So, Mr Tahirul Qadri has been dusted, remade, put in shining robes and para-dropped over Pakistan. By a strange coincidence, he has hit out at both major political parties, the PPP and the PML-N. Coincidently also, the MQM has declared full support for Mr Qadri, sending in a strong delegation to his rally at Minto Park. Strangely, he also chose to speak to the international community. As Mr Spock would say, ‘Fascinating!’
Conveniently enough, Mr Qadri also seemed to have a copy of the Constitution of Pakistan, flagged at Article 254, titled “Failure to comply with requirement as to time does not render an act invalid”, and stating that “When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”
He has now given a deadline and wants the inclusion of all stakeholders in putting together a caretaker government. And while he says that he has neither been put up to this by the establishment — a euphemism for the long shadow of the military and the Inter-Services Intelligence Directorate behind any move in combination with some politicians — nor does he want the next elections to be delayed, his invocation of 254, wrongly, and his insistence on including all stakeholders are ominous signs.
Let’s put some facts on the table. Mr Qadri wants things done according to the Constitution. That’s commendable. In 2008, elections were held under the Constitution. The parties that contested are in parliament; those who boycotted them are not. By all indications, in the 2013 elections, all parties plan to contest the elections. This is a positive trend.
Voters’ lists have been largely purged of bogus votes and the exercise of recording voters in Karachi is on. We have a new chief election commissioner who is known for his integrity and for speaking his mind. The Twentieth Amendment to the Constitution makes it mandatory that the prime minister and the leader of the opposition agree on the appointment of a caretaker PM and if they cannot do so, they will “forward two nominees each to a Committee to be immediately constituted by the Speaker of the National Assembly, comprising eight members of the outgoing National Assembly or the Senate, having equal representation from the Treasury and the Opposition, to be nominated by the Prime Minister and the Leader of the Opposition respectively”.
A similar exercise is to be repeated in the provinces in case of a deadlock. But the important fact is that any caretaker set-up must be agreed upon by the Treasury and the Opposition.
I am not a jurist and I will leave it to my eminent friends like Feisal Naqvi, Babar Sattar, et al to interpret Mr Qadri’s invocation of Article 254 to make space for a caretaker set-up beyond the mandatory 60-day period, but common sense tells me that Mr Qadri does not intend well in invoking the Article as he has done and without reading it in conjunction with Articles 224(1) and 224(A)(1) that deal with the caretaker set-up. In fact, 224(A)(1) was inserted into the Twentieth Amendment after a petition was filed in the Supreme Court requesting that the SC interpret the term ‘consultation’ and its scope as referred to in Article 224(1) and which was likely to become a contentious issue.
These articles do not refer to the operation of Article 254 as influencing their own mandatory stipulations both in terms of the 60-day period in which a caretaker government has to hold elections as well as the process through which such a government has to be formed.
To recap, if Mr Qadri is invoking the Constitution and if he wants to uphold it, as he did while waving a copy during his charged speech, he is unlikely to find any provision therein that makes even elbow-room for what he is implying. Of course, we have seen shyster interpretations of the Constitution in the past and that danger lurks still. But were anyone to combine the spirit and the letter together without the urge to find something in that document to justify mischief at the behest of forces extraneous to the political processes, he will not be able to do so.
Mr Qadri also fulminated against the current government for poor performance. In that he is largely right. But two points need to be stressed here.
One, it is incorrect to lump together the performance of a government with its constitutional existence. These are two separate domains and poor performance cannot be used as a weapon to call for extra-constitutional measures in the name of the Constitution.
Two, when Mr Qadri invokes the Constitution, he submits to its provisions. In which case, now that he has launched his party with such fanfare, it is his legitimate right, like all other parties, to contest for political space. The procedure for that is given in the Constitution. If he wins, he will have the opportunity to translate his vision into reality. Unless, as some say, he is a Canadian citizen.
Of course, there is the issue of performance. I also agree with him that the system needs to be reformed. That is a necessity about which I wrote in this space many months ago. But such reforms have to come from within the system that does not just include the political parties but also interested groups within civil society, think tanks, pressure groups, the media and the judiciary.
Any reform exercise from without, we being privy to such attempts in the past, will continue to fail and will always be haunted by the problem of legitimacy. Worse, it will leave the system more divisive than before. As Orwell said in a different context, “an effect can become a cause, reinforcing the original cause and producing the same effect in an intensified form, and so on indefinitely”.
Finally, since Mr Qadri talked about probity and accountability, it will be appropriate if he were to begin at home and declare his assets and inform us of the source of his funding because adverts and political rallies, like the proverbial lunches, are never free.
Where did the money come from, sir?
Published in The Express Tribune, December 26th, 2012.