Article 52 (8) b versus 47: Options for Pervaiz Mushraf

By Ali Palh, Sri Lanka

The current issue in Pakistan which is flashing-out in media, being talked among common people, discussed in lawyers’ forums, civil society gatherings, Bisness community and dominating almost every field of life is IMPEACHMENT OF PRESIDENT. Ruling coalition has decided and announced their plans to pursue the impeachment of President Pervaiz Musharaf. Since it is announced in the media that ruling coalition will carry-out impeachment against President (Rtd) Gen. Pervaiz Musharaf; general public of Pakistan is being heard saying two different opinions about his impeachment. People, who are few in numbers, and have little bit knowledge of constitution or impeachment procedure, know the strength and power of article 47 of the constitution of Pakistan, say this time parliament is in strong position and will be able to impeach president, yet majority who have witnessed or seen the use of article 58 (2) b in Pakistan’s parliamentary history opines that before parliament impeach president, he may use article 58(2) b of the constitution, dissolve assemblies and send prime minister and his cabinet to home.

 

The reason why majority thinks article 58 (2) b is stronger than article 47 of supreme law of Pakistan, is continues and unrestrained use of article 58 (2) by former presidents of Pakistan against elected governments. These presidents which include General zia-ul-haq, then President, who sent Muhammad Khan Jonejo’s elected government home in 1988 by using article 58 (2) b of the amended constitution. Same article was used twice by President of Pakistan Ghulam Ishaque Khan against both elected governments of Benazir Bhutto and Nawaz Sharif in 1990 and 1993 respectively. Finally, Farooq Lagahri, then president of Pakistan, used 58 (2) b against Benazir Bhutto’s elected government in 1996. Not only these all presidents were hold accountable for using this article against elected governments but they got away with it. Before I go into reasons that why 58 (2) b was frequently used by then presidents against elected governments, I will first share that Nation, on the other hand, has never ever heard or seen Pakistani parliament using article 47 which talk about president of Pakistan’s impeachment. Had such impeachments been carried out by parliament in past, nation had never ever thought 58 (2) b stronger than article 47 of the constitution.

 

In other democratic and civilized countries practice of impeaching presidents is not as unusual as in our country. The case of United States can be taken as an example where impeachment move was prepared for nine US presidents. From among them two were impeached and one resigned from the presidency before impeachment. Those who were impeached include Andrew Johnson, and William J. Clinton, the seventeenth and forty-second president of United States. While in our country parliament neither have courage nor support of military to impeach executives/Presidents in Pakistan from the creation of Pakistan till now. On the other hand, article 58 (2) b was frequently used because it  enjoyed backing or sometimes consents of Pakistani military while the same support was not ever available for article 47 of the constitution for impeaching the president.

 

Second reason or consequence of less use of article 47 of the constitution is that today majority of the members of the parliament are not aware of the procedure of president’s impeachment. Such acknowledgement has come from a PPP senator, Safdar Abbasi who has admitted the fact that from among total 442 members of the parliament (Senate and National Assembly) 135 are not even aware of the process of president’s impeachment. And, these are the members of parliament, who have to remove a president if he is physically or mental incapable or and to impeach him if he had violated the constitution.

 

Article 47 of Constitution of Pakistan tells about such process very clearly that not less than one half of the total membership of either House (Senate or national assembly) has to give a written notice to either the Speaker of the National Assembly or the Chairman of the Senate expressing its intention to move a resolution for the removal or impeachment of the President. In present case, where both houses of parliament have total strength of 442 members, if such move is given in senate needs 50 members while in national assembly 171 members are required for giving a written notice to either the Speaker of the National Assembly or the Chairman of the Senate, as the case may be. In case such move is given in Senate to its Chairman, he has to transmit it to the Speaker of the national Assembly, without any delay, who will within three days of receipt of a notice, transmit it to the President. Later, the next step for the Speaker, national assembly is to summon a joint session of the two Houses (Senate and National Assembly) to meet not earlier than seven days and not later than fourteen days after the receipt of the notice by him.

