Constitutional history of Pakistan

Benazir Bhutto v President of Pakistan

Laiba Amjad - 019

Benazir Bhutto vs. President of Pakistan

PLD 1998 SC 388

Background:

General Zia-Ul-Haq passed the Eighth Amendment by adding Article 58 (2) (b) to the
Constitution of Pakistan for the sole purpose of authorizing the President to unilaterally dissolve
the National Assembly, and not the Senate, and elect a new government, if, as per the President,
"a situation arises where 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" with the
consequence of dismissing the Prime Minister and hi/ her Cabinet.

It can be seen throughout the history of Pakistan that a number of presidents have used this
constitutional power in order to dissolve assemblies. For example, the power was first exercised
by General Zia- ul- Haq in 1988 to dissolve the then Prime Minister, Muhammad Khan Junejo’s
government and was then exercised by President Ghulam Ishaq Khan in order to dissolve Nawaz
Shariff’s government.

Introduction:

It was the second tenure of Benazir Bhutto after winning the General Elections which were held
in October 1993 after which Farooq Ahmed Khan Leghari, the then elected President, dissolved
her government by exercising the power given to him under Article 58 2(B) of the Constitution
of Pakistan and further ordered Prime Minister Benazir Bhutto and her Cabinet to cease to hold
their respective offices.

The dissolution of Benazir’s government was the out blast of the political tensions arising
between the President and herself. As a result of which, on 5th of November 1996 Farooq
Lughari, the then President of Pakistan, by exercising his discretionary powers under Article 58
(2)(B) of the constitution, dissolved the National Assembly and new elections were called within
90 days, moreover, ordered that the Prime Minister Benazir Bhutto and her cabinet are to cease
to hold office.
 Constitutional history of Pakistan 2

Three petitions invoking the Original Jurisdiction of the Supreme Court under Article 184(3) of
the Constitution of Pakistan were filed against this dissolution order of the President, namely by
Bezanir Bhutto herself, Yousaf Raza Gillani,-Speaker of the National Assembly, and by
Mehmood Khan Achakzai- member of the National Assembly. The Supreme Court of Pakistan
returned the writ petition of the deposed Prime Minister Benazir Bhutto for modification of the
language. When the petitions came up for regular hearing, questions were asked about the
maintainability of the Speaker’s petition as it was contended that no fundamental right of the
speaker was violated and as such the Speaker had no locus standi.

Furthermore, the petition filed by Mehmood Khan Achakzai which questioned the validity of the
dissolution on the premise that the Eighth Amendment, which empowered a President to dissolve
the National Assembly, was unconstitutional was catered by the Supreme Court to which it was
held through a short order that the Eighth Amendment was a valid part of the Constitution unless
it was amended in the manner prescribed by the Constitution

The question that was raised in court by the Prime Minister in her petition was whether or not the
grounds for dissolution given by the President were sufficient to dissolve the National Assembly
as per the grounds of dissolution of Assembly stated in the Article 58 2(b) of the Constitution.

Facts:

The petitioners, by invoking the Original Jurisdiction of the Supreme Court under article 184(3)
of constitution of Pakistan filed a petition for unlawful dissolution of assembly. The petitioner
claimed the infringement of fundamental rights which are guaranteed to a citizen under article 17
of the constitution of Pakistan. The court in Nawaz Shariff case held that the scope of article 17
extends from right to form a political party, contest elections and if that party wins then to form
government and complete its normal tenure whereas in between the dissolution and the next
general election there was a period of 90 days so the dissolution order was to decided or settled
by some competent court of Jurisdiction the Petitioners, Petition were held maintainable by the
Supreme Court of Pakistan.
 Constitutional history of Pakistan 3

Arguments (For):

As provinces are autonomous bodies, the maintenance of law and order situation in the province
is the domain of the Provincial Government and not the Federal Government. Hence, the “Extra
Judicial killings” going on in Karachi and Sindh is the responsibility of the Provincial
Government. Therefore, relying upon what ground did the President dissolve the National
Assembly?

Furthermore, is was argued by the petitioners that in the case of Nawaz Shariff SC PLD 1993,
the Supreme Court of Pakistan held the dissolution of the National Assembly invalid stating that
the President is to use the discretionary power given to him under Article 58 (2)(B), as per him, a
situation arises where the functions of government and the Federation cannot be carried out and
for that purpose he has to form opinion on some material evidence.

