IJBPAS, January, 2018, 7(1): 71-87 ISSN: 2277–4998

DISMISSAL OF ELECTED GOVERNMENTS UNDER EIGHTH AMENDMENT AND THE ROLE OF JUDICIARY

*REHMAN AU 1, KHAN TM 2 AND ASHFAQ S 3 1Department of Political Science, Faculty of Social Sciences, University of Peshawar, 2Department of Political Science and Dean Faculty of Social Sciences, University of Peshawar, Pakistan 3Department of Politics and International Relations, International Islamic University Islamabad, Pakistan *Correspondence author: E Mail: [email protected] Received 30th May 2017; Revised 25thJune 2017; Accepted 28thSep. 2017; Available online 1st Jan.2018

ABSTRACT Judiciary plays a significant role in a political and constitutional development of the states, where a federal system exists. In such countries, the sustenance of democracy depends mainly on the independence of judiciary. The 8th Constitutional Amendment shifted the power balance into the office of the President in Pakistan. Due to the lack of power balance in a parliamentary system, the president and the prime minister did not work together to safeguard the national interest. Instead to serve as a check on the elected government and provide stability to the democratic, the President of Pakistan always used this power to dismantle the elected setup. The opposition always asked the President to dismiss the elected governments. In such cases, the judiciary, having the power of judicial review, has been asked to play its role, however, the judgements of judiciary in such cases had far reaching effects on the stability of political system. The judiciary while passing the judgement, looked at a powerful President and the demand of the people than the principle of merit and justice. The judiciary upheld three out of four dismissals of the elected governments, mainly due to the nexus between the military leadership and President of that time, which shows its weakness vis-à-vis other state institutions.

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This paper focuses on the role of judiciary played to complement the dictatorial moves made by the presidents against the elected governments, which were often supported by the military establishment. Keywords: Democracy, Opposition, Military, Prime Minister and Supreme Court INTRODUCTION happened in October 1999 [2]. Both the Keeping in view the history of superior civilians and the military have dealt with the judiciary in Pakistan, it is evident that most judiciary in such a way that it could not of the times, the judiciary has not been develop into an independent institution. consistent in their decisions and often Therefore, whenever the military backed followed the political power trends of the president dismissed the elected government, time. Ever since the first decade, the judges the judiciary could not resist their influence. in Pakistan have tried to match their In majority cases, the decision of Supreme constitutional ideals and legal language to Court came in favour of the president and the exigencies of current politics. The prime minister as well as the legislature had judgments of judiciary have often supported to suffer. No doubt, the opposition did not the existing regimes, presumably to retain a play a positive role, always asked the degree of future institutional autonomy [1]. president to dismantle the elected Although, the 1973 Constitution provided government, and filed petitions in the courts the parliamentary system, the 8th against the setting or dismantled Constitutional Amendment during the reign government. All these factors undermined of General Ziaul Haq shifted all the powers the prospects for growth and development of in the office of the president. Though the a democratic political system. military rule ended in 1988, it left behind a DISMISSAL OF JUNEJO new pattern of civil-military relations so GOVERNMENT AND SUPREME devised by the architect of 8th Constitutional COURT DECISION Amendment. To ensure its dominance over The government of Muhammad Khan Junejo politics, the military adopted a two-fold came into power after the party less strategy i.e., get a political set-up dismantled elections in January 1985. General Ziaul through the exercise of power under Haq lifted martial law only after the 58(2)(b) by the president and, alternatively, parliament validated his Revised to topple the government directly as Constitutional Order 1985 with minor

