Contents
The 8th amendment and its impacts on Democracy
Abstract
The 1973 constitution of Pakistan
actually envisaged a parliamentary form of government that was tilted towards
shifting the balance of power towards the Prime Minister of the country. The 8th
amendment that was made in 1985, under the regime of Zia-ul-Haq, under which
the President of the country was given the power to unilaterally dissolve the
legislative branch of the government which was the National Assembly of
Pakistan. aimed to research on a topic that had resulted in causing severe
political turmoil from the beginning of the last decade of the 20th
century up till the end of the first decade of the 21st century. Through this research we shall endeavor to
study the different ways in which this 8th amendment was used to
dismiss the democratically elected governments of the past. Furthermore, we
shall study the origins as well as the different dimensions of this amendment
that caused such political turmoil and we shall also study the other amendments
that came after it that changed the status of this 8th amendment.
1.
Introduction
a.
Background
The
Democratic system of Pakistan has witnessed a number of amendments that have
had a mammoth impact on the overall democratic process of Pakistan.
Fundamentally speaking, the 1973 constitution of Pakistan actually envisaged a parliamentary
form of government that was tilted towards shifting the balance of power
towards the Prime Minister of the country. The 8th amendment that was
made in 1985, under the regime of Zia-ul-Haq, under which the President of the
country was given the power to unilaterally dissolve the legislative branch of
the government which was the National Assembly of Pakistan. This meant that now
the President had the power to dismiss governments that came to power with the
mandate of the people. The Majlis-e-Shoora passed this amendment in the
Pakistani constitution in the year 1985 and it stayed till its repeal in the
year 1997.
Furthermore,
the amendment was passed in the absence of a democratically-elected government and
was drafted and enforced by a military government that was technocratically
elected. Hence, throughout the last decade of the 20th century, this
amendment had a massive impact over democratic process and institutions of
Pakistan. According to this amendment, the constitution of Pakistan which was
supposed to be parliamentary was changed to a semi-presidential system and
therefore, this specific amendment strengthened and consolidated the power and
authority of the Pakistan’s President. It granted the President with powers to dismiss
the government of the Prime Minister who had been elected by the vote of the
people. This right is expressed in the Article 58, where its sub-section 2(b)
gives the right to President to dissolve the National Assembly, without the inclusion
of Senate[1], if he finds that a
situation has arisen in which the government is violating the constitution of
the country and hence the government cannot be carried on. After the dismissal,
the president is to carry out elections and form another elected government.
b.
Problem Statement
The
8th amendment that was passed in the year 1985 had massive impacts
on the democracy in the country. One can say that the political disorder,
institutional imbalance, and anarchical atmosphere in the last decade of the 20th
century in Pakistan was due to the 8th amendment which was used as a
tool by the military dictator Zia-ul-haq to strengthen his power over the other
organs of the government. Although one cannot deny the fact that the political
parties in this era also proved themselves to be immature and incompetent
through their conflictual policies, but it was this 8th amendment
that resulted in presidents such as Ghulam Ishaq Khan and Farooq Laghari to
sack the popularly elected governments which ultimately resulted in the
imposition of Martial Law by Pervaiz Musharraf and another reincarnation of the
8th amendment in the form of 17th amendment.
c.
Significance of the Study
This
study holds massive significance as it is aimed to research on a topic that had
resulted in causing severe political turmoil from the beginning of the last
decade of the 20th century up till the end of the first decade of
the 21st century. Through this research we shall endeavor to study
the different ways in which this 8th amendment was used to dismiss
the democratically elected governments of the past. Furthermore, we shall study
the origins as well as the different dimensions of this amendment that caused
such political turmoil and we shall also study the other amendments that came
after it that changed the status of this 8th amendment.
d.
Research Questions
·
What is origin of the 8th
amendment?
·
What was the role of 8th
amendment in the political turmoil in Pakistan?
·
What was the impact of 8th
amendment on democracy?
e.
Research Objectives
The
objective of this study is to point out the different ways in which this 8th
amendment was used to dismiss the democratically elected governments of the
past. Also, another objective is to study the origins as well as the different
dimensions of this amendment that caused such political turmoil and we shall
also study the other amendments that came after it that changed the status of
this 8th amendment.
2.
