After Benazir Bhutto's Death - 9

Pakistan's Constitution Jayshree Bajoria Staff Writer, Council on Foreign Relations Tuesday, March 11, 2008; 12:47 PM

Introduction


Pakistan's constitution has been undermined greatly by a circular pattern of military coups interspersed with short-lived civilian rule. Today, Pakistan's leading political parties are demanding a shift away from presidential power and far greater executive power for the prime minister. Additionally, they demand an independent judiciary and the reinstatement of judges sacked by President Pervez Musharraf in November 2007 under his state of emergency. Demands for such sweeping changes have a long history in Pakistan, which has repeatedly revised or reinvented its government's charter, often under duress during times of military rule. Not until 1973 would a constitution be written by a democratically elected assembly. Even following that, the document has been continually reshaped by coups and the wishes of powerful members of Pakistan's political elite.

Historical Context

Experts say some of Pakistan's main constitutional principles and controversies still stem from colonial times. At the time of its independence in August 1947, Pakistan inherited the Government of India Act of 1935 (PDF) as its constitutional model -- a framework designed by a colonial power to govern a colony that provided for a strong central government, a bureaucracy dominated executive unanswerable to the legislature, and very limited representation with continuation of feudal domination over politics. Under this act, the head of the state was the governor-general and legislative functions were performed by the constituent assembly, which was tasked with enacting a new constitution. The governor-general had the power to appoint or dismiss ministers at his discretion as well as assume emergency power.


1956 Constitution: The constitution of Pakistan that came into existence on March 23, 1956, abolished the office of the governor-general and provided for power-sharing arrangements between the president and the prime minister. East Pakistan (now the independent state of Bangladesh) and West Pakistan (known as Pakistan since 1971) were to have equal seats in the national legislature. While parliamentary and federal in form, the constitution ensured that the president retained supreme powers and the center was more powerful than the provinces. But this constitution had a very short life. The country's first general elections were scheduled for February 1959, but President Iskandar Mirza, fearing a rise in East Pakistan's influence could undermine his hold on power, abrogated the constitution before the elections in 1958, establishing martial law and appointing army chief Ayub Khan as chief martial law administrator. This set a precedent for the military to assert itself into the country's political affairs. It also led to a pattern of takeovers, subversion of constitutional provisions, and a military-bureaucracy dominated executive that superseded the elected parliament.


1962 Constitution: A new constitution came into effect in 1962 which failed to include fundamental rights until the first amendment was made to it, granting the executive power to the president and abolishing the office of the prime minister. Most significantly, it institutionalized the intervention of military in politics by providing that for twenty years, the president or the defense minister must be a person who had held a rank not lower than that of lieutenant-general in the army.

In 1969, the 1962 constitution was suspended, martial law was declared, and General Yahya Khan took over. After the secession of East Pakistan to form the new state of Bangladesh, a new constitution was brought in 1973.

The 1973 Constitutional Framework


The 1973 Constitution was the first constitution to be framed by elected representatives in Pakistan. It provided for fundamental rights and provisions to accommodate Pakistan's status as an Islamic state.

The 1973 constitution created a parliamentary form of democracy in which the executive power is concentrated in the office of the prime minister. It established the Pakistani president as the formal head of state, bound to act on the advice of the prime minister. The parliament consists of two houses -- the national assembly and the senate. The Constitution also provides for four provincial governments and the distribution of legislative power between the federation and the provinces. Moeen Cheema, assistant professor of law and policy at Lahore University of Management Sciences, says that though the constitution provided for it, provincial autonomy was never really implemented by the 1973 constitution. He holds all military and civilian governments guilty on this charge.

