Article 58 2b Constitution of Pakistan 1

Article 58(2b), Constitution of Pakistan, 1973 IMRAN AYAZ
Article 58 (2b), Constitution

of Pakistan, 1973
IMRAN AYAZ (LL.M.)(LL.B.)
Given the capacity, as well as the success and lack thereof, of article
58(2b), in providing a constitutional solution to Pakistan parallel
political instability through a detailed analysis of its legislative genesis
as well as judicial interpretation, application and evolution. Also
determine apart from quality and consistency of the judgments delivered
by the courts of article 58(2b).
The effects on
(i) Independence both real and perceived of the judiciary.

(ii) (ii) Dissolution of the nature and extent or significance &
agreeability of avoidable fall outs.
Constitution is "a transparent garment clinging to the body politic" 1.The

Constitution of the Islamic Republic of Pakistan also known as the 1973 Constitution, is the
supreme law of Pakistan2. Pakistan has witnessed frequent and drastic changes in the form of
three successive constitutions and a host of provisional constitutional set ups. Pakistan has been
oscillating between presidential and parliamentary forms of governments throughout its history.
The result was instability and unpredictability in relationships between the democratic
institutions and a powerful civil-military bureaucracy. Very often, Constitutions were used as an
instrument for the pursuance of vested interests by the regimes in power through maneuvering or
amending these to suit their short-term objectives. Judiciary, usually, did not help in restraining
the authoritarian rulers. In this sense, it was blamed that it failed in its role as custodians of the
fundamental law of the land 3.The history remembers the 8th Constitutional Amendment as a bad
quid pro quo as it resulted in premature dissolution of at least four elected assemblies in 1988,
1990, 1993 and 1996 through Article 58(2)(b) including the one that had passed this amendment.
The Article 58(2)(b) had empowered the President to axe the popular mandate on his will and
wisdom after the 8 Constitutional Amendment. In 1997 the democratic forces joined hands to
delete the Article 58(2)(b) from the Constitution through the unanimously adopted 13
Constitutional Amendment. Unfortunately, the October 12, 1999 incident arose due to civil-
military conflict and the Constitution of 1973 was held in 'abeyance' on 12 October 1999 for the
second time4.The Constitution had adopted the parliamentary form of government for Pakistan.
The essence of a parliamentary system is the responsibility and the answerability of the
Executive before the Legislature. As the Parliament is elected directly by the people, whose
representatives elect from among themselves the Executive which is answerable to the
Legislature, this makes the Parliament a supreme body. The organic linkages between the
Legislature and the Executive, facilitated and strengthened by the parliamentary committees,
where the legislators and the Government ministers deliberate on the policies proposed and
pursued by the Government serve as a source of Parliament's monitoring of the Executive
functions. An important aspect of the Constitution of 1973 was the sustainability of the National
1
Georg Buechner, Danton 's Death, translated by Victor Price [1971] p. 7
2
Abiad Nisrine, British Institute of International and Comparative Law [2008] p. 96
3
Abbas Hassan, Poleaxe or Politics of the Eighth Amendment, [1997] p. 7
4
Senate of Pakistan, Special publication of Senate of Pakistan to mark the Constitution day [2016], p.6 Availabe at
http://www.senate.gov.pk/uploads/documents/3.%20Special%20Publication%20to%20mark%20Constitution%20Da
y.pdf (Access on January 10, 2020 at 01:40 AM)
Assembly, which was elected for the duration of five years and could be dissolved by the
President only on the advice of the Prime Minister. This was a normal parliamentary practice that
was incorporated in the Constitution. In order to further strengthen the parliament, it was laid
down that a Prime Minister against whom a resolution for a vote of no-confidence had been
moved in the National Assembly, but had not been yet voted upon, or against whom such a
resolution had been passed, or who was continuing in office after his resignation, could not
recommend the dissolution of the National Assembly to the President. The Eighth Constitutional
Amendment5 added a clause to the Article 58 giving to the President the power to dissolve the
National Assembly in his discretion where, in his opinion, an appeal to the electorate was
necessary. This clause had far reaching implications not only in making the assembly dependent
and subservient to the President, but also drastically changing the parliamentary character of the
Constitution, tilting it towards a presidential one. After being inducted in the Constitution, this
clause was invoked by the President on four occasions in a short span of nine years between
1988 and 19966. This clause was repealed in the Thirteenth Constitutional Amendment passed on
April 04, 19977. The Eighth Amendment had given similar power to the governors with respect
to the provincial assemblies. The Thirteenth Amendment did away with this as well. The
parliamentary character of the Constitution was restored as a result of the Thirteenth
Amendment, which also accompanied the restoration of the prime ministerial advice as being
binding for the President with respect to the appointment of governors and taking away of the
discretionary powers of the President to appoint the three chiefs of the armed forces. However,
the Seventeenth Amendment once again shifted the pendulum to the side of the President. The
President can now once again dissolve the National Assembly at his discretion.President
according to 1973 constitution had also just nominal role. He was allocated legislative,
executive, and judicial powers. But all these powers were conditional with the consent of Prime
Minister. A drastic change came in 1985 with the help of 8th amendment. Parliamentary form
was eclipsed. President gained discretionary powers of executive, legislative, and judicial
including dissolving the parliament with the subsection of 58(2)(b). Pure parliamentary form was
reintroduced with 13th amendment in constitution of Pakistan. Prime Minister again took the real
powers of parliamentary form. In 1999, in Pakistan Military took over and again President came
5
The Constitution (Eight Amendment) Act, 1985 [XVIII of 1985]
6
Dr Syed Jaffer Ahmed, Overview of the Constitution of Pakistan, [2004] (Briefing paper No. 17 of PILdAT) p. 12
7
The Constitution (Thirteenth Amendment) Act, 1997 [I of 1997]
in a position to dissolve the elected government with introducing the 17th amendment in the
constitution8. But a new suggestion was added that president could dissolve the assemblies with
the consent of the Supreme Court of Pakistan and in 2010 civil government of Pakistan people’s
party (PPP) introduced 18th amendment and ceased the powers of president and pure
parliamentary form was reintroduced9. Presidents of Pakistan used 58(2)(b) and dismissed
various elected governments for nothing. In an interesting development, the government-
opposition Joint Constitutional Committee agreed to abolish 58(2)(b) and to bring National
Security Council under parliament. The Committee felt that if 58(2)(b) were used to dismiss the
government, then the same National Assembly would again elect the new prime minister and his
cabinet through a confidence vote. President should not have such powers.The democratic
process was jolted by frequent changes in the government. Most of the political governments
failed to consolidate political power. They were either removed by military elites or president
applying article 58(2)(b) to unseat them10. The concept of the troika (sharing power between the
president, prime minister and the military command), though clearly an extra-constitutional
development, became a fact of life in Pakistan after the death of Zia-ul-Haq. Later Musharraf
virtually militarized the entire state structure11.The impact was, political system suffered heavily.
In this paper, an attempt is made on success and lack of article 58(2)(b) as well as the role of
judiciary played to complement the dictatorial moves made by the Presidents against the elected
governments, which were often supported by the military establishment.The attempt will
comprise five parts. First, historical development of article 58(2)(b) will be shownfrom Zia
ulHaq’s 8th amendment till 18th amendment along with the nature and extent or significance of
jurisprudence of dissolution on politics of Pakistan. Second, what are the success and lack of
article 58(2)(b) in the politics of Pakistan.Third, how judiciary plays a significant role in a
political and constitutional development of the states and independence both real and perceived
of the judiciary. Four, different arguable points of avoidable fall outs of article 58(2)(b) along
with thedevelopment of article 58(2)(b) in different judgement of Supreme court of Pakistan
(Dismissal of Junejo’s government, Dismissal of Benazir Bhutto’s government, Dismissal of
8
The Constitution (Seventeenth Amendment) Act, 2003 [III of 2003]
9
Zahid Yaseen, Tahir Mehmood & Muhammad Riaz, Comparative Study of the Constitution od Pakistan and India
(Gains & Losses) [2016], p. 349 available at http://www.sci-int.com/pdf/12217650681%20a%20347-
352%20Zahid%20Yaseen.pdf (Accessed on January 10, 2020 at 2:50 AM)
10
Lawrence Ziring, Pakistan in the 20th Century: A Political History [1997] p. 55-68
11
Hamid Khan, Political and Constitutional History of Pakistan [2001] p.548
Nawaz Sharif’s government & reinstatement of SC anddismissal of Benazir Bhutto’s second

