October Issue 2007
A Constitutional Tangle
The issue of General Musharraf’s re-election as president touches on the first principle of democracy, namely, governance by elected representatives of the people. Special emphasis is placed in all constitutional democracies on keeping the line of elected representatives separate and distinct from the line of paid state employees that are granted a more dignified status as ‘holders of offices of profit under the state.’ The line of elected representatives, which includes members of legislatures, is headed by two figures, head of state and head of government in a parliamentary form of government, and by a single figure, head of both state and government in a presidential set-up.
Thus, a bar to state employees holding an elective office has been a feature of all constitutional frameworks in South Asia, with which we in Pakistan are concerned, as practices and precedents of other parts of the world do not apply to situations in Pakistan. All members of parliament have been under this bar, and in the case of heads of state, the prohibitory provision has generally been mentioned twice.
The practice began with the Government of India Act, 1935, which laid down (Article 26): “A person shall be disqualified for being chosen as, and for being, a member of either chamber — (a) if he holds any office of profit under the Crown in India, other than an office declared by Act of the Federal Legislature not to disqualify its holder.” Since the government of India was headed by the governor general, appointed under a Crown warrant, it was not considered necessary to lay down qualifications/disqualifications for that office.
When the Act of 1935 was used as the basic law of Pakistan after August 15, 1947, the provision relating to disqualification for membership of legislature was deleted, presumably to allow the new state to decide the matter for itself.
The post-independence constitutions that India and Pakistan adopted tried to remove all doubts about the principle of protecting the line of elected representatives against encroachment by state employees.
The language of the 1935 Act was retained by India, which adopted its post-independence constitution much earlier than Pakistan. The provision (Article 102) relating to membership of the legislature said: ” A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament — (a) if he holds any office of profit under the government of India or the government of any state, other than an office declared by parliament by law not to disqualify its holder.” Another clause barred anyone “disqualified by or under any law made by Parliament” from becoming a legislator. This article explicitly excluded union/state ministers from the definition of holders of offices of profit.
As for the president, the Indian constitution laid down that he had to be “qualified for election as a member of the House of the People (Lok-sabha).” This provision included a bar to the election of a holder of office of profit to the office of the president. However, it was considered necessary to add another prohibitory clause: “A person shall not be eligible for election if he holds any office of profit under the government of India or the government of any state or under any local or other authority subject to the control of any of the said governments.” Again, President/Vice-President, Union/State minister, Governor/Rajpramukh/Deputy Rajpramukh were excluded from the definition of holder of office of profit. Further, it was said that “the President shall not hold any other office of profit.”
Pakistan started by attaching less importance to the matter of disqualification for being elected as a legislator or as president. Under the 1956 constitution (Article 45), a person was qualified to be elected to the National Assembly if he was 25 years old and was qualified to be a voter (that is, not necessarily registered as a voter). Among the various grounds for disqualification from becoming a legislator, the first three grounds were unsoundness of mind, insolvency and holding of “any office of profit in the service of Pakistan.”
A candidate for presidentship (Article 32) had to be qualified for election as a member of the National Assembly (that is, subject to the bar to holders of office of profit). Additionally, Article 34 laid down that “the president shall not hold any office of profit in the service of Pakistan, or any other position carrying the right to remuneration for the rendering of services, but nothing in this clause shall prevent him from holding or managing any private property.”
The Ayub constitution of 1962 retained the bar to holders of offices of profit becoming members of the National Assembly, and the eligibility test for a presidential candidate was that he should be qualified to be elected to the National Assembly.
The constitution of 1973 (Article 63) mentioned five grounds for disqualification for becoming a member of the National Assembly (and for election as president): a) unsoundness of mind; b) insolvency; c) loss of citizenship; d) holding of ‘any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder’; and e) disqualification by an Act of Parliament. In addition, Article 43 laid down that “the president shall not hold any office of profit in the service of Pakistan.”
In 1985, General Zia-ul-Haq drastically amended Article 63 and added quite a few grounds to disqualify a person for becoming a legislator. While clause 63 (1)(d) of the original text (quoted above) was retained, a new clause [63 (1)(k)] was inserted to disqualify a person for election as an MNA if “he has been in the service of Pakistan or of any statutory body or any body 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.” Thus, Gen Zia made the ineligibility condition harder. Before him, a candidate was not required to be in service at the time of nomination; the Zia amendment made it necessary that a candidate had not been in service for two years before nomination.
What this review clearly brings out is that the bar to a holder of office of profit becoming eligible for election as president has been so consistently affirmed in the country’s constitutional texts as to acquire the sanctity of a ground norm of the constitution. And yet this condition has been breached by two generals while in power.
General Zia-ul-Haq sought to legitimise his presidency, secured through an illegitimate referendum while he was chief of army staff (COAS) by inserting clause 7 in Article 41 of the constitution that erased the effect of ineligibility contained in Article 43 (that the president shall not hold any office of profit). General Musharraf replaced this clause vide the Legal Framework Order (LFO) in 2002 to cover his election as president through a referendum while holding the post of COAS. Subsequently, the parliament passed a law (the president to Hold Another Office Act) in 2004 that allowed General Musharraf to serve as both president and COAS for a single term.
When the question of General Musharraf’s re-election arose, it was noted that a couple of judicial verdicts seemed to free presidential candidates from the ineligibility condition contained in Article 63, but they could fall under the prohibitory provision in Article 43.
The Supreme Court is seized of the matter at the time of writing, and so it will not be fair to offer any comment at this stage. Meanwhile, General Musharraf has been unofficially declared president-elect by a thin majority of the electoral college, and that may prove to be decisive.
An essential fact to bear in mind is that in Pakistan matters are often decided by extra-constitutional devices and arguments. Illegal usurpation of power has, more than once, been legitimised vide the doctrine of necessity, of which the theory of public acquiescence forms an important part. This theory stipulates that if a people directly or through intermediaries, surrender to a de facto ruler, the latter acquires the status of a de jure authority. It will, therefore, be a safe conclusion that ‘intruders’ will continue to function as heads of the Pakistan state unless its institutions and the people in general can demonstrate that the theory of public acquiescence does not apply to them.
Mr. I.A. Rehman is a writer and activist living in Pakistan. He is the secretary general of the Human Rights Commission of Pakistan Secretariat.