A matter of impeachment

Tuesday, March 18, 2008

Khwaja Ahmad Hosain

(Courtesy The News)

Two hundred and ninety-five. That is the key number. That is the number of votes that are needed to impeach President Musharraf under the constitution. The constitutional chronology contemplated for such removal is clearly set forth in Article 47. First, at least half of the members of the National Assembly would present a written notice to the speaker of their intention to move a resolution for the impeachment of the president. The notice would set out the particulars of the charge against him. In this case the charge is simple. The president violated the constitution on November 3, 2007.

Within three days from receipt of the written notice from the MNAs the speaker must send the notice to the president. Between day seven and day fourteen starting from the date the speaker received the notice, the speaker must summon a joint session of the National Assembly and the Senate which will investigate the charge. The president has the right to be represented and to appear during this investigation process. If, after considering the result of the investigation, two thirds of the total membership of both the National Assembly and the Senate at the joint session declare by a resolution that the president is guilty of violating the constitution or gross misconduct, the president shall cease to hold office immediately upon the passing of such resolution. No further action is required and upon the passing of such a resolution the president shall, ipso facto, cease to hold office.

The crucial point is that to impeach the president you do not need a two-thirds majority in the Senate, which is currently controlled by forces supporting the president. Even if the impeachment resolution is supported by less than half the Senators, as long as sufficient number of MNAs vote in support of it so that the threshold of 295 is reached, the resolution will be passed.

This procedure is different from the procedure prescribed for amendments to the constitution. To amend the constitution you need a two thirds majority in both the National Assembly and the Senate. There is no concept of a joint sitting here and each house will separately consider the constitutional amendment bill. As long as Musharraf has the support of at least 34 senators, he can block any constitutional amendment bill.

In addition, a constitutional amendment bill must be assented to by the president to become law. If the president wants, he can send a constitutional amendment bill back to parliament to reconsider the same and then parliament will need to pass it again (with the same two thirds majority in each house). Once passed again, the requirement for presidential assent is not removed but the discretion of the president to withhold his assent is removed. Under the constitution the president must assent to a bill which has been passed twice by parliament.

Constitutional amendments require, at the very least, presidential involvement. Even if a constitutional amendment package is passed with a two thirds majority in each house, the president can refuse to give his assent to a first draft of any such bill and can delay the grant of assent if the bill is presented to him for the second time. If any constitutional amendment bill is proposed in the presence of Musharraf and the post November 3 Supreme Court, various devices could be used by the presidency to sabotage the prospects of such a bill.

The constitutional impeachment process requires no action from the president and gives no rights or discretion to the president apart from the right to be represented before and heard by the relevant adjudicating tribunal which is the joint membership of the National Assembly and the Senate. The "court" in an impeachment trial consists of the representatives of the people sitting in the National Assembly and Senate. The conduct of the impeachment trial and the timing of any vote on the impeachment resolution will be controlled by the speaker. Neither the army nor the existing Supreme Court can save the president from impeachment if the necessary parliamentary majority exists.

The PPP and PML-N have expressed their desire to restore the deposed judges by a parliamentary resolution within 30 days. The president's advisers have stated this is not legally possible and that the judges cannot be restored without a constitutional amendment. There is a risk, which has been hinted at already, that if parliament "resolves" that the judges should return, the existing judiciary may stay such a resolution before it can take effect. This will put the current de facto bench and the presidency at loggerheads with the government and the legislature. Can the political players afford to take the gamble that the army will support them in such an impasse? It is this uncertainty that the presidency and establishment will seek to exploit.

It is for this reason that it is crucial that the maximum possible support is developed in the parliament in favour of the proposed resolution for restoration of the judges. If the resolution manages to get the support of sufficient members of parliament, the president and his supporters should be able to read the writing on the wall. All institutions of state and political players will then see that trying to block the restoration by coming to the aid of the beleaguered president will be a futile exercise.

The prospect of being the first president in the history of Pakistan to be subject to an impeachment trial hangs over his head like the Sword of Damocles. During any impeachment trial, apart perhaps from certain members of the PML-Q and the MQM, his remaining supporters will abandon him like rats leaving a sinking ship for the sake of their political survival. If notwithstanding this prospect, the president stays in his bunker and still tries to block the restoration, the democratic forces in parliament can strike and put the final nail in his coffin by impeaching him.

The writer is an Oxford-educated barrister practising corporate law in Lahore.