By
A.G. Noorani[1]
Abstract
Parliamentary form of government was opted in unison, by all the South Asian countries after gaining independence. Yet there have been deep scars in the respective experience of each country. While Pakistan and Sri Lanka briefly experienced presidential form of government and Prime Minister Indira Gandhi of India tried to strengthen her authority through emergency powers, the letter and spirit of parliamentary democracy prevails. Nevertheless the parliamentary form of government is often under assault and needs to be consolidated. In a situation where political intolerance rides high, the author offers some constitutional remedies. – Editor)
Significantly, not one of the Founding Fathers of the countries of South Asia ever advocated the presidential system for the country to adopt on its attainment of independence from British rule. All were committed to the parliamentary system, based on the British model. Cries for the presidential system were first heard in India in 1964 after the death of its first Prime Minister Jawaharlal Nehru, but subsided before long. They were renewed in 1975 after Prime Minister Indira Gandhi imposed an emergency and set about recasting the constitution and again in 1980 on her return to power after her massive defeat in the general election to the Lok Sabha in 1977. No one talks about it these days.
Pakistan had a brief experience of the presidential system which President Mohammed Ayub Khan established by a Proclamation on 28 February 1962. It gave way to the Interim Constitution which, was replaced by the Constitution of 1973, avowedly to re-establish the parliamentary system as the Constitution of 1956 did.
Sri Lanka established a presidential system on the French model by its Constitution of 1978. It has not been a signal success. It was reported on 14 May 2007 that the ruling Sri Lanka Freedom Party led by President Mahindra Rajapakese “seeks to restore the parliamentary model of government” on which the Constitution of 1948 was based.
The parliamentary system is deeply rooted in the psyche of the people. British rule brought in its train the only political system known to that country. The top leaders of the freedom movement were all English barristers – Mohandas Karamchand Gandhi, Mohammed Ali Jinnah, Jawaharlal Nehru, Liaquat Ali Khan and Vallabhbhi Patel. Beginning with the Indian Councils Act, 1861 right till the Government of India Act, 1935 successive doses of reforms whetted the appetite for the system entire. The political elite took to it as duck to water. Its successors do not regret the choice. The system is entrenched in the popular mind as a model to be worked and perfected.
However, understanding still eludes the political class on three crucial points – the political bases on which alone the system can work; its essential spirit and its tacit, unwritten conventions; and the rules of the parliamentary system. This essay suggests that understanding can yet be acquired; not least in India where people tend to be smug and complacent because it has been spared the upheavals that rocked Pakistan and Sri Lanka. It concentrates on the Indian and Pakistani experiences. It is a sobering thought that, for all that, as recently as in 2004 and far more so in 2006, the President of India, A.P.J. Abdul Kalam, created constitutional crises which the Prime Ministers tactfully averted.
The fact that British sceptics have been proved wrong in all the three states – India, Pakistan and Sri Lanka – is no reason to brush aside, now that we are free and self-assured, the caveats they uttered; still less ignore the dicta of British constitutional lawyers and, indeed, those of our jurists. Uniquely, all three have anti-defection laws unheard of in other democracies. All three are experiencing deeply split politics with unbridgeable political divides whether based on personalities or ideologies based on religious revivalism. All three have seen their leaders assassinated and thrown up dynastic rule.
What the Chairman of the Drafting Committee of India’s Constituent Assembly said on 4 November 1948 rings true today: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic;” feudal, he might have said.[2] The British uttered dire warnings of India’s unfitness for parliamentary democracy. The Report of the Joint Committee on Indian Constitutional Reforms (Session 1933-34) doubted India’s ability to work “an unqualified system of parliamentary government.” It said: “Parliamentary government, as it is understood in the United Kingdom, works by the interaction of four essential factors: the principle of majority rule; the willingness of the minority for the time being to accept the decisions of the majority; the existence of great political parties divided by broad issues of policy, rather than by sectional interests; and finally the existence of a mobile body of public opinion, owing no permanent allegiance to any party and therefore able, by its instinctive reaction against extravagant movements on one side or the other, to keep the vessel on an even keel. In India none of these factors can be said to exist today. There are no parties, as we understand them, and there is no considered body of political opinion which can be described as mobile.”[3] It was a motivated assertion. But how true or false is it as a statement of the realities in 2007 ?
