court-hammer-scales-670
The image shows a judge’s hammer. — File photo

ISLAMABAD, Nov 9: Conferring the power on the president under the 8th Amendment to sack successive governments by invoking Article 58(2b) of the Constitution fuelled an atmosphere of bitterness and the presidency remained pitted against political parties, the Supreme Court said in its detailed verdict in the Asghar Khan case.

Authored by Chief Justice Iftikhar Muhammad Chaudhry, the judgment issued on Thursday regretted that the office of the president remained pitched against political parties with full impunity without realising the constitutional sanctity of the office, a symbol of unity of the republic as head of the state under Article 41 of the Constitution.

In its short order issued on October 19, the apex court had ordered the federal government to take necessary action under the Constitution and the law against former army chief Gen (retd) Aslam Beg and former ISI director general Lt-Gen (retd) Asad Durrani for their role in facilitating a group of politicians and political parties to ensure their success against the rivals in the 1990 elections.

In his petition, Tehrik-i-Istiqlal chief Air Marshal (retd) Asghar Khan had accused the ISI of dishing out Rs140 million to a group of politicians to form the Islami Jamhoori Ittehad (IJI) and prevent Benazir Bhutto’s PPP from winning the elections.

The detailed judgment explained reasons why it held that late president Ghulam Ishaq Khan, Gen Beg and Gen Durrani had brought a bad name to the country, its armed forces and secret agencies in the eyes of the nation.

“The military regimes, besides derailing the parliamentary system of government from time to time, also mutilated constitutional provisions, particularly by introducing Article 58(2b) to the Constitution through the Eight Amendment in 1985 and 17th Amendment in 2003,” the detailed judgment observed.

By means of these amendments, the president was made stronger and the parliamentary system of government was converted into semi-presidential type. Instead of strengthening the prime minister, the chief executive of the country and leader of the house in terms of Article 91 of the Constitution, the powers had been shifted to the president who was empowered to dissolve the National Assembly under the now defunct Article 58(2b), the verdict said.

Unfortunately, the National Assembly comprising chosen representatives of the people was subjected to dissolutions in 1988, 1990, 1993 and 1996 in exercise of power under Article 58(2b). As a consequence, provincial assemblies were also dissolved.

Fortunately, the verdict said, the present parliament through the 18th Amendment had repealed almost all amendments to the Constitution which had been introduced during unconstitutional eras headed by army generals in uniform.

“What could be more unfortunate for the nation that from 1977 to 1988 and Oct 1999 to Dec 2007, the president had been, in uniform of Pakistan Army, purportedly functioning as civilian president against constitutional precepts,” it regretted.

The verdict, however, conceded that during the time when the country was being governed unconstitutionally, both the judiciary and parliament had been facilitating the adventurers. But the Supreme Court in the July 31, 2009, Sindh High Court Bar Association case revisited the previous judgments validating military rules and finally held that any unconstitutional act of the martial law authorities would not be validated by the judiciary and in future judges of the superior courts would not take oath under any unconstitutional dispensation.

The objective, it said, was to strengthen the institutions of parliament and democratic system of government where the state was to exercise its powers and authority through the representatives chosen by people.

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Comments are closed.

Comments (13)

MJ
November 10, 2012 9:12 pm
Pot calling the Kettle black!
M.AKRAM NIAZI
November 10, 2012 5:28 am
Good advice for politicians, president and military rulers.
pathanoo
November 10, 2012 5:38 pm
May be this will lead to some changes. Though I am afraid to hold my breath for the results.
A Sheikh
November 11, 2012 1:58 pm
I have seen several comments by readers in the past couple of days, where people want Army to come back and bring and end to the lawlessness and corruption. I am not surprised - Army has taken over the country under similar circumstances previously. For obvious reasons all politicians get together and bring them down. When Bhutto ruined the economy of the country in the name of Roti Kapra Makan, the parliament wasn't able to do much more than what it does today. SC comments are just a Red Herring.
Yasir
November 11, 2012 7:19 am
Yesterday 10th Nov-12 in GEO interview with Aslam Baig. His message was loud and clear that do not mess with the army, as if they are above the law.
Dr. Emile Unjom
November 11, 2012 1:02 am
It is sad what Pakistan has faced and edured to come to the present pathetic position. No wonder the mighty generals get drunk with power and behave as almighty, without any regard for any thing other than their self interest. it is shameful, but to what avail.
Shahjahan Bhatti
November 10, 2012 5:50 am
What's the punishment for high treason? Let's prove no one is above law.
imransaudi
November 10, 2012 6:10 pm
Bravo ! We love you more than our mothers. You are hope for Pakistan. I strongly recommend that you remain our Chief Justice all you life.
imransaudi
November 10, 2012 6:07 pm
BRAVO ! OUR DEAR CHIEF JUSTICE- WE LOVE YOU MORE THAN OUR MOTHERS.
ishrat salim
November 10, 2012 10:25 am
Good...take the bull by its horn, but do not demonise any institution for the acts of few....
Syed Ahmed
November 10, 2012 3:02 pm
Not withstanding the observations made by the Chief Justice of Pakistan the past and present democratic government’s role had be dictatorial in nature and polices that benefited the feudal alone which lead to chaos in the country and paved way for the boots to march in the corridors of power. They were welcomed by many politicians who later worked hand and glove with the military regimes to serve the masses. The Ayub Khan era (October, 1958 to March, 1969) is regarded as one of the best periods of stability in Pakistan’s history. Pakistan was seen as a model of economic development around the world. Many countries sought to emulate Pakistan's economic planning strategy and one of them, South Korea, borrowed its second "Five-Year Plan", executed it in letter and spirit and sought to shift South Korean state into a high-tech industrialized economy. General Zia ul-Haq devised policies led to gradual de-privatization and subsequent rejuvenation of a previously declining economy that boost the confidence of private investors and promote the welfare of Pakistani citizens. The expansion of the industrial sector under Zia was equally impressive. Per capita income in the 1980s was about 25% higher than India (close to $500 per head compared to India’s $390). The price level again remained well in-checked and average Pakistani was better fed and clothed. Musharraf era was the best era in terms of improving the lives of the ordinary folks in Pakistan since the Ayub-era in the 1960s. Strong economy helped create millions of new jobs and lifted millions out of poverty. Social indicators improved significantly and the the size of the middle class grew dramatically. In the third dictator’s period a loaf of bread cost Rs.2 which is now for Rs. 6. Sugar was Rs.14 to Rs.16 and is now it is being sold for Rs 65-70 per kg in the open market. Dollar exchange rate during dictator’s period was Rs.60 which is now Rs.94. According to the selected economic indicators military dictatorship has proven to be much better form of government for Pakistan when compared with the PPP and PML(N). The military should have constitutional role in governance of the country.
Khan
November 10, 2012 2:39 pm
Does the verdict mentioned that its the same CJ and other Judges who validated the unconstitutional take over by military in the past hence action again them should also be taken
syed
November 10, 2012 8:01 pm
Clapping is done with two hands and not with one,If CJ is so enthused to dish out the verdict against the generals then what about the politicians. Justice means equal treatment meted out to all. This is not justice it is favoritism. Generals have clearly indicated whom the money was given and the reasons for it. CJ should concentrate on his duties as a judge and clean his own house including his own personal house ( son allegations) before embarking upon the ambitious plan of correcting politics of Pakistan
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