government) Five, what is the role of Army in Pakistan’s politics and why political
developments in Pakistan cannot be complete without examining the role of the Army.
The history remembers the 8th Constitutional Amendment as a bad quid pro quo as it resulted in
premature dissolution of at least four elected assemblies in 1988, 1990, 1993 and 1996 through
Article 58(2)(b) including the one that had passed this amendment. The Article 58(2)(b) had
empowered the President to axe the popular mandate on his will and wisdom after the 8
Constitutional Amendment. In 1997 the democratic forces joined hands to delete the Article
58(2)(b) from the Constitution through the unanimously adopted 13 Constitutional Amendment.
Unfortunately, the October 12, 1999 incident arose due to civil-military conflict and the
Constitution of 1973 was held in 'abeyance' on 12 October 1999 for the second time.Judiciary
plays a significant role in a political and constitutional development of the states, where a federal
system exists. In such countries, the sustenance of democracy depends mainly on the
independence of judiciary12. Judiciary plays a significant role in a political and constitutional
development of the states, where a federal system exists. In such countries, the sustenance of
democracy depends mainly on the independence of judiciary. The 8th Constitutional Amendment
shifted the power balance into the office of the President in Pakistan. Due to the lack of power
balance in a parliamentary system, the president and the prime minister did not work together to
safeguard the national interest. Instead to serve as a check on the elected government and provide
stability to the democratic, the President of Pakistan always used this power to dismantle the
elected setup. The opposition always asked the President to dismiss the elected governments. In
such cases, the judiciary, having the power of judicial review, has been asked to play its role,
however, the judgements of judiciary in such cases had far reaching effects on the stability of
political system. The judiciary while passing the judgement, looked at a powerful President and
the demand of the people than the principle of merit and justice. The judiciary upheld three out
of four dismissals of the elected governments, mainly due to the nexus between the military
leadership and President of that time, which shows its weakness vis-à-vis other state
institutions.Political developments in Pakistan cannot be complete without examining the role of
the Army. Though it might seem incompatible to talk of military and democracy in the same
breadth, Pakistan provides an example of how the military has been able to govern the country as
12
Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory [2004] p.52
successfully as a civilian government. It has its own view of democracy, political stability and
governance. It feels it has a political role which stems from the national security paradigm of the
state. Recent amendments to the Pakistan Constitution under the rubric of ‘sustainable
democracy’ is a reflection of the Army’s expanding area from military security to economy and
governance.The critics of Article 58(2)(b) in the 1985 legislative debates were prescient in many
ways. Pointing out Zia’s mala fides and the unprecedented nature of this provision, they had
predicted the negative fallouts of such concentrated power in an individual. As the Haji Saifullah
Supreme Court decided, Zia’s subsequent dissolution of the Junejo Assembly turned out to be
based on mala fides, and there is persuasive evidence to suggest that the three subsequent
dissolutions were also not fully devoid of bias and partiality. The critics had warned of insecure,
non-independent, and unstable governments, constantly wary of a trigger-happy President. The
subsequent short and shaky stints in power by Nawaz Sharif and Benazir Bhutto demonstrated
this. The critics were wary of the office of President getting politicized and vulnerable to
manipulation by vested interest groups. As it turned out, Ghulam Ishaq Khan and Farooq Leghari
could not keep their presidencies completely free of such influences. The critics had predicted
that instead of creating balance, Article 58(2)(b) would actually bring about constitutional
imbalance, and that instead of promoting stability, it would generate instability. Four dissolutions
in eight years lend considerable credence to that estimation.
In Pakistan, President according to 1973 constitution had also just nominal role. He was
allocated legislative, executive, and judicial powers. But all these powers were conditional with
the consent of Prime Minister. A drastic change came in 1985 with the help of 8th amendment.
Parliamentary form was eclipsed. President gained discretionary powers of executive, legislative,
and judicial including dissolving the parliament with the subsection of 58(2) (b). Pure
parliamentary form was reintroduced with 13th amendment in constitution of Pakistan. Prime
Minister again took the real powers of parliamentary form.In 1999, in Pakistan Military took
over and again president came in a position to dissolve the elected government with introducing
the 17th amendment in the constitution13. But a new suggestion was added that president could
dissolve the assemblies with the consent of the Supreme Court of Pakistan. In 2010 civil
government of Pakistan people’s party (PPP) introduced 18th amendment and ceased the powers
13
of president and pure parliamentary form was reintroduced14. Presidents of Pakistan used
58(2)(b) and dismissed various elected governments for nothing.The National Assembly could
be dissolved only on the advice of Prime Minister as per the Constitution of Pakistan 1973.
General Zia introduced 8th amendment which leads major changes in the constitution that ceased
the parliamentary system of government and gave wide discretionary powers to the President.
Eighth amendment gave extensive discretionary powers to the president under Article 58(2)(b)
for which he was not bound to take any advice of the Prime Minister or the Cabinet and even if
such an advice was required, it was not binding on him 15. The most tremendous of those
authorities was the power of the president to, in his discretion, dissolve the National Assembly
under Article 58 clause (2)(b) and the conforming authority of the Governors to dissolve the
Provincial Assemblies, which authority, if used, had the consequence of dismissing the Prime
Minister, and his Cabinet 16. In December 1985, General Zia lifted Martial Law and exercised his
power and dissolved the National Assembly17. On 17th August 1988, after the death of General
Zia, this action was first challenged before the Lahore High Court in Muhammad Sharif v.
Federation of Pakistan1988 18,and then before the Supreme Court inFederation of Pakistan v. Haji
Muhammad Saif Ullah Khan, 198919. The Court held the dissolution of the National Assembly as
well as provincial assemblies against the law but it deprived of the right to restore the said
Assemblies.On 6th August 1990, the same power of Article 58(2)(b) was exercised by the
President Ghulam Ishaq Khan. The Supreme Court considered the dissolution of Benazir
government in a case of Ahmed Tariq Rahim v. Federation of Pakistan 20 and upheld the act of
the President to dissolve the assemblies and deprived of its reinstatement. Once again, Article
58(2)(b) was exercised by President Ghulam Ishaq Khan and the National Assembly of Nawaz
Sharif was dissolved on 18th April 1993. However, in Muhammad Nawaz Sharif V President of
Pakistan (1993)21, the SC by a majority of ten to one declared the act of President illegal and
reinstates the assemblies and the cabinet. On November 5, 1996, this power was exercised fourth
time by the President Farooq Leghari who dismissed the government of Benazir Bhutto.
14
The Constitution (Eighteenth amendment) Act 2010 [X of 2010]
15
Empror v. Sibnath Banerjee, AIR 1943 FC 75, 85
16
Karim, F., Judicial Review of Public Actions [2006] Pakistan: Pakistan Law House p. 27
17
Khan, H., Comparative constitutional Law [2008] Pakistan: Pakistan Law House p. 329
18
Muhammad Sharif v. Federation of Pakistan, PLD 1988 Lahore 725
19
Federation of Pakistan v. Haji Muhammad Saifullah Khan, PLD 1989 SC 166
20
Ahmed Tariq Rahim v. Federation of Pakistan, PLD 1992 SC 646
21
Muhammad Nawaz Sharif v. President of Pakistan, PLD 1993 SC 473
Therefore, in a case of (Benazir Bhutto v. President of Pakistan, 1998)22, the court sustained the
presidential order of dissolution. However, during the second tenure of Nawaz Sharif, 13th
amendment replaced the 8th amendment which restricted the discretionary powers of the
president todissolve the National Assembly.The proposal of abolishing Article 58(2)(b) is neither
new, nor effective. The Article has been abolished once before, only to be reinstated in the
Constitution. Furthermore, military coups respect no provision of the Constitution. In fact, the
disrespect for the Constitution runs deep among ruling elites. Even the judiciary and the National
Parliament are quick to reform the Constitution for short-term interests.Historically, Article
58(2)(b) is the invention of a military general. Exercising the nonexistent powers of the Army
Chief, General Zia ulHaq, who toppled a democratically elected government in 1977, ordered the
addition of Article 58(2)(b) to the Constitution. In 1985, a pro-military Parliament, using the
constitutional procedure of two-thirds majority, ratified Zia's Article 58(2)(b) as a constitutional
amendment, called the 8th Amendment. However, that the highly discretionary power built into
Article 58(b)(2) is vested in a duly elected President. It is not vested in the Army Chief.
Abolishing Article 58(2)(b) disables the President not the Chief of Army Staff from deposing an
elected government.In 1996, a civilian President invoked Article 58(2)(b), dissolved the National