Moreover, the Supreme Court of Pakistan also held that though article 58 (2)(B) is a discretion
which is given to the President but the authority given is not absolute, rather it is qualified and
the President does not possess unlimited power but only the powers that are restricted and
circumscribed by the preconditions. The President is to think as well as epitomize an opinion in
accordance with the evidence present before him that the government cannot carry out further
functions as its machinery has finally collapsed, hence, an appeal to electorate is necessary.

PART 2:

CASE BRIEF:

The Constitution (Eighth Amendment) Act, 1985 was an amendment to the constitution of
Pakistan passed in 1985. Because of this amendment there were certain powers given to
President. One of the powers inserted was that of Article 58 subsection 2(b) to dissolve the
national assembly in his/her discretion.

The article 58 subsection 2(b) clearly states that:

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 situation has arisen
 Constitutional history of Pakistan 4

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.

If president has enough material that government’s material machinery is going to break down
and constitution is not being followed he can dissolve the National Assembly. The principle was
also followed in Khalid Malik v Federation PLD 1991 Karachi 1.

In Khuwaja Ahmed Tariq (PLD 1992 SC 646) Article 58(2) b was discussed in detail.

In the early hours of November 05, 1996, the President of Pakistan exercised his powers under
Article 58(2) (b) and dissolved the National Assembly of Pakistan. He further ordered that the
Prime Minister and her cabinet should cease to hold office forthwith.

AGAINST ARGUMENTS:

The main grounds of the dissolution order are as below:

i. Extra-judicial killings were carried out in Karachi and rest of the country:
Innocent citizens were being killed i.e more than 300 on daily basis due to the
government’s operation against the MQM which was the violation of Article 9 and 25.

Article 25 talks about Equality of citizens

All citizens are equal before law and are entitled to equal protection of law.

Article 9 is about security of person:

“No person shall be deprived of life or liberty same in accordance with law”.

So constitution of Pakistan guarantees the protection of fundamental rights.

Article 148 and 149 of the constitution are also important as it is expressly stated that the
executive authority of every province shall be exercised as to secure compliance with Federal
laws which apply in the provinces.

Under Article 149 the executive authority of the federation shall also extend to such directions as
may appear to the federal government to be necessary for the purpose.
 Constitutional history of Pakistan 5

Hence it is clear that federal law is applicable in the province and federal government plays
supervisory role and give directions to the province.

Evidence: Press clipping admissible under Article 164 of the QSO 1984.

Reference: Abdul Wali Khan’s Case PLD 1976 SC 57 where newspaper cuttings were relied
upon as relevant material.

ii. The implementation of the decision of the Supreme Court in the appointment of
Judges Case was delayed.
The judges’ judgment was indeed an important milestone in the judicial history of
Pakistan. Benazir’s government offered resistance to its implementation. The Bar
Councils and the Bar Associations became the vanguard of the movement for its
implementations. The government did not fully implement the decision of the Supreme
Court in the appointment of judges’ case which violate Article 2A and 190. The Judiciary
was ridiculed and a bill was proposed in the National Assembly for initiating the process
of accountability of judges.
Violation of article 2(A)
Objective resolution was made substantive part of constitution under the article 2(A) and
in objective resolution independency of judiciary is clearly mentioned but government
were appointing the judges with own choice not on merit base.

Reference case
Al-Jihad trust vs. federation of Pakistan (PLD 1996 SC 324)
In this case Judiciary and Executive powers were expressly separated but government of
Pakistan was not implementing the decision of the Supreme Court so, it was also a
violation of 175(3).
Article 173(3) is “the judiciary shall be separated progressively form the executive within
14 years from the commencing day”.
Judiciary and executive should be separated because function of both the organs is
different. There was no bill passed or even moved in the houses which shows that
government had no serious intention of separating both these organs.
 Constitutional history of Pakistan 6

iii. A bill was moved in the National Assembly regarding the leave of judges of the
superior judiciary.
There was a bill approved by cabinet and introduced by National Assembly without
informing the President which was required in Article 46(a).
Article 46(a) “is to communicate to the President all decisions of the cabinet relating to
the administration of the affairs of the Federation and proposals for legislation”.
The bill proposed to send a judge on forced leave if 15 percent (32 in number) of the total
members of the NA moved a complaint of misconduct against him and he could also be
removed from his office if the Special Committee forms an opinion that he was involved
in criminal misconduct.
It was ridiculing of judiciary and clear harassment of judges to show that the government
could move such amendments. Also there was already a provision present in constitution
to check the misconduct of judges under article 209.

