Victims of Constitution of 1973
By Agha Iqrar Haroon
The new Prime Minister of Pakistan Shahid Khaqan Abbasi is in place within four days of disqualification of former Prime Minister Nawaz Sharif that took place on July 28, 2017. He got two-third majority in National Assembly on August 1, 2017 polling for Leader of the House—A stunning come back of a political party whose prime minister was disqualified just four days before this election and the party faced media trial like situation for three long years.
It is pertinent to mention that PML-N President former Prime Minister Mian Nawaz Sharif was disqualified by five-member bench of Supreme Court as the bench found that he was not Sadiq and Ameen (faithful, trustworthy) under article 62 (1-f) of the Constitution.
The former Prime Minister Nawaz Sharif acted in accordance with the decision of Supreme Court and left his charge within hour after hearing the decision. However, his party believes “justice was not awarded”. His disqualification was in accordance with the Constitution of Pakistan like disqualification of former Prime Minister Yousaf Raza Gillani and disbanding of several governments in past.
Since 1973, six political governments were sent home by using certain constitutional clauses although 1973 Constitution was made to ensure sustainability and continuity of democracy along with sovereignty of the Parliament.
A serious discussion has started in Pakistan that sovereignty of Parliament is being encroached by other state institutions. Chairman Senate Raza Rabbani who belongs to Pakistan People’s Party (PPP) (which is in opposition in National Assembly) believes that one can see that an executive component of State is violent towards Parliament while the Judiciary tries to overcome parliament. He believes there in an imbalance among Parliament, Executive and Judiciary. He is of the view that Executive, Judiciary and Parliament of Pakistan should work within their ambit. 1973 Constitution says that the Parliament is the Sovereign and the Supreme Institution of Pakistan. However, things are otherwise when we go through political history of post-1977 Martial Law where we find that Parliament was neither considered sovereign nor supreme because higher judiciary had been challenging legislation passed by the Parliament and military bureaucracy had been booting out elected governments.
Five prime ministers had been removed since 1973 Constitution was came into being and the Parliament had been suspended for seven times by institutions other than the Parliament which should have been the only competent institution to disband the Parliament (for fresh elections).
The founder of 1973 Constitution Prime Minister Zulfiqar Ali Bhutto was removed and jailed by the dictator Ziaul Haq and was hanged by the Supreme Judiciary under a murder case trial. Ziaul Haq amended 1973 Constitution according to his wishes and demands for the extension of his unconstitutional tenure. Since then, 1973 Constitution had helped circumstances where decisions for removal of elected governments and elected prime ministers became justified through using certain clauses of 1973 Constitution.
A keen study of removal of elected governments and parliamentarians indicates that the existing Constitution is actually an extension of Ziaism — A school of Thought introduced by the dictator Ziaul Haq within the Constitution and the society at large.
The Article 62 and 63 were included during Zia era and both articles helped to disqualify two prime ministers. The Article 58-2/B helped in sending deceased Prime Minister Muhammad Khan Junejo, assassinated Prime Minister Benazir Bhutto and former Prime Minister Nawaz Sharif to their homes by dissolving their assemblies and governments.
The rise of Ziaul Haq as the Chief of Pakistan Army was only possible due to 1973 Constitution because the then Prime Minister Zulfiqar Ali Bhutto while exercising powers conferred to him by the Constitution promoted Ziaul Haq as the Chief of Pakistan Army although he was a junior Army General among other three stars generals.
This hand-picked Army General booted Bhutto out from his government in 1977 and tried him for a murder case and allegedly ensured his hanging by the Supreme Court of Pakistan.
According to 1973 Constitution, an elected prime minister can elevate any three-star Army General to four-star Army General for leading the Pakistan Army even if he is junior among other three-star Generals. Zulfiqar Ali Bhutto found Ziaul Haq who was junior to many and then Bhutto paid his mistake with his life. This mistake was repeated by former Prime Minister Nawaz Sharif in 1998 by elevating a junior General namely General Pervaiz Musharraf as new Chief of Pakistan Army and Nawaz paid his mistake with his removal by Army in 1999. In both instances, prime ministers used power conferred to them by the 1973 Constitution for setting aside principle of elevating a rightful and senior Army General for the top post of the country. Nawaz Sharif was fortunate that he was tried for high treason under Article 6 of Constitution but survived and sent to Saudi Arabia as guest to live in Saroor Palace Jeddah.
Though Pakistan People’s Party (PPP) of Zulfiqar Ali Bhutto came in power trice after 1977 Martial law and Pakistan Muslim League (PML-N) of Nawaz also came in power after 1999 coup but both political parties did not review to fix this clause of extraordinary powers granted to the prime minister to pick and install any junior Army General over his seniors without giving any justification.
Two prime ministers of Pakistan were removed from their offices legally by the Supreme Court of Pakistan under Article 62 and 63 of Constitutions. Their removal was in accordance with the articles and clauses of 1973 Constitution. The first was Yousaf Raza Gillani of Pakistan People’s Party.