72 IJBPAS, January 2018, 7(1) Rehman AU et al Research Article changes as Eighth Constitutional November 16, 1988, although, once again on Amendment. No doubt, the amended non-party basis [4]. By the time, General constitution transferred extensive powers in Ziaul Haq passed away in 1988, his political the office of the president including the system was in shambles, therefore, he was power to dismiss the government and defensive and on the retreat once again. The dissolve the assembly. However, differences populace was not amused, and it was quite between the elected government of clear that a phasing strategy of Muhammad Khan Junejo and the military democratisation was not the main agenda of establishment soon emerged. It provided General Ziaul Haq and had mala-fide uncomfortable signs to President Ziaul Haq intentions. It was largely assumed that the that the former’s assertions of independence General-cum-President was pulling the would lead to weaken the control of the strings of quasi-civilian setup and had been latter. General Ziaul Haq appeared to have planning for his personal appearance on the not only calculated the danger from the stage once again. After the death of General Prime Minister, but also his possible Ziaul Haq, a high-level meeting was held in removal from the post of Army Chief, Islamabad, attended by the civil and military thereby leading to punishment of the latter. leadership to take a decision on the issue of Therefore, exercising his powers under succession. The problem was resolved in Article 58(2)(b), General Ziaul Haq accordance with the Constitution and dismissed the elected government of Ghulam Ishaq Khan, the Chairman Senate, Muhammad Khan Junejo and dissolved the stepped into the presidential office as Acting National and Provincial Assemblies on May President of Pakistan. 29, 1988 [3]. Neither Muhammad Khan Junejo, nor others In sacking the premier, President Ziaul Haq challenged the validity of dismissal and stressed the main reason as delay in the dissolution order of the government along implementation of Islamization program in with the National and Provincial Assemblies the country. A caretaker cabinet was in any court during the life time of General constituted without any prime minister. Ziaul Haq. When General Ziaul Haq died, Realising the mood of the masses well, Haji Muhammad Saifullah Khan, one of the General Zia ul Haq announced on July 16, dissolved National Assembly members, filed 1988 the new elections to be held on a writ petition in High Court titled:

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Haji Muhammad Saifullah Khan vs did not restore the National Assembly. Federation of Pakistan. Hearing the case, the Later, General Mirza Aslam Baig, the Court rejected the charges based on which successor Army Chief accepted in a press President General Ziaul Haq had dismissed conference on 4th February 1993 after his the National and Provincial Assemblies. The retirement that a message was sent to the Court declared the charges being so Supreme Court judges, not to issue orders ambiguous and unreal that they could not be for restoration of the assembly and let the sustained in the law. The verdict of the Full elections process take place as per schedule Bench of Lahore High Court in this regard [7]. It proves that an anti-democratic role was that the dissolution of National was played by the apex court and that the Assembly by the President was illegal and Army Chief committed an unqualified unconstitutional. However, the Court neither interference in the proceedings of the restored the civil government nor the Supreme Court. This also shows the powers assemblies, though the sympathies of of the Army Chief to influence the civilian common people were in favour of institutions during the processes of transfer Muhammad Khan Junejo. Further, the Court of power from military to the civilians. It held that since the elections had been discloses the weaknesses of the judiciary as scheduled for 16th and 19th November 1988 an institution which was not able to deliver and the nation was preparing for that, the justice, support democracy and take an Assemblies could not be restored [5]. independent decision in the matter. After As the Lahore High Court declared the this press conference, the claims of Mirza dissolved National Assembly as dead one, Aslam Baig were not denied by the judges maintaining that it could not be restored of Supreme Court rather proceedings for again, therefore, the judgement was contempt of court were initiated. However, challenged in the Supreme Court of Mirza Aslam Baig, taking a stand on his Pakistan. The Supreme Court held detailed words before the Court maintained that he hearings, and scrutinising the case, upheld had disclosed what the reality was. Mirza the verdict of Lahore High Court in first Aslam Baig, though found guilty of week of October 1988 [6]. Although contempt of court, was not charged with any declaring the dissolution of National punishment because he had already been Assembly as illegal and unconstitutional, it reprimanded in the Court [8].

