Benazir Bhutto's Second Dismissal
Since the restoration of democracy in ( 1985 ) , the President of Pakistan has dismissed each one of the four successive governments on the ground that it could no longer work according to the Constitution, and that therefore, a fresh appeal to the electorate had become necessary. In each case, he arrived at this conclusion because, in his perception, the government had turned out to be incompetent and corrupt. In competence on the part of a government may be a ground for holding it in contempt, but surely it is not "unconstitutional”. All over the world, and through the ages, some governments have been more or less competent than others. The judgement that a government has become intolerably incompetent belongs to the governed and, in a democracy, they deliver it during an election. In the interim their representatives may pronounce the same judgment by defeating the government in Parliament through a "no-confidence” vote.
In any case, the Constitution of Pakistan says nothing about the degree to which a government must be competent. It is, without doubt, unlawful for a government to be corrupt, but is it “unconstitutional”? The constitution's stipulations as to the qualifications of a member of Parliament may have some bearing on the subject, and I shall return to it in a moment. In the meantime, allow me to raise another question. When we speak of a government's corruption, what exactly are we saying? Are we alleging for instance, that the Prime Minister is personally corrupt; that she/he is not, but that some of her/his ministers are; that the higher bureaucrats are; or even that an upper division in a ministry is taking bribes? When the President dismisses a “government because it is corrupt, does he do so because the Prime Minister and her/his cabinet colleagues are taking bribes or because they are not able to eradicate corruption at various levels of government which is a huge net work? In this connection, it is noteworthy that during the period under review (1985-96) to the best of my remembrance, no Prime Minister or a cabinet member has ever been convicted of “corruption” in a court of law.
Nor can I think of a senior civil servant who is in jail because he had been found to be “corrupt”. On the other hand, I can think of politicians, who had been under trial for crimes such as treason and murder, and who were, nevertheless appointed to high political offices with the approval of the same President who later dissmissed governments because of their alleged lawlessness. The most intriguing element in this whole discussion is the fact the Constitution does not allow the President to dismiss a government. He can dissolve the National Assembly of which the Prime Minister and most of her/his cabinet colleagues are members. They lose office, ipso facto, if the Assembly is no more. In each of the four cases under reference, the President has acted under Article 58(2)(b)of the Constitution. It is placed in chapter II, which deals with the working of Parliament, and not with that of the executive. Article 58 refers to the Presidente's authority to dissolve the National Assembly. He may dissolve it if the Prime Minister advises him to do so 58(1), or if the Prime Minister has lost the Assembly's confidence, and no other member is able to command majority support 58(2a), or if a “situation” has arisen as a result of which the government of the federation can no longer be carried on according to the Constitution 58(2b).
What kind of a "situation” is Article 58(2b) contemplating? Is it referring to the possibility that some public officials may be idiotic or dishonest? I don't think so. If the Prime Minister or another official has violated the law or the Constitution, the remedy lies in an appeal to the courts. This is a well-established principle in the constitutional governments all over the world, including Pakistan. Moreover, the fact that some officials have, in certain instances, violated the law or the Constitution is not to be construed to mean that the “government of the federation” can no longer be carried on according to the constitution. Are we justified in coming to that conclusion every time a police officer takes a bribe, or enters a house and picks up a citizen without a warrant?
The context in which Article 58(2)(b) is situated, compels us to think that it relates to the conduct of the National Assembly and not to that of the executive. Yet, in none of the four cases; in which the President dissolved the Assembly as a way of getting rid of an unwanted Prime Minister, did he accused it of any kind of malfeasance.
This is not to say that the Assembly was above reproach. It did not do its work well; some of its members were incompetent and unruly in debate; others lent themselves to "horse trading"; many took bribes and otherwise abused their power and privilege. But in no case did the President say that he was dismissing the Assembly because it had been incompetent and/or corrupt. It is then, legitimate to ask, why the Assembly should be dismissed? Because the President objects to the conduct of the Prime Minister and her/his colleagues? Has he ever sent to the Assembly, a bill of accusations against the "government”, with conclusive evidence to support it and asked the Assembly to throw out this incompetent and corrupt government? Had he done so, and if the Assembly had not voted this government out of power, he might have had reason to conclude that the Assembly was a party to the government's corruption.
He might then have had a ground for dismissing the Assembly. But the President has never done any of this. If the people of Pakistan feel that the President should be able to dismiss a government because it is incompetent and/or corrupt, then the Constitution should be amended to enable him to do so under specifically delineated conditions and circumstances. The Assembly should be dissolved on the ground of its own failing or because a constitutional crisis, related to these failings, has arisen which cannot be resolved without having a new Assembly through fresh elections. Before I take leave of this matter, may I submit that the Constitution does provide a way of dismissing an incompetent and/or corrupt Prime Minister and her/his colleagues. As members of Parliament, they are required to be "sagacious, righteous non-profligate, and honest”, and, among other things, they are to show proper respect for the judiciary of Pakistan.