Yousaf Raza Gillani was sent home because he was convicted on the charges of Contempt of Court against the Supreme Court which sentenced him to be held in custody till the rising of court, a symbolic sentence lasting 30 seconds.
Pakistan Muslim League of Mian Nawaz Sharif and Pakistan Tehreek-e-Insaf (PTI) of Imran Khan filed two separate petitions in the Supreme Court for expediting process of disqualification of Yousaf Raza Gillani stating that Gillani could not keep his seat as member of the Parliament after his 30 second conviction from the Supreme Court in Contempt of Court. Petitioners (Nawaz Sharif and Imran Khan) cited Article 63 clause G of the Constitution of Pakistan that says that anybody who has been convicted by a court of competent jurisdiction for defaming or ridiculing the judiciary cannot stay as member of the Parliament.
On June 19, 2012, the Supreme Court of Pakistan disqualified the then Prime Minister Gillani citing the earlier conviction on April 26, 2012. The Supreme Court in its standing orders, said that “Gillani was ineligible to hold the Prime Minister’s office after April 26th conviction” and all orders given by him till date would stand null and void. Consequently, the Election Commission of Pakistan (ECP) issued the government notification with regards to the disqualification of Gillani.
History repeated itself on July 28, 2017 when former Prime Minister Mian Nawaz Sharif was disqualified by the Supreme Court in accordance with the Constitution of Pakistan under Article 62 clause (f) that says that a person cannot be a member of the Parliament if he is not Ameen (faithful, trustworthy).
It is pertinent to mention here that five prime ministers were sent homes through Article 58-2(b) of 1973. Article 58-2(b) was included in 1973 Constitution through the Eighth Amendment in 1985.
The Eighth Amendment was enforced by the military government of General Zia-ul-Haq. The Eighth Amendment strengthened the authority of the President and also granted additional powers to dismiss the elected Prime Minister’s government. These powers included the right, expressed in sub-section 2(b) inserted into Article 58, to dissolve the National Assembly (but not the Senate) if, in his or her opinion, “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 Eight Amendment also indemnified the entire President’s Orders, Ordinances, Martial Law Regulations and Martial Law Orders, including the Referendum Orders made between July 5, 1977, and September 13, 1985.
Muhammad Khan Junejo, Benazir Bhutto and Nawaz Sharif were thrown from Prime Minister Office under Article 58-2(b) but this article was at last repealed by the Parliament but the legislatures avoided to repeal Articles 62 and 63 although both the Articles can send parliamentarians out of the Parliament including the Prime Minister, Speaker of National Assembly and the Chairman Senate if they are not found “Ameen” (faithful, trustworthy) by the Supreme Court of Pakistan.
Pakistan People’s Party claimed that it was victim of Judicial Martial when former Prime Minister Yousaf Raza Gillani was disqualified by the Supreme Court. Former Prime Minister Nawaz Sharif indicated indirectly after his removal that parliamentarians had not been allowed to work freely in Pakistan.
Former cabinet members of Nawaz Sharif during proceedings of Panama Case in the Supreme Court had been claiming that “angels” were working against them. However, they refrained from telling who these angels were?
Parliamentarians blame military bureaucracy and higher judiciary for not providing legitimate space to work but they (Parliamentarians ) never try to repeal Articles and clauses of Constitution those had been operative while disqualifying prime ministers. Blame game can only be ended when 1973 Constitution is greatly amended for ensuring supremacy of the Parliament over the higher Judiciary and the military bureaucracy.
In reality, higher Judiciary took (takes) decisions in accordance with the provisions given by the Constitution of 1973. If the Parliament passes any law which is apparently “not in accordance with Islam” can be contested and repeal by the higher Judiciary because the Constitution of Pakistan confirms that no legislation would be passed that can harm basic principles of Islam.
If the Parliament passes a law that is apparently “not in accordance with basic human rights ensured by the Constitution of 1973” can be contested in higher courts and can be repealed by the Judiciary.
Constitution provides all powers to higher judiciary to review laws therefore supremacy of review and fixing legislation lies with higher Judiciary rather than with the Parliament. Parliamentary history confirms that 1973 Constitution does not ensure what parliamentarians demand–the sovereignty of Parliament after Eight Amendment was introduced. Will Parliamentarians be in position to throw Ziaul Haq out of the 1973 Constitution?
The answer of above mentioned question will determine the fate of democracy and the supremacy of the Parliament in Pakistan.
1973 Constitution is a lethal weapon against itself and does provide protection to state apparatuses against any adventurism except to parliamentarians. The only Article that protects Constitution to fight back any adventurism is Article 6 that has never been used against those military dictators (Ziaul Haq and Musharraf) who abrogated and suspend 1973 Constitution in past but a former Prime Minister Nawaz Sharif was tried and convicted under this Article by Gen Musharraf who booted out elected government of Nawaz Sharif and then tried him under Article 6.
The views and opinions expressed in this article/Opinion/Comment are those of the author and do not necessarily reflect the official policy or position of the Dispatch News Desk (DND). Assumptions made within the analysis are not reflective of the position of Dispatch News Desk.