When emergency, a euphemism for dictatorship, was imposed in India, ironically not a few Conservatives and Labourites defended it. Professor W.H. Morris-Jones, Constitutional Adviser to the Viceroy of India in 1947, and a scholar of high repute, refuting Mr. Eldon Griffith’s defence of the emergency in a letter to The Times (London) on 25 June 1976, wrote: “… (the) jibe about ‘exhibit A of the Westminster model abroad’ misses the point that it had become a specifically Indian achievement; it only adds insult to the injury already suffered by Indian democrats. Such denigration has long been a sport in which high imperial Tory and revolutionary Marxist could find common enjoyment. Even your own leader (June 21) chose an odd time to point out the limitations of democracy under Congress; for an incomplete democracy is diminished further, not remedied, by illiberalism.
“Nor can one easily detect any clear and consistent signs that the elite-mass gap which you deplore is being closed by the present regime of Mrs. Indira Gandhi? And just how may the change ‘accord better with indigenous habits’? Are habits never modified? Had not growing numbers of Indians begun to make the habits of liberal democracy indigenous? Surely it is a ‘massive’ loss when damage is done to a way of political life which in two decades had already converted into citizens so many who had been subjects beyond the political pale… Moreover, the ‘grains’ are doubly suspect. In origin they are at best uncertainly attributable to Mr. Gandhi’s dose of autocracy. In their effects they appear too fragile to endure. Unitedly, Indian democracy had freely mobilized demands and grievances; in its place is put none of the usual alternative.”
Parliamentary democracy has struck roots in South Asia; but dangerous signs persist. In the last decade, India’s Parliament has been repeatedly prevented from proceeding with its business whenever the opposition decided to block them.
However patronizing it might seem we must bear in mind the former British Prime Minister, A.J. Balfour’s, words in his Introduction to the Second Edition of Walter Bagehot’s classic The English Constitution. “Constitutions are easily copied, temperaments are not; and if it should happen that the borrowed constitution and the native temperament fail to correspond, the misfit may have serious results. It matters little what other gifts a people may possess if they are wanting in those which, from this point of view, are of most importance. If, for example, they have no capacity for grading their loyalties as well as for being moved by them; if they have no natural inclination to liberty and no natural respect for law; if they lack good humour and tolerate foul play; if they know not how to compromise or when; if they have not that distrust of extreme conclusions which is sometimes misdescribed as want of logic; if corruption does not repeal them; and if their divisions tend to be either too numerous or too profound, the successful working of British institutions may be difficult or impossible. It may indeed be least possible where the arts of parliamentary persuasion and the dexterities of Party management are brought to their highest perfections… Let the political parties be reduced to two (admittedly the most convenient number for Cabinet Government), but let the chasm dividing them be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure.”[4] .
To his niece, Blanche Dugdale, he was more forthright in a conversation on 25 April 1925: “I doubt if you would find it written in any book on the British Constitution that the whole essence of British parliamentary government lies in the intention to make the thing work. We take that for granted. We have spent hundreds of years in elaborating a system that rests on that alone. It is so deep in us that we have lost sight of it. But it is not so obvious to others. These peoples – Indians, Egyptians, and so on – study our learning. They read our history, our philosophy, and our politics. They learn about our parliamentary methods of obstruction, but nobody explains to them that when it comes to the point all our parliamentary parties are determined that the machinery shan’t stop. ‘The King’s government must go on’, as the Duke of Wellington said. But their idea is that the function of opposition is to stop the machine.[5]
The constitutional lawyer, Ivor Jennings said in his famous work Cabinet Government: “The function of parliament is not to govern but to criticize. Its criticism, too, is directed not so much towards a fundamental modification of the government’s policy as towards the education of public opinion… the government governs and the Opposition criticizes. Failure to understand this simple principle is one of the causes of the failure of so many of the progeny of mother of parliaments and of the suppression of parliamentary government by dictatorship” (p.16).
The great statesman, Gladstone, held that the British Constitution “presumes more boldly than any other, the good faith of those who work it.”[6] One has only to recall the fundamentals of the parliamentary system to appreciate the truth of his aphorism. First and foremost it requires a Head of State powerful enough to check a wayward Head of Government, the Prime Minister, but not so powerful as to subvert the system and make himself dictator; and vice versa. The PM must be powerful enough to resist such a design but not so powerful as to reduce the President to a cipher. When it is remembered that it took India 42 years since the enactment of its Constitution to establish a fair balance, one begins to appreciate the dangers that lurk once the balance is disturbed – Indira Gandhi’s constitutional dictatorship from 1975-77 thanks to a supine President Fakhruddin Ali Ahmad.