If they are lacking in these respects, their cases may be referred (through the Speaker) to the Chief Election Commissioner, and if he finds them to be lacking as alleged, he may disqualify them, and they will then cease to be members of Parliament (Article 63). In that event, they will also cease to hold their ministerial offices. It follows that, strictly speaking, the constitutional road to a government's dismissal goes through a judicial process in the court of the Chief Election Commissioner and not through the President's “discretion”. In each of four cases of central government's dismissal, the Provincial Assemblies and governments were also discharged. Yet, I don't remember that they were accused of any particular mischief in the President's initial order. Governors were subsequently asked to dissolve the Provincial Assemblies and, in the present case, a very messy situation arose; two Governors refused to oblige the President and they had to be replaced, and one had to be placed in custody. Even if the President's dismissal of Benazir Bhuto's government, and his dissolution of the National Assembly to achieve that end, are lawful (which I doubt), why should the Provincial Assemblies and governments be dismissed every time the Assembly and government at the national level are sent away? The issue is not whether they were iniquitous. Perhaps they were.
The issue is whether we proceed in these matters according to some rule of law and, if so, what is it? Moreover, if all Assemblies and governments in Pakistan are rotten, can it be said that, by some miracle, the President sits like an island of righteousness in a sea of corruption? I don't think so. The President's periodic dismissal of Assemblies and governments is not the way of educating our people and politicians in the difficult art of operating a democracy which, for centuries, has not been a part of our native political culture. Other ways and mechanisms must be found and Implemented. Benazir Bhutto has challenged the President's action in the Supreme Court. If my remembrance is correct, the Court had earlier held that Ziaul Haq's dismissal of the Junejo government had been unjustified but that the country had gone too far into the process of having new elections for that government to be restored.
It upheld Ghulam Ishaq Khan's dismissal of Benazir Bhutto's government in 1990 but said that some of his grounds for taking this action had been inappropriate. It held his dismissal of Nawaz Sharif in 1993 to have been unlawful and restored his government. The President's grounds for dismissing the government were the same then as they are now (incompetence, mismanagement, corruption, and lawlessness). There has been antagonism between the Court and Benazir Bhutto. But I am certain that this fact will not influence the Court's thinking. It is, therefore, not at all unlikely that the Court will restore the Assembly and, with it, Ms Bhutto's government. On the other hand, we cannot rule out the possibility that the Court will not settle the issue until after the new elections have already been held and a new government formed. In that event, the outcome may be the same as it was in the Junejo case; the President was strong but events have overtaken us and so what can we do!.
If Benazir Bhutto's dismissal is irreversible, where do we go from there the President has appointed February 3, ( 1997 ), as the date for ne elections. But voice are being raised to advocate postponement. Hardly anyone in Pakistan expect Ms Bhutto and her party to win the next election. Mr Nawaz Sharif and his faction of the PML are more likely to win. Many Pakistanis wonder if that will be an improvement upon the state of affairs during Ms Bhutto's regime. Then there is the question of the electoral rolls to be used in the election The old rolls were said to have been rigged to the PML's advantage. Ms Bhutto's government had embarked upon preparing new rolls and it was alleged that these were also being padded with the names of bogus voters. There is also the related issue of the census which should have been held five years ago but has not been held. It is said that the composition of the country's population has changed significantly since the last census; many more people live in urban centres now than they did before. A new census will then increase the representation of the urban population in the Assemblies and correspondingly, reduce that of the rural population. There will thus be fewer “feudal lords in the Assemblies.
Then, there are those who would want to trap the country's political process in a jungle of “accountability before new elections are held, forgetting the lesson of a similar exercise in the first year of Ziaul Haq's regime. Upon his own volition, strengthened by the urgings of politicians, who were fearful of Zulfikar Ali Bhutto's return to power, Ziaul Haq postponed elections indefinitely on the ground that accountability must precede them. The late Mr Bhutto was killed, but none of his ministers was convicted of any crime committed during his term of office, Ghulam Ishaq Khan filed seven charges of corruption and misuse of authority against Ms Bhutto after he dismissed her in 1990. She was acquitted in all of them. Following her return to power in ( 1993 ), her government filed numerous cases against Mr. Nawaz Sharif, his family members and friends. As far as I know, none of them has so far been convicted of any crime. Ms Bhutto and then Mr Nawaz Sharif and company were made to run from one court to another, and pay large sums of money as fees to lawyers, and then they were let go. Either as a deliberate move, or through incompetence, the cases against them were badly prepared and, poorly presented in the courts.
It seems to me that in the Pakistani political culture the purpose of "accountability” is merely to harass opponents not to convict them. The election scheduled for February 3, ( 1997 ) should therefore, not be put in jeopardy for the sake of an ephemeral quest for accountability. The argument that the interim government needs a longer period of time to put the house of Pakistan back in order is also spurious. It may take years, if not decades, to accomplish such a task. The present government's assigned mission is to hold an honest and fair election within three months. During that time it may clean the house as much as it can. But we should remember that this government's virtue lies in its short-term of office.
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