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General Zia-Ul-Haq's Eleven Year Authoritarian Rule Over Pakistan Is

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General Zia-Ul-Haq's Eleven Year Authoritarian Rule Over Pakistan Is THE JURISPRUDENCE OF DISSOLUTIONS: PRESIDENTIAL POWER TO DISSOLVE ASSEMBLIES UNDER THE PAKISTANI CONSTITUTION AND ITS DISCONTENTS Osama Siddique* Table of Contents Page I. INTRODUCTION .........................................................................................622 A. Constitutions and Martial Laws ...................................................624 B. Zia’s Martial Law and the Impact of Its Constitutional Engineering—The Eighth Amendment ............................................627 C. Article 58(2)(b)—An Unprecedented Provision and the Primary Source of Controversy........................................................................629 D. The 1977 Constitutional Stalemate—The Official Raison d’Être for Article 58(2)(b)..............................................................................632 E. Zia’s Attempts to Perpetuate His Rule—The Main Impetus for Article 58(2)(b) According to Its Critics ...........................................634 F. Continuing Relevance of the Article 58(2)(b) Debate..................635 G. Framework of Inquiry...................................................................636 II. FROM GENESIS TO REALITY ...............................................................636 A. The Eighth Amendment to the Constitution—The Legislative Showdown............................................................................................636 * Associate Professor and Head of Department of Law & Policy, Lahore University of Management Sciences (LUMS), Pakistan. My profound thanks to Mr. Abid Hassan Minto, Mr. Khawaja Harris Ahmad, Dr. Ali Cheema, Mr. Roger Michael Normand, Mr. Syed Ali Murtaza, Mr. Bilal Hasan Minto, Mr. Zulfiqar Hameed and various colleagues in my Department—whose very valuable input helped shape and sharpen the arguments here; my sincere acknowledgement of Syed Imad-ud-din Asad for his able and diligent research assistance; and my eternal debt and gratitude to my parents for their constant affection, inspiration and support. I would like to dedicate this Article to my lovely children Hatim Siddique and Nawaal Siddique, for whom and other Pakistani children I ardently hope for a Pakistan governed under a legitimate and progressive constitutional framework. 616 Arizona Journal of International & Comparative Law Vol. 23, No. 3 2006 B. Article 58(2)(b)—The Interpretive Aftermath ............................645 III. THE ERA OF DISSOLUTIONS (1988-1996)..........................................646 A. The First Dissolution—The Haji Saifullah Case .........................648 1. Challenge Before the Sindh High Court.............................650 2. Challenge Before the Lahore High Court...........................651 3. Challenge Before the Supreme Court.................................654 a. The Test................................................................654 b. Evaluation of Grounds and Supporting Evidence 656 c. The Outcome ........................................................656 d. Conclusion ...........................................................658 B. The Second Dissolution—The Tariq Rahim Case........................658 1. Challenge Before the Lahore High Court...........................661 2. Challenge Before the Sindh High Court.............................662 3. Challenge Before the Supreme Court.................................663 a. The Test................................................................663 b. Evaluation of Grounds and Supporting Evidence 669 c. The Outcome ........................................................670 d. Conclusion ...........................................................671 C. The Third Dissolution—The Nawaz Sharif Case.........................671 Challenge Before the Supreme Court.....................................674 a. Direct Hearings in the Supreme Court .................674 The Jurisprudence of Dissolutions 617 b. Additional Controversies......................................674 c. The Test................................................................675 d. Evaluation of Grounds and Supporting Evidence 676 e. Inconsistent Approaches and Political Diatribes ..678 f. The Outcome ........................................................680 g. Conclusion ...........................................................681 D. The Fourth Dissolution—The Benazir Bhutto Case....................682 1. The Eighth Amendment Case.............................................685 2. Challenge Before the Supreme Court.................................686 a. Additional Controversies......................................686 b. The Test................................................................688 c. Evaluation of Grounds and Supporting Evidence.689 d. The Outcome........................................................691 e. Conclusion............................................................691 E. Towards Another Martial Law.....................................................692 IV. THE MUSHARRAF MARTIAL LAW ....................................................696 A. Legitimization of the Martial Law—The Zafar Ali Shah Case ..696 B. Legal Framework Order—Revival of the Constitution and Reintroduction of Article 58(2)(b).....................................................700 V. CONCLUSION: TO BE OR NOT TO BE—THE PAST AND FUTURE OF ARTICLE 58(2)(b) .....................................................................................703 618 Arizona Journal of International & Comparative Law Vol. 23, No. 3 2006 A. Tests Employed by the Supreme Court to Gauge the Validity of Dissolutions Under Article 58(2)(b)...................................................703 1. Haji Saifullah Case—The First Dissolution .......................705 2. Tariq Rahim Case—The Second Dissolution.....................705 3. Nawaz Sharif Case—The Third Dissolution ......................707 4. Benazir Bhutto Case—The Fourth Dissolution ..................708 5. Summary of Tests Adopted in Dissolution Cases ..............708 B. Conclusion ......................................................................................711 The Jurisprudence of Dissolutions 619 It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution. [T]he declared intention of the Chief Martial Law Administrator still remains the same, namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life. In the presence of these unambiguous declarations, it would be highly unfair and uncharitable to attribute any other intention to the Chief Martial Law Administrator and to insinuate that he has not assumed power for the purposes stated by him, or that he does not intend to restore democratic institutions in terms of the 1973 Constitution.1 . While the Court does not consider it appropriate to issue any directions . as to a definite time-table for the holding of elections, the Court would like to state in clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional break-down, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge . .2 —Chief Justice S. Anwarul Haq writing the opinion of the Court in the Nusrat Bhutto case, which validated General Muhammad Zia-ul-Haq’s (“Zia”) imposition of martial law on July 5, 1977. Zia originally promised to hold elections within ninety days of his assuming power. In 1984, Zia held a controversial referendum to win a five-year term as President. Martial law was eventually lifted in 1985 and non-party-based elections were held in the same year. Zia, however, continued to retain both the offices of President and Chief of Army Staff until his death in 1988 in an air crash.3 1. Begum Nusrat Bhutto v. Chief of Army Staff, 29 PLD 657, 715 (1977) (Pak.). 2. Id. at 723. 3. See infra Part II. 620 Arizona Journal of International & Comparative Law Vol. 23, No. 3 2006 We are of the view that the machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of State necessity and welfare of the people . .4 [I]t has already been emphasized in the Short Order that prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest and that civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive, dated 13th and 17th October, 1999, which necessitated the military
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