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The decision of Supreme Court against the the growing demand for complete dissolution of National Assembly by democratisation. President General Ziaul Haq, at least, It has remained a question whether the confirmed its mala-fide, illegal, and arbitrary judiciary would have declared the nature. President General Ziaul Haq and his dissolution of National Assembly illegal and advisers also knew this, but they thought unconstitutional, had the petition been filed that they would be able to overcome the during the life of General Ziaul Haq. difficulties and effectively manage the crisis Moreover, had the denial of Supreme Court as was done in 1977. Nonetheless, the to restore the National Assembly dissolution of the National Assembly undermined the very spirit of declaration of validated the assumptions that General Zia the dissolution as unconstitutional? Despite ul Haq was not sincere to his promises for these questions, the general effect and role democratisation of the system. If he could of the Supreme Court of Pakistan in the not share power with his handpicked prime process of democratisation was appreciated minister and if he could not tolerate his as positive and constructive. At that time, assertion of authority in the mandated had General Ziaul Haq lived, he would have sphere, how could he agree to the transfer of faced an effective and extremely hostile power in an orderly and peaceful manner? opposition. The plane crash that took his His action also pushed those political forces life, gave him an honourable exit from the to opposition that had cooperated with him upcoming hostile political arena of Pakistan. in holding the 1985 elections. Even he began Realising the mood and possible response of to think and talk of restructuring the the people, civil society, political parties and parliamentary system and to form a new the international democratic forces, the coalition of pro-Zia ul Haq cronies. The military high command decided not to take elections Ziaul Haq had announced for control of power and let the democratic November 1988 could, most likely, be process continue by allowing the scheduled postponed or used for a referendum on new elections. However, this transfer of power constitutional proposals. General Zia ul Haq by the military to the elected government had exhausted all his political cards to was allowed mainly due to the presence of legitimise his stay in power and to counter Eighth Constitutional Amendment, which

75 IJBPAS, January 2018, 7(1) Rehman AU et al Research Article they were still able to exercise indirectly Constitution, maladministration, financial through the indirectly elected President. decline, bad law and order especially in DISMISSAL OF BENAZIR Sindh and many other issues were declared GOVERNMENT AND SUPREME as the reasons for dismissing the PPP COURT DECISION government [10]. The elected government of Benazir Bhutto The dismissal as well as the dissolution had supported the Acting President, Ghulam order of the President was challenged in the Ishaq Khan in the presidential election. High Courts. Only the Lahore High Court However, due to the struggle for powers, received five petitions. Hearing the petitions differences between the two emerged mainly in detail, the Lahore High Court gave a over the appointments of high level post. unanimous verdict that the ground reasons Moreover, the military did not like the heavily weighted with the President to interference of Benazir Bhutto government dissolve the elected government and the in matters related to defence and foreign National and Provincial Assemblies. The affairs. On July 21, 1990, the top military judges held that president’s orders had direct command in its Corps Commanders’ relation with the pre-conditions clearly meeting concluded that Benazir Bhutto prescribed in the Article 58(2)(b) under the government had crossed the limits. They Eighth Amendment. Therefore, the decided that the government of Benazir judgment of Lahore High Court eliminated Bhutto was not tolerable anymore and, the hopes for restoration of Benazir Bhutto therefore, the military would support any government under the 1973 Constitution. anti-government move by the President [9]. The Court further held that a recourse to the President Ghulam Ishaq Khan, using his electorate had become necessary after the powers of 58(2)(b) under the Eighth dissolution order of the assemblies by the Constitutional Amendment, dismissed the President. elected government of Benazir Bhutto and Petitions were also filed to challenge the dissolved the National and Provincial order of the President regarding dismissal of Assemblies on August 6, 1990, with an Benazir Bhutto government in the Sindh announcement of fresh elections scheduled High Court. A five-member bench was for October 1990. The charges of corruption, formed which was headed by Chief Justice nepotism, inefficiency, violations of the Sajjad Ali Shah for hearing the petitions on

