JURIST Contributing Editor Ali Khan
of Washburn University School of Law says that the proposed 18th Amendment to Pakistan's constitution limiting presidential power and punishing judges who might support military coups and constitutional subversions may offer some short-term benefit, but it will not solve Pakistan's constitutional woes....
he Pakistan People's Party (PPP) will soon propose to Pakistan's Parliament an amendment to the 1973 Constitution. The proposed 18th Amendment would reportedly abolish Article 58 (2)(b) of the Constitution, which empowers the President, in his sole discretion, to dissolve the National Assembly. The amendment would also strengthen Article 6 of the Constitution to punish judges who would in future support military coups and constitutional subversions.
This essay argues that the proposed 18th Amendment is an exercise in futility. Unfortunately, no constitutional amendment will prevent future military adventurism unless the political and military leadership is committed to honor the Constitution. As discussed below, however, the culture of the ruling elites has no respect for the rule of law. Historical See-sawing of Article 58(2)(b)
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 non-existent powers of the Army Chief, General Zia ul Haq, 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.
Note, 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 Army Chief - 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 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.The Underlying Problem
Article 58(2)(b) is not Pakistan’s underlying problem. The problem lies deep in the Pakistani culture of power. Granted, most political and military rulers are patriotic men and women who want to do good for the nation. However, the power culture sees the rule of law as an inefficient barrier to make and execute policies. The rule of law has always been the slogan of the opposition and rarely that of the government.
Right now, for example, the power has gravitated toward Asif Zardari, the PPP Chief, who is not even an elected member of the Parliament. Exercising dynastic powers that he inherited from his wife Benazir Bhutto, who was assassinated before the general elections, Zardari is calling the shots from the Zardari House. The Prime Minister, supposedly the head of the government, is serving as a loyalist subordinate. The Law Minister, responsible for the drafting of the 18th amendment, is not even an elected member of the National Assembly. Most important, the National Assembly, where Zardari and Sharif’s parties have a solid majority, is waiting for party bosses to issue orders, from outside the Parliament, on what needs to be done in the Parliament.
This subservience to party bosses explains why in the past the Parliament has mindlessly ratified both the constitutional inclusion and exclusion of Article 58(2)(b). Rarely do members of the Parliament think independently. And those who think rebel against the party and form another group. Each course of action is contrary to the democratic process.
In a respectable parliamentary democracy, party discipline is a cherished value. However, each elected member of the Parliament represents the constituency and the nation, in addition to towing the party line. Likewise, party bosses are democratic both within the party and the Parliament. They do not establish personal fiefdoms to rule their “tribes” in the party or the Parliament and demand mindless subservience.
Between mindless subservience and open rebellion lies the precious space for democracy where ideas are openly exchanged with respect and dignity and where the rule of law is not traded for narrow interests. To preempt future constitutional disruptions, Pakistan needs to develop this precious space. Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas, and the author of the book, A Theory of Universal Democracy (2003). Many of his publications are available here.