The British monarch has not refused assent to a Bill since 1707, nor dismissed a Prime Minister since 1783; nor refused to dissolve the House of Commons on the PM’s request for “more than a hundred years” Jennings wrote in 1959.[7] It is now well settled that assent can never be refused. But if a Bill, subversive of the Constitution, is enacted, the Crown’s only recourse is to dismiss the ministry and dissolve the House of Commons. These two powers are powerful weapons in the hands of a principled President; but dangerous in those of an unscrupulous one. Both powers indubitably exist to this day in Britain.
On dissolution the locus classics cited by every work on constitutional law is a letter by ‘Sensex’ published by The Times, London on 2 May 1950. He was none other than Sir Alan Lascelles, private secretary to the King. It bears quotation in full: “It is surely indisputable (and common sense) that a prime minister may ask – not demand – that his sovereign will grant him a dissolution of parliament and that the sovereign, if he so chooses, may refuse to grant this request. The problem of such a choice is entirely personal to the sovereign, though he is, of course, free to seek informal advice from anybody who he thinks fit to consult.
“In so far as this matter can be publicly discussed, it can be properly assumed that no wise sovereign – that is, one who has at heart the true interest of the country, the constitution, and the monarchy – would deny a dissolution to his prime minister unless he were satisfied that: (1) the existing parliament was still vital, viable, and capable of doing its job; (2) a general election would be detrimental to the national economy; (3) he could rely on finding another prime minister who could carry on his government, for reasonable period, with a working majority in the House of Commons. When Sir Patrick Duncan refused a dissolution to his prime minister in South Africa in 1939, all these conditions were satisfied, when Lord Byang did the same in Canada in 1926, they appeared to be, but in the event the third proved illusory.”
A Prime Minister whose advice to dissolve is rejected, can resign and force an election in which the Crown becomes a party issue. Likewise the Crown can force a dissolution if the public opinion is to be ascertained.
On dismissal, every work on the law says that the Crown’s power does exist; it has not been exercised since 1783 but it has not become extinct either. Prof. Geoffrey Marshall writes: “Dismissal would be appropriate if a government, by illegal or unconstitutional administrative action, were to violate some basic convention of constitutional behaviour. Even then it would be necessary for the breach to be a profound one for which no other remedy could be found. In a great many cases in which it is alleged that Ministers have acted unconstitutionally (in the sense of violating constitutional convention or practice), the questions in issue are in any case debatable and usually a matter of controversy between the political parties or between government and opposition. The remedy for alleged convention-breaking is generally recognized to be, in the main, political. Either the government can be shamed by publicity and political debate into conceding error or changing its course of action, or its misdeeds can be made the subject of argument at the next General Election.[8]
Prof. Vernon Bogdanor asserts that the former can be used “at the point at which the constitution itself, which determines the role of the head of state, appears to be under threat. At that point, it may be suggested, the sovereign has the right to exercise his or her discretion, to act as a constitutional guardian, to ensure that the values which lie at the foundation of a constitutional system are preserved. In such circumstances, some would suggest that the sovereign has the right, and perhaps indeed the duty, to act as a guardian of the constitution. The doctrine that the sovereign is required to act on the advice of ministers presupposes that ministers themselves act within the framework and presumptions of constitutional government.”[9]
In South Asia there is little awareness of another weapon – the head of state does not dismiss the Government but demands that it seek a new popular mandate for a course it seeks to adopt. Prof. Eugene A. Forsey writes: “It is probably safe to say that under modern conditions forced dissolutions will take place only if the Crown considers them necessary to protect the Constitution or to ensure that major changes in the economic structure of society shall take place only by the deliberate will of the people. In other words, the power to force dissolution is now likely to be used only negatively, preventively; never as a means of bringing about some positive end desired by the King himself or his representative.
“If a Government won an election by means of flagrant and notorious fraud, corruption, violence or terrorism, or some combination of these, the Crown could properly dismiss such a Government and call to office a new Government which would hold new elections under proper conditions.”[10] Forsey’s work, written in 1943, remains a classic still.
Suffice it to say that the parliamentary system provides ample checks to ensure both stability and democracy, provided there is a will to work it and the political class values the system more than its immediate gains. If politicians in the opposition welcome improper intervention by the head of State against the government of the day, it in turn, is not averse to using him, with equal impropriety against the opposition. This has happened in India as well as in Pakistan.
