Background

On 5-11-1996 President of Pakistan exercising his power under Article 58(2)(b) of the Constitution of the Islamic Republic of Pakistan issued Proclamation whereby National Assembly of Pakistan was dissolved and additionally Prime Minister Benazir Bhutto and her Cabinet ceased to hold office forthwith.

It was further mentioned in the said order of dissolution that as contemplated under Article 48(5) of the Constitution the President was pleased to appoint 3rd February, 1997 as the date on which General Elections would be held to the National Assembly.

In the result, Syed Yousaf Raza Gillani, Speaker of the National Assembly, filed in the Supreme Court of Pakistan directly C.P. 58 of 1996 on 11th November, 1996 challenging the validity of Order of Dissolution.

On 13th November, 1996 deposed Prime Minister Mohtrama Benazir Bhutto also filed in the Supreme Court directly C.P. 59 of 1996 challenging validity of the Order of Dissolution. On the objection from the office Court with regard to the language used in the Memorandum of petition, this petition was returned for rectification and was finally represented on 24th November, 1996.

Mr. Mahmood Khan Achakzai filed C.P. No.60 of 1996 on 23rd November, 1996 challenging validity of the dissolution order with prayer clause reproduced as under:

(1)   That provisions of Article 58(2)(b) of the Constitution being legally non-existent having ceased to be operative with the party-base election to the Parliament on the revival of the Constitution of 1973 and demise of the Chief Martial Law Administrator be declared as no more part of the Constitution.

(2)        Provision of Article 58(2)(b) and the action taken thereunder be declared violative of the Fundamental Rights of the petitioner.

(3)       The impugned provisions of the Constitution and the action taken thereunder be declared as against the basic structure of the Constitution and ultra vires of the Constitution.

 (4)  The impugned provisions of the Constitution having been incorporated by the Chief Martial Law Administrator and his Assembly elected under his dispensation prior to the lifting of martial law are no amendments to the Constitution of Pakistan and hence, may kindly be declared so.

(5)   The action taken under the aforesaid provisions of the Constitution may also kindly be declared without lawful authority, hence of no legal effect and the status of the Constitutional dispensation as it existed prior to the impugned action be restored.

(6)        Any other relief considered appropriate in the circumstances may also kindly be granted.

Since in all the three petitions mentioned above challenge was made to the validity of the Order of Dissolution dated 5th November, 1997 passed by the President, they had to be heard together.

President’s power under the 8th amendment to dissolve the National Assembly and dismiss the federal government had been controversial. This power was exercised on four occasions and each time was judicially reviewed. On two occasions the exercise of president’s power was held to be valid, while on two on two others it was held to be invalid.

A number of citizens and organizations had challenged the 8th amendment; some of these appeals were pending in SC since 1990. Chief Justice Sajjad Ali Shad decided to hear all such cases before the cases concerning the dissolution of National Assembly. For the obvious reason that if 8th amendment was held to be invalid then discretionary power to dissolve the National Assembly would not be available and consequently dissolution order would become void and unconstitutional.

SC constituted a bench of seven judges for hearing of cases relating to the validity of Eighth Amendment in the Constitution so that on the subject all these cases should be heard and disposed of together.

The main arguments raised by the petitioners were:

  • By promulgating and enforcing, inter se, the PCO, 1981 and Referendum Order, 1984 Zia violated the decision of the SC in Nusrat Bhutto’s case. This being so, the National Assembly and provincial assemblies elected in 1985 and their functioning thereafter could not be taken to be duly elected bodies under the Constitution.
  • The Basic Structure of the Constitution has been given in the Objectives Resolution and any amendment that violates such a basic structure would itself be invalid. The 8th amendment being violative of such basic structure by having altered its parliamentary character was liable to be struck down as invalid.
  • The National Assembly elected on non-party basis in 1985 was unconstitutional and illegal and thus could not amend the constitution.

The counsels for the Federation raised the following arguments in response:

  • That the judges hearing the case had taken oath under the constitution as amended by the 8th amendment. Therefore, they could not question it or allow it to be questioned.
  • That all the petitions were hit by the doctrine of political question. As the question of balance of power between the president and prime minister is a political question, the Court could not determine it.
  • The doctrine of de facto would favour the validation of 8th amendment as it has been in force for so long. Its invalidation after more than twelve years would affect large number of orders made or actions taken thereunder.