iv. Aspersions were cast on the Presidency and state agencies about the assassination of
Mir Murtaza Bhutto.
Mir Murtaza Bhutto was shot and killed in Karachi apparently in a police encounter and
allegations were put upon the President and agencies and reason was to make bad image
of Presidency in the eyes of general public. Wall chalking campaign was started against
the president of Pakistan and agencies. All this was propaganda against President.
v. Illegal phones’ tapping was ordered in violation of the right of privacy as
guaranteed by the Constitution.
Telephone tapping is unconstitutional because it’s infringing the privacy of the man.
Tapping the phone is clear breach of fundamental rights under Article 14 and 19 of
constitution.
Article 19 is about freedom of speech and every citizen of Pakistan has right to speech. A
person has this right guaranteed as long as it is not restricted by the law.
Article 14 is about privacy to home. The dignity of man and, subject to law, the privacy
of home, shall be inviolable.
 Constitutional history of Pakistan 7

vi. A minister was inducted in the cabinet against which criminal cases were pending in
a court of law, which violates of the principle of ‘collective responsibility’ of the
cabinet.
Ministers were included in cabinet that were being trailed under criminal charges e.g.
Haji Khukhar Nawaz who has been charged in criminal case and appointment of
ministers was on peak and that appointment was not done on the bases of merits.

vii. There was extensive and widespread corruption, nepotism and violation of rules in
the administration of the affairs of the government and its various bodies.
Corruption was on very large scale like against the husband of Prime Minister there were
17 cases pending for murder and corruption. Justice Nazam case was also filed against
the Asif Zardari.

viii. Custodial killing:

JUDGMENT

A seven members bench of the Supreme Court of Pakistan was formed which included then time
Chief Justice Sajjad Ali Shah and other and the decision came out to be a 6-1 judgment. Sajjad
Ali Shah wrote the leading Judgment whereas the others agreed to that judgment but only Mr.
Justice Zia Mehmood Mirza wrote a dissenting note upon in which he said that the order of the
President is not sustainable.

SAJJAD ALI SHAH:

According to Sajjad Ali Shah, C.J. Object of Arts 148 & 149 of the Constitution of Pakistan
(1973) Provisions of Article 148 and 149 of the Constitution regulate relationship between the
Federation and a Province in a situation in which Federal law is applicable in that Province and a
 Constitutional history of Pakistan 8

situation has arisen in which it is to be considered as to how the Federal law is to be made
applicable so that it should bring about the desired result and be effective so that proper remedial
measures are adopted to contain and control the situation in which the Federal Government has
to adopt supervisory role and give directions to the Province in which the Federal law is being
applied. (b) Constitution of Pakistan (1973) Art. 189 Decision of Supreme Court Binding nature
short order of the apex Court, when it is speaking order particularly if the same contains specific
directions, is to be acted upon without waiting for detailed reasons. (c) Constitution of Pakistan
(1973) Art. 63(1) (g) Fair comment on the judgment of Supreme Court in Parliament Extent
Intention of the maker of speech in the Parliament can be gathered from the tenor of the speech
and also from the subsequent conduct. No doubt in the Parliament fair comment can be made on
the judgment of the apex Court but that comment is to be made in good faith with bona fide
intention and is to be made in the language which is temperate and manner which is befitting to
the member of the Parliament. Article 63(1) (g) envisages that a person shall be disqualified from
being elected or chosen as member of the Parliament if he is propagating any opinion which is
prejudicial to the integrity or independence of the Judiciary of Pakistan or which defames or
brings into ridicule the Judiciary or Armed forces of Pakistan. Of course intention of the maker
can be gathered from the tenor of the speech and also from the subsequent conduct. Fact—Proof
Newspaper cutting Facts given in newspapers having not been denied, would be considered as
undisputed facts.

