Amjad Malik`s Personal Page

This basic issue which form the salient ingredients of a civil democratic system is in jeopardy and the majority is worried whether they continue to bear to see a ‘uniformed President in Pakistan’ against the wishes of the 160 million people & the letter and spirit of the Constitution of Pakistan coupled with the statements and wishes of our beloved Quaid, the founder of Pakistan Mohammad Ali Jinnah. It is good that he is not alive to see all this happenings and what the leaders have done to Pakistan and to the dream he saw for all of us. That is the true & important issue which is clouding the whole system of civil democracy in Pakistan. The insistence of President General Musharaf to retain his uniform is adding insult to injury when he retained his 2nd cap post 31 December 2004 in violation of his agreement with MMA via PML(Q) as per Mr. S M Zafar’s book ‘Dialogue on the Political Chess Board’ and in contravention to article 63(1)d of the Constitution of Pakistan 1973 (as amended).Article 63(1) d says as following: 63 (1) A persona shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora [Parliament], if –

63(1) (d) “he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or”

There has been several news reports where President assured of taking his uniform off as per agreement but he did not keep his promise whether it was ‘in the supreme national interest’ or ‘his personal interest’ due to which lawyer community has found unease upon this kind of unconstitutional and irrational decision making which has kept Pakistan derailed from real civilian rule so far and that may not be the intentions of SC in Zafar Ali Shah case when SC gave Gen Musharaf 3 years to hold elections post military coup on 12 October 1999.

Independent and fair elections are impossible if President of the nation who defiantly violates the constitution and is addressing only one party functions one time at Lahore at ‘Minar e Pakistan’ delivering political speeches to teach lessons to opposition leaders and other times in other parts of the country. As the elections are nearer, it is very difficult not to take them as ‘political processions’ in the run up to election thus making him partisan and one sided President linked with the aspirations of PML(Q) his own brand of political party which was assembled after coup to counter PML(N) alone and his own allies and leaders loudly and clearly asked him to remain in Uniform as well as being a President. This tendency of lack of respect of the rule of law, unconstitutional mannerism undermine the effective role of judiciary.

History tells us that Generals translate, exploit and manipulate the voice of silent majority who remain uninvolved in political business and politics on day to day basis and takes over the governance of a country on the name of holding fair elections, ridding corruption and providing basic needs to common man. In this current case that ‘silent majority’ is our broken middle class who supports helplessly every one who aspire to bring economic change, social justice and is a reformer in nature and they always fall a prey to this illusionary slogan. They fell for ‘Rooti, Kapra aur Makaan’ and also fell for General Zia’s ‘Islamisation and fair election & true democracy’ slogans. Nation needs to sweep that carpet under the General and military rulers and give rule of law and respect for the law of the land to this society to secure their own right by learning from India and Bangladesh who has strengthened their democratic forces as compared with us. By allowing a usurper to stand defiant and keep on rolling our political system with a twitch of his fingers is a blatant disregard to the Constitutional provisions where nation feel that the Parliament never intended that. The founder of the nation Mohammed Ali Jinnah never aspired when he fought for Muslims of sub continent to secure an independent homeland, that it will be ruled by Generals, in fact, he whilst addressing at Staff College in 1948 which was his only address to armed forces advised them to learn their oath with Pakistan fully and understand its commitments and obligation. Mr. Jinnah was so apt and keen to keep army Officers in their limits that he even put a mark against the promotion of one too ambitious and corrupt General to a senior level who later took over and held martial law after the death of our Quaid. That military dictator even said the opposite to the norm, ‘that we can not trust and leave important decision to civilians.’ Nation suffered for not following the directions of our Quaid..

I think time has come that before any so called ‘Act of Parliament’ is presented yet again and or a supra constitution mechanism is adopted like referendum to request the military dictator to retain his status in violation of the constitution’s true intentions thus allowing a General to hold his own office of profit as ‘Chief of Army Staff’ as well as the office of ‘President of Pakistan’ thus depriving the national parties to elect their own civilian President, Supreme Court must put it aright what they initially directed as the time is ripe in the following lines:

· That 3 years were given by the SC to bring true civilian rule in Pakistan by holding fair election(s), shedding uniform and appointing new COAS and to allow the system to run under Constitution of Pakistan 1973 and that period has expired and President is asked to choose one between his two roles before the deadline given;

· Alternately, Declaration that his tenure came to an end on 31 December 2004 as COAS as he promised publicly and was agreed between the opposition parties as well as ruling coalition on an understanding upon which controversial constitutional package was approved by Parliament ‘17th amendment.’ Article 63 came into effect after the deadline agreed between Parliamentarians and unless constitution is amended with 2/3 majority to that effect, it is not possible for the President to retain his uniform which in any event will be against the spirit of the Constitution itself.

17th Amendment brought back most of the ‘8th amendments’ changes which were originally introduced by former military dictator and were repealed by the Civilian Prime Minister unanimously. Lawyers feel that current Parliament and parties did not have any mandate to support a uniformed President as no party expressed in their manifesto that those 2 things (Uniform & LFO) will be decided against the constitutional norms and that they will vote in favour, therefore 17th amendment as well as an Act of Parliament to allow a General to remain in Uniform in contravention to Constitutional provision of art 63(1)d is ultra vires as it allows unlawful action.

In these circumstances , only fair, faster and firmer justice and free elections under a neutral care taker set up and independent Election Commissioner can ensure that no one dares to breach the core essence of Pakistan’s constitution in future. We need a strong Parliamentary system where all departments gain their integrity and strength in order to save this democratic system and lawyers feel that couple of ‘sham convictions’ like in the case of Javed Hshmi as well as Syed Yousaf Raza Gilani and many other political prisoner who are being victimized for toeing the line of their conscience, it can not deter political activists and leaders to save their country from yet an other disaster. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held under independent care taker set up where Election Commissioner is neutral and independent and judiciary needs to play its role.

This intervention of SC & its ruling if not given in time will lead to further dictatorial manipulation to secure one man’s seat on top regardless of the wishes of 160 million Pakistanis which is already suppressed and it will breed hatred, contempt and injustice, which the honourable Supreme Court can avoid.

Amjad Malik is a life member of SCBA & a Solicitor-Advocate of the Supreme Court of England and Wales, member of English Law Society’s Immigration Law committee and Legal Advisor of PML(N).