The SC after hearing the parties upheld the validity of 8th amendment. Court held that:

Article 239 cannot be interpreted so liberally to say that it is open-ended provision without any limits under which any amendment under the sun of whatever nature can be made to provide for any other system of governance, for example, monarchy or secular, which is not contemplated by the Objectives Resolution. Clause (6) of Article 239 provides for removal of doubt that there is no limitation whatsoever on the power of Parliament to amend any provision/provisions of the Constitution. It therefore, follows that Parliament has full freedom to make any amendment in the Constitution as long as salient features and basic characteristics of the Constitution providing for Federalism, Parliamentary Democracy and Islamic provisions are untouched and are allowed to remain intact as they are. It further stated that Eighth Amendment does not affect the basic structure of the Constitution because there is no basic structure in the Constitution of 1973 and salient features or special characteristics are mentioned in the Objectives Resolution which remained Preamble to all the four Constitutions promulgated in Pakistan. Objectives Resolution is harbinger to and beacon light of Constitution reflecting hopes and aspiration of people, who created Pakistan after sacrifices and insurmountable hardships and laid down guideline as to how they wanted to be governed. Objectives Resolution now is incorporated in the Constitution of 1973 by the Eighth Amendment as Article 2A which is now substantive part of the Constitution.

Court declared the Referendum Order to be legal and valid by saying that before Eighth Amendment and before even Revival of Constitution of 1973 which took place on 2-3-1985, President C.M,.L.A. promulgated President’s Order 11 of 1984 which is called Referendum Order, 1984. A perusal of this Order shows that before the commencement of Article 1 and short title, there is explanatory statement which is indicative of the fact that the President had initiated process of Islamisation of laws. In the first paragraph of this statement there is reference to the Objectives Resolution of 1949 and Preamble to the Constitution of Islamic Republic of Pakistan of 1973 to show that the intention was to enable the Muslims to order their lives in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah and to take measures in that respect…… President wanted to retain 1973 Constitution and wanted to revive it with balance between the powers of the President and the Prime Minister and introduction and consolidation of Islamic provisions.

The National Assembly elected on non-party basis was held to be constitutional and legal because when the President ordered General Elections to be held on 25-2-1985 on non-party basis the Fundamental Rights had remained suspended at that time. It is stated that for the election to the National Assembly the turn-out of the voters was 57 per cent. as is evidence from the record. In subsequent elections which were held in 1988, 1990 and 1993, the turnout was about 40 per cent. In the Elections of 1985 voters had rejected five Cabinet members and several other important persons who were associated with Martial Law Regime. Elections of 1985 were acknowledged by people at large, local and foreign media and diplomats as very fair. Political parties did not participate. Mr. Muhammad Khan Junejo was nominated by the President to be the Prime Minister and he made persistent efforts for termination of Martial Law.

Deciding the fate of article 58(2)(b) Court observed that 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. The country is entering into 21st- century still at the threshold as a developing country with many serious problems, as items high on our agenda including economic morass. We have to fix our priorities with extra caution and pragmatism.

Validating the 8th amendment Court said that if it is stated that Eighth Amendment was brought in by Parliament which was not elected on party basis then after that three elections took place on party basis in 1988, 1990 and 1993 which did not touch Eighth Amendment showing that they had acquiesced in the Eighth Amendment which amounts to ratification by implication.

We are therefore of considered view that Eighth Amendment including Article 58(2)(b) has come to stay in the Constitution as permanent feature. It is open to the Parliament to make amendment to the Constitution of any provision of the Eighth Amendment as contemplated under Article 239 as long as basic characteristics of federalism, parliamentary democracy and Islamic provisions as envisaged in the Objectives Resolution/Preamble to the Constitution of 1973 which now stands as substantive part of the Constitution in the shape of Article 2A are not touched.

Rejecting the doctrine of political question Court said that the fact that any questions a political question will not deter the Court from determining it provided the same involves the interpretation of Constitution or the validity of such question is to be determined on the touchstone of the Constitution—Court should not adopt “political question doctrine” for refusing to determine difficult and knotty questions having political overtones which would amount to abdication of judicial power which neither the Constitution permits nor the law allows—Any action taken, act done or policy framed which violates the provisions of the Constitution or is not permissible under the Constitution or law, the Court, irrespective of the fact that it is a political question, must exercise powers of judicial review—Abuse, excess or non­observance of the provisions of the Constitution has to be checked by the Court unless its jurisdiction is barred by the Constitution or law.

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