Law opinion
Balance to powers between president and prime minister
Case of Pakistan
Sinha M A Sayeed
Constitution (Seventeenth Amendment) Act, 2003 of the Constitution of Pakistan is seen as landmark formula for striking balance of powers between President and Prime Minister.
It is a recoded fact that Pakistan began its journey as an independent domination with the British constitutional monarch as head of state represented by a Governor General of Pakistan until its Constituent Assembly, after long nine years of exercises, adopted a parliamentary democracy with a President as head of state in the constitution of 1956; this constitution was not a reflection or copy of Westminster model, rather a combination of a number models including those of South Africa, USA, Canada. President was made a ceremonial head of state largely in line with the concept of British constitutional monarch and his power to dismiss the Prime Minister followed by the dissolution of Parliament (National Assembly in Pakistan context) was also made subject to the advice of Prime Minister.
But before its official putting into operation in 1958 martial law was declared and General Ayub Khan, then Chief of the Army, took over. A new constitution was framed in1962 mainly modeled on that of the United States of America, and continued until the institution of a parliamentary system in 1973 under the direct supervision of ZA Bhutto, the person who romantically coined the concept of 'two majority party' in the context of post 1970 elections to National and Provincial Assemblies of Pakistan that also played a role in the bifurcation of Pakistan.
ZA Bhutto, then President of Pakistan, won the plurality in the Parliament and became Prime Minister of truncated Pakistan. This constitution did not create a balance of powers between President and Prime Minister and it was again put in abeyance by the 3rd martial law by the Army Chief General Zia-ul-Haq in 1977, and continued until his death in a plane crush in 1988. Election to the National Assembly, as promised by Zia-ul-Haq in 1985, after the referendum held in April 1985, took place in October, 1985 and Md Junejo became Prime Minister and then Pakistan National Assembly, to give validation to the functions of the martial law regime of General Zia-ul-Haq, passed the Constitution (Eight Amendment) Act, 1985 and two of the leading aspects of the amendment were:
a. It formalised the President's order No 14 of 1985 which revived the constitution of 1973 that contained a parliamentary system.
b. It struck a so-called balance of powers between President and Prime Minister by adding, under the head 'reserve power', a new sub-clause (b) to clause 2 of Article 58 in the constitution as follows:
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 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.
With this provision, administration took a shape of semi-presidential system.
It is really interesting to see that Junejo government became the first victim of the article 582(b) because, on charges of mal-administration, corruption etc, President Zia-ul-Haq dismissed him followed by the dissolution of National Assembly in 1987. Golam Ishaq Khan, Chairman of the Senate, after the sudden death of Zia-ul-Haq, became President and elections to the PNA were, as scheduled during Zia's time, held in 1988. Benazir Bhutto, leader of the Pakistan People's Party and daughter of ZA Bhutto, became Prime Minister who also met with the same fate of Junejo of being dismissed within two years in 1990. Benazir was defeated in the election of 1990 and Newaz Sharif became Prime Minister and met with the dismissal followed by dissolution of Parliament in 1993. Benazir Bhutto again became Prime Minister after elections in 1993 and she was also dismissed in 1996. Then in the elections of 1997 Newaz Sharif became Prime Minister for a second time. Then, in 1997, National Assembly passed the Constitution (Thirteenth Amendment) Act, 1997 that also omitted sub-clause (b) in clause 2 in Article 58.
On October 12, 1999 fourth martial law, overthrowing the Newaz Sharif government, was declared by the Army Chief General Musharraf putting the constitution in abeyance. On June 20, 2001, he took the title of President of Pakistan. He was the chief executive from October 12, 1999 to November 23, 2002 (de facto till 14 October, 1999 and de jure till from October 14, 1999). Elections were held on October 10, 2002 leading to the return of the position of Prime Minister.
In 2003, the newly elected National Assembly, validating the Martial law regime of General Musharraf, passed the Constitution (Seventeenth Amendment) Act, 2003. This time again giving a weight to the office of the President sub-clause (b) of clause 2 in article 58 was revived in an amended form with a check on the use of President's 'Reserve power' or discretion to dismiss the Prime Minister (also calling for a new election) subjecting it to the Supreme Court approval or veto within thirteen days of the dismissal. In the language of the constitution it reads as follows:
The President in case of dissolution of the 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.
In fact, the 17th amendment can be considered as an accommodative democratic formula for creating a balance of power not between President and Prime Minister with the Supreme Court of Pakistan as the final watchdog, it also creates a balance among the three branches of the government. The contents of the 17th amendment to the Constitution of Pakistan may efficaciously be taken into account by our politicians, lawmakers, constitutional experts, political scientists and thinkers and others to strengthen the office of the President of the People's Republic of Bangladesh.
Elections to the PNA and PAs are scheduled to be held on 1 January, 2008 under the revived amended Constitution of 1973 that also contains the Constitution (Seventeenth Amendment) Act, 2003. Now it is a matter to be seen in future that how the lawmakers in the ninth Parliament of Pakistan view this amendment or whether they devise a formula to replace it.
The writer is senior fellow of Centre for Governance Studies, University of Dhaka and faculty member of Newcastle Law Academy