The new constitution included an article (6) which stated anyone who now abrogated or attempted or conspired to abrogate or subvert the constitution shall be "guilty of high treason." It was an attempt to guard against the takeover of the state by future military rulers. This did not stop army chief General Zia ul-Haq from staging a coup, proclaiming martial law in 1977, holding the constitution in abeyance, and putting in its place a Provisional Constitutional Order (PCO). The PCO not only gave the military regime the right to rule but also the right to amend the constitution at will. The regime used this to fashion a new constitutional order for the post-martial law period. In 1985, the 1973 constitution was revived but an eighth amendment was introduced into the constitution that changed its basic structure and some of its essential features. It shifted the executive power from the office of the prime minister to that of the president and under article 58(2)(b) he was also given the right to dissolve the national assembly at his discretion. Experts say the amendment diminished provincial autonomy and created a weak legislature and a docile judiciary.

Article 58(2)(b) was used in the 1990s by the president to dismiss the elected governments of Prime Ministers Benazir Bhutto and Nawaz Sharif on charges of corruption. Sharif, when he came to power a second time in 1997, abolished the article and instead gave the prime minister the power to dissolve the national assembly. When Army Chief General Pervez Musharraf deposed him in a coup in 1999, yet another phase of constitutional amendments began.

Military Rulers and the Constitution


Experts say there is a clear pattern to the military coups and the classic maneuvering that follows to give these coups legitimacy and strengthen the powers of the military rulers. Tracing it from the first military takeover to the most recent one (in 1999 by Musharraf), Cheema says the army chiefs take six important steps. They co-opt the bureaucracy; use accountability against politicians; entrench the army in political and civil affairs; create a new breed of politicians subservient to them under the guise of local government reform; hold elections to create some sort of democratic legitimacy; and finally move to co-opt the judiciary.

Ali Khan, law professor at Washburn University of Law in Kansas, says the military rulers give themselves immunity through the constitutional amendments so that they can't be tried for proclaiming emergency or for any of their other actions. "They also say these amendments can't be challenged in a court of law," he says.

Role of the Judiciary


As this Backgrounder points out, Pakistan's courts and judges are cast as protectors of the constitution in a separation-of-powers system. In many circumstances, however, they have found it expedient or necessary to accommodate constitutional changes or unconstitutional maneuvers by Pakistan's leaders. They have done so either because they thought this was essential to their own survival or that of the state.

Legal history expert Tayyab Mahmud writes in Utah Law Review that while the successive constitutional crises that confronted the Pakistani courts were not of their own making, "the doctrinally inconsistent, judicially inappropriate and politically timid responses fashioned by the courts ultimately undermined constitutional governance." The refusal of the Chief Justice and twelve other Supreme Court judges to sign Musharraf's decision to suspend the constitution and
rule by decree in November 2007, for the first time, brought the judiciary and the executive in direct confrontation with each other.

Musharraf's Legacy


Musharraf's 1999 coup, declaration of emergency, and creation of a PCO were also validated by the Supreme Court on the basis of the doctrine of state necessity. The PCO barred any court from making any order against the Chief Executive (Musharraf) or calling into question the emergency. The Supreme Court gave Musharraf the authority to amend the constitution and three years to hold general elections. In 2002, Musharraf engineered a controversial referendum which elected him as president for five years. The referendum also put in place a legal framework order which, through article 58(2)(b), restored power in the president to dissolve the national assembly at his discretion.

Musharraf was reelected in October 2007 in another controversial election. The following month, he declared another state of emergency, suspended the constitution (which had been amended through the legal framework order), and brought in another PCO. This time the PCO targeted the judiciary and the media.

As per the constitutional provision, a presidential ordinance in Pakistan can only be effective for four months unless it is approved by parliament or is reissued. Human rights activist I.A. Rehman writes "the extra-constitutional regimes have developed a tradition of exempting ordinances issued while the constitution is in abeyance." Therefore, he says, the ordinances issued by General Musharraf between October 1999 and November 2002 are not subject to the lapse rule even though they never received the parliament's approval. These include the two ordinances that amended the basic media laws barring the use of any material which defames or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state. "A more draconian curb on the freedom of expression cannot be imagined," writes Rehman.