Literature Review
A
number of authors have produced literature on the role of 8th
amendment in the constitution of Pakistan and its impact on the democratic
process of the country. According to Shaikh Aziz, the
primary objective of passing the 8th amendment was to decrease and
minimize the status of the Pakistani parliament, cabinet, Prime Minister, and
the other important institutions of the country that had an important role in
the democratic system[2]. This meant that the Prime Minister lost
its unilateral freedom and it could not do anything without the advice or perhaps
the permission of the President. This was because in the case of any
disagreement with the Prime Minister, the President had the power to dismiss
the government of the Prime Minister and dissolve the National Assembly.
According to Osama Siddique, the 8th
amendment was a tool used by the Martial law government of Zia ul Haq to impact
the overall constitutional engineering in Pakistan and hence, it was a move
that strengthened his position in the power structure of the country[3]. This means that the President
Zia-ul-Haq had plans to lead the country for a long period of time and therefore
he strengthened his power in the regime which was to keep on increasing
exponentially as time would have passed. If it was not for his death in the
plane crash, the 8th amendment would have allowed Zia to rule the
country for a very long time, as in the case if Saddam Hussain and other such dictators
who had ruled their countries for a very long time.
Mr.
Fazal Qureshi, in his article, also observed that the eighth amendment was a in
reality a deviation from the path of democracy as Pakistan was meant to be a
parliamentary democracy according to the 1973 constitution with agreed upon
consensus. As the 59 clauses in the list of the eighth amendment so it is against
democracy in Pakistan. The guiding criterion of such an activity should be to
follow the merit and a fair assessment should be made on the basis of which it
will be decided to either modify, retain, or scrap a particular clause. Furthermore,
the author also states that the primary pretext for the eighth amendment was to
create a balance of power between the President and the Prime Minister but the
likelihood of it tilting in favour of the President was quite obvious[4].
3.
The Historic 8th Amendment
The
historic 8th amendment was passed with the claim that it was
necessary for country after the post-constitutional deadlocks that occurred in
the country. Because of this, the proponents of this clause advocated that it
was a necessity to vest some authority in the hands of the President as it
could assist in the times of a political crisis. Hence, according to the rights
given by this amendment, the assembly could be dissolved by the President and new
elections could take place. The entire complexion of the constitution was
changed as a result of the induction of the Article 58(2) b. The constitution
which was previously a parliamentary constitution was changed to a
semi-presidential system. For the successive governments, this amendment acted
as the well-known sword of Damocles that was left hanging on them waiting for
them to make a mistake and to be dismissed afterwards. The impact of this
amendment on the successive governments was seen when four governments were
dismissed including the Dissolution of Assemblies in 1988, 1990, 1993, and 1996[5]. Furthermore, other clauses
that were also changed by this amendment included the Senate, office of PM, and
the Governors. The Article 51 was responsible for the increasing of seats in
the National Assembly from 200 to 207 and the Article 59 number of seats in the
Senate from 63 to 87. Also, the 8th amendment indemnified and
covered the entire set of orders, ordinances, and regulations of the President,
including the orders of referendum that were made between 19977 to 1985. Thus,
the 8th amendment can be considered as a constitutional landmark in
the history of Pakistan as it not only changed the nature of the constitution from
parliamentary to semi-presidential but it also brought about a change in the
political and constitutional history of Pakistan[6].
4.
The Legislative Showdown: 8th amendment to constitution
In
order to understand the true origin of the 8th amendment and Article
58(2) b, it is first significant to examine and understand the legal framework
that was used at that time. As mentioned earlier that after Zia-ul-Haq assumed
power in the year 1977, the had put the 1973 constitution in abeyance and
imposed Martial Law in the country. In his rule, the administration was ruling
through makeshift and ad hoc laws such as the Order of 197793 that ordered the
continuation of force. Other than this, various other orders and ordinances
were also issued by the Chief Martial Law Administrator who later took the
office as the President of Pakistan. Through the introduction of a Provincial Constitutional
Order in 1981 known as “1981 PCO”, the Dictator was to eventually revert the country
to some appearance of a constitutional setup[7]. However, it was witnessed
that the overall impact wasn’t quite different as the PCO 1981 allowed General
Zia to actually supersede the 1973 constitution though he had incorporated some
articles from that same constitution[8]. In the year 1985,
Zia-ul-haq took a very significant step that was aimed at reviving the
constitution which was the for the purpose of installing the newly-elected
government in the year 1985 under his very close supervision. This step taken
by Zia-ul-haq was considered to be the introduction of the Revival of the
Constitution Order also known as RCO. As a result of this RCO, large-scale amendments
were to be made in the constitution. The important aspect to note is that the
RCO was ordered after the general elections but before the establishment of a civilian
government. Once the civilian government took office, it started building in
confidence and started talking about the sovereignty of the parliament; hence, a
heavily negotiated amendment known as the eighth amendment was made in order to
reach a compromise between the new politicians and the ambit of RCO[9]. Upon further closely
reviewing the RCO, we can say that the RCO was designed and manufactured to limit
the 1973 constitution, with the primary objective to empower and consolidate
the power of the President. Also, as the rhetoric run by Zi-ul-haq was falling
weak after a number of repressive years in the office, the political mood shift
in the country was actually establishing a compulsion to revive the democratic trends.
