Article 58(2)(b): dissenting view
Dawn has editorialised more than once the need for doing away with Article 58(2)(b) of the Constitution. The opposition and the lawyers community have also demanded likewise.
In this regard I may say that this article is worth retaining in view of our chequered political history. The then chief justice of Pakistan Sajjad Ali Shah in his judgment in the Mahmood Khan Achakzai case had observed that 58(2)(b) had not changed the basic contours of the Constitution but had shut the door on martial law forever.
When the three pillars of the state — the executive, parliament and the judiciary — are at loggerheads, the government is unable to function in accordance with the Constitution. And when the president is disabled from preventing the crisis and averting the disaster of economic collapse of the country, there remains only two alternatives. First, display of street power resulting in massive bloodshed which seldom succeeds in dislodging the government. Second, military intervention proclaiming martial law.
We have witnessed this episode more than thrice and had a bitter experience. Marital law does not provide a panacea for our political ills. When the army chief assumes power, he either abrogates the Constitution or puts it in abeyance for fear of being tried for treason. In such a situation superior courts are placed in a precarious position and have to reiterate the doctrine of necessity.
To deter the extra-constitutional steps, it is imperative to retain article 58(2)(b) so that the powers of the president to intervene remain intact. If the president is satisfied that the government cannot function in accordance with the Constitution, he could suspend the government and assemblies for a transient period and make a reference to the Supreme Court and get it adjudicated as to his bona fide intent. The Supreme Court may either accept his plea for dissolution of the assemblies or dismiss the reference.
Supremacy of the parliament cannot be disregarded. Yet the fundamentals of the Constitution based on the Objectives Resolution cannot be altered. A brute majority in parliament cannot be permitted to bring about a despotic rule. The article is much needed at least for a decade till our politicians mature democratically in letter and in spirit.
SAIFUDDIN E. CONTRACTOR
Karachi

