in the Presidential Referendum held on 30 April 2002. He, however, retained the office of the Chief of the Army Staff.

            The National Assembly formed on the basis of elections held on 10 October 2002 elected Mir Zafarullah Khan Jamali as the Prime Minister of the country. The elections were held in the light of the judgment of the Supreme Court of Pakistan in Zafar Ali Shah vs. COAS case announced on 12 May 2000.  In its judgment the Supreme Court, while endorsing the military take over of 12 October 1999 by COAS General Pervez Musharraf and validating the Proclamation of Emergency of 14 October 1999 and the Provisional Constitution Order No. 1 of 1999, allowed General Musharraf to exercise powers as Chief Executive for a period of three years “with effect from the date of the
Army takeover i.e. 12^th October, 1999 for achieving his declared objectives.” In the same

judgment the Supreme Court also observed that “the Chief Executive shall appoint a date, not later
than 90 days before the expiry of the aforesaid period of three years for holding a general election to the National Assembly, the Provincial Assemblies and the Senate of Pakistan.”[3] In compliance with the time frame given by the Supreme Court for holding elections to the National Assembly, the Provincial Assemblies and the Senate of Pakistan, the Chief Executive issued The Conduct of General Elections Order 2001 (Chief Executive’s Order No. 7 of 2002) on 27 August 2002. The elections were to be held under this order. But before this, the Military Government had introduced a series of reforms aimed at political restructuring in the country.

The Focus and Scope of the Paper

This paper aims at critically evaluating the process of political restructuring initiated by the military regime of Pakistan headed by Chief Executive General Pervez Musharraf from 12 October 1999 to 10 October 2002, focusing on those reforms, changes and constitutional amendments that were directly or indirectly related to elections. In addition, an attempt will be made to judge whether and how these measures affected the process (campaign, participation and conduct) and outcome (the composition of assemblies and Senate) of the October elections. In other words, the purpose of the paper is to find to what extent the goal of transition to democracy in Pakistan was achieved by holding elections on 10 October within the constraints of the plan for political restructuring introduced by the Military Government of Pakistan. The paper, although it contains reference to the on-going Government-Opposition dialogue on the Legal Framework Order (LFO), will not discuss developments that took place after the elections.

 
Political Restructuring in the Historical Perspective

Political restructuring under military rule is not a new phenomenon in the history of Pakistan; nor is it confined to the military regime of General Pervez Musharraf. The first military ruler of Pakistan, Field Marshal Mohammad Ayub Khan (1958-69), attempted to reform the political system of Pakistan through a new constitution in 1962, based on a presidential form of government and a system of indirect elections to the National Assembly, provincial assemblies and office of the President. The Local Government members of the newly created system known as Basic Democracies (BDs) , numbering 80,000 from both parts of the country, were converted into an electoral college for the election of members to the federal and provincial legislatures, and the president of the country. Field Marshal Ayub Khan was motivated to introduce a presidential form of government by his belief that a parliamentary system of government would impede the process of economic development and lead to the disintegration of the country. But he concentrated so many powers in the hands of the centre that, under the 1962 Constitution, Pakistan practically ceased to be a federal state. Instead of strengthening the unity and integrity of the country, this constitution is believed to be one of the factors responsible for the separation of East Pakistan[4], thus defeating its own purpose.

            General Yahya Khan abrogated the 1962 Constitution and placed the country under Martial Law on 24 March 1969. He had his own plan for political restructuring. This plan, known as Legal Framework Order (LFO), was unveiled before holding Pakistan’s first general elections in December 1970. Under LFO (1970), the elections to the National Assembly and provincial assemblies were to be held directly and on the basis of universal adult franchise with one-man-one-vote. However, the Assembly so elected did not have unfettered powers of sovereignty. The LFO promulgated by General Yahya Khan required it to frame the Constitution within 120 days “from the date of its first meeting” and, if it failed to do so, would “ stand dissolved.”

There were two other limitations placed on the Assembly: one, if the Constitution Bill passed by the Assembly was refused authentication by the President, it was to stand dissolved (Article 25); and two, the Assembly had no power to make any amendment in the LFO announced by General CMLA-President (Article 27-2). These legal measures were meant to facilitate an orderly and smooth transfer of power from the military to the elected civilian leadership. But instead of resulting in the restoration of democracy in Pakistan, it led to civil war and the ultimate separation of the eastern wing from Pakistan. Some of the policy measures taken by General Yahya Khan were positive responses to the democratic aspirations of the people of Pakistan as expressed in the mass movement against the autocratic system of Ayub Khan under the 1962 Constitution.  For example, he agreed to dissolve One Unit as unanimously demanded by the Combined Opposition Parties (COP). The constitutional formula of parity between East and West Pakistan, on which the two earlier constitutions of Pakistan (of 1956 and 1962) were based, was replaced by the democratic principle of one-man-one-vote. The system of indirect elections as provided under the 1962 Constitution was replaced by the method of direct elections on the basis of universal adult franchise; and the demand for a parliamentary form of government was accepted. However, the constraints on the Assembly under Articles 25 and 27-A of the LFO proved to be counterproductive. Had the Assembly been empowered to amend LFO, it could have extended the mandatory period of 120 days to bring in-house parleys on the future constitution of the country to a satisfactory conclusion.