Assembly, and dismissed Prime Minister Benazir Bhutto's democratically elected government.
The President justified dissolution on several grounds, including the Bhutto government’s
corruption, incompetence, and disrespect for the Supreme Court. In his book, constitutional
attorney Hamid Khan accuses Nawaz Sharif, the then opposition leader, for encouraging the
President to dissolve the National Assembly and hold new elections.Nawaz Sharif benefited
from the Article 58(2)(b) dissolution of the Bhutto government. In the 1997 general elections,
Sharif won a two-thirds majority in the Parliament. Soon after assuming the office of the Prime
Minister, Sharif turned on the President, and hurriedly processed a constitutional amendment to
abolish Article 58(2)(b). The sole purpose of abolition was to weaken the office of the President
and bestow all powers on Prime Minister Nawaz Sharif.The abolition of 58(2)(b), however, did
not safeguard parliamentary democracy. Nor did it restore any respect for political governments.
In a short time, the Sharif government lost its popularity. The nation did not know what to do
with the autocratic Sharif family, which showed little respect for the rule of law. The Sharif
government even sent ruffians to assault the Supreme Court. The civilian President was unable to
22
Benazir Bhutto v. President of Pakistan, PLD 1998 SC 388
dissolve the National Assembly, since Article 58(2)(b) had been abolished.Hotheaded political
forces and restive media were openly inviting the armed forces to remove the Sharif government.
Hearing the clarion call, Army Chief Pervez Musharraf overthrew the Sharif government. This
deposition had nothing to do with Article 58(2)(b). Nor could the crime of high treason
embodied in Article 6 deter the Army Chief from subverting the Constitution. Following the
habit of subservience, the Supreme Court upheld the coup and took a new oath to obey the laws
of the Army Chief.Exercising the non-existent powers of the Army Chief, Musharraf issued an
order to reintroduce Article 58(2)(b) back into the Constitution. In 2003, a pro-military
Parliament elected by the people passed the 17th Amendment to rehabilitate Article
58(2)(b).Now, the proposed 18th Amendment aims at abolishing Article 58(2)(b) again. This
time, the proposal stems from the fear that “President” Musharraf will dissolve the National
Assembly if the judges are reinstated without his consent or in the presence of Article 58(2)(b).
The proposed amendment may offer some short-term benefit. However, it will not solve
Pakistan’s constitutional woes.Working relationship of government and opposition is
indispensable for the success of the political system. Pakistan has chequered history on this
subject. Both government and opposition never abide by the rules of the game within the
parliamentary framework. The government always tried to suppress opposition and in
consequence opposition always tried to commune with extra-constitutional powers to bring down
the government of the day. Yet there were few instances in the history of Pakistan when both
collaborated. Both unanimously passed the Constitution of 1973 and the Thirteenth
Constitutional Amendment in the National Assembly23. That was the historic moment of the
repealing the Article 58(2)(b) in the Eighth Amendment on 1 April 1997.Upon the restoration of
'party-less controlled democracy' on December 31, 1985, the original spirit of the Constitution of
1973 was given a quasi-presidential and fully centralized character through the 8th Constitutional
Amendment in November 1985 24. The history remembers the 8th Constitutional Amendment as
a bad quid pro quo as it resulted in premature dissolution of at least four elected assemblies in
1988, 1990, 1993 and 1996 through Article 58(2)(b) including the one that had passed this
amendment. The Article 58(2)(b) had empowered the President to axe the popular mandate on
his will and wisdom after the 8 Constitutional Amendment. In 1997 the democratic forces joined
23
24
hands to delete the Article 58(2)(b) from the Constitution through the unanimously adopted 13
Constitutional Amendment. Unfortunately, the October 12, 1999 incident arose due to civil-
military conflict and the Constitution of 1973 was held in 'abeyance' on 12 October 1999 for the
second time. This disruption too was endorsed in Syed Zafar Ali Shah Case 25. At that time, the
Chief Justice was Justice Irshad Hassan Khan and the rest of the 11 'endorsing brother judges'
included; Justice Bashir Jhangiri, Justice Shiekh Ejaz Nisar, Justice Abdur Rehman, Justice Sh.
Riaz Ahmed, Justice Ch. Mohammad Arif, Justice Munir A. Sheikh, Justice Rashid Aziz Khan,
Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Ch, Justice Qazi Mohammad
Farooq and Justice Rana Bhagwan Das.Third time the Constitution of 1973 was suspended on 3
November 2007, when Emergency Plus was imposed. Initially it was judicially legitimized in
Tika Iqbal Khan Case26. However, on 31 July, 2009, a fourteen member bench headed by Chief
Justice Iftikhar Muhammad Chaudhry and the other members of the bench including Justice
JavedIqbal,Justice Sardar Muhammad Raza Khan, Justice Khalil urRehman Ramday, Justice
MianShakirullah Jan, Justice Tassaduq Hussain Jillani, Mr Justice Nasir ulMulk, Justice Raja
Fayyaz Ahmed, Justice Chaudhry Ijaz Ahmed, Justice Ghulam Rabbani, Justice Sarmad Jalal
Osmany, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui and Justice
Jawwad S. Khawaja, reversed the earlier decision.
Judiciary plays a significant role in a political and constitutional development of the states,
where a federal system exists. In such countries, the sustenance of democracy depends mainly on
the independence of judiciary. The 8th Constitutional Amendment shifted the power balance into
the office of the President in Pakistan. Due to the lack of power balance in a parliamentary
system, the president and the prime minister did not work together to safeguard the national
interest. Instead to serve as a check on the elected government and provide stability to the
democratic, the President of Pakistan always used this power to dismantle the elected setup. The
opposition always asked the President to dismiss the elected governments. In such cases, the
judiciary, having the power of judicial review, has been asked to play its role, however, the
judgements of judiciary in such cases had far reaching effects on the stability of political system.
The judiciary while passing the judgement, looked at a powerful President and the demand of the
25
Syed Zafar Ali Shah & Others vs General Pervaiz Musharaf, Chief Executive of Pakistan & Others PLD 2000 SC
869
26
Tika Iqbal Muhammad Khan vs General Pervaiz Musharaf & Others PLD 2008 SC 178
people than the principle of merit and justice. The judiciary upheld three out of four dismissals of
the elected governments, mainly due to the nexus between the military leadership and President
of that time, which shows its weakness vis-à-vis other state institutions. Keeping in view the
history of superior judiciary in Pakistan, it is evident that most of the times, the judiciary has not
been consistent in their decisions and often followed the political power trends of the time. Ever
since the first decade, the judges in Pakistan have tried to match their constitutional ideals and
legal language to the exigencies of current politics. The judgments of judiciary have often
supported the existing regimes, presumably to retain a degree of future institutional autonomy27.
Although, the 1973 Constitution provided the parliamentary system, the 8th Constitutional
Amendment28 during the reign of General ZiaulHaq shifted all the powers in the office of the
president. Though the military rule ended in 1988, it left behind a new pattern of civil-military
relations so devised by the architect of 8th Constitutional Amendment. To ensure its dominance
over politics, the military adopted a two-fold strategy i.e., get a political set-up dismantled
through the exercise of power under 58(2)(b) by the president and, alternatively, to topple the
government directly as happened in October 199929. Both the civilians and the military have
dealt with the judiciary in such a way that it could not develop into an independent institution.
Therefore, whenever the military backed President dismissed the elected government, the
judiciary could not resist their influence. In majority cases, the decision of Supreme Court came
in favour of the president and prime minister as well as the legislature had to suffer. No doubt,
the opposition did not play a positive role, always asked the president to dismantle the elected
government, and filed petitions in the courts against the setting or dismantled government. All
these factors undermined the prospects for growth and development of a democratic political
system. Since the first decade of independent Pakistan, the judiciary had sided with the
institutions of the presidency and military in dismissing the elected governments. It created an
image of a judiciary for lacking real independence. The impressions, especially conveyed during
Z. A. Bhutto's dismissal and trial, were further reinforced in February 1993 when General Mirza
Aslam Baig claimed that he had personally asked the Supreme Court of Pakistan not to restore
27
Newberg, Paula R., Judging the state: courts and constitutional politics in Pakistan [1995] p. 5 available at
http://catdir.loc.gov/catdir/samples/cam031/94021334.pdf (Accessed on January 9, 2020 05:16 AM)
28
29
The News International, The rise and fall of Nawaz Sharif [October 13, 1999] Available at
https://www.dawn.com/news/1348024/?fbclid=IwAR099T7YxrSGsebRsTP7n7WuoweS8BOMfonMC4URopXgH
DpKIs_eNISNmiU (Accessed on January 9, 2020 05:25 AM)
the government of Mohammed Khan Junejo back in 1988 30. The claims also implicated the
judiciary in interrupting the process of democratization in the country due to military
