Pakistan was conceived by its founder as a parliamentary democratic country. Political forces in Pakistan have a consensus on the parliamentary form of democracy, which the two constitutions of the country, 1956 and 1973 drafted by the two respective constituent assemblies, amply reflect.
The passage of the 18th Amendment Bill by the current parliament is a step to restoration of original 1973 Constitution and would strengthen democratic institutions in the country. The credit goes to the present leadership of the PPP for restoration of real Constitution of the country.
The true spirit of 1973 Constitution was badly undermined in the past; lots of undemocratic amendments were made to perpetuate the autocratic regimes, Article 58-2b has been used as a political weapon to destabilise democratically elected governments. Unfortunatly, establishment’s intervention has not allowed nurturing the democratic process in Pakistan.
Pakistan’s early democratic experience after independence was chaotic, disorderly and characterized by instability, frequent shifts in political loyalties and difficulties in reaching a consensus on the constitution.
If we look back, Pakistan had seven democratic governments from 1947 to 1958, four of them failed to frame a constitution which is the first agenda of business in any democratic dispensation. However, after much wear and tear, the fifth government of Choudhry Mohammad Ali, who was not a politician but a bureaucrat, produced a constitution in 1956 which lasted for only two years.
One important challenge that Pakistan faced in this early period of its existence as a state was in the fundamental shift of power from Parliament to the Governor General who assumed a vice-regal supervisory authority over the Parliament. His aggrandizement of power was reflected in his dissolution of the Constituent Assembly in 1954, when it tried to clip his powers; a power that the Supreme Court of Pakistan confirmed. That fateful decision has ever haunted the politics of Pakistan, and the country has yet to clearly set itself on the path of parliamentary democracy.
The military leaders have thrice tried to reorient the Pakistani political system toward some sort of presidential form of government.
General Ayub Khan who was the first to try so many things was the first military leader to change the parliamentary system by replacing the 1956 Constitution by his own in 1962. He debased democracy in many different ways to suit his purpose and finally gave a new constitution to the country in 1962 to rule as an autocrat under its cover.
This constitution was abrogated by General Yahya Khan in 1969 who ruled Pakistan till 1971, when the country was disintegrated. In 1973, Prime Minister Zulfiqar Ali Bhutto gifted the nation with a constitution which was endorsed by all political parties of Pakistan.
General Zia-ul-Haq and General Pervez Musharraf altered the parliamentary structure of the 1973 constitution, purportedly to balance the executive power of the prime minister. With the provision of the 58-2b powers in the hands of the President.
The real reason for the exercise of control and dominance by the President over elected legislatures is the vague and unspecified claim of “guided democracy”. The claim of the proponents of the 8th and 17th amendments was that the country needed a balance between the powers of the Prime Minister and the President.
Secondly, it was claimed that the power of dissolution would “check” the excessive exercise of executive authority by the Prime Minister, and thus it would be a stabilizing factor.
Through these undemocratic amendments the President assumed a “supervisory position” over the elected government and judged its performance according to his own political interest. The power to dissolve the legislature became the instrument to destabilize elected governments. Four elected governments were dissolved by the sitting president within a span of eight years. It’s sad fact when first time Shaheed Benazir Bhutto came to power in November 1988.
But instead of Prime Minister Bhutto, it was President Ghulam Ishaq Khan (a bureaucrat) and General Mirza Aslam Beg as Army Chief who called the shots in foreign policy matters and succeeded through the manipulation of politics in sidelining Prime Minister Bhutto. General Beg also shamelessly pressurised the judiciary, and undermined the electoral process by distributing Rs 14 million to his favourite parties to create the Islami Jamhori Ittehad (IJI) which brought down the Pakistan Peoples Party (PPP) in the 1990 elections.
A free and independent judiciary is indispensable for parliamentary democracy to work within the limits of law and constitution. Unfortunately, the judiciary has with rare exceptions been facilitating the military regime. The acceptance of the doctrine of necessity has on critical occasions undermined the judiciary from working as the guardian of the constitution and protector of the sovereignty of the parliament. In Pakistan, Judiciary is identified as power broker. It has been facilitator under the cover of the Law of Necessity.
Chief Justice (CJP) of Pakistan, Iftkhar Muhammad Chaudhry, took oath as CJP under Mushrraf’s Provisional Constitutional Order (PCO), and legitimized the military coup. How can judges be independent if they are ever willing to facilitate the military rulers and civilian dictator?
The Supreme Court in 2000, declared that General Mushhrraf’s extra –constitutional coup d’etat of 12 October 1999 was ‘ validated on the basis of doctrine of State necessity.The Supreme Court or the high courts of Paksitan,has always rejected the cases which had been filed against military dictators disfiguring the Constitution.
The parliamentary consensus on the Constitution was undermined by the insertion of 58 2(b) under the 8th Amendment. It changed the fundamental character of the 1973 Constitution to a sort of executive presidency. The original spirit of the Constitution recognized the sovereignty of Parliament.
The Supreme Court of Pakistan has provided a legal umbrella to Musharraf’s regime. Musharraf’s referendum was upheld by the Supreme Court. On 12 May, 2000, the Supreme Court legitimized his action by ordering the government to hold general elections by October 2002.
Thus the Doctrine of Necessity was used to provide legal protection to the LFO. As Musharraf said, “The Supreme Court allowed me to amend the Constitution. I will not remove my military uniform, nor would give a time in this regard. I understand uniform has to be removed, as it is not democratic”.Technically, the 17th amendment legitimised the military coup of 1999 and the LFO inserted article 58-2b into the Constitution.
We saw in 2007 a decline of Musharraf’s regime. On 9 March, 2007, General Musharraf called Justice Iftikhar Chaudhry in his office and asked him to resign, which he refused to. Exercising his powers under Article 180 of the Constitution, Musharraf sent the Chief Justice home and thus go musharraf go movement turned into Cheif Justice restoration movement.
Election 2008 made history in Pakistan, PPP emerged as a biggest party and Asif Ali Zardari co-chairman was elected as 11th president of Pakistan. Mr. Asif Ali Zardari is the most popular, independent and civilian president of Pakistan, so therefore establishment has changed its game plan and now it is using Judiciary instead presidency to undermine peoples parliament and elected government.
All presidents cum dictators accused democratic governments of not listening to their advices, widespread corruption in the government the breakdown of law and order situation in the country and for seriously endangering the integrity and ideology of Pakistan,and deviation from the Constitution. After presidential dictatorship, now so called independent judiciary assumed a supervisory position over the elected government and “judged” its performance according to its own political interests???
Parliament is supreme and courts should respect the representatives of the people. Active judiciary should use its activism towards providing justice to the people and not just to target the President and his acolytes. Suo Moto creates unnecessary threats for the government and that discourages the initiatives and innovations. Good governance will come with a time and courts should allow this evolutionary process. Now people are openly raising questions that
If court has to take all decisions and set the rules of the game, then there is no need of this parliament, political parties, elections and democracy . Parliament has authority to change the fundamentals of the constitution and the judiciary can not interfere therein nor the Supreme Court can declare the amendment null and void. The bench of court of which Justice Iftikhar Chaudhry was member had delivered judgment in lawyers forum case in 2005 that parliament had full powers to change basic structure of constitution and court could not make any interfere in it.