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Military regimes mutilate provisions of Constitution: SC

November 09, 2012

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.