The Constitution Eighth Amendment Act, 1985, introduced a quasi-presidential form of government in Pakistan and armed the President, General Zia-ul-Haq, with two distinct powers to change the duly elected parliamentary government of the day. Such extra-parliamentary powers of the President were super imposed on the quintessential parliamentary form of government adopted by the Framers of the Pakistan Constitution in 1973.

The two Presidential Powers were grafted on to Articles 58 and 91 of the Constitution in 1985. The power granted by virtue of Article 58 was the more drastic of the two and pursuant thereto, the President, in his discretion, can dissolve the National Assembly if, in his opinion, there is a constitutional breakdown in government and an appeal to the electorate has become necessary. Of course, by virtue of the dissolution of the National Assembly, the Prime Minister alongwith his cabinet is removed from office and a caretaker Prime Minister is appointed for a period of 90 days. Within the said period elections are required to be held to complete the process of change of Government and induction of a new Prime Minister.

The power granted to the President by amendment to Article 91(5) in 1985, empowers the President to effect an in-house change in government, by summoning the National Assembly and requiring the incumbent Prime Minister to obtain a vote of confidence from the Assembly. This power is in addition to and not in substitution of the power of the members of the National Assembly under Article 95 to move, by not less than 20 per centum of the total membership of the National Assembly, a resolution for a vote of no confidence against the Prime Minister. Thereafter, if the resolution is carried by a majority of the total membership of the National Assembly, the Prime Minister ceases to hold office.

GENESIS OF ART. 58(2)(B):
The genesis of the power of the President to dissolve the Parliament under Article 58(2)(b) can be traced back to the speech delivered by the Governor General of Pakistan, Mr. Ghulam Muhammad prior to the dissolution of the first Constituent Assembly of Pakistan in 1954. He emphasized in his speech that he had:

"…with deep regret come to the conclusion that the constitutional machinery has broken down…the constituent assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decide all issues through their representatives to be elected afresh."

Almost a quarter of a century later, in 1977, the Supreme Court, in the case of Begum Nusrat Bhutto v. the Chief of Army Staff, was of the view that "The representative character of the National and Provincial Assemblies was not accepted by the people at large. There was thus a serious political crisis in the country leading to a break-down of the Constitutional machinery in so far as the executive and legislative organs of the state are concerned. A situation had, therefore, arisen for which the Constitution provided no solution." The court justified the extra-constitutional step, taken by General Mohammad Zia-ul-Haq, in imposing martial law and dissolving the National Assembly on the basis of the doctrine of state necessity.

Eight (8) years thereafter, in 1985, General Zia-ul-Haq manipulated the passage of the Constitution Eighth Amendment Act, 1985 and Article 58(2)(b) thereunder provided, in relevant part, "….that the President can dissolve the National Assembly where, in his opinion,…the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and appeal to the electorate is necessary".

For a period of twelve (12) years, between 1985 and 1997 when Art. 58(2)(b) remained in force, a game of musical chairs was played out, first with Muhammad Khan Junejo and thereafter with Benazir Bhutto and Mian Muhammad Nawaz Sharif. In the presence of Article 58(2)(b) the powerful Presidents, namely, Zia-ul-Haq, Ghulam Ishaq Khan and President Sardar Farooq Ahmed Khan Leghari dissolved the National Assemblies of the day and dismissed the incumbent Prime Ministers without the need to justify their actions on the basis of the extra constitutional common law doctrine of state necessity. They could now purportedly justify their actions on the basis of Article 58(2)(b) that in effect constituted statutory expression of the doctrine of state necessity now grafted on to the Constitution of Pakistan. Such a graft accommodated deviations from Parliamentary Conventions and the quintessential parliamentary form of government, in the superimposed quasi-Presidential constitutional regime.

It is worth noting that the Supreme Court decided the Zafar Ali Shah case in 2000, in the interregnum between 1997 and 2002, when Article 58(2)(b) stood omitted from the constitution of Pakistan, by virtue of the passage of the Constitution Thirteenth Amend-ment Act, in the year 1997. In the circumstances, the Supreme Court, perforce, had to resurrect the doctrine of state necessity in order to justify the Proclamation of Emergency by President General Pervez Musharraf, the holding of the Constitution in abeyance, the suspension of the Majlis-e-Shoora and Provincial Assemblies, the bringing of the whole of Pakistan under the control of the Armed Forces and consequent dismissal of the elected government of Mian Muhammad Nawaz Sharif.

Article 58(2)(b) was reinserted in the Constitution by the Legal Framework Order, in 2002. The parallels that can be drawn, spanning a period of nearly 50 years, between 1954 and 2002, are testimony to experimentation with constitutional deviation by constitutional craftsmen in Pakistan.

POLITICAL CONDITIONS FOR USE OF ART. 58(2)(B) :
The years between 1988 and 1999 were a period when the strong and popular heads of the two leading political parties, vying for power in Pakistan, namely, Benazir Bhutto of the Pakistan Peoples Party and Mian Mohammad Nawaz Sharif of the Pakistan Muslim League (N), were also the leaders of the parliamentary groups of their respective parties. By virtue of the said position they were the automatic choice for the office of Prime Minister of Pakistan each time their party emerged as the majority party in the National Assembly. The said leaders were not figurehead Prime Ministers, but the sole, strong and effective leaders of their respective parties, calling the shots as they saw fit. In such circumstances, if differences between the troika consisting of the President the Prime Minister and the Chief of Army Staff, the defacto power at the helm of affairs of in Pakistan, became irreconcilable, the Presidents, in the said era, had no option but to have recourse to the drastic power granted to them under Article 58(2)(b) of the Constitution.