involvement. Whatever the pros and cons of the constitutional amendments and the resultant
imbalance between the powers of the president and prime minister, the superior courts in
Pakistan have not been consistent in their judgments and have showed disparities in the
resolution and strength with which presidential reasons for dissolution were analyzed for
judgement.
The judgments of superior judiciary in such matters has far reaching negative effects on the
stability of political systems, on the one hand, and the image of judiciary in the eyes of people,
on the other. As a result, the role of judiciary as guardian of the Constitution and the institutions
thereunder has only partially materialized in the case of Pakistan. The appointment of judges
without merit, especially at high court has been a major factor which harmed the independence
of judiciary in Pakistan. The judicial appointment should be made more competitive and the
processes should be more transparent. The system of appointment and promotion needs to be
conducted through proper channels, i.e., appointment as magistrate and onwards promotions are
merit based. The Supreme Judicial Council has also remained ineffective due to which the
judiciary in Pakistan lacks an effective system of accountability. To make this institution more
transparent, Chairman of the Senate and Speaker of the National Assembly, being neutral offices,
shall be made its members. This development will enhance the prestige of these two important
heads of parliamentary chambers as well. Judiciary plays a significant role in a political and
constitutional development of the states, where a federal system exists. In such countries, the
sustenance of democracy depends mainly on the independence of judiciary 31. The Courts did not
invalidate the power of the President to dissolve the National Assembly. Indeed, they highlighted
the need for judicial review of the exercise of such power by the President. When the Eighth
Amendment and presidential power under Article 58(2)(b) were challenged in the Supreme
Court by Mehmood Khan Achakzai32, President PakhtoonKhawaMilli Party, Habib Wahab Al-
Khairi and WukalaMahazBaraiTahafazDastoor Pakistan, the Court dismissed the petition in its
30
Rehman Au, Khan Tm & Ashfaq S, Dismissal of Elected Governments under Eighth Amendment and The Role of
Judiciary [2018] Available at
https://ijbpas.com/pdf/2018/January/1514650654MS%20IJBPAS%202017%204357.pdf (Accessed on January 9,
2020 at 10:37 PM)
31
32
Mahmood Khan Achakzai v. Federation of Pakistan & Others PLD 1997 SC 426
short order on 12 January 1997. However, in its detailed verdict on 4 April 1997, the Supreme
Court emphasized the point that the said Article had brought a balance between powers of the
President and Prime Minister, and thus had shut the door on Martial Law forever. The Court
insisted that the Amendment including Article 58(2)(b) had “come to stay in the constitution as a
permanent feature”. However, the Court admitted that it was open to Parliament to make
amendments as contemplated under Article 239, as long as basic characteristics of federalism,
parliamentary democracy and Islamic provisions, as envisaged in the Objectives
Resolution/preamble to the constitution of 1973 33.Pakistan’s democratic transition has been
facing challenges from the military and other nondemocratic forces. The judiciary, without
realizing its impact on the democracy, validated military’s extra constitutional actions at the
expense of the civilian rule. The superior judiciary, while relying on the state necessity doctrine,
enabled the military forces to entrench its authority not only in its direct rule, but also preserved
and transformed its authority to govern the state during the civilian governments. In the
preservation of its transformative authority, the military and its alliance influenced the judiciary
by various means: appointment and removal, incentives, insecurity of person, office, property,
and family. In order to keep its direct control on the judiciary, the presidential form of
government is relatively more favorable to the military. Nevertheless, with the validation of each
extra constitutional action, the judiciary circumscribed the military’s authority. In this whole
democratic transition, the judiciary’s role remained very crucial. The judiciary validated extra
constitutional military’s actions but at the same time confined unbridled military’s autocratic
regimes, stood behind democratic government, and now shifting itself to another critical role of
direct confrontation with Parliament. Keeping in view the trichotomy of powers envisaged by the
Constitution, the state organs including the judiciary must adhere to its constitutional limits
without encroaching upon the others‟ jurisdictional bounds, in order to keep the trichotomy of
powers intact.
The government of Muhammad Khan Junejo came into power after the party less elections in
January 1985. General Zia ulHaq lifted martial law only after the parliament validated his
Revised Constitutional Order 1985 with minor changes as Eighth Constitutional Amendment. No
33
Kausar Parveen, Government-Opposition Dynamics in Pakistan: Collaboration on the Thirteenth Constitutional
Amendment Bill [2017] available at https://www.aiou.edu.pk/Social%20Journals/VOL-25,%20No-
1%20Spring%20%202017/Article_06.pdf (Accessed on January 10, 2020 at 6:10 AM)
doubt, the amended constitution transferred extensive powers in the office of the president
including the power to dismiss the government and dissolve the assembly 34. However,
differences between the elected government of Muhammad Khan Junejo and the military
establishment soon emerged. It provided uncomfortable signs to President ZiaulHaq that the
former’s assertions of independence would lead to weaken the control of the latter. General
ZiaulHaq appeared to have not only calculated the danger from the Prime Minister, but also his
possible removal from the post of Army Chief, thereby leading to punishment of the latter.
Therefore, exercising his powers under Article 58(2)(b), General ZiaulHaq dismissed the elected
government of Muhammad Khan Junejo and dissolved the National and Provincial Assemblies
on May 29, 1988.In sacking the premier, President ZiaulHaq stressed the main reason as delay in
the implementation of Islamization program in the country. A caretaker cabinet was constituted
without any prime minister. Realising the mood of the masses well, General Zia ulHaq
announced on July 16, 1988 the new elections to be held on November 16, 1988, although, once
again on non-party basis 35. By the time, General ZiaulHaq passed away in 1988, his political
system was in shambles, therefore, he was defensive and on the retreat once again. The populace
was not amused, and it was quite clear that a phasing strategy of democratization was not the
main agenda of General ZiaulHaq and had mala-fide intentions. It was largely assumed that the
General-cum-President was pulling the strings of quasi-civilian setup and had been planning for
his personal appearance on the stage once again. After the death of General ZiaulHaq, a high-
level meeting was held in Islamabad, attended by the civil and military leadership to take a
decision on the issue of succession. The problem was resolved in accordance with the
Constitution and Ghulam Ishaq Khan, the Chairman Senate, stepped into the presidential office
as Acting President of Pakistan.Neither Muhammad Khan Junejo, nor others challenged the
validity of dismissal and dissolution order of the government along with the National and
Provincial Assemblies in any court during the life time of General ZiaulHaq. When General
ZiaulHaq died, Haji Muhammad Saifullah Khan, one of the dissolved National Assembly
members, filed a writ petition in Lahore High Court titled: Haji Muhammad Saifullah Khan vs
Federation of Pakistan. Hearing the case, the Court rejected the charges based on which
34
The Revival of the Constitution of 1973 Order, 1985 [PO 14 of 1985]
35
Aziz Sartaj, Between Dreams and Realities: Some Milestones in Pakistan’s History [2009] (Karachi: Oxford), 87.
Available at https://global.oup.com/academic/product/between-dreams-and-realities-
9780195477184?cc=us&lang=en& (accessed on January 9, 2020 06:15AM)
President General ZiaulHaq had dismissed the National and Provincial Assemblies. The Court
declared the charges being so ambiguous and unreal that they could not be sustained in the law.
The verdict of the Full Bench of Lahore High Court in this regard was that the dissolution of
National Assembly by the President was illegal and unconstitutional. However, the Court neither
restored the civil government nor the assemblies, though the sympathies of common people were
in favour of Muhammad Khan Junejo. Further, the Court held that since the elections had been
scheduled for 16th and 19th November 1988 and the nation was preparing for that, the
Assemblies could not be restored36.As the Lahore High Court declared the dissolved National
Assembly as dead one, maintaining that it could not be restored again, therefore, the judgement
was challenged in the Supreme Court of Pakistan. The Supreme Court held detailed hearings,
and scrutinizing the case, upheld the verdict of Lahore High Court in first week of October
198837. Although declaring the dissolution of National Assembly as illegal and unconstitutional,
it did not restore the National Assembly. Later, General Mirza Aslam Baig, the successor Army
Chief accepted in a press conference on 4th February 1993 after his retirement that a message
was sent to the Supreme Court judges, not to issue orders for restoration of the assembly and let
the elections process take place as per schedule. It proves that an anti-democratic role was played
by the apex court and that the Army Chief committed an unqualified interference in the
proceedings of the Supreme Court. This also shows the powers of the Army Chief to influence