However, the President Zia-ul-Haq ensured that any revival of reintroduction of
democracy in the country would be highly diluted through the instrument of 8th
amendment.
5.
The impact of 8th amendment on Democracy
According
to authors and writers, the 8th amendment had a massively negative
impact on the democratic process in Pakistan. At the outset, the General Zia-ul-haq
firstly utilized this amendment for the purpose of dismissing the PM Muhammad
Khan Junejo as he was alleged for corruption and other charges in May 1988. In
reality, the Prime Minister actually endeavored to roll back the authority that
was exercised by Zia-ul-haq and therefore, he paid the price. After Benazir
Bhutto took office in the year 1988, she did pledge to abolish this amendment
in her election manifesto. However, the amendment still stayed as she was not
able to gather a sufficient of seats in the in the elections of 1988 and again
in 1993. The eighth amendment was then extensively used by the President Ghulam
Ishaq Khan from 1988 to 1996 and the article 58 2(b) was utilized for the
purpose of dissolving the National Assembly. Ghulam Ishaq Khan dismissed the
governments of Benazir Bhutto and then Nawaz Sharif who were democratically elected[10].
a.
The Democratic Turmoil in 1990’s
The
first use of this eighth amendment was done on 6th August 1990,
against the government of Benazir Bhutto by President Ghulam Ishaq Khan as the
Bhutto administration was allegedly involved in different cases of corruption
and nepotism. After 3 years, in 1993, the same charges were imposed on the
government of Prime Minister in order to dismiss his government that was
elected by the people. Although in the second instance, the Supreme Court
over-ruled the decision and the Prime Minister was reinstated, but because of a
stalemate or deadlock between the President and Prime Minister, both had to
resign. Furthermore, it was witnessed that the Article 58 2(b) was seen to be
the justification of a necessary action that must be taken against corrupt
governments. The assertion was that such governments actually lose the
confidence of the people and therefore, they do not have the right to rule
anymore. After every dismissal, new elections were to take place and this
resulted in the ruling party to lose its majority in the National Assembly
afterwards. After Ghulam Ishaq Khan, this amendment was again utilized by the
President Farooq Laghari in the year 1996 against Benazir Bhutto who happened
to be his own party leader. After the removal of Benazir Bhutto, Nawaz Sharif in
1997 became the Prime Minister with a 2/3 majority in the National Assembly and
passed the thirteen amendment that stripped the power away from the President
to dissolve the National Assembly[11]. This then reduced the president to just a ceremonial
figurehead that did not have the authority to exercise much influence.
b.
The 17th and 18th amendments
According
to the 13th and 14th amendments that were made by the
government of Nawaz Sharif, the governments that were elected by the people had
the right to rule for the complete term of five years and no one had the right
to recall or dismiss a government before its due time. As a result of this, the
13th and 14th amendments effectively removed institutional
system of checks and balances that were on the power of the Prime Minister and
therefore the Prime minister consolidate his power even more. As the Prime
Minister could not have been legally dismissed, therefore, the PM Nawaz Sharif started
some power-strengthening initiatives such as challenging the Supreme Court at
different instances and removing the Chief of Army Staff Jehangir Karamat at
the time and replacing him with Gen. Pervez Musharraf. The most important step
taken by the Nawaz regime was that he wanted to pass the law of Amr bil Maroof
& Nahi Anil Munkar which was aimed at giving Nawaz Sharif immense power[12].