            Like his predecessors, Pakistan’s third military ruler, General Ziaul Haque, had his own agenda for constitutional and political reform. Unlike Ayub Khan and Yahya Khan, he did not abrogate the (1973) Constitution but held it in “abeyance” for eight years, five months and twenty-six days of martial law--the longest in the history of Pakistan. The martial law government of General Ziaul Haque amended the Political Parties Act of 1962, providing for the registration of political parties with the Election Commission and submission of accounts in order to qualify to contest elections (Section 3-B). However, after the death of General Ziaul Haque in a plane crash in August 1988, the Supreme Court of Pakistan declared the condition of registration of political parties with the Election Commission void.[5] In 1983, CMLA-President General Ziaul Haque issued the Revival of Constitution Order (RCO) under which a number of articles of the 1973 Constitution were amended. Some clauses were changed, omitted, or added.[6] In 1985, the National Assembly formed as a result of the party-less elections of March 1985, retained some of the amendments made under RCO and gave approval to a package of constitutional amendments under the Eighth Amendment. The most important change under the Eighth Amendment was the insertion of a new clause 58 (2-b), which empowered the President to dissolve the National Assembly in his discretion when, in his opinion, a situation had arisen in which the Government of the Federation could not be carried on in accordance with the provisions of the Constitution, and an appeal to the electorate had become necessary.[7]

The RCO had introduced sweeping changes in the original 1973 Constitution, tilting the balance of power heavily in favour of the President. In fact, RCO had seriously undermined the parliamentary character of the government introduced under the 1973 Constitution as “the balance of power had clearly shifted in favour of the President…and the office of the Prime Minister was relegated to a subservient and subordinate position.”[8]  Therefore, the National Assembly, though elected on a non-party basis in March 1985, modified some of the proposals contained in the RCO. These modifications whose cumulative effect was “to reduce the powers of the President a little bit and to correspondingly extend the powers of the Prime Minister and the Cabinet” were approved by the Assembly under a package known as the Eighth Amendment.[9] Under the Eighth Amendment;

(1)     The President was required to act on the advice of the Prime Minister and the Cabinet.

(2)     The period for giving Presidential assent to a bill passed by the Parliament was reduced to thirty days, instead of forty-five days as proposed in the RCO.

(3)     Article 58 (2-b) was retained. But a new condition on the exercise of powers by the President under this Article was added, whereby the President could dissolve the National Assembly provided that in his opinion, the Government could not be run in accordance with the provisions of the Constitution and an appeal to the Electorate had become necessary.

(4)     The President retained the powers to appoint in his discretion, Chiefs of Armed Forces and Chief Election Commissioner.

(5)     The power of the President to appoint the Prime Minister was limited to a period of five years, that is, until 20 March 1990, after which the Prime Minister was to be elected by the majority of the members of National Assembly.

(6)     The proposal for the establishment of a National Security Council was dropped.

(7)     All the President’s orders, ordinances, Martial Law Regulations, Martial law Orders, Referendum Order 1984 (under which General Ziaul Haque was elected President for five years), the RCO and the constitutional amendments made by General Ziaul Haque from time to time were affirmed and, for this purpose, a new article (Article 270-A) was added to the Constitution.

Ever since it was passed in 1985, the Eighth Amendment has remained controversial. Political parties opposed to the martial law rule of General Ziaul Haque termed it undemocratic and against the parliamentary structure of the government as envisaged by the original 1973 Constitution. Opposition to the Eighth Amendment gained momentum after the President, using his powers under this provision of the Constitution, dissolved four democratically elected assemblies.[10] The General Elections held in February 1997 returned the Pakistan Muslim League (N) headed by the former Prime Minister Nawaz Sharif to the new National Assembly with more than two-third majority. His party was therefore in a convenient position to amend the Constitution. Under the Constitution (Thirteenth Amendment) Act 1997, passed by the Assembly on 4 April 1997, the powers granted to the President under Article 58 (2-b) to dissolve the National Assembly in his discretion were done away with, and parliamentary supremacy as provided by the original 1973 Constitution was restored.

The Thirteenth Amendment was passed by the National Assembly elected in the 1997 elections in the wake of a bitter struggle between President Leghari and the PPP government of Ms Benazir Bhutto, costing the latter her position as Prime Minister. The new government of Prime Minister Nawaz Sharif did not want to suffer the same fate at the hands of a President armed with the lethal power of Article 58-2 (b). One of the first things Prime Minister Nawaz Sharif did after winning the 1997 elections was to strike at the discretionary powers of the President under the Eighth Amendment.

A review of the constitutional and political history of Pakistan from the first martial law of General Ayub Khan to the third martial law under General Ziaul Haque reveals that unilateral efforts to restructure the country’s political system invariably failed. Authoritarian strands inserted into the body politic of Pakistan through arbitrary constitutional changes and amendments were gradually pulled out by assertive democratic elements reflected in the supremacy of parliament. Both Ayub Khan and General Ziaul Haque tried to mould the political system of Pakistan according to their own world-view. They failed because their decisions did not enjoy the general support of the people of Pakistan.  Ayub Khan replaced the parliamentary form of government with a presidential system under the 1962 Constitution and prescribed indirect methods of elections for the President and members of the National Assembly. But in less than eight years, the political and constitutional structure based on this constitution collapsed; and General Yahya Khan, who took over in March 1969, had to accept popular demands for the restoration of parliamentary democracy and direct elections based on the principle of one-man-one-vote. These principles were incorporated in the Legal Framework Order (LFO) issued by General Yahya Khan as the basis for holding Pakistan’s first general elections in 1970. The Constitution of 1973 providing for parliamentary supremacy and fundamental democratic rights embodied the desires and aspirations of the people of Pakistan as expressed during the mass movement of 1968-69 against the authoritarian political system of Ayub Khan. The Constitution was also unanimously supported by representatives of all the political parties in the National Assembly elected in the 1970 elections. This is why the 1973 Constitution is generally accepted as consensus Constitution.

