Even by Pakistan’s own standards of inefficiently managed, chaotically contested and not-so-fair elections, Election 2008 promises to be a skewed affair. Pakistan goes into the election after one individual, drawing his power essentially from his position as the Army chief, on Nov 3 opted to become the sole, supreme lawgiver for the country. The only institution to which Pakistanis can turn to, the Supreme Court of Pakistan, was also reconstructed following Nov 3.
The PCO’s clause 3(2)–which reads “No judgment, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the president or the prime minister or any authority designated by the president” –blocks the Supreme Court’s constitutionally mandated authority to judicially review and audit exercise of executive authority. The president can then operate unaccountable.
Only when the Constitution is restored to its pre-Nov 3 form will this condition of no accountability for the president alter. Until then the reconstructed Supreme Court has surrendered its responsibility to redress the complaint of any Pakistani against any state excesses tracing their origin to the president. Hence, no presidential order, whether seeking amendment in the Army Act or the Legal Practitioners Act, can be challenged. The Army Act gives the right to military courts to try civilians while the Legal Practitioners Act undermines the independence of the lawyers.
Significantly, the courts are also unable to rectify the excesses of the state committed against the media if the state institution is functioning in accordance with the desires of the president. For example, the amendments in PEMRA’s ordinance and the PEMRA orders under which all the country’s independent channels went off air, cannot be challenged in court and be expected to get a fair hearing.
The gagging of the Urdu television networks means that the popularisation of the actual state of political affairs has been significantly curtailed. Pakistan’s largest independent channel, Geo, is still banned. The Urdu electronic media remains largely silenced. Most popular talk shows which have exposed the viewers to different sides of a story and helped them to interpret events linked to power and politics, are off air. Hence, key elements of a freely functioning society like a free media cannot turn to the courts against a state functionary or any state institution violating the Constitution of Pakistan.
Clearly, under the powers the president gave to himself on Nov 3 he stands beyond reproach. Under the doctrine of necessity the reconstructed court has also adhered to his commands. No one could question the subsequent laws that he in his supreme wisdom has imposed on the country. The current reality is that the president functions entirely free of any legal or constitutional fetters.
Reportedly this condition of unaccountable exercise of power is likely to be changed on Dec 16. Nevertheless, interests of strategically located personalities are at stake, as is the outcome of the battle over the survival of the now deposed yet independent judiciary. The president’s own political future is linked to the election outcome. Unlike General Yahya Khan, who must be given credit for conducting elections in 1970 and during emergency, the most fair elections in Pakistan’s history, President Musharraf is man in a different context. Yahya had no political party, no personal political stake and no foreign supporters. Yahya also had no record of eight-year rule or of an onward political journey to protect. By contrast, retired general Musharraf has his presidency to legitimise, his second coup to condone, his dismantling of the judiciary to justify. Maybe, as he and his supporters argue, it’s all for Pakistan’s good, but still the fact is that the he would have a strong compulsion to ensure an electoral win for his own supporters.
Then there is the election process and its problems. A flawed election process with weak mechanics that make it vulnerable to manipulation, the danger of rigging is “clear and present.” It is ironical that at a time of acute internal political polarisation and unprecedented internal security challenges, the exercise of seeking the voters’ verdict is likely to be flawed. Such a flawed election will create further chaos. The new factor in the post-March situation is the inability of the state or its political allies to use its coercive force to politically sustain a non-credible situation which violates legal and constitutional principles.
Election 2008 promises to be an unusually skewed affair. There is the absence of a level playing field for the opposition. The manner in which the Sindh and Punjab governments have used state resources to promote their party and their candidates just before the interim setup was put in place speaks volumes for fair and free elections. President Musharraf recently stated in a CNN interview that he was not favouring any party. Hard to believe, given that the PML-Q has essentially been Gen Musharraf’s civilian team. Those who have even an inkling of the realities of Pakistan’s current political scene know the truth. The PML-Q is the King’s party. Even if the president now sees the King’s party evaporating the fact is that the King’s party has , especially in Sindh and Punjab, ensured tight controls over the entire bureaucratic machinery which will be a key factor in the election process.
There is fear of rigging on election day itself whether by harassing opponents, picking them up two days before the elections, or messing with the results. The role of the Nazims at the district level will work against the opposition, and yet the EC is unable to implement its own orders that Nazims cannot participate in the campaigning.
Whatever its mandate and whatever the intentions of the senior officials of the Election Commission, it has neither been able to take action against those violating the rights of aspiring candidates or right the wrongs committed by its own staff. For example, the rejection of Shahbaz Sharif’s nomination papers by the Election Commission has been questioned by the candidate himself. He has given solid evidence that each of the three charges levelled against him as justification for rejecting his papers cannot stand on legal or constitutional grounds. Yet there is no action taken on the Shahbaz Sharif case.
Similarly, the very specific incident involving the arrest of PPP candidate Sarfraz Bugti reportedly by Military Intelligence on Nov 22, preventing him from filing his nomination papers for a provincial assembly seat in Balochistan, was reported to the Election Commission. The EC was informed by Sarfraz’s father Ghulam Qadir Bugti that when he sent his other son, Jan Mohammad Bugti, to file nomination papers for both an NA and a PA seat his nomination papers for the PA seat were forcibly torn by individuals standing outside the office where he went to file his papers. The Election Commission has taken no substantive action. There has been no follow-up to the letter that the EC wrote to the chief secretary of Balochistan. Indeed, the Election Commission is neither autonomous nor powerful. It does not have the authority or the administrative mechanisms to implement its own orders. Holding accountable powerful provincial chief secretaries is far beyond the EC’s capacity and authority.