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The Jurisprudence of Dissolutions: Presidential Power to Dissolve Assemblies Under the Pakistani Constitution and Its Discontents

2006; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Osama Siddique,

Turkey's Politics and Society

Since its emergence on 14 August 1947, Pakistan’s political and constitutional evolution has been interrupted by praetorian rule through several impositions of Martial Law, the most recent one imposed after General Pervez Musharraf’s military coup in 1999. Musharraf’s coup was legitimized by the judiciary, habitually relegated to the task of validating army take-overs through questionable jurisprudence. Musharraf continues to hold the dual position of President and Chief of the Army Staff, thus epitomizing the military’s historical role in Pakistan. The primary tool employed by him for controlling the recently revived political process is the highly controversial Article 58(2)(b) of the Constitution that entrenches tremendous political power in his person. This provision was originally inserted into the Pakistani Constitution in 1985 by Pakistan’s previous military dictator --- General Muhammad Zia-ul-Haq. Zia had also assumed power through a military coup in 1977 and ruled Pakistan mostly through Martial Law, until his controversial death in 1988 in a mysterious air crash.Article 58(2)(b) is arguably the most significant act of constitutional engineering in Pakistan’s recent history. It provides the President of Pakistan with untrammeled discretionary powers to dissolve elected governments on a largely subjective judgment of their performance. No previous constitutional arrangement in Pakistan offers a precedence or parallel for such powers and this has caused some commentators to describe the country’s existing constitutional structure as a hybrid of a parliamentary and a presidential system of government, or more critically, a hybrid of constitutional democracy and executive tyranny. Advocates of Article 58(2)(b) describe it as a ‘safety valve’ against imposition of direct Martial Laws that have ruled the country in the past. They argue that instead of the Army stepping in, as it has done in the past, to ostensibly resolve a constitutional stalemate, such stalemates can now be constitutionally resolved through the invocation of Article 58(2)(b). They further describe it as a source of adequate balance between Presidential and Prime Ministerial powers --- to bring greater political stability through a meaningful check over governmental excesses and incompetence that, according to them, led to constitutional crises in the past. They rely in particular on the constitutional stalemate of 1977 that led to Zia’s Martial Law.A strong contrary opinion is that Article 58(2)(b) has been a reason for rather than a solution to, acute political instability for Pakistan, as four elected governments were dissolved through it in the short span of eight years after its first invocation by Zia. This, to Article 58(2)(b)’s critics, has had hugely negative ramifications for a nascent democratic culture. Furthermore, these dissolutions were legally challenged and invariably, judicially legitimized. According to Article 58(2)(b)s antagonists, the resultant judicial pronouncements have undermined judicial integrity, capacity and consistency. After its repeal in 1998 whilst an elected government was in power, the re-emergence of this provision under Musharraf portends that quite apart from its telling historical role, Article 58(2)(b) can play an equally important part in shaping Pakistan’s future history. Like before, the President of Pakistan, who is currently also its Chief of Army Staff, has a constitutional mechanism to get rid of an elected government in a highhanded manner. Given the continuing political instability of the country and its weak institutional culture, a government that exerts any independence and does not fully subscribe to the Presidential view of things, is quite likely to be shown its way out in such a manner. An unstable Pakistan spells negative ramifications at a scale that transcend its national boundaries, and that makes it a very important case study.This article attempts to assess the place and significance of Article 58(2)(b) in Pakistan’s constitutional history; to gauge its capacity for providing a constitutional solution to its perennial political instability; and to determine the nature and extent of its fall outs, particularly its effect on the judiciary and judicial output.