COURTS AS REFEREES—ARTICLE 58(2)(B), PRESIDENT v PM
The 1990s in Pakistan are emblematic of the internecine conflict between the President and the Prime Minister in which the former’s power to dissolve elected assemblies under Article 58(2)(b) was repeatedly used.
There were four dissolutions, one by Zia, two by President Ishaque and then one by President Farooq Leghari in these years.In reading the cases that fall under the exercise of Article 58(2)(b) the first in 1988 and then through the 1990s, it is apparent that exercise of executive discretion is measured similarly whether the dissolution of an elected government happens by way of constitutional powers or by way of military coup. While the four cases adjudicating the presidential invocations of Article 58(2)(b) demonstrate a strong deference to executive decision-making, they together amount to a resounding cacophony of inconsistency about the extent to which the President’s ‘satisfaction’ should be considered justiciable. Also there are varied standards employed to assess the sufficiency of evidence about whether the decision approached some level of reasonableness.
The first case was heard after the death of General Zia-ul-Haq and tested the lawfulness of his actions to dissolve the Assembly elected on a non-party basis and headed by Muhammad Khan Junejo in 1988.[270] In taking up this case the Lahore High Court established the standard that in spite of Article 58(2)(b) the discretion of the President must be ‘based on facts and reasons which are objective realities’.[271] Given that the object had been given in the terms that ‘the government cannot be carried on.the discretion exercised must be justified in relation to material grounds proving this object; the burden was found not to have been met in this case. While this, the Saifullab judgment, established a higher threshold of showing governmental breakdown than in subsequent cases, the succeeding cases all follow it in structure but show no consistency on the conditions of breakdown that could give rise to its use.
The case was decided after Zia died in an airplane crash and the military high command had already requested the Chairman of the Senate, Ghulam Ishaq Khan to become acting President.[272]The three subsequent cases were all heard at the Supreme Court and all assumed, once again, the right to exercise revisional and supervisory jurisdiction.[273] In contrast to the sparse order of dissolution that had accompanied Zia’s actions in 1988, succeeding dissolution orders were issued with a range of more specific charges against the government to present first a public and then a legal justification for the action being undertaken. Notably, all of these dissolutions cited some form of constitutional stalemate, given the resignation of Cabinet or opposition members, and the consequent inability for the governmental machinery to operate or for legislative action to be undertaken. Further, they all also cited rampant corruption amongst high office holders as impairment on governmental functioning. For the two dissolutions that affected the government of Benazir Bhutto, the degeneration of the law and order situation in Karachi and the invasion of privacy through telephone wiretapping were also specifically included. The dissolution of the first Nawaz Sharif government followed upon a public speech in which he specifically alleged that President Ghulam Ishaq Khan was undermining his government’s authority. In three of these cases, issues of executive or prime ministerial incursions into judicial autonomy were also cited.
In reading these grounds against available evidence, which at times includes the post-hoc availability of press reports, the court veers widely rather than establishing guiding and certain threshold level conditions to establish what might be akin to a constitutional ‘emergency’ sufficient to warrant dissolution.[274] Rather, the goalposts themselves also change insofar as terms such as ‘imminent breakdown’, deadlock, impasse and stalemate are used at the same time that failure to protect fundamental rights or to ensure the rule of law are also invoked to try to assess the proper bounds for the exercise of Article 58(2)(b) powers.
These cases are exceedingly important in illustrating the realpolitik of the time, and the continuing impetus to democratic movements and parties to adequately close off possibilities for future presidential adventurism. The quick succession of governments did not create an immediate unity of interests against the ‘deep state’ though; the very existence of this presidential power was an effective inducement for opposition parties to frustrate and impede the functioning of government so as to precipitate a dissolution and a new round of elections. For this reason and others, the decade of the 1990s is associated with deep fractures in provincial/federal relations and low levels of legislative performance.
Additionally, these cases are also indicative of the ways in which the constitutional system had become ever-more a hybrid one between presidential and parliamentary.[275] This hybridity was itself validated by the Court in the 1997 case of Mahmood Khan Achakzai. The basic structure doctrine was once again invoked to assert that the Eighth Amendment and specifically Article 58(2)(b) upset the structure of parliamentary democracy in Pakistan. The Court, in repelling the doctrine and its application in Pakistan, also suggested that the division of powers between constitutional officers was of the order of a political question that it did not feel able to adjudicate upon. Interestingly, it offered justification for its oversight of dissolutions broadly as a power that stemmed from within the constitutional structure.[276]
Following upon General Musharraf’s coup in 1998 and in the ‘transition’ to democracy he engineered in the coming years, he acted under a judicial validation of the coup and self-assumed authority as Chief Executive to reincorporate certain provisions of the Eighth Amendment. While the power of dissolution was one mechanism of vesting ultimate sovereign authority in the office of the President, the Seventeenth Amendment of 2003 also once again increased the subject matters on which the President would exercise discretionary authority. The Eighteenth Amendment, passed in 2010, is the final instrument in this chain and reflects the primacy of an elected executive in the person of the Prime Minister and the role of the President reduced back to what it was in the original 1973 Constitution. Importantly, it repealed Article 58(2)(b).
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