the civilian institutions during the processes of transfer of power from military to the civilians. It
discloses the weaknesses of the judiciary as an institution which was not able to deliver justice,
support democracy and take an independent decision in the matter. After this press conference,
the claims of Mirza Aslam Baig were not denied by the judges of Supreme Court rather
proceedings for contempt of court were initiated. However, Mirza Aslam Baig, taking a stand on
his words before the Court maintained that he had disclosed what the reality was. Mirza Aslam
Baig, though found guilty of contempt of court, was not charged with any punishment because
he had already been reprimanded in the Court38. The decision of Supreme Court against the
dissolution of National Assembly by President General ZiaulHaq, at least, confirmed its mala-
fide, illegal, and arbitrary nature. President General ZiaulHaq and his advisers also knew this, but
they thought that they would be able to overcome the difficulties and effectively manage the
36
Sehri Inam R., Judges and Generals in Pakistan [2012] Volume-I, p. 110-11
37
Haji Muhammad Saifullah Khan vs Federation of Pakistan, PLD 1989 SC 166
38
Shah Sajjad Ali, Law Courts in a Glass House, An Autobiography [2001] p. 137
crisis as was done in 1977. Nonetheless, the dissolution of the National Assembly validated the
assumptions that General Zia ulHaq was not sincere to his promises for democratization of the
system. If he could not share power with his handpicked prime minister and if he could not
tolerate his assertion of authority in the mandated sphere, how could he agree to the transfer of
power in an orderly and peaceful manner? His action also pushed those political forces to
opposition that had cooperated with him in holding the 1985 elections. Even he began to think
and talk of restructuring the parliamentary system and to form a new coalition of pro-Zia ulHaq
cronies. The elections ZiaulHaq had announced for November 1988 could, most likely, be
postponed or used for a referendum on new constitutional proposals. General Zia ulHaq had
exhausted all his political cards to legitimize his stay in power and to counter the growing
demand for complete democratization.It has remained a question whether the judiciary would
have declared the dissolution of National Assembly illegal and unconstitutional, had the petition
been filed during the life of General ZiaulHaq. Moreover, had the denial of Supreme Court to
restore the National Assembly undermined the very spirit of declaration of the dissolution as
unconstitutional? Despite these questions, the general effect and role of the Supreme Court of
Pakistan in the process of democratization was appreciated as positive and constructive. At that
time, had General ZiaulHaq lived, he would have faced an effective and extremely hostile
opposition. The plane crash that took his life, gave him an honorable exit from the upcoming
hostile political arena of Pakistan. Realizing the mood and possible response of the people, civil
society, political parties and the international democratic forces, the military high command
decided not to take control of power and let the democratic process continue by allowing the
scheduled elections. However, this transfer of power by the military to the elected government
was allowed mainly due to the presence of Eighth Constitutional Amendment, which they were
still able to exercise indirectly through the indirectly elected President.
The elected government of Benazir Bhutto had supported the Acting President, Ghulam Ishaq
Khan in the presidential election. However, due to the struggle for powers, differences between
the two emerged mainly over the appointments of high level post. Moreover, the military did not
like the interference of Benazir Bhutto government in matters related to defence and foreign
affairs. On July 21, 1990, the top military command in its Corps Commanders’ meeting
concluded that Benazir Bhutto government had crossed the limits. They decided that the
government of Benazir Bhutto was not tolerable anymore and, therefore, the military would
support any anti-government move by the President 39. President Ghulam Ishaq Khan, using his
powers of 58(2)(b) under the Eighth Constitutional Amendment, dismissed the elected
government of Benazir Bhutto and dissolved the National and Provincial Assemblies on August
6, 1990, with an announcement of fresh elections scheduled for October 1990. The charges of
corruption, nepotism, inefficiency, violations of the Constitution, maladministration, financial
decline, bad law and order especially in Sindh and many other issues were declared as the
reasons for dismissing the PPP government.The dismissal as well as the dissolution order of the
President was challenged in the High Courts. Only the Lahore High Court received five petitions.
Hearing the petitions in detail, the Lahore High Court gave a unanimous verdict that the ground
reasons heavily weighted with the President to dissolve the elected government and the National
and Provincial Assemblies. The judges held that president’s orders had direct relation with the
pre-conditions clearly prescribed in the Article 58(2)(b) under the Eighth Amendment.
Therefore, the judgment of Lahore High Court eliminated the hopes for restoration of Benazir
Bhutto government under the 1973 Constitution. The Court further held that a recourse to the
electorate had become necessary after the dissolution order of the assemblies by the
President.Petitions were also filed to challenge the order of the President regarding dismissal of
Benazir Bhutto government in the Sindh High Court. A five-member bench was formed which
was headed by Chief Justice Sajjad Ali Shah for hearing the petitions on September 24, 1990.
However, the Governor of Sindh took-off for Saudi Arabia on September 19, 1990 to perform
Umrah. Therefore, Chief Justice was accordingly assigned with the responsibilities of acting
Governor of Sindh. In fact, these arrangements were carried out for keeping the Chief Justice out
of the bench which was formed to hear the petition challenging the order of the President issued
for dismissal of Benazir Bhutto government. The initially planned visit of Governor of Sindh
was three days only. However, the tour was given an extension claiming the reasons of his illness
in this regard. As a result, the Governor stayed abroad and didn’t return until the petitions were
disposed-off40. The dissolution of Benazir Bhutto government was also challenged in the
Peshawar High Court which declared that the decision of President Ghulam Ishaq Khan was in
39
Nawaz Shuja, Crossed Swords: Pakistan; Its Army, and the Wars Within [2008] (Karachi: Oxford University
Press), p. 430 available at http://pu.edu.pk/images/journal/studies/PDF-FILES/Book%20Review%20-
%201_V_12_No_2_Dec11.pdf (accessed on January 9, 2020 at 6:35 AM)
40
accordance with his powers under Article 58(2)(b) of the Constitution 41.An appeal was filed
against the decision of Lahore High Court in the Supreme Court. Hearing the case, the Court in
its judgement upheld the verdict of Lahore High Court thereby granting legality to the dismissal
order for Benazir Bhutto government and dissolution order for the National Assembly 42. In fact,
the President and his team had analysed the Supreme Court judgment of October 5, 1988
regarding the dismissal of Muhammad Khan Junejo government. Besides the charges of
corruption etc., President Ghulam Ishaq Khan also used other grounds for the dissolution of
Benazir Bhutto governmentlike the confrontational politics between the federal and two
provincial governments (Punjab and Khyber Pakhtunkhwa then NWFP), inability in forming and
activating constitutional bodies like the National Finance Commission and the Council of
Common Interests coupled with the continuity of ethnic strife in the country. These allegations
amounted to the constitutional impasse and therefore, the Courts ruled in favour of Ghulam Ishaq
Khan.
When Nawaz Sharif assumed power in October 1990 as prime minister, it was expected that the
relationship between Ghulam Ishaq Khan and that of the newlyelected premier would remain
cordial. The expectations were high since both Ghulam Ishaq Khan and Nawaz Sharif were the
legacies of General Zia ulHaq military rule. Moreover, Ghulam Ishaq Khan had consistently
supported Nawaz Sharif as Chief Minister Punjab, during the Benazir Bhutto government.
Initially, these expectations proved right; however, differences emerged when the prime minister
started making decisions independently. The efforts of Nawaz Sharif to establish an independent
identity, as a public representative and an all-powerful prime minister had been an alarming issue
for the president. Ghulam Ishaq Khan got alarmed by the growing popularity of Nawaz Sharif.
The differences grew higher to the point that the prime minister indulged in tussle and issued
public statements against the president.Therefore, Ghulam Ishaq Khan issued order for dismissal
of Nawaz Sharif government as well as dissolution of National Assembly on April 18, 1993. The
grounds for dismissal were corruption, nepotism, maladministration, violation of the
Constitution, failure to work effectively with the provincial governments, unleashing a reign of
terror against the opposition, and had been unable to conduct investigation of the death of former
41
Aziz Sartaj, Between Dreams and Realities: Some Milestones in Pakistan’s History [2009] (Karachi: Oxford), 104
available at https://global.oup.com/academic/product/between-dreams-and-realities-
9780195477184?cc=us&lang=en& (accessed on January 9, 2020 06:35AM)
42
Khwaja Ahmed Tariq Rahim vs Federation of Pakistan, PLD 1992 SC 646
Army Chief, General Asif Nawaz Janjua. It did not end here because a week later, the ousted
prime minister filed a reference to the Supreme Court on April 25, 1993 challenging the
dismissal order of his government by the president. This time, against the background of a