 

Under Article 47, clause 6, the joint sitting of both the Houses will investigate the charges upon which the notice is founded.  Constitution of Pakistan’s same article, article 47 in it’s clause 7 mentions about the right of the President to defend himself. He can do that either appearing himself or by sending his representative in the session during investigation. And, representative can be anyone, lawyer or advocate or anyone.

 

Then, joint session of both the Houses, will consider the result of the investigation, in case allegation against President proves true, under article 47 clause 8 a joint House can pass a resolution if such resolution has support of two-third majority in both houses, which will be 295 in the total house of 442 members, declare that the President is unfit to hold the office.

 

 

In President Musharaf’s case what allegations ruling coalition can bring are not known yet. But what statements of representatives and spokesmen of ruling coalition suggests the charge-sheet against Musharaf can consists of many pages. Both coalition leaders Asif Ali Zardari, who is co-chairman of PPP and Nawaz Sharif, leader of PML-N blame him for the all crises currently country faces including the economic and power crises. While talking to media, Asif Ali Zardari has blamed President for doing irregularities in funds of war against terrorism issued by United States every year which estimates US$ 700 million. This list of allegation may also include two times suspension of constitution, imposition of emergency, Kargil issue, operation in FATA, Balouchistan and northern areas. Some circles are even blaming Musharaf for making announcement of constructing dams and disregarding resolutions passed by provincial assemblies of three provinces. Pressurizing judiciary, deposing judges and keeping them and their families under house arrests, abuse of power or mishandling of red-mosque issue and responsibility for the kidnapping Pakistani nationals and sending them to United States without fulfilling requirements of extradition agreements.

 

Being a law student, I do not think ruling coalition will bring a long list of allegations against Musharaf which become not only difficult for them to prove but they may dilute the strength or chances of the success of the impeachment. Instead it should bring few but strong cases which could be easily proved and solid.

 

After charge sheet another equally important challenge for the ruling coalition is to complete the required number of members for both moving the written notice in one of the Houses and then passing the resolution in the joint sitting of both Houses. Mr. Raza Rabbani, the leader of the house has claimed that ruling coalition had more than required number of members to pass an impeachment resolution.

 

Information Minister Sherry Rehman, has claimed to have 305 members which clearly make up two-third majority while PML-N leader Ahsan Iqbal claimed that the coalition had eight more members than what was required. Since the coalition government needs at least 295 which is two-third of the total members in both Houses (Senate and National Assembly) whose total membership is 442 (342 in national assembly and 100 in Senate). Here, it is also necessary to mention that one senator from Balouchistan, Sana Ullah Balouch has resigned from his seat and two national assembly seats are still vacant. Therefore, there will be total 439 total members present in the both houses instead of 442.

 

Present circumstance and calculation shows that ruling coalition’s claim is not wrong. If election of speak of the national assembly is recalled, it will show that Ms. Fahmida Mirza, Speaker National Assembly, obtained 249 votes from national assembly. It means, ruling coalition needs 46 votes more to complete the required number needed for the successful impeachment from both Houses (Senate and National Assembly).

 

Separately seeing the position in both houses will give us a clear picture of the strength of ruling party and chances of success of the impeachment. In national Assembly total seats of ruling coalition are 235 while in senate they have total 40 seats which make total 275. Ruling coalition needs 20 more votes for completing the required number in both houses for impeachment while there are total 30 votes of independent members 18 in national assembly and 12 in Senate. And, these votes are very crucial.

