Latest revision as of 13:36, 10 January 2015

[edit] Dissolution of Assemblies:Pakistan

Presidential Power

A tidal wave

Reviewed By Javed Bashir

Dawn

A tidal wave

Pakistan, in the throes of a seminal struggle for parliamentary sovereignty, remains at odds with constitutional and extra-constitutional impediments that stymie its progress towards genuine democratic rule. Today, even though an elected government has taken over as a result of the elections of February 18, the threat of dissolution of assemblies through article 58(2) B, whose presence in the basic law negates the very essence of a parliamentary form of government, hangs like the sword of Damocles over democratic institutions. It threatens to subvert the democratic process and the broad-based consensus it implies, especially as a besieged president refuses to accede to popular demand for his resignation.

Prof Osama Siddique’s well-researched book, The Jurisprudence of Dissolutions: Presidential power to dissolve assemblies under the Pakistan Constitution and its Discontents, is a balanced critical analysis of vital issues, both legal and political, influencing and leading to dismissal of elected governments from Zia to Musharraf. The author’s insightful approach illumines the historical and strategic imperatives contributing to this dangerous trend manifesting itself in the accretion of power by an overbearing executive on the plea of resolving the political stalemate.

Recurrent derailment of the democratic process embraces several crises in government and in the words of Professor Henry Steiner, cuts to the very nature of Pakistan’s governing ideals and structures. The founding principles envisaged a parliamentary democracy with a constitutional president without executive authority. Yet, repeated impositions of praetorian rule both through direct military takeover and mechanisms thwarting the people’s will on subjective grounds have ironically contributed to further political instability and eroded the ethos and confidence of parliamentary institutions.

The Constitution vests considerable discretionary authority in the president to exercise the dissolution provision, which greatly upsets the balance of power between the head of state and the head of government. In an effort to understand the genesis of this encroachment on parliamentary power, the writer traces the challenges and conflicts posed by two different governing laws shortly after Pakistan’s independence, distinct in the history, emphasis and approach to governance. He writes: after Pakistan’s emergence as an independent nation-state, two acts of the British Parliament governed its political framework. The Government of India Act 1935, an imperial holdover acting as a de facto provisional constitution, carried over the office and power of the governor general, who represented the British crown for purposes of government of the federation. The other was the forward-looking Independence Act 1947, which created a constituent assembly to perform legislative functions and more crucially to frame the country’s first constituent assembly. The challenges of constitution-making and law-making constantly encroached upon each other.

Effective governance, in the author’s opinion, is a formidable task made more difficult in Pakistan’s case by increasing conflict between the Constituent Assembly and the office of the governor general. The dissolution of the assembly that it resulted in was most controversially upheld by the country’s highest court through a purely technical and unpersuasive interpretation of law, laying down the respective jurisdictions and powers of the assembly and the GG. Pakistan’s first constitutional debacle emerged when constitution making through a transparent, popularly accepted process was under way, dealing a serious blow to the sanctity of democratic institutions. Pakistan never quite recovered from this setback. Three subsequent attempts at framing and sustaining a constitution in 1956, 1962 and 1973 came to a premature and abrupt end due to martial laws in 1958, 1969 and 1977, respectively, which either abrogated or put these constitutions in abeyance. In essence, the situation illustrated the underlying tussle between the legislature and the executive, which took unabashed advantage of fluid political situations and constitutional structures and governance inexperience.

After Ghulam Mohammad’s dissolution of the Nazimuddin government in 1954, five successive prime ministers: Bogra, Chaudhry Mohammad Ali, Hussein Shaheed Suharwardy,I.I. Chundrigar and Malik Feroz Khan Noon fell in the pre-martial law era. The constitution of 1962 which emerged during the rule of general Ayub Khan provided for a government comprising a president and a National Assembly. It laid out not just a presidential form of government but a president-centric one. The powers given to the president were considerable and the checks on his exercise of that power were minimal. Still there were restraints on the president’s power to dissolve the assembly. Article 23(3), according to Osama Siddique, precluded the possibility of the president dissolving the assembly as a pre-emptive strike. Article 24 acted as a deterrent against the president taking the dissolution decision in a cavalier fashion by mandating that after dissolving the assembly he too was to cease holding office.

The 1973 constitution reversed the situation by concentrating power in the office of the Prime Minister and presidential power was strictly subject to the latter’s advice. It included safeguards against the PM’s abuse of dissolution as a pre-emptive tactic against a vote of no-confidence or a revenge measure if the PM had already been unseated by such a successful vote. This makes clear to what extent 58(2) B marks a dramatic expansion of presidential power to control elected assemblies. Never before has the president been given such untrammelled discretionary authority with seemingly no accountability for wrongful or erroneous use of power. This, according to the author, is one of the fundamental shortcomings of 58(2) B.

Zia’s martial law was distinct from previous martial laws in one respect. While his predecessors abrogated the constitution, Zia put the constitution in cold storage, resurrecting it at a later stage with crucial structural changes for enhancing his own power and entrenching his rule. The eighth amendment of which 58(2) B was a part placed unprecedented power in the office of the president. The power of dissolution under this provision was broader and more subjective than under any previous constitutional arrangement. Admittedly, blatant martial law was not imposed between 1985 and 1998 when 58(2) B was in force. But the military intervened soon after it was repealed. It is equally true that, although cited as a safety valve against martial law, between 1985 and 1998 four governments fell in quick succession due to the invocation of this constitutional contrivance. Consequently, revival of democracy and the prospect of political institutions striking root was repeatedly impeded before Musharraf assumed power through military coup and suspension of constitution. Thus 58(2) B, far from resolving the political stalemate which was its avowed goal, has been a source of further instability with far-reaching negative ramifications, in the words of the author for the legislature and the judiciary, and the executive.

The adverse impact on the judiciary is a major concern of this book. He puts into perspective the view of different commentators that the displacement of political space and sidelining of representative pluralistic and accountable political activity caused by multiple dissolutions created a vacuum which the ruling elite filled by dragging the judiciary into the political arena. Key debates on the country’s political ethos, structure and mode of governance were not held in the legislature but in the court rooms.

Osama Siddique has incisively examined the extraordinary challenges that presented some of the most complex legal dilemmas confronted by any contemporary political system. Judges, according to him, as appointees that lack constituency have proved much more vulnerable to coercive pressure than the larger body-politic. In short, the dissolution under 58(2) B caused the judiciary to regularly adjudicate upon and legitimise the vires and fides of presidential action leading to highly controversial results and contributing to confusion about appropriate state structures and mode of governance more than half a century after Pakistan’s emergence as a sovereign state.

Osama Siddique, through a case-by-case study of various dissolutions through 58(2) B, has focused on the negative externalities in terms of contradictory and inconsistent jurisprudence and the resultant adverse impact on judicial neutrality and public perception. This book has heightened the topicality of the issues spawned by 58 (2) B in the current political environment. Through this provision President Musharraf, perceived as a key western ally in the so-called war on terror, exerts a fatal hold on the recently revived political process. Thus 58(2) B is not a topic of mere intellectual interest, but has potential for influencing Pakistan’s future.

The book, being a valuable addition to the legal literature on this burning issue, should serve as a guide and ready reference for legislators, the legal fraternity and the media.

Osama Siddique teaches law and policy at LUMS, besides being a regular participant in international conferences and a frequent political commentator on legal and political developments in Pakistan.

The Jurisprudence of Dissolutions: Presidential Power to dissolve Assemblies under the Pakistani Constitution and its Discontents.

By Osama Siddique Zaki Sons, Karachi ISBN 978-969-8372-12-5 138pp. Rs600