POWER TO EFFECT AN IN-HOUSE CHANGE:
The period between 1999 and 2004 has been characterized, in the main, by strong President/ Chairpersons of political parties that matter and weak figurehead leaders of the Parliamentary Groups of political parties within Parliament. Chaudhary Shujaat Hussain is President of the ruling Pakistan Muslim League (Q). Benazir Bhutto, Mian Mohammed Nawaz Sharif and Altaf Hussain are also the sole indisputable leaders of their respective parties. Though they are in exile (self imposed or otherwise) in all essential and important matters decisions are made not by the parliamentary groups of the said parties but by the heads of the said parties. The political environment in Pakistan, for the first time, was ripe for President General Pervez Musharraf, in collaboration with the indisputable leader of the ruling party, to ask Mr. Mir Zafarullah Khan Jamali to resign from the office of Prime Minister of Pakistan, on pain of exercise of his power, under Article 91(5) of the Constitution, to require him to seek a vote of confidence from the National Assembly, in case of his failure to do so. An in-house change in Government would avoid the taking of the drastic step of dissolving the National Assembly and calling for mid-term elections. Such a course may very well have resulted in a hung parliament and created more problems for the President than it would have solved.

In the absence of the evidence to the contrary, should one accept Mr. Jamali's word that his resignation was voluntary? In a newspaper report, appearing on the 29th of June, 2004, Chaudhary Shujaat Hussain was quoted as having claimed that the entire coalition parliamentary group had endorsed the decision of President, General Pervez Musharraf with regard to the removal of Mir Zafarullah Khan Jamali. However, in a televised talk with a group of reporters on the 30th of June, 2004, President General Pervez Musharraf is reported to have said that Mr. Jamali was not pressurized to resign and it was the internal decision of the Pakistan Muslim League (Q) that he should go. He is further reported to have said that a large number of people, within the party, were not happy with the performance of Mr. Jamali and had decided to change the leader of the House. He is reported to have said that he could very honestly tell the reporters that the change was brought about at the behest of Pakistan Muslim League's President Chaudhary Shujaat Hussain and other party leaders and that the decision to nominate Mr. Shaukat Aziz, as the next permanent Prime Minister, was also taken by Chaudhary Shujaat Hussain and other party leaders.

If the President had asked Mr. Jamali to resign, the right to exercise his power, under Article 91(5) of the Constitution must be deemed to be implicit in the request. On the other hand, if Mr. Jamali was asked to resign by the President of the party, Mr. Chaudhary Shujaat and other party leaders, their right to exercise their power, under Article 95 of the Constitution, must be deemed to be implicit in their request.

PRIME MINISTER-IN-WAITING :

The idea of a Prime Minister in waiting is alien to parliamentary democracy. Neither any parliamentary convention nor the Constitution, as amended to date, provides for enacting such a political scenario. There is no provision in the Constitution for an interim Prime Minister. Chaudhary Shujaat, the incumbent Prime Minister of Pakistan, is reported to have acknowledged as much, at his press conference on the 28th of June, 2004. Pursuant to Article 9 of the Political Parties Order, 2002 Mr. Shujaat was also required to relinquish his party office as President of the Pakistan Muslim League (Q), prior to taking oath as Prime Minister of Pakistan.

The designation of a Prime Minister-in-waiting is neither permitted nor provided for in the Constitution. This is all the more so if the person concerned does not possess the constitutional qualification to hold such high office at the time so designated, namely, membership of the National Assembly of Pakistan.

The scheme for appointment of the Prime Minister Pakistan, as laid out in Article 91 of the Constitution is simple. The President is required, under Article 91 (2)(A) of the Constitution, to "…..invite the member of the National Assembly who commands the confidence of the majority of members of the National Assembly to be the Prime Minister as ascertained in a session of the Assembly summoned for the purpose, in accordance with the Constitution." Pursuant to Article 91(3), the person so invited is, thereafter, required to obtain a vote of confidence from the National Assembly within 60 days of becoming Prime Minister. Nowhere does the Constitution provide for the appointment of an interim or stop gap Prime Minister till such time as another person attempts to qualify to become Prime Minister.

The letter and spirit of the Constitution provides for the members of the National Assembly to, in good faith, repose confidence in a member of the National Assembly for a period of five years, not in some one in anticipation of the emergence of a better candidate within two months. It is also worth pondering over the possibility that Mr. Shaukat Aziz may not qualify as anticipated by the ruling party. What then ?

In the prevailing political climate the people of Pakistan should be ready for a new round of musical chairs. This time however, in exercise or impending exercise of power under Article 91(5) and/or Article 95 of the Constitution, by the kingmakers.

Aqalmand Ra Ishara Kafi Ast
.
The writer is a Professor at SM Law College, Karachi.

Published in "The News" dated August 8, 2004