General Ziaul Haque introduced changes in the constitution with the conviction that a balance of power between President and Prime Minister was necessary to ensure the stability of the political system based on the 1973 Constitution. He defended the constitutional amendments under RCO with the argument that the powers of the President were enhanced without reducing the authority of the Prime Minister and a balance was struck between the two. He was of the view that the crisis of 1977 could not be resolved because there was a gross imbalance between the powers of the President and those of the Prime Minister under the original 1973 Constitution. He sought to remove this lacuna in 1977 according to the constitutional and political requirements of Pakistan.[11] In introducing various constitutional amendments, General Zia was also motivated by his strong desire to Islamize the political system of Pakistan. He stated this unequivocally in his address to the nation on the assumption of power on 5 July 1977. With a view to implementing his plan, he introduced a number of steps, one of which was the replacement of Joint Electorate system for holding elections to the representative and legislative bodies in Pakistan with a Separate Electorate system. The 1985 elections to the National Assembly and the four provincial assemblies in Pakistan were held on the basis of this system. However, the minorities never accepted it, and some of the mainstream parties also remained opposed to it. But since the restoration of the previous system required an amendment in the constitution, it was not restored till the military government of General Pervez Musharraf decided to hold elections on the basis of Joint Electorate. Thus, two of the main components of the political structure of General Ziaul Haque based on the Eighth Amendment, namely, Article 58-2 (b) and Separate Electorate, were removed, paving the way for the restoration of parliamentary supremacy as envisaged in the 1973 Constitution.

Although structural changes in the political system of Pakistan introduced by Field Marshal Ayub Khan and General Ziaul Haque did not last long and Pakistan’s polity soon reverted to a democratic dispensation based on the supremacy of the parliament, the significance of these moves for the transition from direct military rule to a civilian order should not be underestimated. The first of these moves brought to an end about four years of martial law. The Constitution (1962) restored representative and elective institutions, integrated the Local Government Bodies (Basic Democracies) in the political system, restored the fundamental rights of the people and powers of the judiciary, allowed political parties to function and set the whole political process in motion. The benefits that these measures brought to the people of Pakistan were enormous, as the rule of law replaced martial law, and the people could now get relief for their grievances from civilian authorities and courts of law. The level of people’s participation in the local, general and presidential elections showed that they accepted the system as a change for the better.

It should also be noted that powers under Martial Law had enabled Ayub Khan to introduce certain social reforms that have proved to be more enduring than his political reforms. These measures included Muslim Family Laws, which liberated many Pakistani women from the unfair exercise of certain traditional Islamic institutions, notably plural marriage and divorce by talaq. Certain conservative groups disliked these changes, and they maintained steadfast opposition to them, which continues to this day.  However, it seems unlikely that the law either will, or could be, reversed or nullified. In any case, the number of legal notices appearing in the newspapers by aggrieved or deserted wives is testimony enough to the utility of some changes Ayub Khan brought about.[12]

Similarly, the decision of General Ziaul Haque to replace the repressive Provisional Constitution Order (PCO) with the Revised Constitution Order (RCO) in 1983 was greeted by the people of Pakistan as a welcome change.[13] The PCO had granted the CMLA-President General Ziaul Haque sweeping powers to consolidate his position as an authoritarian ruler over Pakistan. He used the powers under PCO to validate all his actions, decisions, orders, ordinances and directives issued since 5 July 1977. Under PCO political parties were repressed in Pakistan and all political activities were banned. The media was under full control of the government while press censorship of the worst kind was imposed.[14]  When we compare PCO with RCO, the latter was much better in terms of rights, freedoms and liberties as defined in the Constitution of 1973. As a leading constitutional expert has remarked;
 

Although RCO brought some basic changes in the structure of the Constitution, which were to create constitutional and political crises later on, it was a step towards the restoration of civilian government under the 1973 Constitution, even though greatly defaced. It was certainly some progress over what the people had experienced during the previous eight years. At least with the introduction of RCO, the reprehensible PCO had come to an end.[15]
 

General Musharraf’s Military Rule

The military takeover by the Chief of the Army Staff (COAS), General Pervez Musharraf, on 12 October 1999, made some significant departures from similar exercises under General Ayub Khan and General Ziaul Haque. Unlike the previous three military rulers of Pakistan, namely Field Marshall Ayub Khan (1958-69), General Yahya Khan (1969-72) and General Ziaul Haque (1977-88), General Musharraf did not declare martial law in the country. The Constitution of 1973 was not suspended, it was held in abeyance. Instead of dissolving the National Assembly, the Provincial Assemblies and the Senate, these representative legislative bodies were suspended.[16] The Military Government did not ban the political parties and political activity was not prohibited. The whole country was, however, placed under the control of the Armed Forces.[17] The Provisional Constitution Order No.1 of 1999 further elaborated the character of the military regime that assumed power on 12 October 1999. Under this Order, General Pervez Musharraf assumed the title of Chief Executive. The PCO further provided that:
 

(1)     Pakistan shall, subject to PCO and any other Orders made by the Chief Executive, be governed as nearly as may be in accordance with the Constitution.

