2(B) or not 2(B)? - Humayun Gauhar

Of all the Sunday columns I have read this one stands out. Some excerpts:

The president can be removed or impeached only on three grounds: “…physical or mental incapacity”; “violating the constitution” or “…gross misconduct”. This can only be done when, “Not less than half of the total membership of either house…may give to the Speaker National Assembly or…the Senate chairman written notice of its intention to move a resolution for the removal of or…to impeach, the president; and such notice shall set out the particulars of his incapacity or of the charge against him.” If the notice goes to the Senate chairman, “he shall transmit it forthwith to the speaker” who shall, “…within three days” of receiving it “cause a copy of the notice to be transmitted to the president…The speaker shall summon the two houses to meet in a joint sitting not earlier than seven days and not later than fourteen days after receipt of the notice by him.” Now comes the possible copout and confusion. “The joint sitting ‘may’ investigate or cause to be investigated the ground or the charge upon which the notice is founded.” [emphasis added]. “The president shall have the right to appear and be represented during the investigation, “if any”, and before the joint sitting.” [Emphasis added]. Unless this is poor language, the words “and be represented” could only mean that whether he chooses to be represented or not, the president has to appear himself if he wishes to give his point of view. Otherwise it would have been, “‘or’ be represented.” And the words “if any” means parliament may choose to vote and not “cause to be investigated” the ground or charge, which goes against due process as it removes the president’s “right to appear and be represented during the investigation.” It couldn’t be a mistake, because the words “if any” appear again. “If, after consideration of the result of the investigation, “if any”, a resolution is passed at the joint sitting by the votes of not less than two-thirds of the ‘total’ membership of [parliament] declaring that the president is unfit to hold the office due to incapacity or is guilty of violating the constitution or of gross misconduct, the president shall cease to hold office immediately on the passing of the resolution.” [emphasis added].

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How did this happen? The coalition had reached flashpoint. Sharif was in a bind. Remaining in without the deposed judges being restored had become untenable. Getting out would force Zardari to replace him with Musharraf’s Q-League. He would lose his Punjab government too. The new coalition would have support that matters. In five years they could cook his goose. By over-committing himself on an issue that he couldn’t sell to Zardari, Sharif had painted himself into a corner. To abandon the deposed judges now would be tantamount to another political suicide. How to abandon them without losing credibility? Simple. Shift the focus from the judges to the president. Argument: remove Musharraf first “since he won’t let them be reinstated while he is there”.

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Can impeachment fly? The president cannot be removed for physical or mental incapacity, so that’s out. As to gross misconduct, that’s a value judgement. There is no Watergate or Lewinsky affair here. Violating the constitution? The October 12, 1999, countercoup has been legitimised by the Supreme Court and parliament through the 17th Amendment, while the November 3, 2007, emergency has also been legitimised by the Supreme Court. Like it or not, that’s how it is.

What are the numbers? According to this newspaper, which is not famous for being pro-Musharraf, the impeachers lack 16 votes. The sore Amin Fahim is not one vote but 30 to 40. If he supports Musharraf, impeachment will fail. Logic dictates though that Zardari would never have gone for Sharif’s zero sum game unless he had made absolutely certain that he had the numbers. But you never know. He might be posturing again, to get Nawaz off the hook and save his coalition. Whatever, the three have gone from zero sum game to end game now. Worse, Pakistan could have entered the end game too.

Someone and something have to get burned. The stance of the army and the perceived position of America will be crucial in swaying loyalties.

Giving up without a fight is not in the president’s nature; he has said that he will fight back, but constitutionally. He will not dissolve the National Assembly through Article 58-2(B) if he thinks he is going to win. It will be difficult to make dissolution credible. Rescinding the NRO that has let Zardari in or rescinding Sharif’s conditional pardon that let him out will look like desperate ploys. All this may work after Musharraf wins, not now. His best option is to go for it and win. If he does win, he’s a big player again. If he loses…“Nothing is permanent,” he once told me. If the president is sure of his numbers he should insist that the process be expedited so that we’re done with it and can keep moving backwards. If he doesn’t have the numbers, then he is in a bind �" 2(B) or not 2(B), that is the question. 2(B) and you’ve had it; not 2(B) and you’ve had it.