Promises, promises
By Dr Tariq Hassan
"1. If elected for the second term as the president, General Pervez Musharraf shall relinquish charge of the office of the chief of army staff soon after election but before taking oath of office of the president of
This statement is a manifest victory for not only the lawyers representing the petitioner in this ongoing case but also for the entire legal community, which has through its relentless efforts succeeded in forcing General Musharraf to agree to doff the army uniform.
However, the general has failed to fulfill several social and political promises in this regard earlier. It remains to be seen whether General Musharraf would fulfill this promise. Because of General Musharraf's uncivil behaviour of not only breaking earlier promises but violating his constitutional oath of office as well, it would not be out of place to expect the general not to honour this commitment.
A substantive analysis of the statement confirms the reality of this expectation. The statement is in the nature of a conditional offer rather than a permanent promise. It is dependent on the happening of an event in favour of General Musharraf, namely, his election for the "second term" as the president. As such, it would only be binding on General Musharraf on the happening of this event.
What if he is not elected as president? Will he continue to illegitimately hold the country hostage with the impending threat of declaring emergency or martial law? Taken to its logical conclusion, the statement is not a beneficial promise but rather a tacit threat by General Musharraf intended to blackmail the legislature into electing him as president.
If General Musharraf is indeed sincere about relinquishing charge of the office of the chief of army staff, there is no reason why he cannot or should not do so now. Not doing so before the election will give him undue advantage — as his army uniform is likely to influence the electoral process and provide a non-level playing field for other candidates. This would be discriminatory and against the letter and spirit of Article 25 of the Constitution, which grants equality before the law to all citizens.The second part of the statement is seemingly innocuous as well. It is not even a conditional offer or undertaking. Rather, it is merely a statement of fact that the chief election commissioner/returning officer should scrutinise the nomination paper of General Musharraf independently and in accordance with the law. This statement is valueless. The chief election commissioner is required to do that in any event.
The false bravado in submitting to the jurisdiction of the Election Commission is the inevitable result of the last minute amendment of the Election Rules made a few days ago omitting the application of the disqualification criteria to General Musharraf.
This move clearly evinces the weakness of General Musharraf's position and the mala fide efforts on the part of his team to change the rules of the game to remove the multifarious legal obstacles that stand in the way of General Musharraf's obstinate bid to retain his presidential status.
Besides these practical implications, the statement has no legal significance. It is a mere statement of intent and not an affidavit or undertaking that would attract legal consequences. The statement is merely intended to influence the court's decision and to pre-empt it from requiring General Musharraf to doff the uniform prior to his presidential bid to enable him to keep his eager-to-jump-ship party members from abandoning him.
A promise to the court, even if considered valid and binding, may not be effectively enforceable under certain circumstances. Because of the general protection against legal proceedings afforded to the president under Article 248 of the Constitution, it is highly unlikely that the Supreme Court will seek to enforce the promise made by General Musharraf or to charge him with contempt in case he chooses to renege on his so-called promise to the court for any reason.
The statement to the court is nothing but an abuse of the judicial process given the wizardry involved in seeking court sanction of an unconscionable offer to the legislature and given the inequality of the bargaining positions of the parties involved.
It is a blatant effort on General Musharraf's part to pre-empt the constitutional petitions filed against him. Reliance on the general's statement by the court would, therefore, be improper under the circumstances. The past undertaking to take off the uniform needs to be honoured before future trust can be placed on any other statement or promise made by General Musharraf.
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