Disenchantment with the parliamentary system has driven some to opt for the presidential system as the “stronger” of the two. The fallacy is obvious. A legislature can yield a government – the Cabinet. But an executive cannot legislate by itself. It needs a legislature. This can lead to a deadlock as the U.S. experienced in 1993 when the Speaker of the House of Representatives, Newt Gingrich, was out to confront President Bill Clinton. The other flaw is far more dangerous.
Prof. Karl Loewenstein’s warning must be borne in mind: “It is hardly an exaggeration to describe the American pattern of government as the most difficult of all in actual operation, particularly if coupled with the complexities of federalism, an equally difficult arrangement of conflicting power interests. That it worked at all is a near miracle, explainable only by the abundance of a nation that could afford a cumbrous and wasteful governmental system… The centre of gravity shifted to the President without forcing him to resort to illegality, and Congress always voluntarily submitted to presidential leadership. No wonder that, when transplanted into a foreign environment, American presidentialism failed to take roots…Either the primacy of the presidential position became a power device for an ambitious individual supported by the armed forces, landed oligarchs, and the church, or, in line with the recent political climate, it acquired a quasi-plebiscitary hue, catering to the masses revolting against agrarian feudalism. More often than not a military junta dominates without any ideological pretenses. It appears in pseudo-constitutional disguises or struts about without constitutional trappings as naked power.”[11]
In the light of these fundamentals, it is instructive to study how India and Pakistan went about working the parliamentary system and, indeed, the kind of that system they initially established.
The Parliamentary System in India.
The Indian Constituent Assembly’s Drafting Committee prepared an Instrument of Instructions to the President, as a Schedule to the Constitution, to codify the convention of the parliamentary system.[12] It was however dropped on 11 October 1949 just a month before the Constitution was enacted because “it has now been felt that the matter should be left entirely to Convention.”[13]
Dr. Ambedkar acknowledged on 30 December 1948, that the President would enjoy some discretionary powers: “Under a Parliamentary system of Government, there are only two prerogatives which the King or the Head of the State may exercise. One is the appointment of the Prime Minister and the other is the dissolution of Parliament.” On 11 October 1949, a member, Mr. M.V. Kamath’s query prompted Dr. Ambedkar to assert that the president shall follow the advice of his Ministers. Mr. Kamath persisted: “If in any particular case the President does not act upon the advice of his Council of Ministers, will that be tantamount to a violation of the Constitution and he will be liable to impeachment?’[14]. The Constitution came into force on 26 January 1950. Dr. Rajendra Prasad was elected President of India.
Less that two months after assuming the Presidency, Prasad sent Nehru a note dated 21 March 1950 in which he sought to reopen the very issues on which, in his presence, the Constituent Assembly had decided. His main query was: “Does the Constitution contemplate any situation in which the president has to act independently of the advice of his Ministers?” Related to it were a host of other queries concerning the President’s powers over the armed forces, his powers of appointment to judicial and other high offices; the power to seek information and to return Bills to Parliament for reconsideration. The Prime Minister referred the queries to the Attorney-General M.C. Setalvad, for his opinion. The opinion, tendered on 6 October 1950, could not have pleased the president. “It is true that this view of the President’s functions reduces him to the position occupied by the King in the Constitution of the United Kingdom. That, however appears to be the basis of our Constitution.”
Prasad did not stop at that. On 15 September 1951 he wrote to Nehru on the Bill for the reform of Hindu law enclosing a note darkly hinting that he might withhold his assent to it. To the Prime Minister’s hints about the limitations on Presidential powers the President retorted, on 18 September, that “the Constitution does not admit of a wholesale importation of all practices and conventions of the British Constitution.” The ones that were to be adopted were there in the text, he said. Nehru rejected, in his reply of 21 September, the President’s claim that he could address Parliament at his discretion. Once again, the President’s queries were referred to the Attorney-General and, now, also to Sir Alladi Krishnaswamy, a constitutional lawyer who was a member of the Drafting Committee. Setalvad’s opinion of 24 September and Sir Alladi’s 20 September and 8 October 1951 pronounced against the President.[15] It is hard not to agree with Granville Austin’s comments: “Had his first attempt to ignore conventional restrictions and to play the part of his own Prime Minister not been foiled., parliamentary government in India would have disappeared before it was two years old”[16] The Supreme Court upheld the view the lawyers had taken.