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September 24, 1990. However, the Governor [13]. In fact, the President and his team had of Sindh took-off for Saudi Arabia on analysed the Supreme Court judgment of September 19, 1990 to perform Umrah (a October 5, 1988 regarding the dismissal of religious pilgrimage). Therefore, Chief Muhammad Khan Junejo government. Justice was accordingly assigned with the Besides the charges of corruption etc., responsibilities of acting Governor of Sindh. President Ghulam Ishaq Khan also used In fact, these arrangements were carried out other grounds for the dissolution of Benazir for keeping the Chief Justice out of the Bhutto governmentlike the confrontational bench which was formed to hear the petition politics between the federal and two challenging the order of the President issued provincial governments (Punjab and Khyber for dismissal of Benazir Bhutto government. Pakhtunkhwa then NWFP), inability in The initially planned visit of Governor of forming and activating constitutional bodies Sindh was three days only. However, the like the National Finance Commission and tour was given an extension claiming the the Council of Common Interests coupled reasons of his illness in this regard. As a with the continuity of ethnic strife in the result, the Governor stayed abroad and country [14]. These allegations amounted to didn’t return until the petitions were the constitutional impasse and therefore, the disposed-off [11]. The dissolution of Courts ruled in favour of Ghulam Ishaq Benazir Bhutto government was also Khan. challenged in the Peshawar High Court DISMISSAL OF NAWAZ SHARIF (PHC) which declared that the decision of GOVERNMENT AND President Ghulam Ishaq Khan was in REINSTATEMENT BY SUPREME accordance with his powers under Article COURT 58(2)(b) of the Constitution [12]. When Nawaz Sharif assumed power in An appeal was filed against the decision of October 1990 as prime minister, it was Lahore High Court in the Supreme Court. expected that the relationship between Hearing the case, the Court in its judgement Ghulam Ishaq Khan and that of the newly- upheld the verdict of Lahore High Court elected premier would remain cordial. The thereby granting legality to the dismissal expectations were high since both Ghulam order for Benazir Bhutto government and Ishaq Khan and Nawaz Sharif were the dissolution order for the National Assembly legacies of General Zia ul Haq military rule.

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Moreover, Ghulam Ishaq Khan had Court on April 25, 1993 challenging the consistently supported Nawaz Sharif as dismissal order of his government by the Chief Minister Punjab, during the Benazir president. This time, against the background Bhutto government. Initially, these of a negative imagery, the judges had been expectations proved right; however, at pains to emphasize commitment of the differences emerged when the prime judiciary to decide the case of Nawaz Sharif minister started making decisions based on merit. On the first day of hearing independently. The efforts of Nawaz Sharif the petition of Nawaz Sharif, Chief Justice to establish an independent identity, as a recalled the widely public representative and an all-powerful criticised decision by Justice Muhammad prime minister had been an alarming issue Munir which had validated the order of for the president. Ghulam Ishaq Khan got Governor General Ghulam Mohammed in alarmed by the growing popularity of Nawaz dissolving the first Constituent Assembly of Sharif. The differences grew higher to the Pakistan on October 24, 1954. Chief Justice point that the prime minister indulged in Nasim Hasan Shah mentioned that jurists tussle and issued public statements against and the nation had not pardoned Justice the president. Muhammad Munir for the decision, thus Therefore, Ghulam Ishaq Khan issued order indicating intentions of the Court not to for dismissal of Nawaz Sharif government repeat history by making a similar mistake. as well as dissolution of National Assembly During the hearing, the panel questioned the on April 18, 1993. The grounds for dismissal legality of the presidential decision, noting were corruption, nepotism, that the President is not authorized to maladministration, violation of the dismiss an elected government and dissolve Constitution, failure to work effectively with the National Assembly simultaneously under the provincial governments, unleashing a Article 58(2)(b) which only refers to the reign of terror against the opposition, and dissolution of the National Assembly. The had been unable to conduct investigation of Court also declared that the premier could the death of former Army Chief, General only be removed under Article 91(5), which Asif Nawaz Janjua [15]. It did not end here entitles discretionary power in the president because a week later, the ousted prime to dismiss an elected government. minister filed a reference to the Supreme