negative imagery, the judges had been at pains to emphasize commitment of the judiciary to
decide the case of Nawaz Sharif based on merit. On the first day of hearing the petition of Nawaz
Sharif, Chief Justice Nasim Hasan Shah recalled the widely criticized decision by Justice
Muhammad Munir which had validated the order of Governor General Ghulam Mohammed in
dissolving the first Constituent Assembly of Pakistan on October 24, 1954. Chief Justice Nasim
Hasan Shah mentioned that jurists and the nation had not pardoned Justice Muhammad Munir for
the decision, thus indicating intentions of the Court not to repeat history by making a similar
mistake.During the hearing, the panel questioned the legality of the presidential decision, noting
that the President is not authorized to dismiss an elected government and dissolve the National
Assembly simultaneously under Article 58(2)(b) which only refers to the dissolution of the
National Assembly. The Court also declared that the premier could only be removed under
Article 91(5), which entitles discretionary power in the president to dismiss an elected
government. Chief Justice Nasim Hasan Shah categorically stated, that Article 58(2)(b) did not
confer unlimited authority and the president is constrained from using this power subjectively.
The dismissal of an elected government can only be ordered after recourse to other constitutional
means. For instance, the judges asked the reason, why president had not asked the premier to
seek a fresh vote of confidence from the National Assembly. The Attorney General of Pakistan
informed the Court that the president had intended to summon the National Assembly on April
22, 1993 but the speech of Nawaz Sharif on April 17, 1993 had altered the scenario. The Court
declared that the speech could have been the beginning of the impeachment procedures by the
government against the president. The Court also questioned the idea of dismissing an elected
government based on unsubstantiated allegations of corruption. Supreme Court pointed out that
only actual findings of investigations conducted by the president or references filed in court
against the prime minister could be used as “material” to prove corruption charges. The chief
justice, for instance, questioned the attorney general's references to corruption and said that all
you need to do is hire hundred people, get letters written to the president and by the weekend the
prime minister will be sitting at home.Meanwhile, during the hearings, there was the sudden
death of the son of Justice Shafiur Rehman, which ultimately raised the possibility that the
proceedings may be postponed. However, emphasizing the gravity of the on-going situation and
the responsibility that the judiciary owed to the nation; Justice Shafiur Rehman attended the
Court on the same day after burying his son, and also took active participation in the hearings.
Together these actions, questions, and the final decision marked the assertion of the judiciary on
its independence and the ability to "correct constitutional irritants" that had allowed the
presidents to dismiss the governments and the national and provincial assemblies. During the
hearings, the Court questioned the underlying concept that the president “operates as a custodian
of national interest” and, hence, the validity of presidential ‘interventions’ in the working of an
elected government. The Chief Justice declared that the president can inform the government of
his views but then he should leave it to the people to decide in the next elections.The decision of
Supreme Court, thus raising the possibility of repealing the Eighth Amendment, brought Pakistan
at the verge of a genuine democracy. The Court also questioned the constitutional validity of the
power of the president to appoint the Army Chief and other services chiefs. It was argued that by
allowing the president to dismiss the National and Provincial Assemblies, and to be the virtual
guardian of security of Pakistan as Commander-in-Chief of the three services, the Eighth
Constitutional Amendment had opened the way for decisions that may be dangerous for the
security of the state. Interestingly, the criticism of Eighth Constitutional Amendment went
beyond the issues of transfer of powers to the parliament, questioning the presidential powers in
terms of Islamic identity of Pakistan. It was argued that under the Constitution of Pakistan, the
sovereign powers lie with Allah Almighty alone. However, the 8th Constitutional Amendment
breaches the basis of the 1973 Constitution giving powers to the President of Pakistan to an
extent that he is not answerable to anyone.Thus, the presidential power in Pakistan suffered with
a great setback on May 26, 1993, when the Supreme Court reinstated the government of Nawaz
Sharif and the National Assembly. The full bench of the Court, giving almost a unanimous
verdict (10:1), held that the President’s order to dismiss the government of Nawaz Sharif and
dissolve the National Assembly was unlawful and declared it as ‘illegal’ and ‘unconstitutional.’
The Court declared in its verdict that the order of April 18, 1993 is not in accordance with the
powers granted to him under Article 58(2)(b) of the 1973 Constitution as well as other similar
powers, thereby making it of no legal effect 43. The Court declared that it was Ghulam Ishaq
Khan and not Nawaz Sharif who played an instrumental role to subvert the constitutional
43
Muhammad Nawaz Sharif vs President of Pakistan, PLD 1993 SC 473
process. Ghulam Ishaq Khan had ceased to be a neutral head of the state and had aligned with
prime minister’s opponents to encourage these actors thus making efforts to destabilize the
elected government.This time, the Supreme Court under by the Chief Justice Nasim Hassan
Shah, gave its verdict against the Law of Necessity. The historic decision of the Supreme Court
not only restored the National Assembly and reinstated Nawaz Sharif government, it also
restored the trust of the public in judiciary. However, the decision of the Court was also seen
partisan, because it was observed throughout the proceedings that the judges had already decided
for upholding the supremacy of the parliament and the 1973 Constitution. Moreover, the scope of
the powers of president under the Eighth Constitutional Amendment were narrowed down to
such an extent that in future a president would be thinking hard prior to take any action against
the National Assembly44. However, the verdict eliminated the myth that the President is over lord
of the parliament and the elected government. From the very beginning of filing the petition, the
Chief Justice of Pakistan seemed to be in favour of the dismissed government because he had
announced that the nation was about to hear ‘good news. It is alleged that a deal involving a huge
sum of money had been reached at Dubai due to which the decision of Supreme Court went in
his favour. However, it is also clear that the decision came against the backdrop of an intense
public criticism of the dismissal and the presidential powers conferred under the Eighth
Constitutional Amendment. Indeed, the judgement of the Court had been a prosecution of the
President by the highest judicial organ in Pakistan. The decision was ultimately an insult for a
person having never got a taste of defeat and that also at the hands of a person, who until
yesterday remained subordinate to his office. The President House, issuing a press release on the
same evening declared that the verdict of Supreme Court will be honoured. The only dissenting
judge of the Supreme Court was Justice Sajjad Ali Shah from Sindh who, contrary to other panel
members, gave a dissenting verdict. His remarks were rather critical, declaring that before this
case, two prime ministers from Sindh had been dismissed under the same Article of the 1973
Constitution. However, the Court had declared the decision of the President to be valid and/or
did not restore the dismissed government and the assemblies. However, the tables of the Court
had turned in favour of a Punjabi Prime Minister and the government along with the National
Assembly had been restored.Justice Sajjad Ali Shah further added that the Court had indicated
that the decision would please the nation, which should be based on legality only. Benazir Bhutto
44
Khan Hamid, Constitutional and Political History of Pakistan [2009] 2nd Edn., p. 447
remarked on the decision stating that the decision of Supreme Court was not doubted but at the
same time the people were left confused. They wanted to know why the presidential order for
dismissal of her government was upheld in 1990, and why had it struck down the same nature of
order issued for dismissal of Nawaz Sharif government. Addressing the PPP congregation at
Liaqat Bagh (Rawalpindi), Benazir Bhutto also expressed that the people did not know what did
Nawaz Sharif has due to which he remains in power. He had been the ultimate beneficiary in
case the government of PPP was dismissed under the Eighth Constitutional Amendment or that
of his own (Nawaz Sharif). It is pertinent to mention here that the government of Nawaz Sharif
and the previous government of Benazir Bhutto were dismissed within different operational
contexts. The government of Benazir Bhutto had been dismissed in August 1990 with a military
backed initiative, on the grounds of corruption, failure to work effectively with the provincial
governments and efforts in questioning the powers of the military. However, the dismissal of
Nawaz Sharif's government was basically due to the efforts of the President for re-election. In
fact, these two different contexts were the main reason that the Supreme Court asserted its
independence and questioned the scope of the power of the president under the Eighth
Constitutional Amendment, thereby invalidating the April 18, 1993 decision of the president.
