Will Musharraf be Impeached?

Written by S.G. Jilanee • April 2008

The winners in the 18 February elections seem bent upon impeaching the president. But no thought is spared for its consequences, writes S .G. Jilanee

April 2008 - The spring air is hot with the fire of rhetoric. Winners are in succès fou mode; ebullient, euphoric, exultant. Vows are being made first of all to restore the dismissed (reverently called ‘deposed!) judges. Threats are being hurled at the lawmakers to resurrect them within 30 days, or else. The countdown has begun from 17 March. Some are flexing muscles like Popeye the Sailor having emptied his can of spinach. The refrain is “President Musharraf must be ousted, whatever it takes.”

Of course Asif Zardari and Nawaz Sahrif have reason to fly into space. The former is not only off the hook but as well transformed overnight from Mr. 10 per cent to “Mr. Clean.” He has even catapulted into the saddle of the largest political party in Pakistan; thanks to the backdoor deal his wife cut with President Musharraf and her fortuitous death.

Nawaz has greater reason to exult. He not successfully resisted the President, thwarting the latter’s efforts to prevent his return. And he achieved it without the assistance, either from the U.S. administration, lawmakers, Burson-Marsteller lobbying firm, or any backdoor deal, but through the country’s Supreme Court.

At present both Asif and Nawaz are looking like Siamese twins, welded together. They speak with a single voice on political issues. But politics and the quest of power is a game of tricks where the cleverest wins. It is neither a place for ethical principles, nor for ‘yaron ka yaar,’ which is how Asif Zardari is widely known among his friends and acquaintances. The world has seen many such displays of unity come to grief; Lenin and Trotsky and, later, Neguib and Nasser, being its classic examples. Zardari may yet discover this reality as soon as the fever subsides and delirium ends.

Nawaz had earlier effectively sidelined the PPP when he floated the APDM. Benazir was in London at the time. But she did not participate in the launching ceremony. She knew that it reflected Nawaz’s desire to stand on his own two legs and be free of the ARD and her influence as its chairperson.

Now he has emerged as the real player, calling the shots. The Bhurban Accord of March 9 clearly shows who the puppeteer is and who the puppet, because it gives the topmost priority is the restoration of the ousted judges. It does not need a lot of guessing to discover that this was done at Nawaz Sharif’s behest, because he is personally beholden to Choudhry Iftikhar for making his return possible.

Resuscitation of judges was not Asif’s priority. His was an investigation by UN into Benazir’s assassination as he had repeatedly declared. But the Accord is totally silent on this issue. And so is Asif.

To further tighten his grip on Zardari and the government, Nawaz is going to capture some most powerful ministries for his party. He has also, meanwhile, sown discord between Amin Fahim and Zardari. First he opposed Fahim’s nomination as prime minister. Then he set Khwaja Asif to defame Fahim. Finally, unknown hands put up posters against Fahim with defamatory slogans outside the Parliament House, just before a joint meeting of the parliamentary groups of the coalition parties.

There is no question that Nawaz is out to settle his personal scores with the President. He cannot countenance the notion of working with Musharraf. It is certain therefore that he will push for the latter’s ouster through impeachment to humiliate him.

But with Zardari it is different. The president has fulfilled his part of the compact with Benazir, through the NRO. Now, as her successor it is his turn to fulfil her part of the deal. This kind of thinking was reflected in Choudhry Ahmad Mukhtar’s recent statement, that a working relationship with the President could be possible.

However, if they decide to impeach Musharraf, the proceeding will require a joint session of both houses, where the charges will be investigated. The President will be allowed to defend himself, either personally or through a rep. The verdict will be handed down by a simple majority vote. It would be a smooth sailing, because the coalition enjoys a simple majority. If impeached, Musharraf will cease to be the President forthwith, legal pundits say. Hip, hip, hurrah!

But wait a minute. The basic question is which will come first; the judges’ reinstatement or the president’s impeachment? Obviously it will have to be the former, because the lawyers are impatient. They cannot wait, while the impeachment can.

There is a conflict of opinion, though, among legal experts on the issue of judges’ restoration. Some opine that a simple executive order could undo the wrong. But that would be the last thing the president could be expected to do. Others argue that a resolution passed in the lower house by a simple majority would be enough to resolve the issue. This view finds its most vocal supporter in Choudhry Eitezaz Ahsan.

Yet another view, and one to which the presidency also subscribes, is that the PCO of November 3 can be annulled only by an amendment to the Constitution passed by a two-thirds majority vote.

But there are very heavy odds against even a resolution to restore the judges. A writ petition has already been filed before the Supreme Court praying to stop the national assembly from passing any such resolution. The view advanced by many legal experts and endorsed by the attorney general is that the parliament is sovereign and therefore cannot be restrained. But the matter is before the Court and it is difficult to predict its judgment.

If the Court allows the writ petition, it will lead to a head on clash between the parliament and the judiciary. Meanwhile, Eitezaz Ahsan has threatened to display on the notice boards of all the courts in the country the photos of the judges who issue such order, which would be tantamount to bringing the judiciary into public contempt.

Finding himself cornered, the beleaguered Chief Justice could then ask the army for its assistance under Article190 of the Constitution, which binds “all executive and judicial authorities throughout Pakistan” to “act in aid of the Supreme Court.”

Pro-restoration jurists hold that such a request needs to be routed through the defence ministry which is the executive branch. If so the Chief Justice will have no chance because the defence ministry will be under the control of sponsors of the resolution as happened when Sajjad Ali Shah CJ asked the then army chief, Gen. Karamat for assistance against Nawaz Sharif, and the latter, instead of acting on it, had forwarded his letter to the defence ministry.

Others contend that the Chief Justice not only can call the army “to act in aid of the Supreme Court” but can even order it to do so as a part of the executive. The decision rests with the army chief’s discretion.

As to the proposed resolution, if the Supreme Court throws out the writ petition, it will be passed by the National Assembly with simple majority vote. In case the president refuses to act and demands a two-thirds majority, there will be the first open clash between the parliament and the president.

Even if the ruling coalition manages a two-thirds majority (228 votes) and passes an Act of parliament to annul the PCO, the measure will require presidential assent. If he withholds it, the draft Act will go back to the N.A. But if the latter sends it again to the President, the latter would be bound to give it his assent.

This is the normal procedure. But these are abnormal times. For the President it would be a declaration of total war by the parliament. He has been repeating the warning recently that a collision between the presidency and the parliament would be disastrous. The confrontation would inevitably force his hand to take drastic measures. His first act would be to dissolve the assemblies under Article 58(2)B.

If the political parties react by starting mass agitation and law and order breaks down, it might invite imposition of emergency and even martial law. Anti-Musharrraf lobby is gleefully speculating that the army will not support him in such actions.

But it is sheer wishful thinking, particularly because it overlooks the fact that America cannot afford to watch Pakistan sliding into chaos that would jeopardize its war on terror. It will certainly apply all the pressure it can to prevent disorder. This is evident from the series of recent meetings between the US ambassador and political leaders.

Even if the coalition government decides on impeachment first, as the easier course of the two, the consequences will be the same. They are already looking towards Gen. Kayani as they had towards Zia. And he may be the next CMLA.