ARTICLE 58--FROM EIGHTH TO SEVENTEENTH AMENDMENT
By:
LT. COL. (R) MUHAMMAD YOUNUS*
INTRODUCTION
Article 58 of Constitution of Pakistan
1973, grants discretionary powers to the President of Pakistan to dissolve the
National Assembly under conditions and mechanism as envisaged in the Article.
The original Article 58 had been amended first by RCO (Revival of Constitution
of 1973 Order) 1985, then by Eighth Amendment Act 1985, followed by Thirteenth
Amendment Act 1997, then by LFO 2002 and lastly by Seventeenth Amendment Act
2003. The original Article 58 read as follows:
"Article 58. Dissolution of National Assembly. The President shall
dissolve the National Assembly if so advised by the Prime Minister; and the
National Assembly shall, unless sooner dissolved, stand dissolved at the
expiration of forty eight hours after the Prime Minister has so advised.
Explanation: Reference in this Article to Prime Minister
shall not be construed to include reference to a Prime Minister against whom
resolution for a vote of no confidence has been moved in the National Assembly
but has not been voted upon or against whom such a resolution has been passed
or who is continuing in office after his resignation or after the dissolution
of National Assembly, or a Federal Minister performing the functions of a Prime
Minister under clause (1) or clause (3) of Article 95."
Article 58 forms part of Part iii Chapter 2 of the
Constitution which deals with the subject of the Majlis-e-Shoora
(Parliament). The formation and effect of this Article makes it far heavier in
weight to all other Articles in this chapter. The exercise of discretionary
powers by the President under this Article frequently came under discussion in
political as well as judicial forums. The author aims at analyzing Article 58,
its amendments and affects it had on the democratic process in
AMENDMENTS IN ARTICLE 58
Article 58 had been amended from time to time. The
details are as under:
> RCO-2nd
March 19851. The amendment under RCO included :
(i) Article 58 renumbered as Article 58 (1).
(ii) Under
Explanation words "or a Federal Minister performing the functions of Prime
Minister under clause (1) or clause (3) of Article 95 omitted.
(iii) Clause 2 added
which read:
"(2) The
President may dissolve the National Assembly in his discretion where, in his
opinion, an appeal to the electorate is necessary."
> Eighth
Amendment-- 9 November 19852. This amendment adopted the provisions of RCO with
few modifications in Article 58 as under:
(i) Under Explanation words "notice of resolution for no
confidence has been given" were substituted for the words "resolution
for a vote of no confidence has been moved."
(ii) Clause 2 of
RCO was substituted with new clause which read :
"(2)
Notwithstanding anything contained in clause (2) of Article 48, the President
may also dissolve the National Assembly in his discretion where in his opinion,
(a) a vote of
no confidence having been passed against the Prime Minister, no other member of
the National Assembly is likely to command the confidence of the majority of
the members of the National Assembly in accordance with the provisions of the
Constitution as ascertained in a session of the National Assembly summoned for
this purpose: or
(b) a situation has arisen in which the Government of the
Federation cannot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary."
THE EXERCISE OF POWERS BY THE PRESIDENT
UNDER ARTICLE 58
(AS AMENDED BY EIGHTH AMENDMENT)
The original Article 58 empowered the President to
dissolve the National Assembly only if advised by the Prime Minister. Thus the
real power of dissolution vested in the Prime Minister whose advice was
mandatory for exercise of the power by the President. The Article 58 as amended
under Eighth Amendment, now empowered the President as well, to dissolve the
National Assembly in his discretion but as a precondition he has to form an
opinion objectively that a situation has arisen of the kind envisaged by the
Article which necessitates and justifies the dissolution.
The exercise of discretionary powers by the President to
dissolve the National Assembly, has led to many serious political problems and
legal conflicts in the past. Resultantly the National Assemblies elected in the
years 1985, 1988 and 1990 could not complete their terms of five years and stood
dissolved. The details are as follows:
> First Exercise of Power under Article 58 -- 29 May
1988
In our constitutional history the discretionary power
available to the President under Article 58 (2) (b) was exercised for the first
time on
Simultaneously the Governors of all the four Provinces
dissolved the Provincial Assemblies and dismissed the Provincial Cabinets.
This dissolution order was challenged before Lahore High
Court in Muhammad Sharif v Federation of Pakistan3,
being unconstitutional, without lawful authority and of no legal effect. A Full
Bench of Lahore High Court held that on the stated grounds drastic action of
dissolving the highest representative body could not be upheld. The Court
however did not provide any relief in respect of restoration of Assembly4.