(2)     All Courts in existence immediately before the commencement of this Order shall continue to function. However, the Supreme Court, High Courts and any other court shall not have the power to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority.

(3)     The fundamental rights conferred by Chapter 1 of Part II of the Constitution not in conflict with the Proclamation of Emergency or any Order made thereunder from time to time shall continue to be in force.

(4)     The President shall act in accordance with the advice of the Chief Executive.

(5)     No court, tribunal or authority shall call or permit to be called in question, the

Proclamation of Emergency of 14^th Day of October1999 or any order made in pursuance

of that.[18]

 The address to the nation by Chief Executive, General Pervez Musharraf, on 17 October
1999 sheds further light on the nature of the change that had taken place on 12 October 1999. In this address, General Musharraf said: 

“The choice before us on 12^th October was between saving the body (that is the nation) at

the cost of losing a limb (which is the Constitution) or saving the limb and losing the whole

body. The Constitution is but a part of the nation, I chose to save the nation and yet took

care not to sacrifice the Constitution. The Constitution has only been temporarily held in

abeyance. This is not MARTIAL LAW, only another path towards democracy. The Armed

Forces have no intention to stay in charge any longer than is absolutely necessary to pave

the way for true democracy to flourish in Pakistan.”[19]

 

Commitment to the Restoration of Democracy

The Military Government of General Pervez Musharraf was, therefore, committed to restoring democracy in the country from the very beginning. However, like previous military rulers of Pakistan, it possessed its own views on the form of democracy (true democracy) needed for the country. These views were expressed by General Musharraf from time to time in his speeches and statements; and finally were presented before the nation in June 2002 in the form of Proposals for Political and Constitutional Changes. After an extensive public debate, General Pervez Musharraf announced modified proposals on 22 August 2002 in the form of the Legal Framework Order (LFO). But before we discuss LFO, which embodies the military regime’s blueprints for political restructuring, it would be useful to refer to the 7-Point Agenda of the Military Government announced by the Chief Executive in his address to the nation on 17 October 1999; and the short Order of the Supreme Court of Pakistan on the Constitution Petition under article 184 of the Constitution, popularly known as the Zafar Ali Shah vs. General Pervez Musharraf, Chief Executive case of 12 May 2000. Both these documents bear relevance to the main focus of the paper, that is, the scope and the limitations of the restructuring of the political system of Pakistan that the Military Government thought it was competent to do.

The 7-Point Agenda reflected the aims and objectives of the Military Government as announced by General Pervez Musharraf in his address to the nation on 17 October 1999:

 (1)     Rebuild national confidence and morale.

(2)     Strengthen federation, remove inter-provincial disharmony and restore national cohesion.

(3)     Revive economy and restore investor’s confidence.

(4)     Ensure law and order and dispense speedy justice.

(5)     De-politicize state institutions.

(6)     Devolve power to the grass-root level.

(7)     Ensure swift and across the board accountability.

 

This agenda served as the basis for the Military Government to take a number of initiatives for political restructuring, such as Devolution of Power Plan announced by the Chief Executive in March 2000. We will give the details of the Devolution of Power Plan later; but let us first examine the Short Order of the Supreme Court and see how it defined parameters for the Military Government to introduce changes/amendments in the constitution in order to achieve its goal of political restructuring.

            In it’s Short Order, the Supreme Court:

·         Justified the military take over of 12 October 1999 on the basis of the Doctrine of State Necessity.

·         Held the Constitution of 1973 as the supreme law of the land “subject to the condition that certain parts thereof have been held in abeyance on account of the Doctrine of State Necessity”.

·         Held that the Superior Courts would continue to function under the 1973 Constitution.

·         Empowered the Chief Executive to perform all acts or legislative measures, which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it.

·         Decided that no amendment would be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions.

·         Declared the current electoral rolls outdated and ordered the preparation of fresh electoral rolls followed by delimitation of constituencies.

·         Allowed the Chief Executive a period of three years with effect from the date of Army take over i.e. 12 October 1999 for achieving his declared objectives.

·         Directed the Chief Executive to appoint a date, not later than 90 days before the

expiry of the aforesaid period of three years, for holding a general election to the

National Assembly and the Provincial Assemblies and the Senate of Pakistan.[20]

 

The Basis and Parameters of Political Restructuring

While the 7-Point Agenda announced by the Chief Executive General Pervez Musharraf in his address to the nation on 17 October 1999 provided the basis for the functioning of the Military Government, the Short Order issued by the Supreme Court of Pakistan on 12 May 2000 fixed the parameters of any measure it might take for the achievement of its declared objectives.[21] Item number 6 of the 7-Point Agenda of the Military Government called for the devolution of power to the people at grass–root level. In pursuance of this objective, the Chief Executive General Pervez Musharraf in a statement on 23 March 2000 outlined the Devolution of Power Plan, In this statement, General Musharraf said; “The political structure, we plan, involves a trilateral distribution of responsibilities between the centre, the provinces and the district representing the (lowest) rung of democracy.” According to the plan for District and Local Government, as spelt out by the Chief Executive, elections were to be held at three levels: direct elections at the Union Council and District levels and indirect elections for the Tehsil Councils.[22] Explaining the objective of the Plan, the Chief Executive said, “The new redistribution of power and responsibility between the Federation, the provinces and districts represents a real, authentic, fundamental change in the structure of governance of our country.” Towards the end of his statement, General Musharraf said: “We would like to open this local governance plan for a thorough analysis/debate in the national media, stretching from now to 14 August, 2000, on which date the final shape of the District Government will be decided and the implementation machinery for the elections set into motion.”[23]