The decision of Supreme Court brought Pakistan to a crucial juncture in its history, by offering
the politicians with an opportunity to move in the direction of genuine parliamentary democracy.
However, motivated by their personal interest to regain power of the government, these
politicians were still participating in the constitutional war of the President against the prime
minister. By joining hands with the president, they also prevented a democratically elected
government to complete its five-year term.
Since the beginning, the government of Benazir Bhutto had been facing strong resistance from
the opposition political parties and a critical press. This time, Nawaz Sharif was posing a much
stronger opposition to Benazir Bhutto and was more impatient for overthrowing her government
mainly through agitation politics and a rigorous campaign through media. Benazir Bhutto
government also made some efforts to control the higher judiciary through political appointments
which went unsuccessful. Benazir Bhutto government also avoided appointing the Public
Accounts Committee in the National Assembly meant for scrutinizing the expenditures of the
PPP government. During the year 1996, Benazir Bhutto government had alienated the judiciary,
the military, the president, the world monetary bodies like World Bank and IMF (in particular),
and the Pakistani public at large. The confrontation and the intolerance of the government and
opposition towards each other provided again an opportunity to the military and the president to
roll down the elected government.The Army Chief apparently remained neutral in the
controversy of Benazir Bhutto with both Farooq Khan Leghari and Justice Sajjad Ali Shah.
However, majority of the military commanders were in favour of the President and the Chief
Justice. The military also warned President Farooq Ahmad Khan Leghari about the worst
situation and demanded quick remedial measures in August 1996. The President, called Benazir
Bhutto for a meeting in which she issued derogatory statements about Farooq Ahmad Khan
Leghari saying that he has been nominated as President by her party. In October 1996, the
military concluded that the elected government of Benazir Bhutto was failing in dealing with the
crises. Therefore, it became easy for President Farooq Ahmad Khan Leghari to dismiss the
government of Benazir Bhutto as he was now sure that military would not object to his action of
dismissal.On November 5, 1996, the president invoked Article 58(2)(b) of the Constitution to
dissolve the National Assembly and dismiss the elected government following months of turmoil
in the country. In the dissolution order, the President charged Benazir Bhutto government for not
taking adequate steps for bringing an end to the extra judicial killings, blamed the president and
other state institutions for involvement in the killing of Mir Murtaza Bhutto. It showed
reluctance in implementation of the Supreme Court orders and curtailed the independence of
higher judiciary by passing of the accountability laws. Moreover, it was alleged with moving a
bill in the Parliament, apparently meant for preventing corruption, but its effect was a deliberate
violation of the basic rights of the citizens to have privacy. In addition, there was rampant
corruption, nepotism, favoritism and violation of administrative rules for running the affairs of
the government, as among lesser charges. This was the fourth elected prime minister dismissed
since 1988, and Farooq Ahmad Khan Legharibecame the third president of Pakistan to have
exercised the constitutional power under 58(2)(b) in this regard. However, the performance of
Benazir Bhutto government had made that day bound to come. In fact, Benazir Bhutto was
emerging as an arrogant, reckless, capricious and corrupt ruler. Moreover, she was surrounded
by sycophants, lackeys and flunkeys thereby squandering away another good opportunity to
prove her services for the people of the country.Benazir Bhutto’s government was dismissed for
the second time in a coup like style and regular troops of the military were asked to take control
of all government buildings in Islamabad including the office of the prime minister. Moreover,
all the international airports were closed and, the telephones were also jammed for the first time
in Pakistan. The military also arrested Asif Ali Zardari from the Governor House in Lahore and
was later taken into custody by the local administration. Initially, the Governor of Punjab was
kept under the house-arrest but later he was forced to give resignation. After the successful
completion of this operation, the military handed over charge to the para-military forces. All the
Corps Headquarters remained open in all the four provincial capitals for the whole night. They
had been passing on the instructions being received from the Presidency and General
Headquarters (GHQ) of Pakistan Army to the top brass of civil bureaucracy and were ensuring
the compliance. This support and coordination really shows what was the level of support from
the Army to the decision of President Farooq Ahmad Khan Leghari.The effort of Benazir Bhutto
to get the dismissal order reversed through the Supreme Court was as unsuccessful like her
appeal to the public. On November 13, 1996 Benazir Bhutto challenged her dismissal and filed a
42-page petition in the Supreme Court which “contained blistering criticism of the President.”
Three days later, the Court dismissed the petition stating that it was “argumentative, irrelevant,
and scandalous.”The Supreme Court in a 6:1 judgement upheld the decision of the president. It
maintained that the president had been able to submit adequate evidences to prove that the
dismissal order of Benazir Bhutto government was correct. The Chief Justice of Pakistan
declared in his judgement that there is enough material to establish corruption, nepotism and
misrule against Benazir Bhutto government. The Court also allowed fresh general elections on
the scheduled dates45. Thus, the November 5, 1996 presidential order, validated by Supreme
Court removed Benazir Bhutto as prime minister, one again. However, the decision of Chief
Justice Sajjad Ali Shah’s Court clearly reflected its own grudge against Benazir Bhutto
government also. Another petition was then filed in the Supreme Court, but it was also dismissed
for hearing.
“Due to resilient intervention of army in the constitutional development, Pakistan can be said “a
state within the army and not an army within the state”46. Any study of political developments in
Pakistan cannot be complete without examining the role of the Army. Though it might seem
incompatible to talk of military and democracy in the same breadth, Pakistan provides an
example of how the military has been able to govern the country as successfully as a civilian
45
Benazir Bhutto vs Farooq Ahmad Leghari, PLJ 1998 SC 27
46
Burki J. S. & Buxter C., Pakistan under the Military [1991] (Pakistan: West View Press) p. 73
government. It has its own view of democracy, political stability and governance. It feels it has a
political role which stems from the national security paradigm of the state. Recent amendments
to the Pakistan Constitution under the rubric of ‘sustainable democracy’ is a reflection of the
Army’s expanding area from military security to economy and governance. A strong army plays
an important role for the defense and security of any country. Without a strong army, no country
can survive smoothly. Unfortunately, in Pakistan, army remained dominant in the political and
constitutional development since independence because of some loopholes in the political and
constitutional system. Consequently, Pakistan had to face various military coups. In British
India, Army neither tried to overrule the Constitutional and political decisions taken by the
Government, nor took over the country and the same rule was followed by the Indian army after
independence which ultimately strengthens their political institutions. Whereas Pakistan has to
face various successful as well as unsuccessful coups which not only derail the political
institutions but also destabilizes the social, economic and legal systems of the country. General
ZiaulHaq, who assumed power through a military coup, had understood the Pakistan political
system well due to his close interaction with the government and the opposition leaders during
the Pakistan National Alliance movement. He, exploited the cleavages that existed between
various personalities and parties to consolidate his position. The judiciary gave legal sanction to
the military regime under the infamous ‘doctrine of necessity’ and grudgingly allowed only
extremely necessary amendments. However, this was misused to acquire an unbridled authority
to change the basic structure of the Constitution47. During his rule, he found willing supporters
among the Jamaat Islami and other fortune-seeking politicians who provided him much needed
political support. He was not in favour of political parties and, therefore, held a party less
election in 1985. He tailormade the Constitution by introducing substantial changes that gave
enormous power to the President and got himself elected as the President in a fraudulent
referendum held in 1984. Like his predecessors he centralized power. His distrust of the civilian
Prime Minister was quite evident in foreign policy and defense matters. Historically, Article
58(2)(b) is the invention of a military general. Exercising the nonexistent powers of the Army
Chief, General Zia ulHaq, who toppled a democratically elected government in 1977, ordered the
addition of Article 58(2)(b) to the Constitution. In 1985, a pro-military Parliament, using the
47
Ayub Khan, Friends not Masters. [1967] Oxford University Press; London. p. 67 available at
https://journals.sagepub.com/doi/10.1177/000271626837700145 (Accessed on January 9, 2020)
constitutional procedure of two-thirds majority, ratified Zia's Article 58(2)(b) as a constitutional