In appeal at the Supreme Court of Pakistan in the case
titled Federation of Pakistan v Haji Saif Ullah5, the judgment of the Lahore High Court was
upheld. The Supreme Court in this case laid down two important principles:
(a) The first is
the justiciability of the order of dissolution on the
yardstick of objective criteria.
(b) The second is
that the exact objective criterion is required for sustaining such an order of
dissolution.
> Dissolution of National Assembly under Article 58 --
The polarization between Central Government and Provincial
Government of Punjab, coupled with deteriorating law and order situation,
created lot of difficulties in the way of smooth running of the state. Finally
on
The order of dissolution was challenged before Lahore
High Court and Full Bench of the Court decided the case titled Khawaja Ahmed Tariq Rahim v Federation of Pakistan7, disposing five similar
writ petitions. The Court upheld the order of dissolution passed by the
President and dismissed the petitions through short order on
In appeal, the Supreme Court upheld the judgment of
Lahore High Court by majority whereas two Judges gave their dissenting views.
The Court after examining the material produced by the Federal Government in
support of the grounds of dissolution order came to the conclusion that the
dissolution order of the President was justified. Thus the appeal was refused.8
> Dissolution of National Assembly under Article 58 --
In the changed setup the relations between the President
and the Prime Minister which had been cordial in the beginning started turning
sour with the passage of time. On the evening of
The Speaker of dissolved National Assembly initially
challenged the dissolution order in Lahore High Court. Then the dismissed Prime
Minister moved the Supreme Court under its original jurisdiction by invoking
Article 184 (3) in the case titled Muhammad Nawaz Sharif v Federation of Pakistan9. The petition required
decision on the two main questions as formulated by the Court:--
(i) Is the petition under Article 184 (3) of the Constitution
maintainable?
(ii) If so, has the
President exceeded the powers conferred on him under Clause (b) of Article 58
(2) of the Constitution in ordering the dissolution of the National Assembly?10
The petition was heard by a Bench of eleven judges headed
by the Chief Justice Dr. Naseem Hassan
Shah, from 26 April to
> Dissolution
of National Assembly under Article 58 --
After the general elections a new Prime Minister was
elected on
In these circumstances on
The seven judges Bench of Supreme Court including Chief
Justice heard the petition from
(i) What is the basic structure of the Constitution is a question of
academic nature.
(ii) Eighth
Amendment is valid part of the Constitution.
All the seven judges subscribed to the judgment and
conclusion, whereas one judge while agreeing with the conclusion wrote his
separate reasons.
Repeal, Revival and Addition in Article 58
> Thirteenth
Amendment Act - 4 April
> LFO 2002 -
21 August 2002.17 Once again revived Clause (2) (b) of Article 58 of the
Constitution.
> Seventeenth
Amendment - 31 December 2003.18 LFO 2002 duly modified was adopted in this
amendment. New clause 3 was added in Article 58 as under:
"(3) The President in case of dissolution of
National Assembly under paragraph (b) of clause (2), shall within fifteen days
of the dissolution , refer the matter to the Supreme Court and the Supreme
Court shall decide the reference within thirty days whose decision shall be
final."
Both the Houses of Pakistan's bicameral Parliament passed
the Seventeenth Constitutional Amendment, with two third majorities in their
separate sittings, within a span of just five days. The National Assembly,
where the bill was introduced on December 26 passed it on December 29 and the
Senate just within 24 hours of its passage by the
Legal Position of Eighth Amendment and
Art. 58(2)(b)
In the Mehmood Khan Achakzai case20 the judgment of Supreme Court upheld the vires of Eighth Amendment in general and that of Article
58(2)(b) in particular. It was observed that Eighth
Amendment was duly debated in the Assembly and it did not provide blanket cover
to all the provisions of the RCO. It rather dilated the RCO especially with
reference to power of the President Vis a Vis Prime Minister and his power to dissolve the National
Assembly. In his leading judgment of this case the Chief Justice held:--
"-- Much has been said against Article 58(2)(b) of
the Constitution that it has changed the shape of the Constitution from
Parliamentary to Presidential and has concentrated powers in the hands of the
President who is not directly elected as is Prime Minister. Perusal of the
Constitution, as it is, shows that it is not so and the apprehension is
unfounded for the reason that the provision has only brought about balance
between the powers of the President and Prime Minister in Parliamentary form of
Government as is contemplated in Parliamentary Democracy. There is nothing
unusual about it and such provisions enabling the President to exercise such
power can be found in various Parliamentary and Democratic Constitutions like
-----We are therefore of considered opinion that Eighth
Amendment including Article 58(2)(b) has come to stay
in the Constitution as permanent feature. It is open to the Parliament to make
amendment to the Constitution of any provision of Eighth Amendment as contemplated
under Article 239 as long as basic characteristics of federalism, parliamentary
democracy and Islamic provisions as envisaged in Objective Revolution Preamble
to the Constitution of 1973 which now stands as substantive part of the
Constitution in shape of Article 2A are not touched21.