 

The Devolution of Power Plan-2000 and ‘Real Democracy’

After incorporating various suggestions and recommendations emerging from a four-month long public debate, the Devolution of Power Plan was finally presented to the nation by the Chief Executive General Pervez Musharraf on 14 August 2000 as his “top priority”, which, according to him, was to “have far reaching effects to change the fate of the country.”  Introducing the Plan, the Chief Executive said,
 

In the very beginning, I have stated that I want to bring real democracy and I want to restore real democracy in the country, not sham democracy. I have been talking about essence of democracy. Sham democracy is just for the privileged class and their off springs. We want to wipe out this kind of democracy. We have started this democratic process from the lower strata, from the level of masses, common people. We have started it from District, Tehsil and Union Council Level. Had we started it from the top, it would have meant that we were handing the power to the same privileged people again and not the masses.[24]

 

            In its final shape, the Local Government Plan provided for the establishment of a three-tier system of government, namely, District government, Tehsil government and Union government.

            The District government comprises the Zila Nazim, the Naib Zila Nazim, the Zila Council and the District Administration. The function of the Zila Nazim was to ‘provide political leadership for the development of the district’ and to be “in a position to influence policies that could improve both the current quality of life and the future development prospects of a district in collaboration with the Tehsil Nazims.”

            The Tehsil government includes the Tehsil Nazim, the Naib Tehsil Nazim, the Tehsil Council and the Tehsil administration. The primary function of the Tehsil government is the provision and coordination of municipal services to both the urban and rural areas across the whole area of the Tehsil. The second function of the Tehsil government is the development through land use control and master planning for every town and village across the whole Tehsil. The third function of the Tehsil government is to monitor the work of the Tehsil administration and district government officials located in the Tehsil.

            The Union government comprises the Union Nazim, the Naib Union Nazim, the Union Council and the Union administration. All Union Councils are supposed to undertake local level development projects and the monitoring of citizen’s rights, security and services. Provision of monitoring reports to the Tehsil and District level administrations as well as Zila Councils and Tehsil Councils and their Committees will constitute a major function. They will also closely work with village Councils in the rural areas and Citizen’s community boards in both rural and urban areas. The plan envisages this coordination to entail promoting direct citizen involvement in development activities, including support to their micro-projects.[25]

 

Devolution of Power plan and Political Re-structuring

The Devolution of Power Plan enjoyed top priority on the agenda of the Military Government for political re-structuring; and for the purpose of its sustainability, the plan has been given constitutional cover under the Legal Framework Order (LFO) enforced by Chief Executive President General Pervaez Musharraf in August 2002. After the announcement of the final plan, the phased elections, starting from 31 December 2000, were held for Nazims and Naib Nazims at all levels, Union Councils, Tehsil Councils and Union Councils. Direct elections on the basis of universal franchise were held only at Union Council level. The minimum voting age for voters was reduced to 18 years. The elections, were, however, held on the basis of separate electorate.

 Election Commission and Political Parties

In addition to the enforcement of the Devolution Plan as the major initiative for political restructuring, the Military Government also changed the composition and powers of the Election Commission of Pakistan and introduced new rules for the political parties. The number of members of the Election Commission was increased to four, “each of whom shall be a judge of the High Court of each province, appointed by the President after consultation with the Chief Justice of the High Court concerned and the Chief Election Commissioner.”[26] Under the Political Parties Order, 2002, (Chief Executive’s Order No. 18 of 2002), intra-party elections were made compulsory for political parties desirous of taking part in the elections. Under the same order, political parties were prohibited from promoting “sectarian, regional or provincial hatred or animosity”. The Order also forbade political parties from imparting any military or para-military training to its members or other persons.[27]

 

Constitutional and Political Reforms package

On 26 June 2002, the National Reconstruction Bureau (NRB) announced for public debate a package of constitutional and political reforms, proposing changes, amendments, additions and insertions in about 28 Articles of the 1973 Constitution.[28] The main proposals of the Package were;

 

(1)     Restoration of Article 58-2(b).

(2)     Reduction of the term of National Assembly from five to four years.

(3)     Direct elections to the women seats and the Senate of Pakistan.

(4)     Establishment of National Security Council.

(5)     President to make all key appointments in his discretion, including Chairman Joint Chiefs of Staff Committee, Chiefs of the Staff of Army, Navy and Air Force and all provincial governors.

(6)     Minimum qualification of graduate for candidates in the elections for the National Assembly, Provincial Assemblies and the Senate of Pakistan.

(7)     Intra-Party election for the political parties.

(8)     The number of seats of the National Assembly, Provincial Assemblies, and the Senate were increased along with the expansion of representation for the minorities and women in legislative bodies.

(9)     Loan defaulters to be banned from contesting elections 2002.