 

Four Senators from the Federally Administered Tribal Areas (Fata), Abdul Raziq Afridi, Hafiz Abdul Malik Qadri, Hafiz Rasheed Ahmed and Engineer Rashid Ahmed Khan have already declared their support for the impeachment of President Pervaiz in their joint statement. Besides, Senator Nilofer Bakhtiar, who leads the forward bloc in Senate is also not one mind with PML-Q on its stance to support President and may support to ruling coalition along with her five other senators. There are also chances that the Former interior minister Aftab Ahmed Khan Sherpao, who is considered to be a close associate of President Musharraf, may support ruling coalition in their move against President after he was convinced by some of ruling coalition’s members.

 

While ruling coalition is trying to gain support from other parties, factions, independent members, itself is facing challenge of losing some members from its own ranks, especially Pakistan People’s Party in which Makhdoom Amin Fahim is continuously and openly criticizing on policies of its own party and performance of the government of the coalition.

 

In present circumstances, Makhdoom Amin Fahim’s role is very crucial in saving Musharaf. Being a head of People’s Party Parliamentarian, he can use his constitutional and legal right and decide not to impeach President. Legally and constitutionally he can do that but morally he can not afford that because current scenario shows that ruling coalition’s efforts for President’s impeachment are gaining momentum and more public support is being gathered both in within parliament and outside and in this situation no parliamentarian whether he/she belongs to PML-Q or any other party, can not to support President in his defense against the impeachment being carried out by ruling coalition. This will be political suicide for him/her especially in Sindh. And, Makhdoom Amin Fahim who is wise politician and highly respected in both Sindh and Pakistan may not take this risk. However, his son Makhdoom Jamil-ul-Zaman, who has recently resigned from the provincial ministry in Sindh cabinet as a protest against people’s party’s attitude towards his father and made a similar decision like his father, who has also gone to Dubai and decided not to return to Pakistan until issue of President’s impeachment, is done. If both father and son stay in Dubai and do not participate in impeachment movement against President may tarnish their image slightly but if they support the President in his defense then it may heavily erode their political base and support I both Sindh and Pakistan.

 

After Makhdoom Amin Fahim, second option available to President can be of using article 58 (2) b of Constitution of Pakistan and dissolving assemblies and sending Prime Minister and his cabinet home. Presently, chances of using 58 (2) b for Pervaiz Musharaf, President of Pakistan, seem very unlikely because present country situation does not support it’s use, secondly use of article 58 (2) b requires military support which is also not available now. In these circumstances, two options are available to President. One either he should face impeachment and defend himself against charge-sheet, second he peacefully resign from the Presidency.

 

In case, President faces impeachment and defends himself against charges-sheet. There are very less chances that he could be successful in it when he has lost all support both within ad without. Therefore, final option for him can be resigning peacefully from presidency. This will not only save energy, time and resources of country but can get assurance of safe exit from ruling coalition for him. 

 

Successful impeachment, followed by Musharaf’s departure may resolve the political crises of Pakistan for time being but may not resolve issues and problems of Pakistan for which he is being impeached. This change may also not bring any immediate change in people’s living and life but what it can do. It can hold ruling coalition responsible for all problems for which now Parvaiz Musharaf is being held responsible. This big challenge for the ruling coalition of civilians and democratic elected people can make both accountable and responsible before people’s of Pakistan.  

 

 

Writer is Head of NonviolentPeaceforce, Sri Lanka, and he is Masters in International Human Rights Law.

 

Email: apalh@nonviolentpeaceforce.org  , nomipalh@yahoo.com

Cell: +94 77350 23 57, Cell (Pak): +92 300 3069480, Residence: +92 21 5863514

2 thoughts on “Article 52 (8) b versus 47: Options for Pervaiz Mushraf”

  1. Above article is clear prediction of Musharaf’s 18 August resignation as he had no way other then resignation to avoid impeachment.
    Impressive article Mr. Palh

  2. Well done Ali…glad to see that our sindhi fellows are righting on legal and constitutional issues.Hey man why don’t you write on Dr. Aafia?

    Baloch Sikander Ali
    Special correspondent, KTN, New York(USA)

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