CHAPTER 4 CONSTITUTIONAL CRISIS, DEMOCRACY AND ISLAM

Dismissal of the Junejo Government

Pakistan’s return to democracy in 1985 was marred by the fact that Zia-ul-Haq not only ensured that the legal measures taken by him have remained an enduring legacy until the present but also that he stayed on as the country’s President and Chief of Army Staff. The first parliament had been elected on the basis of non-party elections and Prime Minister Muhammad Khan Junejo was perceived to be very much under Zia’s control. Nevertheless, for all its faults democracy had returned, the 1973 Constitution revived,330 and fundamental rights were again enforceable by Pakistan’s superior judiciary. The fragility of the post-martial law democratic process was, however, quickly exposed when President Zia-ul-Haq, to everybody’s surprise, dismissed Junejo’s government on 29 May 1988 under Article 58(2)(b) of the 1973 Constitution. That Article provided 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 . . . (b) a situation has arisen in which the Government of the Federation cannot be carried out in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.’ The legality of Zia’s order was examined in the case of Federation of Pakistan v. Muhammad Saifullah Khan.331 The Court decided that Zia’s order had indeed been unconstitutional but nevertheless allowed fresh elections to take place. As is well known, these elections brought Benazir Bhutto, daughter of the late Prime Minister Zulfikar Bhutto, into power albeit only briefly: her government was dismissed under Article 58(2)(b) 20 months later, this time by President Ghulam Ishaq Khan. As already explained in the Introduction, this book is not concerned with the development of constitutional law in Pakistan per se. Rather, it traces the impact of Islam on, inter

330 See the Revival of the Constitution Order 1985 and the Proclamation of the Withdrawal of Martial Law 1985. 331 PLD 1989 SC 166.

75 The Role of Islam in the Legal System of Pakistan alia, constitutional law. The otherwise important case of Saifullah Khan332 is in this context is of interest for reasons of omissions: none of the judges referred to any significant extent to principles of Islamic law nor were any of the relevant constitutional provisions interpreted in the light of Islam. The only judicial discourse on Islam was occasioned by one of the reasons given by President Zia to justify his dismissal of the Junejo government, namely that he had failed to pursue and further the Islamisation of the legal system. As such,‘the objects and purposes for which the National Assembly was elected have not been fulfilled.’ In fact, a Constitution Ninth Amendment Bill directed at enforcing Islamic law in country had been drafted but the National Assembly had made no effort to pass it. The Supreme Court rejected this ground holding that: ‘National Assembly has a Charter of its own, an existence distinct and separate, and its utility, efficacy, representative character, success or failure could be judged not by any test or opinion outside the provisions of the Constitution but by reference to the provisions of the Constitution itself. Therefore, we are unable to endorse the view of the learned Attorney-General that the National Assembly had to earn its existence and continuance by maintaining such a pace and progress on the question of Islamisation as could satisfy the late President. Article 2-A of the Constitution does not demand or prescribe a time schedule.’333 President Zia-ul-Haq’s assumption that a failure of the government to pursue Islamisation of the legal system would be sufficient justification for its dismissal is revealing in itself since he defended his prolonged reign as de facto military dictator on the ground that he was introducing Islamic law and morals. However, none of the Pakistani courts had ever accepted any type of ‘Islamic necessity’ as a legitimate justification for extra-constitutional measures. This principle was reaffirmed in Saifullah Khan.334 There was no need as such for the Supreme Court to refer to a basic structure doctrine in order to invalidate the President’s order dismissing the government since the case turned on the question whether or not the President’s order was justiciable. Nevertheless, the failure to refer to principles of Islamic law can also be seen as an indication that the Supreme Court was distancing itself from the Islamic rhetoric which had been in vogue up to 1988. It would, for instance, have been perfectly appropriate to refer to the principle, established in Pakistan v. Public at Large,335 that nobody should be dismissed from office without having been given an opportunity to be heard.336

332 Supra, note 331. 333 Ibid., at p. 214. 334 Ibid. 335 PLD 1991 SC 459. 336 It is somewhat ironic that the right to be heard was used as a ground to refuse the reinstatement of Benazir Bhutto’s government, which had been dismissed on 6 August 1990 by the President under Article 58(2)(b). Abdul Shakurul Salam J. held that ‘Relief of restoration cannot also be allowed for the additional reason that the gentlemen elected to the new National Assembly have not been impleaded as a party to these proceedings. It is an elementary principle of law that no adverse order can be passed against anybody without hearing him’, see Ahmad Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646, at p. 679. 76