 

While presenting the proposals, the NRB explained the purpose of the package as “reconstruction of the institutions of state for establishing genuine and sustainable democracy, to ensure durable good governance for an irreversible transfer of power to the people of Pakistan within the parameters of the judgment of the Supreme Court of Pakistan.”[29] As mentioned in the earlier part of the paper, the Supreme Court had fixed certain parameters in its judgment in the Zafar Ali Shah case (12 May 2000) within which the Chief Executive was competent to amend the Constitution. According to these parameters, no amendment could be made in the salient features of the Constitution, namely independence of judiciary, federal structure and parliamentary form of government blended with Islamic principles. The spokesman of NRB claimed that the proposals were made within the stated parameters of the judgment. With regard to the parliamentary form of government, the statement of NRB said:

 

While observing this constraint, it is to be observed that there is no universal format of parliamentary democracy, the proposals made here seek to change specific provisions of the parliamentary form with a view to ensuring checks and balances in order to reflect our own circumstances and enhance the sustainability of democracy in Pakistan.[30]

 

Elaborating further on the objective of the package of the constitutional amendments, the statement of NRB said:

 The implementation of Democratic Framework proposals is expected to enhance the credibility of the electoral process, reduce size of constituencies, improve representative character and quality of legislatures and replace the discredited method of election of women and the Senate of Pakistan[31]

             The mainstream political parties, however, rejected the package, saying that it would render the Constitution “controversial.’[32]  The Government, especially the President, strongly defended the proposals. In a Pakistan Television Interview on 13 July 2002, President Musharraf came out stoutly in favour of the proposed amendments, arguing that

 Authority and power should remain with one person and there should be no power-sharing. I believe the executive authority of the Federation and power to run the government should remain with the Prime Minister. I believe in unity of command, as a soldier, and authority and power should remain with one person.[33]

 

Musharraf’s Concept of Governance

In an earlier interview with the daily Dawn, President General Pervez Musharraf had outlined his concept of governance in Pakistan, underlining the need for a ‘new balance of power among the three power brokers, namely the President, Prime Minister and Chief of the Army Staff’ to ensure the smooth working of the future set up and to avoid the overlapping of power. In this interview, the President referred to past practices and regretted that in the past all three had overstepped their powers, because of which the country had to face difficult times.[34] What the President meant was that, if in keeping with the principles of parliamentary democracy, it was necessary to vest the authority and power of the government in the Prime Minister, it was also imperative keeping in view the past record of events to arm the President with the power to dissolve the Assembly as proposed in the Package of Constitutional Reforms and Changes announced on 26 June 2002. In the interview the President was quoted as saying that he wanted the Assembly to complete its five-year term. When asked by the panelists how that was possible with the President having the power to dissolve the Assembly, he replied that the President must have such power.[35] Would restoration of democracy mean more powers for the President? In response to this question, President Musharaf replied;

 
      No. I don’t believe that at all. Now this word ‘power’ is not really understood by everyone. What is power? What really do you mean by power? I am a firm believer being from the army, in the unity of command. You can never have the duplicity of command. The government will never function; no organization can function unless there is unity of command. So I am firm believer that power to govern, to run the government, run the country, must be vested in the Prime Minister of Pakistan. But there has to be a check, a balance on him, on his performance. He is supposed to function well. He is supposed to function in a democratic manner, honestly and that is where a watchdog role is required. So that is not power. The watchdog role is not power. Power to function and run the
 government is power. He (Prime Minister) will have the power.[36]

Political Re-structuring: Challenge for the Military Government

Political restructuring was one of the areas of special focus for the Military Government. As President Musharraf told US intellectuals and scholars in Washington in February 2002:

                  Political restructuring … is the most serious challenge for us and we do intend introducing true democracy in Pakistan. And when I say true democracy in Pakistan, I differentiate democracy or I divide democracy into two parts. One is having an elected government and the other is how that government functions. Whereas elected government is essential for democracy, but democracy does not end at having an elected government. I think it is the start of democracy. I think it is the way that the elected government functions, which is the true essence of democracy. So what we are trying to introduce in Pakistan is the true essence of democracy. We have already issued a road map for the return or for the introduction of democracy in Pakistan.[37]

            These ideas and concepts of democracy as enunciated by Chief Executive/President General Pervez Musharraf from time to time during the three year period of his military rule, were fully reflected in the changes and constitutional amendments he announced in Islamabad on 22 August, 2002 under Legal Framework Order (LFO) after receiving feedback from a nationwide debate on the Package of Constitutional Reforms and Changes announced by NRB on 26 June 2002.

 

Legal Framework Order (LFO)

The LFO consists of 29 items, which contain amendments/changes and additions in a number of Articles of 1973 Constitution as it stood before 12 October 1999. Under these constitutional amendments:

            (1)     Intra-party elections to elect the office bearers and leaders of the party were made compulsory for every political party.

(2)     President Musharraf was deemed to have been elected President for five years.

(3)     The number of seats in the National Assembly was increased to 342, including the seats reserved for women and minorities.

(4)     Defaulters of loans from public financial institutions or utility bills were barred from contesting elections.

(5)     The number of general seats and the seats reserved for women and minorities in the Provincial Assemblies was increased.

(6)     The number of seats in the Senate was increased from 87 to 100.

(7)     Article 58-2(b) was restored.

(8)     A new Article (152-A) was added to the Constitution, providing for the establishment of the National Security Council.