In the recent past Supreme Court once again went into
judging the effect of taking away Article 58 (2) (b) from the Constitution,
while deciding Syed Zafar
Ali Shah case22 the Chief Justice wrote:--
"Probably the situation could have been avoided if
Article 58 (2) (b) of the Constitution had been in the field, which maintained
Parliamentary form of Government and had provided checks and balances between
the powers of the President and the Prime Minister, to let the system run
without any let or hindrance and to forestall the situation in which Martial
Law can be imposed. With the repeal of Article 58(2)(b)
of the Constitution, there was no remedy provided in the Constitution to meet
the situation like the present one which the country was
confronted23--------------------.
CONCLUSION
Article 58 of our Constitution empowers the President to
dissolve the National Assembly after having formed an opinion in the light of
the constitutional provisions. This Article has been amended five times by
those in power, driven by the desire to perpetuate their rule. All the
amendments had been made to suit own particular needs. However most of the
amendments were carried out in haste and without sufficient debate, by
suspending the normal rules of procedure for conduct of Parliamentary business.
It was only Eighth Amendment on which debate continued for few months in the
Parliament before its adoption in October 1985. Although the Supreme Court
upheld the vires of Article 58(2)(b)
in particular and that of Eighth Amendment in general, yet the four successive
dissolutions in such a short span of time was not approved by the political
leadership and the recourse was taken to the superior judiciary as this forum
is duly recognized by both the rulers and the ruled for obtaining justice.
In view of the past experience analyzed above, it now
becomes imperative that all the desired constitutional amendments concerning
Article 58 or any other amendment in future must be placed before the Parliament,
thoroughly discussed, approved and then adopted. It will not only preserve the
supremacy of the Parliament but the supremacy of the Constitution as well. The
collective wisdom of our Parliamentarians must prevail over the individual
thinking because Parliament is the only forum which confers validation to any
Constitutional Amendments.
-------------------------
* LL.B, LL.M,
DLL, DIPL, DTL---------------------(
Asst. Prof.
Faculty of Shariah and Law, International Islamic
University,
1. Revival of
Constitution of 1973, Presidential Order 14 of 1985, Art. 2 and Schedule item
14 Gazette of
2. Constitution
(Eighth Amendment) Act xviii of 1985.
Gazette
3. PLD 1988 Lah 725.
4. Ibid at P 802.
5. PLJ 1989 SC
10.
6. Hamid Khan Advocate, Eighth Amendment Constitutional and
Political Crisis in Pakistan Chapter ii 2nd Edition 1995, Maktaba
Jadeed Press Lahore.
7. PLD 1991 Lah. 78.
8. PLD 1992 SC
646.
9. PLJ 1993 SC
438.
10. Ibid at P 523.
11. Al Jehad Trust v. Federation of
12. The Gazette of
13. Mehmood Khan Achakzai v. Federation
of
14. Ibid at P.
543, 544.
15. The
Constitution (Thirteenth Amendment) Act No. 1 of 1997.
Gazette of
16. S.M. Zafar Advocate, Pakistan 2000, edited by Craig Baxter
Charles. H. Kennedy, Chapter 1,
17. Chief
Executive's Order No. 24 of
18. Constitution ( Seventeenth Amendment) Act 111 of 2003
Gazette of
19. Lacuna in 73
Constitution, Article by Alauddin Masood,
a retired Director General - Joint Secretary, Senate of Pakistan, The News 19
January 2004
20. Supra Note 13
21. Per Syed Sajjad Ali Shah, Chief
Justice, Supra Note 13 at PP. 480-481.
22. Syed Zafar Ali Shah v. General Pervez Musharraf PLD 2000 SC 869.
23. Per Irshad Hasan Khan, Chief Justice,
Supra Note 22 at P. 1218