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Chief Justice Nasim Hasan Shah president and by the weekend the prime categorically stated, that Article 58(2)(b) did minister will be sitting at home [16]. not confer unlimited authority and the Meanwhile, during the hearings, there was president is constrained from using this the sudden death of the son of Justice power subjectively. The dismissal of an Shafiur Rehman, which ultimately raised the elected government can only be ordered possibility that the proceedings may be after recourse to other constitutional means. postponed. However, emphasizing the For instance, the judges asked the reason, gravity of the on-going situation and the why president had not asked the premier to responsibility that the judiciary owed to the seek a fresh vote of confidence from the nation; Justice Shafiur Rehman attended the National Assembly. The Attorney General Court on the same day after burying his son, of Pakistan informed the Court that the and also took active participation in the president had intended to summon the hearings. Together these actions, questions, National Assembly on April 22, 1993 but and the final decision marked the assertion the speech of Nawaz Sharif on April 17, of the judiciary on its independence and the 1993 had altered the scenario. The Court ability to "correct constitutional irritants" declared that the speech could have been the that had allowed the presidents to dismiss beginning of the impeachment procedures the governments and the national and by the government against the president. The provincial assemblies. During the hearings, Court also questioned the idea of dismissing the Court questioned the underlying concept an elected government based on that the president “operates as a custodian of unsubstantiated allegations of corruption. national interest” and, hence, the validity of Supreme Court pointed out that only actual presidential ‘interventions’ in the working of findings of investigations conducted by the an elected government. The Chief Justice president or references filed in court against declared that the president can inform the the prime minister could be used as government of his views but then he should “material” to prove corruption charges. The leave it to the people to decide in the next chief justice, for instance, questioned the elections [17]. attorney general's references to corruption The decision of Supreme Court, thus raising and said that all you need to do is hire the possibility of repealing the Eighth hundred people, get letters written to the Amendment, brought Pakistan at the verge

79 IJBPAS, January 2018, 7(1) Rehman AU et al Research Article of a genuine democracy. The Court also dismiss the government of Nawaz Sharif and questioned the constitutional validity of the dissolve the National Assembly was power of the president to appoint the Army unlawful and declared it as ‘illegal’ and Chief and other services chiefs. It was ‘unconstitutional.’ The Court declared in its argued that by allowing the president to verdict that the order of April 18, 1993 is not dismiss the National and Provincial in accordance with the powers granted to Assemblies, and to be the virtual guardian of him under Article 58(2)(b) of the 1973 security of Pakistan as Commander-in-Chief Constitution as well as other similar powers, of the three services, the Eighth thereby making it of no legal effect [19]. Constitutional Amendment had opened the The Court declared that it was Ghulam Ishaq way for decisions that may be dangerous for Khan and not Nawaz Sharif who played an the security of the state. Interestingly, the instrumental role to subvert the criticism of Eighth Constitutional constitutional process. Ghulam Ishaq Khan Amendment went beyond the issues of had ceased to be a neutral head of the state transfer of powers to the parliament, and had aligned with prime minister’s questioning the presidential powers in terms opponents to encourage these actors thus of Islamic identity of Pakistan. It was argued making efforts to destabilize the elected that under the Constitution of Pakistan, the government [20]. sovereign powers lie with Allah Almighty This time, the Supreme Court under by the alone. However, the 8th Constitutional Chief Justice Nasim Hassan Shah, gave its Amendment breaches the basis of the 1973 verdict against the Law of Necessity. The Constitution giving powers to the President historic decision of the Supreme Court not of Pakistan to an extent that he is not only restored the National Assembly and re- answerable to anyone [18]. instated Nawaz Sharif government, it also Thus, the presidential power in Pakistan restored the trust of the public in judiciary. suffered with a great setback on May 26, However, the decision of the Court was also 1993, when the Supreme Court reinstated seen partisan, because it was observed the government of Nawaz Sharif and the throughout the proceedings that the judges National Assembly. The full bench of the had already decided for upholding the Court, giving almost a unanimous verdict supremacy of the parliament and the 1973 (10:1), held that the President’s order to Constitution. Moreover, the scope of the