(9)     Under a new Article (270-AA), all the orders, actions, decisions and ordinances issued by Chief Executive/President General Pervez Musharraf were validated.[38]

 

LFO and Parliament

While presenting the constitutional amendments under  Legal Framework Order, President Musharraf emphatically asserted that the amendments were irreversible and needed no validation by the Parliament to be formed after the October elections. “I am hereby making it a part of the Constitution through the powers given to me by the Supreme Court. I do not need the Assembly’s approval.” In the press conference he held in Islamabad, the President made it clear that if the future Parliament tried to reverse the amendments, particularly the one pertaining to the National Security Council, “either they will quit or I will quit.”[39]In further elaborating his plan for political restructuring in the country, the President said, “There is no fixed formula for democracy around the world. I am trying to tailor democracy according to the needs of Pakistan.” Explaining the reason behind the plans for political restructuring in the country, the President said that the nation was more important for him, “Democracy is important, but the nation is much more important; and whatever is in the interest of the nation, I will do that.”[40]

 

Considerations behind the plan for Political Re-structuring

As explained in numerous statements and speeches, Chief Executive/President General Pervez Musharraf claimed that he was a democrat and not a dictator and the purpose of political restructuring was to introduce the essence of democracy in Pakistan. “ …I have introduced the essence of democracy in Pakistan. So I am a democrat.”[41] Apart from the “essence of democracy”, the President in his statements also laid emphasis on two other considerations as motivating factors behind the plan for political restructuring: One, barring the two former prime ministers (Benazir Bhutto and Nawaz Sharif) from participating in elections, and institutionalizing the role of the armed forces in the politics of Pakistan. ‘Those who looted and plundered the country and had two chances to govern but failed, will not be allowed to take part in the elections.”[42] The President had expressed similar views earlier on this issue in March 2002, in a panel interview with daily Dawn.[43]

            The second consideration behind the scheme of political restructuring was, as President Musharraf said, “to introduce a system of checks and balances” by establishing the National Security Council (NSC). The President explained that this would not amount to legitimizing the army’s role in the running of the Government. On the contrary, he said, it will keep the army out of the affairs of the Government. “If you want to keep army out you bring them in”, President said in a press interview giving the rationale behind NSC. “In the presence of this forum, the army chief would not take over,” President said adding further, “we have included those who can take this rash decision.”

The LFO invoked a mixed reaction from the political parties, the legal community and other civil society institutions. The expansion of women representation in the legislative assemblies, the lowering of age limit for voters, the increase in the seats of the assemblies and the Senate and restoration of joint electorate was generally welcomed. Two mainstream political parties i.e. PPP-P and PML-N opposed restoration of Article 58-2(b), the establishment of National Security Council and educational and other restrictions on the candidates for the assemblies. Muttaheda Majlis Amal (MMA) joined other parties in the Alliance for the Restoration of Democracy (ARD) in terming LFO as unconstitutional and an attempt to undermine the supremacy of Parliament and the Constitution. However, some political parties, like PML-Q, the Millat Party headed by former President Farooq Ahmad Leghari, the Tehrik Insaf of Imran Khan and the Awami Tehrik of Allama Dr. Tahirul Qadri, supported LFO. The political parties grouped into National Democratic Alliance (NDA) and Imran Khan’s Tehrik Insaf were of the view that the constitutional amendments under LFO would help prevent the former rulers (Benazir Bhutto and Nawaz Sharif) from staging a comeback through elections; and that reforms like lowering the voting age and imposing educational restrictions on candidates would bring young and new faces into politics.

The Announcement of the Election Schedule

When the election schedule was announced, the response of the political parties was very encouraging. According to the Election Commission of Pakistan, 131 political parties applied for the allocation of symbols in the election. Out of them 92 political parties were allotted election symbols; and the number of political parties who took part in the elections was 73.[44] In the National Assembly formed after the elections, 16 political parties and alliances are represented by their MNAs. Even political parties like PPP-P that fiercely opposed LFO, participated in the elections with full vigor. According to the Secretary General of PPP-P, Mr. Raza Rabbani, the party gave about 1000 tickets to its candidates for the national and provincial assemblies.[45] The Chairperson of PPP-P, Mohtrama Benazir Bhutto, though herself ousted from the electoral process, continued to direct her party, according to Senior Vice-Chairman of the Party, Makhddoom Amin Fahim, to take an active part in the elections to ensure the restoration of democracy. Makhdoom Amin Fahim further said that the target of his party was to reach the Parliament and have democracy restored.[46]

            From the number of political parties taking part in elections and the vigorous campaign launched by some of the political parties that were adamant in their opposition to the constitutional amendments, it is clear that all the political parties agreed to contest elections within the parameters of LFO as a first step in the transition to democracy in the country.

            The level of participation was also satisfactory. The lowering of age for voters led to an increase in the total number of votes.[47] The election campaign was slow in the beginning; but gradually it picked up. There were allegations of widespread rigging; but the Election Commission of Pakistan rejected them. The Secretary of the Election Commission claimed that the polls were fair and free with accurate results. According to him, the estimated turnout was slightly more than 40 per cent.[48]

            A study done by a Non-Government Organization (NGO), Pattan Development Organization, claimed that the actual turnout in the 10 October general elections was 54.78 per cent.[49]

Elections 2002: Results

The elections held on 10 October 2003 produced a hung Parliament, as no party was able to win an absolute majority in the National Assembly. According to the results announced by the Election Commission, out of 261 general seats, PML-Q won 88; PPP-P: 63; MMA: 44; PML-N: 19 and MQM: 16. As an analyst has put it:

 
    “The October polls produced a fragmented polity. The elections resulted in regionalization of political trends in the absence of national parties, which would have operated as integrative forces across ethnic and provincial boundaries.”[50]

 
      On 21 November Mir Zafarullah Jamali, a PML-Q leader from Balochistan, was elected as Prime Minister securing 172 out of 342 votes. Ten days later, he won a vote of confidence in the National Assembly, bagging188 votes. Following the formation of the government at the centre, the provincial governments in all four provinces were installed. The electoral process initiated by the military government with the announcement of LFO in August 2002 was thus completed.