ZIA MAHMOOD MIRZA

Under clause(1) of Article 58 President is bound to dissolve the National Assembly if so advised
by the Prime Minister and in case he fails to do so, the Assembly shall stand dissolved
automatically at the expiration of forty-eight hours after the Prime Minister has to advised.
Under clause (2), however, the President has been empowered to dissolve the National Assembly
in his discretion, in two situations, firstly when in his opinion, 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 and secondly when in his opinion, a
situation of the 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 has become
necessary.
 Constitutional history of Pakistan 9

DERIVED PRINCIPLES:

The principles emerging from the foregoing survey of the case-law may broadly be summed up
as follows:-

1) President is empowered under clause (2) of Article 58 to dissolve the National Assembly
in his discretion. It is conferred on the President by Article 58(2) is not absolute but is
circumscribed by pre-conditions prescribed in sub-clause (b) that ‘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 electorate is necessary’.
2) That before ordering the dissolution of National Assembly in exercise of his discretion,
the President is obliged to form an opinion, honestly and objectively, as to the existence
of preconditions mentioned in sub-clause (b) of Article 58(2).
3) That the formation of opinion must be founded on some material placed before and duly
considered by the President at the time when the formed the opinion.
4) That the circumstances forming the basis of the opinion must have direct and reasonable
nexus with the preconditions prescribed in Article 58(2)(b).
5) If not the exercise of discretion, at least the formation of opinion by the President
necessitating the exercise of power is open to judicial review.
6) That the provision empowering the President to dissolve the National Assembly in his
discretion being drastic in nature is to be construed strictly and this power must be
exercised sparingly and only in an extreme situation when no other option is available
within the framework of the Constitution.
7) That the situation envisaged in sub-clause (b) of Article 58(2) viz. that the Government of
the Federation cannot be carried on in accordance with the provisions of the Constitution
contemplates a situation where the machinery of the Government is completely broken
down and its authority eroded and the Government cannot be carried on in accordance
with the provisions of the Constitution as held in the case of Haji Muhammad Saifullah
(PLD 1989 SC 166), breakdown of Constitutional mechanism, a stalemate, a deadlock in
ensuring the observance of the provisions of the Constitution.

REBUTTAL:
 Constitutional history of Pakistan 10

a. Respondents produced documents showing that after the withdrawal of the army, law and
order situation deteriorated from bad to worse. They contended that the entire ‘Karachi
Operation’ was masterminded and controlled by the Federal government. The federal
government headed by the petitioner was fully aware of the Karachi situation and was
actively involved in the Province of Sindh through the rangers who were given special
powers under the Rangers Ordinance (amended) 1959, to deal with the situation.

The killings did take place whether they were called extra-judicial killings, custodial deaths
or deaths in encounters with police and law enforcing agencies. It held the federal government
incompetent of controlling the situation.

Evidence:

 The court dealt with the material produced by president including the writ
petition filed by the MQM in 1994 blaming the government for extra-judicial
killings.
 Minutes of the European Parliament, statements and reports of the US Department
of State and the reports of the Amnesty International were also extensively quoted
wherein concern was expressed about the killings of innocent people, the use of
torture and other human rights abuses committed either by the MQM or the
Pakistani security forces. The court ruled that the federal government and the
Prime Minister as its head, was fully involved with the handling of law and order
situation in Sindh and Karachi.

b. Responding to the arguments of the petitioner that a president cannot dissolve the
assembly on law and order situation and that before exercising this power the president is
to be satisfied that the constitutional machinery has failed, the court said that there was
adequate material in support of the grounds on the basis of which discretion was
exercised by the president in dissolving the Assembly. The power to dissolve the
assembly is given by the constitution and it is expected from the president to exercise the
discretion as per rules of prudence.
 Constitutional history of Pakistan 11

It is held that the president has to form his opinion objectively which is different from subjective
satisfaction and the discretion is not absolute but is qualified one, but the said provision does not
say that the president has to act as a court of law and has to form opinion on the same lines as the
courts do and give adjudication on issues of facts and laws.

CONCLUSION:

In conclusion that President has used his power under Article 58(2) b due to state necessity and
for the welfare of people. The Supreme Court gave decision in favor of federation. Although this
dissolution was against the democracy but government was not maintaining the law and order so
at that time if president did not take the step condition of the country will be worse.