80 IJBPAS, January 2018, 7(1) Rehman AU et al Research Article powers of president under the Eighth the same evening declared that the verdict of Constitutional Amendment were narrowed Supreme Court will be honoured. down to such an extent that in future a The only dissenting judge of the Supreme president would be thinking hard prior to Court was Justice Sajjad Ali Shah from take any action against the National Sindh who, contrary to other panel Assembly [21]. However, the verdict members, gave a dissenting verdict. His eliminated the myth that the President is remarks were rather critical, declaring that over lord of the parliament and the elected before this case, two prime ministers from government. From the very beginning of Sindh had been dismissed under the same filing the petition, the Chief Justice of Article of the 1973 Constitution. However, Pakistan seemed to be in favour of the the Court had declared the decision of the dismissed government because he had President to be valid and/or did not restore announced that the nation was about to hear the dismissed government and the ‘good news’ [22]. It is alleged that a deal assemblies. However, the tables of the Court involving a huge sum of money had been had turned in favour of a Punjabi Prime reached at Dubai due to which the decision Minister and the government along with the of Supreme Court went in his favour. National Assembly had been restored. However, it is also clear that the decision Justice Sajjad Ali Shah further added that came against the backdrop of an intense the Court had indicated that the decision public criticism of the dismissal and the would please the nation, which should be presidential powers conferred under the based on legality only [24]. Benazir Bhutto Eighth Constitutional Amendment. Indeed, remarked on the decision stating that the the judgement of the Court had been a decision of Supreme Court was not doubted prosecution of the President by the highest but at the same time the people were left judicial organ in Pakistan. The decision was confused. They wanted to know why the ultimately an insult for a person having presidential order for dismissal of her never got a taste of defeat and that also at government was upheld in 1990, and why the hands of a person, who until yesterday had it struck down the same nature of order remained subordinate to his office. The issued for dismissal of Nawaz Sharif President House, issuing a press release on government. Addressing the PPP congregation at Liaqat Bagh (Rawalpindi),

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Benazir Bhutto also expressed that the motivated by their personal interest to regain people did not know what did Nawaz Sharif power of the government, these politicians has due to which he remains in power. He were still participating in the constitutional had been the ultimate beneficiary in case the war of the President against the prime government of PPP was dismissed under the minister. By joining hands with the Eighth Constitutional Amendment or that of president, they also prevented a his own (Nawaz Sharif) [25]. democratically elected government to It is pertinent to mention here that the complete its five-year term. government of Nawaz Sharif and the DISMISSAL OF BENAZIR BHUTTO previous government of Benazir Bhutto SECOND GOVERNMENT AND were dismissed within different operational SUPREME COURT DECISION contexts. The government of Benazir Bhutto Since the beginning, the government of had been dismissed in August 1990 with a Benazir Bhutto had been facing strong military backed initiative, on the grounds of resistance from the opposition political corruption, failure to work effectively with parties and a critical press. This time, Nawaz the provincial governments and efforts in Sharif was posing a much stronger questioning the powers of the military. opposition to Benazir Bhutto and was more However, the dismissal of Nawaz Sharif's impatient for overthrowing her government government was basically due to the efforts mainly through agitation politics and a of the President for re-election. In fact, these rigorous campaign through media. Benazir two different contexts were the main reason Bhutto government also made some efforts that the Supreme Court asserted its to control the higher judiciary through independence and questioned the scope of political appointments which went the power of the president under the Eighth unsuccessful. Benazir Bhutto government Constitutional Amendment, thereby also avoided appointing the Public Accounts invalidating the April 18, 1993 decision of Committee in the National Assembly meant the president. The decision of Supreme for scrutinising the expenditures of the PPP Court brought Pakistan to a crucial juncture government. During the year 1996, Benazir in its history, by offering the politicians with Bhutto government had alienated the an opportunity to move in the direction of judiciary, the military, the president, the genuine parliamentary democracy. However, world monetary bodies like World Bank and

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IMF (in particular), and the Pakistani public- to dissolve the National Assembly and at-large. The confrontation and the dismiss the elected government following intolerance of the government and months of turmoil in the country. In the opposition towards each other provided dissolution order, the President charged again an opportunity to the military and the Benazir Bhutto government for not taking president to roll down the elected adequate steps for bringing an end to the government. extra judicial killings, blamed the president The Army Chief apparently remained and other state institutions for involvement neutral in the controversy of Benazir Bhutto in the killing of Mir Murtaza Bhutto. It with both Farooq Khan Leghari and Justice showed reluctance in implementation of the Sajjad Ali Shah. However, majority of the Supreme Court orders and curtailed the military commanders were in favour of the independence of higher judiciary by passing President and the Chief Justice. The military of the accountability laws. Moreover, it was also warned President Farooq Ahmad Khan alleged with moving a bill in the Parliament, Leghari about the worst situation and apparently meant for preventing corruption, demanded quick remedial measures in but its effect was a deliberate violation of August 1996 [26]. The President, called the basic rights of the citizens to have Benazir Bhutto for a meeting in which she privacy. In addition, there was rampant issued derogatory statements about Farooq corruption, nepotism, favouritism and Ahmad Khan Leghari saying that he has violation of administrative rules for running been nominated as President by her party the affairs of the government, as among [27]. In October 1996 the military concluded lesser charges [28]. This was the fourth that the elected government of Benazir elected prime minister dismissed since 1988, Bhutto was failing in dealing with the crises. and Farooq Ahmad Khan Leghari became Therefore, it became easy for President the third president of Pakistan to have Farooq Ahmad Khan Leghari to dismiss the exercised the constitutional power under government of Benazir Bhutto as he was 58(2)(b) in this regard. However, the now sure that military would not object to performance of Benazir Bhutto government his action of dismissal. had made that day bound to come. In fact, On November 5, 1996, the president Benazir Bhutto was emerging as an arrogant, invoked Article 58(2)(b) of the Constitution reckless, capricious and corrupt ruler.