amendment, called the 8th Amendment. However, that the highly discretionary power built into
Article 58 (b) (2) is vested in a duly elected President. It is not vested in the Army Chief.
Abolishing Article 58(2)(b) disables the President not the Chief of Army Staff from deposing an
elected government. It was not long before the army formed an alliance with the civil
bureaucracy that left no room for the parliamentary democracy the country’s founder had
envisioned. According to political and defense analyst Hasan Askari Rizvi, the military takeover
in 1958 removed the political leaders and the so-called democratic institutions from the scene,
giving a free hand to the civil service and the army to run the country: “The Army served as the
brain and the civil servants as the hand of the new regime” 48. General Ayub Khan also set the
precedent of keeping a tight rein on political parties. Article 173 of the 1962 constitution
prohibited any person from contesting elections as a member of a political party unless permitted
by an act of the central legislature49. The Political Parties Act, passed in July 1962, allowed only
limited political activity. Successive dictators perpetuated these and other tough measures against
political parties, introducing various laws and regulations to restrict or ban political parties and
political activity that would threaten their rule. After Pakistan’s second coup by General Zia
ulHaq in 1977, a large portion of the constitution was placed in abeyance, including fundamental
rights and Article 17 on the freedom of association. Zia also promulgated the MLO, setting up
disqualification tribunals to inquire into charges of misconduct against those who had contested
the 1977 elections50. All forms of political activity were effectively controlled and dissent was
dealt with through harsh punishment under laws specially devised for this purpose. Musharraf
and the military maintained power for almost nine years, utilizing the same tactics of suppressing
democratic forces and rigging national and local elections. He consolidated his power in
December 2003 primarily through passage of the seventeenth amendment to the constitution,
which transferred a number of powers from the prime minister to the president, including
authority to dismiss the prime minister and the national assembly51.
48
Hasan Askari Rizvi, The Military and Politics in Pakistan 1947–86 [2000] p. 91–92
49
Article 173, Constitution of Pakistan 1962
50
Martial Law (Pending Proceedings) Order, 1985 [107 of 1985]
51
Sheila Fruman, Will the long march to democracy in Pakistan finally succeed? [2011], p. 6 available at
https://www.files.ethz.ch/isn/141381/Democracy_in_Pakistan.pdf (Accessed on January 9, 2020 at 10:51 PM)
The critics of Article 58(2)(b) in the 1985 legislative debates were prescient in many ways.
Pointing out Zia’s mala fides and the unprecedented nature of this provision, they had predicted
the negative fallouts of such concentrated power in an individual. As the Haji Saifullah Supreme
Court decided, Zia’s subsequent dissolution of the Junejo Assembly turned out to be based on
mala fides, and there is persuasive evidence to suggest that the three subsequent dissolutions
were also not fully devoid of bias and partiality. The critics had warned of insecure, non-
independent, and unstable governments, constantly wary of a trigger-happy President. The
subsequent short and shaky stints in power by Nawaz Sharif and Benazir Bhutto demonstrated
this. The critics were wary of the office of President getting politicized and vulnerable to
manipulation by vested interest groups. As it turned out, Ghulam Ishaq Khan and Farooq Leghari
could not keep their presidencies completely free of such influences. The critics had predicted
that instead of creating balance, Article 58(2)(b) would actually bring about constitutional
imbalance, and that instead of promoting stability, it would generate instability. Four dissolutions
in eight years lend considerable credence to that estimation. Indeed, some argue that Article
58(2)(b) has always been used in a partisan fashion, and, given the biased role of the Presidents
and the nascent state of democracy in Pakistan, all the dissolved governments should have been
allowed to complete their terms. 52 Their continuation would have helped entrench and
consolidate a culture of electoral politics and, eventually, a culture of constitutionalism 53.
52
53
Osama Siddique, The Jurisprudence of dissolution: Presidential power to dissolve assemblies under the Pakistani
constitution and its discontents [2006] p. 711 available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2207010 (Accessed on June 10, 2020 at 4:29 AM)
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Article 58 2b Constitution of Pakistan 1

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Article 58 2b Constitution of Pakistan 1

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Article 58(2b), Constitution of Pakistan, 1973 IMRAN AYAZ

Article 58 (2b), Constitution

IMRAN AYAZ (LL.M.)(LL.B.)

(i) Independence both real and perceived of the judiciary.

Constitution is "a transparent garment clinging to the body politic" 1.The

Nawaz Sharif’s government & reinstatement of SC anddismissal of Benazir Bhutto’s second

constitutional procedure of two-thirds majority, ratified Zia's Article 58(2)(b) as a constitutional

Ahmed Tariq Rahim v. Federation of Pakistan, PLD 1992 SC 646

Statutes and statutory instruments

Article 173, Constitution of Pakistan 1962

Abbas Hassan, Poleaxe or Politics of the Eighth Amendment, [1997] p. 7

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