Under an amendment to the 1952 Army Act, the military can now try civilians for a wide range of offenses previously under the country's judiciary. "The military is Pakistan's principal human rights abuser, yet Musharraf has changed the law so that it can play judge, jury, and executioner," says Ali Dayan Hasan, a South Asia researcher at Human Rights Watch. Another decree has ended the independence of the Pakistani Bar Association. Hasan sharply criticizes the move as politically motivated: "This is a despicable attempt to end political opposition by threatening the livelihoods of government critics."

http://www.washingtonpost.com/wp-dyn/content/article/2008/03/11/AR2008031101365.html

After Benazir Bhutto's Death - 4

MMA Leaders [Alliance of Religio Political Parties who supported Musharraf's Uniform]

General Parvez Musharraf

If anybody in the present circumstances becomes the Prime Minister of Pakistan in the presence of 17th Constitutional Amendment/LFO [for which we should hold MMA (Alliance of Religio Political Parties who supported Musharraf's Uniform)responsible] , PCO, Emergency Orders of 3 Nov 2007 and other such illegal amendments enforced by Il Presidente General Musharraf beofre lifting the emergency then be it Asif Ali Zardari, Nawaz Sharif, Hamid Nasir Chatta, Maulana Fazal ur Rehman or someone from teh Rampant MQM or any other Tom Dick or Harry must wait for the fate mentioned below. Courtesy of the USA that we have again been gifted the Reincarnation of Ghulam Ishaq Khan in 21st Century

Forget Constitution, play musical chairs


The idea of a Prime Minister in waiting is absurd. Neither any parliamentary convention nor the Constitution, as amended to date, provides for enacting such a political farce

By ZAIN SHEIKH

The Constitution Eighth Amendment Act, 1985, introduced a quasi-presidential form of government in Pakistan and armed the President, General Zia-ul-Haq, with two distinct powers to change the duly elected parliamentary government of the day. Such extra-parliamentary powers of the President were super imposed on the quintessential parliamentary form of government adopted by the Framers of the Pakistan Constitution in 1973.

The two Presidential Powers were grafted on to Articles 58 and 91 of the Constitution in 1985. The power granted by virtue of Article 58 was the more drastic of the two and pursuant thereto, the President, in his discretion, can dissolve the National Assembly if, in his opinion, there is a constitutional breakdown in government and an appeal to the electorate has become necessary. Of course, by virtue of the dissolution of the National Assembly, the Prime Minister alongwith his cabinet is removed from office and a caretaker Prime Minister is appointed for a period of 90 days. Within the said period elections are required to be held to complete the process of change of Government and induction of a new Prime Minister.

The power granted to the President by amendment to Article 91(5) in 1985, empowers the President to effect an in-house change in government, by summoning the National Assembly and requiring the incumbent Prime Minister to obtain a vote of confidence from the Assembly. This power is in addition to and not in substitution of the power of the members of the National Assembly under Article 95 to move, by not less than 20 per centum of the total membership of the National Assembly, a resolution for a vote of no confidence against the Prime Minister. Thereafter, if the resolution is carried by a majority of the total membership of the National Assembly, the Prime Minister ceases to hold office.

GENESIS OF ART. 58(2)(B):

The genesis of the power of the President to dissolve the Parliament under Article 58(2)(b) can be traced back to the speech delivered by the Governor General of Pakistan, Mr. Ghulam Muhammad prior to the dissolution of the first Constituent Assembly of Pakistan in 1954. He emphasized in his speech that he had:

"…with deep regret come to the conclusion that the constitutional machinery has broken down…the constituent assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decide all issues through their representatives to be elected afresh."

Almost a quarter of a century later, in 1977, the Supreme Court, in the case of Begum Nusrat Bhutto v. the Chief of Army Staff, was of the view that "The representative character of the National and Provincial Assemblies was not accepted by the people at large. There was thus a serious political crisis in the country leading to a break-down of the Constitutional machinery in so far as the executive and legislative organs of the state are concerned. A situation had, therefore, arisen for which the Constitution provided no solution." The court justified the extra-constitutional step, taken by General Mohammad Zia-ul-Haq, in imposing martial law and dissolving the National Assembly on the basis of the doctrine of state necessity.