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Moreover, she was surrounded by the decision of President Farooq Ahmad sycophants, lackeys and flunkeys thereby Khan Leghari. squandering away another good opportunity The effort of Benazir Bhutto to get the to prove her services for the people of the dismissal order reversed through the country [29]. Supreme Court was as unsuccessful like her Benazir Bhutto’s government was dismissed appeal to the public. On November 13, 1996 for the second time in a coup like style and Benazir Bhutto challenged her dismissal and regular troops of the military were asked to filed a 42-page petition in the Supreme take control of all government buildings in Court which “contained blistering criticism Islamabad including the office of the prime of the President.” Three days later, the Court minister. Moreover, all the international dismissed the petition stating that it was airports were closed and, the telephones “argumentative, irrelevant, and scandalous.” were also jammed for the first time in The Supreme Court in a 6:1 judgement Pakistan [30]. The military also arrested Asif upheld the decision of the president. It Ali Zardari from the Governor House in maintained that the president had been able Lahore and was later taken into custody by to submit adequate evidences to prove that the local administration. Initially, the the dismissal order of Benazir Bhutto Governor of Punjab was kept under the government was correct. The Chief Justice house-arrest but later he was forced to give of Pakistan declared in his judgement that resignation. After the successful completion there is enough material to establish of this operation, the military handed over corruption, nepotism and misrule against charge to the para-military forces. All the Benazir Bhutto government. The Court also Corps Headquarters remained open in all the allowed fresh general elections on the four provincial capitals for the whole night. scheduled dates [32]. Thus, the November 5, They had been passing on the instructions 1996 presidential order, validated by being received from the Presidency and Supreme Court removed Benazir Bhutto as General Headquarters (GHQ) of Pakistan prime minister, one again. However, the Army to the top brass of civil bureaucracy decision of Chief Justice Sajjad Ali Shah’s and were ensuring the compliance [31]. This Court clearly reflected its own grudge support and coordination really shows what against Benazir Bhutto government also. was the level of support from the Army to Another petition was then filed in the

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Supreme Court, but it was also dismissed for image of judiciary in the eyes of people, on hearing. the other. As a result, the role of judiciary as CONCLUSION guardian of the Constitution and the Since the first decade of independent institutions thereunder has only partially Pakistan, the judiciary had sided with the materialized in the case of Pakistan. The institutions of the presidency and military in appointment of judges without merit, dismissing the elected governments. It especially at high court has been a major created an image of a judiciary for lacking factor which harmed the independence of real independence. The impressions, judiciary in Pakistan. The judicial especially conveyed during Z. A. Bhutto's appointment should be made more dismissal and trial, were further reinforced competitive and the processes should be in February 1993 when General (Rtd.) Mirza more transparent. The system of Aslam Baig claimed that he had personally appointment and promotion needs to be asked the Supreme Court of Pakistan not to conducted through proper channels, i.e., restore the government of Mohammed Khan appointment as magistrate and onwards Junejo back in 1988. The claims also promotions are merit based. The Supreme implicated the judiciary in interrupting the Judicial Council has also remained process of democratization in the country ineffective due to which the judiciary in due to military involvement. Whatever the Pakistan lacks an effective system of pros and cons of the constitutional accountability. To make this institution more amendments and the resultant imbalance transparent, Chairman of the Senate and between the powers of the president and Speaker of the National Assembly, being prime minister, the superior courts in neutral offices, shall be made its members. Pakistan have not been consistent in their This development will enhance the prestige judgments and have showed disparities in of these two important heads of the resolution and strength with which parliamentary chambers as well. presidential reasons for dissolution were REFERENCES analysed for judgement. The judgments of [1] Newberg, Paula R., Judging the State: superior judiciary in such matters has far Courts and Constitutional Politics in reaching negative effects on the stability of Pakistan, (Cambridge: Cambridge political systems, on the one hand, and the University Press, 1995), 5.