After
witnessing such events, different institutions of the country were fearful of
the actions being taken by Nawaz Sharif. After the Kargil incident, Martial Law
was imposed by the Gen. Pervez and after referendum, he became the President of
Pakistan[13].
This was the time when the previously-known 8th amendment was reincarnated
in the form of the 17th amendment that restored the power of the
president’s office and gave the President power to dissolve the National
Assembly and to dismiss the President but the exception here was that this
would only be done with the approval of the Supreme Court. After the 2008
elections, the government of Pakistan People’s Party came into power and then
through the 18th amendment, they reverted the 17th
amendment at an immediate and effective course in 2010[14].
6.
Conclusion
In conclusion, we can
say that the primary aim of passing the eighth amendment was to decrease and
minimize the status of the Pakistani parliament, cabinet, Prime Minister, and
the other important institutions of the country that had an important role in
the democratic system. This meant that the Prime Minister lost its unilateral
freedom and it could not do anything without the advice or perhaps the
permission of the President. This was because in the case of any disagreement
with the Prime Minister, the President had the power to dismiss the government
of the Prime Minister and dissolve the National Assembly. Hence, eighth
amendment was a tool used by the Martial law government of Zia ul Haq to impact
the overall politics in Pakistan and therefore, it was a move that strengthened
his position in the power structure of the country. This means that the
President Zia-ul-Haq had plans to lead the country for a long period of time
and therefore he strengthened his power in the regime which was to keep on
increasing exponentially as time would have passed. If it was not for his death
in the plane crash, the 8th amendment would have allowed Zia to rule
the country for a very long time, as in the case if Saddam Hussain and other
such dictators who had ruled their countries for a very long time. Thus, the primary
pretext for the eighth amendment was to create a balance of power between the
President and the Prime Minister but the likelihood of it tilting in favour of
the President was obvious.
[1] Revival of the Constitution of
1973 Order, 1985, The President’s Order No. 14 of 1985 (Pak.), available at
http://www.pakistani.org/pakistan/constitution/orders/ po14_1985.html.
[2] Shaikh Aziz. 2015. “A leaf from
history: Power shift: Eighth Amendment gives Zia complete clout”. DAWN
[3] Osama Siddique. 2006. “THE
JURISPRUDENCE OF DISSOLUTIONS: PRESIDENTIAL POWER TO DISSOLVE ASSEMBLIES UNDER
THE PAKISTANI CONSTITUTION AND ITS DISCONTENTS”
[4] Fazal Qureshi. 1994. “The Eight
Amendment”. The Nation.
[5] Bhutto, Benazir. 1988. Daughter
of the East. Hamish Hamilton.
[6] The Constitution (Eighth
Amendment) Act, 1985 (Pak.), available at
http://www.nrb.gov.pk/constitutional_and_legal/constitution/amendments_text.pdf.
[7] Provisional Constitution Order,
Chief Martial Law Administrator’s Order No. 1 of 1981 (Pak.), reprinted in 33
PLD 183, 183-91 (1981) (Pak.).
[8] Osama Siddique. 2006. ”THE JURISPRUDENCE OF DISSOLUTIONS:
PRESIDENTIAL POWER TO DISSOLVE ASSEMBLIES UNDER THE PAKISTANI CONSTITUTION AND
ITS DISCONTENTS”
[9] Laws (Continuance in Force) Order,
Chief Martial Law Administrator’s Order No. 1 of 1977 (Pak.), reprinted in DR.
SAFDAR MAHMOOD, CONSTITUTIONAL FOUNDATION OF PAKISTAN app. D, at 1104-07
(Lahore: Jang Publishers 1990) (1975) [hereinafter 1977 Order]
[10] Khan, Hamid. 2009. Constitutional
and Political History of Pakistan. Oxford University Press.
[11] Cohen, SP. 2002. "The nation
and the state of Pakistan." Washington Quarterly.
[12] Mahmood, Zahid. 2015.
"Political Turmoil And Military Era Of General Musharraf (1988-2007)
." JPUHS.
[13] Islam, N. 2001. "Democracy
and governance in Pakistan's fragmented society." International Journal
of Public Administration.
[14] Kalim Bahadur. 1998. Democracy
in Pakistan: Crises and Conflicts. Har-Anand Publications. p. 28–29.
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