Eight (8) years thereafter, in 1985, General Zia-ul-Haq manipulated the passage of the Constitution Eighth Amendment Act, 1985 and Article 58(2)(b) thereunder provided, in relevant part,

"….that the President can dissolve the National Assembly where, in his opinion,…the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and appeal to the electorate is necessary".

For a period of twelve (12) years, between 1985 and 1997 when Art. 58(2)(b) remained in force, a game of musical chairs was played out, first with Muhammad Khan Junejo and thereafter with Benazir Bhutto and Mian Muhammad Nawaz Sharif. In the presence of Article 58(2)(b) the powerful Presidents, namely, Zia-ul-Haq, Ghulam Ishaq Khan and President Sardar Farooq Ahmed Khan Leghari dissolved the National Assemblies of the day and dismissed the incumbent Prime Ministers without the need to justify their actions on the basis of the extra constitutional common law doctrine of state necessity. They could now purportedly justify their actions on the basis of Article 58(2)(b) that in effect constituted statutory expression of the doctrine of state necessity now grafted on to the Constitution of Pakistan. Such a graft accommodated deviations from Parliamentary Conventions and the quintessential parliamentary form of government, in the superimposed quasi-Presidential constitutional regime.

It is worth noting that the Supreme Court decided the Zafar Ali Shah case in 2000, in the interregnum between 1997 and 2002, when Article 58(2)(b) stood omitted from the constitution of Pakistan, by virtue of the passage of the Constitution Thirteenth Amend-ment Act, in the year 1997. In the circumstances, the Supreme Court, perforce, had to resurrect the doctrine of state necessity in order to justify the Proclamation of Emergency by President General Pervez Musharraf, the holding of the Constitution in abeyance, the suspension of the Majlis-e-Shoora and Provincial Assemblies, the bringing of the whole of Pakistan under the control of the Armed Forces and consequent dismissal of the elected government of Mian Muhammad Nawaz Sharif.

Article 58(2)(b) was reinserted in the Constitution by the Legal Framework Order, in 2002. The parallels that can be drawn, spanning a period of nearly 50 years, between 1954 and 2002, are testimony to experimentation with constitutional deviation by constitutional craftsmen in Pakistan.

POLITICAL CONDITIONS FOR USE OF ART. 58(2)(B) :

The years between 1988 and 1999 were a period when the strong and popular heads of the two leading political parties, vying for power in Pakistan, namely, Benazir Bhutto of the Pakistan Peoples Party and Mian Mohammad Nawaz Sharif of the Pakistan Muslim League (N), were also the leaders of the parliamentary groups of their respective parties. By virtue of the said position they were the automatic choice for the office of Prime Minister of Pakistan each time their party emerged as the majority party in the National Assembly. The said leaders were not figurehead Prime Ministers, but the sole, strong and effective leaders of their respective parties, calling the shots as they saw fit. In such circumstances, if differences between the troika consisting of the President the Prime Minister and the Chief of Army Staff, the defacto power at the helm of affairs of in Pakistan, became irreconcilable, the Presidents, in the said era, had no option but to have recourse to the drastic power granted to them under Article 58(2)(b) of the Constitution.

POWER TO EFFECT AN IN-HOUSE CHANGE:

The period between 1999 and 2004 has been characterized, in the main, by strong President/ Chairpersons of political parties that matter and weak figurehead leaders of the Parliamentary Groups of political parties within Parliament. Chaudhary Shujaat Hussain is President of the ruling Pakistan Muslim League (Q). Benazir Bhutto, Mian Mohammed Nawaz Sharif and Altaf Hussain are also the sole indisputable leaders of their respective parties. Though they are in exile (self imposed or otherwise) in all essential and important matters decisions are made not by the parliamentary groups of the said parties but by the heads of the said parties. The political environment in Pakistan, for the first time, was ripe for President General Pervez Musharraf, in collaboration with the indisputable leader of the ruling party, to ask Mr. Mir Zafarullah Khan Jamali to resign from the office of Prime Minister of Pakistan, on pain of exercise of his power, under Article 91(5) of the Constitution, to require him to seek a vote of confidence from the National Assembly, in case of his failure to do so. An in-house change in Government would avoid the taking of the drastic step of dissolving the National Assembly and calling for mid-term elections. Such a course may very well have resulted in a hung parliament and created more problems for the President than it would have solved.