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[2] The elected government of Prime [11] Shah, Sajjad Ali, Law Courts in a Minister Nawaz Sharif was dismantled Glass House, An Autobiography, 45. by Chief of Army Staff General [12] Aziz, Sartaj, Between Dreams and Pervaiz Musharraf on October 12, Realities: Some Milestones in 1999. For details see, The News Pakistan’s History, 104-5. International, October 13, 1999. [13] Justice Abdul Salam in his dissenting [3] Daily Jang, May 30, 1988. view held that power of dissolution of [4] Aziz, Sartaj, Between Dreams and assemblies was exclusive for General Realities: Some Milestones in Ziaul Haq, and that if he could not Pakistan’s History, (Karachi: Oxford, complete his mission or tenure, then 2009), 87. nobody could be allowed to step into [5] Sehri, Inam R., Judges and Generals his shoes. Justice Sajjad Ali Shah, in Pakistan: Volume-I, (Guildford, though having a dissenting view held Surrey: Grosvenor House Publishing, that like Haji Saifullah Case, the 2012), 110-11. dissolved assembly could not be [6] The detailed verdict was announced on restored. It was because fresh elections 5th October 1988. For details see, Haji have been held and all political parties Muhammad Saifullah Khan vs including PPP and the deposed prime Federation of Pakistan, PLD 1989 SC minister have actively participated. For 166. details see, Khwaja Ahmed Tariq [7] The News International, February 5, Rahim vs Federation of Pakistan, PLD 1993. 1992, SC 646. [8] Shah, Sajjad Ali, Law Courts in a [14] Aziz, Sartaj, Between Dreams and Glass House, An Autobiography, Realities, 104. (Karachi: Oxford University Press, [15] Presidential Speech to the Nation 2001), 137. published in Daily Dawn, April 19, [9] Nawaz, Shuja, Crossed Swords: 1993. Pakistan; Its Army, and the Wars [16] The Nation, May 23, 1993. Within, (Karachi: Oxford University [17] Ibid. Press, 2008), 430. [18] Daily Dawn, May 12, 1993. [10] Daily Dawn, August 7, 1990. [19] The Nation, May 27, 1993.

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[20] Though the dissolution was challenged [32] Although Syed Yousaf Raza Gilani, in Lahore High Court by Gohar Ayub, the Speaker of National Assembly had Speaker of the National Assembly, yet challenged dissolution of the National Nawaz Sharif had also filed a separate Assembly, Benazir Bhutto also filed a constitutional petition directly before separate constitutional petition against the Supreme Court. For details see, the dissolution of assembly and Muhammad Nawaz Sharif vs President dismissal of her government. For of Pakistan, PLD 1993 SC 473. details see, Benazir Bhutto vs Farooq [21] The Herald, June 1993. Ahmad Leghari Case, PLJ 1998 SC 27. [22] Khan, Hamid, Constitutional and Political History of Pakistan: 2nd Ed., (Karachi: Oxford University Press, 2009), 447. [23] From interview of first author with Abdul Latif Afridi, Advocate Supreme Court of Pakistan, dated: May 14, 2015. [24] PLD 1993, SC. 473. [25] The Herald, June 1993. [26] Herald, September 1996. [27] From interview of first author with Brigadier (Rtd.) Mahmood Shah, Defence and Security Analyst, dated: December 15, 2015. [28] Daily Dawn, November 5, 1996. [29] The editorial published in Friday Times, November 3-7, 1996. [30] The Muslim, November 6, 1996. [31] Rizvi, Hassan Askari, Military, State and Society in Pakistan, (Lahore: Sung-e-Meel Publications, 2003), 225.

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