Let 17th stay!

arsa · #1 Saturday, January 17, 2009

Chaudhry Fawad Hussain
Saturday, January 17, 2009
The qualified power to dissolve the Assembly only serves to balance powers between the parliament, the government and the president, and there is no real need to amend the power at it stands now

Since the assumption by Asif Ali Zardari of the office of the President of Pakistan, sections of the media and various political parties are demanding the abolishment of the 17th amendment to the Constitution. Both factions of the Pakistan Muslim League — Q and N — as well as the MQM have already submitted their proposals for amending the Constitution.

What should we make of this? Let’s consider first the background.

On October 12, 1999, the army carried out a coup against the government of then-Prime Minister Nawaz Sharif and seized control. On October 14, 1999, the first step towards legalising the whole process was initiated. The first legal document introduced by the new regime was the Proclamation of Emergency. Under Article 1 of the said proclamation General Pervez Musharraf, Chairman Joint Chiefs of Staff Committee and Chief of Army Staff, assumed the office of Chief Executive of the Islamic Republic of Pakistan. The National and Provincial Assemblies and Senate were suspended and the Constitution was put in abeyance. On the same date the first Provisional Constitutional Order (PCO-1) was issued and the President of Pakistan was made subservient to the orders of the Chief Executive.

The first substantive step towards the reinstatement of constitutional government and legitimising the whole period came with the judgement of the Supreme Court in Syed Zafar Ali Shah’s case (PLD 2000 SC 869).

The SC legitimised the extra-constitutional step of October 12. However, the Court imposed the condition that the army government would have to hold elections within three years from the date of the judgement.

In an unprecedented shift to its previous practice the ruling gave the President restricted rights to amend the Constitution. After this judgement political events led to drastic changes in the basic structure of the state executive.

Through Chief Executive Order No 2 of 2001 the proclamation of emergency was amended and Mr Rafiq Tarar, who was then President of Pakistan, was relieved from office. On the same date the Chief Executive’s Order No 3 of 2001 was promulgated and for the first time General Pervez Musharraf assumed the office of the President of Pakistan. Accordingly, the Senate and all the Assemblies were dissolved.

In 2002, to further legitimise the assumption of the office of the President and to give the canvas of governance a democratic colour, President Musharraf decided to hold a referendum that was accordingly held on April 30, 2002. A real leap forward towards the implementation of the SC judgement was taken when the Legal Frame Order 2002 (LFO) was introduced through Chief Executive Order No 24 of 2002. Through Article 4 of LFO the Constitution of Pakistan, 1973, stood revived.

However, this revival was subject to major amendments in the Constitution.

The above amendments introduced through LFO brought drastic changes in the said Article and as a result General Musharraf became the head of State.

In accordance with the provisions of LFO, general elections were held on October 14, 2002. After the elections, a political deadlock occurred in the working of Parliament because the opposition refused to accept the LFO as part of the Constitution. This political deadlock ended after successful negotiations between President Musharraf’s team and the Mutahidda Majlis-e-Amal (MMA).

The Legal Frame Work Order was amended to accommodate the demands of MMA, which resulted in the passing of the 17th Constitutional amendment bill. This amendment in the Constitution not only practically repealed the 13th and 14th Amendments in the Constitution but also brought further changes in Part 3 Chapter 1 of the Constitution that enabled President Musharraf to retain the office of army chief in addition to his position as president.

Let’s now consider the major changes in the Constitution.

The 17th Constitutional Amendment brought the following major changes to the Constitution of Pakistan;

* An outsized part of subject amendment was person specific and dealt with the qualifications of president which have now become redundant in consequence of the resignation of President Musharraf.

* Numbers of seats in federal and provincial legislature have been increased.

* Women reserved seats and joint electorate have been introduced.

* The President regains the authority to dissolve the National Assembly and thus effectively to dismiss the Prime Minister — but unlike the eighth constitutional power this amendment does not give president absolute power to do so because the use of such power is made subject to an approval by the Supreme Court of Pakistan

* Governors also regain the power to dissolve a Provincial Assembly which is similarly subject to Supreme Court approval.

* Ten laws had been added by the LFO to the Sixth Schedule, which is a list of “laws that are not to be altered, repealed or amended without the previous sanction of the President.” After this amendment, five of those laws will lose their Sixth Schedule protection after six years. Laws to be unprotected include the four laws that established the system of democratic local governments.

* President shall appoint commanders of forces in consultation with the Prime Minister.

* President shall appoint Governors of the provinces after consultation with the prime minister.

What is the contentious issue here? The most contentious of the amendments introduced in Part III Chapter 1 of the Constitution, which deals with the qualification of the Person to hold the office of President, have become redundant. Therefore there is no need to comment on those provisions.

The most debatable issue over which even President Asif Zardari has come under pressure is the President’s power to dismiss the Government through dissolution of the National Assembly i.e. Article 58(2)(b). However, the point that most commentators have overlooked is that the power under this article is no longer an unfettered or unchecked authority.

Unlike the 8th amendment, the power under 17th amendment is well qualified through a proviso which says that “the President in case of dissolution of a National Assembly under paragraph (b) of clause (2) shall, within 15 days of the dissolution, refer the matter to the Supreme Court and the Supreme Court shall decide the reference within 30 days whose decision shall be final”.

We must not forget that Pakistan’s political history is packed with incidents of political upheavals. Certainly occasions do arise when the political situation leads to the necessity of an extraordinary decision and in such situations, instead of having no options, we must have an extraordinary Constitutional option. In support of my comments, I may refer the observations of the apex court recorded in two different cases.

Mehmood Khan Achakzai Vs Federation of Pakistan (PLD 1997 SC 426): while referring to Article 58(2)(b) and this utility in the background of the political character of this country the Hon’ble Supreme Court observes as under:-

“Much has been said against Article 58(2) (b) of the Constitution that it has changed the shape of the Constitution from Parliamentary to Presidential and has concentrated powers in the hands of the President who is not directly elected as is Prime Minister. Perusal of the Constitution, as it is, shows that it is not so and the apprehension is unfounded for the reason that this provision has only brought about balance between the powers of the President and the Prime Minister in Parliamentary Form of Government as is contemplated under Parliamentary Democracy. There is nothing unusual about it and such provisions enabling the President to exercise such power can be found in various Parliamentary and Democratic Constitutions like Australia, Italy, India, France and Portugal. In fact Article 58(2)(b) has shut the door on Martial Law for ever, which has not visited as after 1977”.

More recently in Watan Party Vs Chief Executive/President of Pakistan (PLD 2003 SC 74) the Supreme Court while referring to the repeal of Article 58(2)(b) by the Government of Mian Nawaz Sharif through 13th Amendment in the Constitution made the following remarks:-

“We can only wish that the then Legislature and Mian Nawaz Sharif at the helm of affairs had realized the implications of such repeal, Article 58(2)(b) was described as a safety valve against imposition of martial law/military takeover”.

The above referred judgements of the Hon’ble Supreme Court truly reflect the political quagmire of Pakistan. The qualified power to dissolve the Assembly only serves to balance powers between the parliament, the government and the president, and there is no real need to amend the power at it stands now.

The Author is a Lahore based lawyer/columnist
Daily Times

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