In the absence of the evidence to the contrary, should one accept Mr. Jamali's word that his resignation was voluntary? In a newspaper report, appearing on the 29th of June, 2004, Chaudhary Shujaat Hussain was quoted as having claimed that the entire coalition parliamentary group had endorsed the decision of President, General Pervez Musharraf with regard to the removal of Mir Zafarullah Khan Jamali. However, in a televised talk with a group of reporters on the 30th of June, 2004, President General Pervez Musharraf is reported to have said that Mr. Jamali was not pressurized to resign and it was the internal decision of the Pakistan Muslim League (Q) that he should go. He is further reported to have said that a large number of people, within the party, were not happy with the performance of Mr. Jamali and had decided to change the leader of the House. He is reported to have said that he could very honestly tell the reporters that the change was brought about at the behest of Pakistan Muslim League's President Chaudhary Shujaat Hussain and other party leaders and that the decision to nominate Mr. Shaukat Aziz, as the next permanent Prime Minister, was also taken by Chaudhary Shujaat Hussain and other party leaders.

If the President had asked Mr. Jamali to resign, the right to exercise his power, under Article 91(5) of the Constitution must be deemed to be implicit in the request. On the other hand, if Mr. Jamali was asked to resign by the President of the party, Mr. Chaudhary Shujaat and other party leaders, their right to exercise their power, under Article 95 of the Constitution, must be deemed to be implicit in their request.

PRIME MINISTER-IN-WAITING :

The idea of a Prime Minister in waiting is alien to parliamentary democracy. Neither any parliamentary convention nor the Constitution, as amended to date, provides for enacting such a political scenario. There is no provision in the Constitution for an interim Prime Minister. Chaudhary Shujaat, the incumbent Prime Minister of Pakistan, is reported to have acknowledged as much, at his press conference on the 28th of June, 2004. Pursuant to Article 9 of the Political Parties Order, 2002 Mr. Shujaat was also required to relinquish his party office as President of the Pakistan Muslim League (Q), prior to taking oath as Prime Minister of Pakistan.

The designation of a Prime Minister-in-waiting is neither permitted nor provided for in the Constitution. This is all the more so if the person concerned does not possess the constitutional qualification to hold such high office at the time so designated, namely, membership of the National Assembly of Pakistan.

The scheme for appointment of the Prime Minister Pakistan, as laid out in Article 91 of the Constitution is simple. The President is required, under Article 91 (2)(A) of the Constitution, to

"…..invite the member of the National Assembly who commands the confidence of the majority of members of the National Assembly to be the Prime Minister as ascertained in a session of the Assembly summoned for the purpose, in accordance with the Constitution."

Pursuant to Article 91(3), the person so invited is, thereafter, required to obtain a vote of confidence from the National Assembly within 60 days of becoming Prime Minister. Nowhere does the Constitution provide for the appointment of an interim or stop gap Prime Minister till such time as another person attempts to qualify to become Prime Minister.

The letter and spirit of the Constitution provides for the members of the National Assembly to, in good faith, repose confidence in a member of the National Assembly for a period of five years, not in some one in anticipation of the emergence of a better candidate within two months. It is also worth pondering over the possibility that Mr. Shaukat Aziz may not qualify as anticipated by the ruling party. What then ?

In the prevailing political climate the people of Pakistan should be ready for a new round of musical chairs. This time however, in exercise or impending exercise of power under Article 91(5) and/or Article 95 of the Constitution, by the kingmakers.

Aqalmand Ra Ishara Kafi Ast.

The writer is a Professor at SM Law College, Karachi.

http://www.pakistanconstitution-law.com/forget%20constitution%20play%20musical%20chair.asp

Published in "The News" [Jang Group] dated August 8, 2004