 

Conclusion

Restructuring Pakistan’s political system has been a favourite game with all military rulers of Pakistan. Part of the motivation for such exercises has stemmed from every military ruler’s determination, first, not to let ousted political forces come back to power through fair, free and transparent elections, and second, to maintain military ascendancy in a civilian order. For example, the main purpose behind Ayub Khan’s system of Basic Democracies and method of indirect elections was to replace feudal politicians (who were mostly in power till the military coup of October 1958) with a new political leadership from the middle class. Ayub Khan introduced the presidential form of government with the conviction that it would keep the old, traditional politicians away from the corridors of power and help him consolidate his own position in the new set-up.

General Ziaul Haque made fundamental changes in the 1973 Constitution primarily with a view to (1) evolving a power-sharing system between the military and politicians based on non-party elections and (2), preventing secular and liberal forces from gaining political ascendancy. He replaced Joint Electorate with Separate Electorate, not only to appease the religious parties, but also to deprive PPP of minority votes in future elections. The process of Islamization was initiated to enable the religious parties to gain influence in the polity and promote orthodox forces, which have been traditional allies of authoritarian rulers. He made a shift in the balance of power from prime minister to president by adding Article 58-2(b) in the Constitution to strengthen the authoritarian character of the country’s political system based on an amended version of the 1973 Constitution.

However, it would not be fair to say that Field Marshal Ayub Khan and General Ziaul Haque were motivated solely by their personal ambitions and parochial interests in introducing reforms in the political system through constitutional amendments or changes in the form of government. No doubt they catered to vested interest in the continuation of the order they presided over; and the major consideration behind the reforms or changes in the political system was to strengthen the constituency they belonged to, but we should not forget that there were other factors that facilitated their actions and sustained their stay in power. For example, the structural flaws in the Constitution of 1956 based on the parliamentary form of government were largely responsible for unending political crises in the country from March 1956, when the Constitution was enforced, till October 1958, when the Constitution was abrogated and Martial Law promulgated. The people of Pakistan generally welcomed the martial law of 1958, as it put an end to the political squabbling of selfish, unscrupulous politicians. But the same people turned against Ayub Khan when it became clear to them that he intended to perpetuate his personal rule through an authoritarian system

            In carrying out the military coup of July 1977, the Chief of Pakistan’s Army, General Ziaul Haque, successfully exploited the absence of a mechanism in the 1973 Constitution which could have been used to resolve the crisis like the one country faced in 1977. A number of constitutional experts believed that the martial law of 1977 could have been averted, had there been some check on the unlimited powers of the Prime Minister under the original Constitution of 1973.

            In his address to the nation soon after taking over on 12 October 1999, the Chief of the Army Staff (COAS) General Pervez Musharraf made it clear that his government aimed at structural changes in the political system of Pakistan. For this purpose, he announced a seven point agenda, which also included a plan for devolution of power through restructuring the existing system of Local Government Bodies. The Supreme Court of Pakistan in its judgment of 12 May 2000 directed the Chief Executive to complete the process of transition from military rule to civilian order within three years from the day of assumption of power by the COAS, through holding elections to the National Assembly, Provincial Assemblies and the Senate of Pakistan. The Supreme Court also empowered the Chief Executive to amend the Constitution within certain parameters. The Military Government announced a package of constitutional amendments and political changes under Legal Framework Order before holding the elections on 10 October 2002. The Military Government claimed that political restructuring under LFO was necessary for smooth transition from military regime to a civilian order; and was done within the parameters of the judgment of the Supreme Court. In other words, the Government of President Pervez Musharraf claimed that LFO did not violate the salient features of the 1973 Constitution i.e. Independence of Judiciary, Federalism and Parliamentary form of Government blended with Islamic principles. The general elections of 10 October 2002 were held under LFO, despite the fact that some political parties expressed serious reservations on it.

            The Military Government claimed that the transition to democracy has been completed with the formation of elected civilian governments in the centre and in all the four provinces. However, the Opposition comprising mainly PPP-P, PML-N and MMA rejected the Government’s view and demanded changes in LFO to restore the supremacy of Parliament in accordance with the principles of the parliamentary form of Government. The contentious issues in LFO were: Article 58-2(b), President Musharraf’s holding of the office of COAS, the National Security Council, the President’s discretionary powers to make key appointments, amendments in the Political Parties Act, Article 63 and the insertion of Article 270AA in the Constitution of Pakistan. The Parliamentary Opposition rejected the claim of the Government that LFO was part of the Constitution and continued to insist that unless it was approved by the Parliament, it had no constitutional status. From the first day of the normal working of the National Assembly, parliamentarians from the Opposition staged protests against LFO and blocked the functioning of the Assembly. In view of the persistent protests, the Government of Prime Minister Jamali invited the Opposition to talks, which were held from 2 May to 19 May 2003. However, the deadlock over LFO between the two sides continued till the Government-MMA accord was signed on 24 December 2003.

            Under LFO, the President of Pakistan enjoys powers that are normally not available to a head of state under the parliamentary form of government. The combination of the offices of President and COAS in one person leads to a widely shared perception both inside and outside the country that the October election was an oblique dispensation for continuing military rule. At the same time, it must be said that the elected and representative assemblies and governments at the centre and provinces are working. There is no restriction on political activity. The courts are free and independent. The press is free and all fundamental rights and freedoms are operational. The installation of civilian governments after 10 October can therefore be described as an important, if not final, stage in the transition from a military regime to a civilian order.