The office of the President of India suffered a decline in prestige and authority, by a slow process; the cause was intense political warfare that gripped the country after the Congress Party split in 1969. But even before that, decline had set in.
Dr. S. Radhakrishnan was elected President in May 1962 and soon developed ambitions. China’s attack on India in October 1962 inflicted grave damage on Nehru’s prestige. The President did not help him by what was an unprecedented criticism of the Government near the front. What was worse, the President began talking against Nehru. The American Ambassador, Chester Bowles, records in his memoirs: “On several occasions he expressed to me in a half joking manner the wish that somehow after Nehru’s death or retirement the whole country could operate under ‘President’s rule’ for a few months. This, he said, would enable him in his role as President to ease some of the cumulating political conflicts and make some of the difficult but necessary decisions before turning the Government over to a new Prime Minister and Cabinet.”[17]
With Nehru’s successor, Lal Bahadur Shastri, the President’s relations were never more than correct. He was free in his censures both in private and in public. Relations with Shastri’s successor, Indira Gandhi, began well in January 1966 but she was hardly the person who would suffer an ‘uncle’ in the Rashtrapati Bhavan (President’s House). She got the Vice-President, Dr. Zakir Hussain, elected as President in 1967.
Mrs. Gandhi’s self confidence received a boost. The new President soon discovered her growing assertiveness. The opposition did not forgive him for winning and kept up a silent campaign of denigration (‘a rubber stamp President’).
In the course of one of his interviews to this writer in 1967, in connection with his biography, Dr. Zakir Hussain digressed to comment on contemporary matters. He remarked that what the opposition really wanted was a President who would “fight with the Prime Minister.” That would be a disservice. The President is bound by the Cabinet’s advice. But he added the significant reservation “except in regard to his emergency powers.” What Dr. Hussain clearly meant was not so much the emergency provisions of the Constitution, but the ultimate reserve powers which very properly belong to a constitutional head of state.[18]
In his memoirs, The Story of My Life, Mr Morarji Desai, then Deputy Prime Minister, revealed that he found Dr. Zakir Hussain: “worried about conditions prevailing in the country. He discussed these conditions with the Prime Minister some days before his demise and when I met him I found that he was feeling very much worried. He told me that whenever he asked the Prime Minister about the conditions in the country, she told him there was nothing to worry about. The President told me that while the country was in a condition which caused him concern, the Prime Minister did not seem to be worried. The fine gentleman that he was, he could not speak disparagingly about anybody. It was clear that he was feeling uneasy about the dangers facing the country.”[19]
Dr. Zakir Hussain died in office on 3 May 1969 when the Congress Party was breaking apart. It broke over the nomination of the Presidential candidate though the split was finally sealed a few months later. At the Congress Parliament Board meeting in July 1969, Mrs. Gandhi’s candidate, Jagjivan Ram, lost by three votes to five to the opposition candidate, N. Sanjeeva Reddy. She signed Reddy’s nomination papers as proposer only to back out on the ground that in view of her Party’s colleague’s confabulations with the opposition parties, a “conscience vote was required”. The Vice-President V.V. Giri threw his hat in the ring and resigned from office to fight the election as an ‘independent’, at her insistence.
On 20 August 1969 the election results were announced. Giri won a majority only on the second count – 420,007 votes to Reddy’s 405, 427.
Indira Gandhi defeated her opponents decisively in the mid-term elections to the Lok Sabha in 1971, the first of its kind. The communiqué that was issued on 27 December 1970 served to establish a vital principle – the President is not bound by the Prime Minister’s advice to dissolve but enjoys, like the British Crown, a measure of discretion. It is set out in full:
“The Prime Minister met the President on 2 December and conveyed to him the proposal to dissolve the Lok Sabha. She said that the sole consideration for making this request was the Government’s desire to seek a fresh mandate from the people to enable the Government to effectively implement the socialist and secular programs and policies. Subsequently, on the same day, some Opposition leaders also met the President. The Prime Minister again called on the President in the evening and conveyed to him the Cabinet decision to recommend to the President the dissolution of the Lok Sabha. After careful consideration of the matter, the President has accepted the recommendation.”
When he retired in 1974 the Presidency had become a gift for the Prime Minister to offer. The opposition had lost as badly in the elections to the State Assemblies in 1972 as it had in 1971 in the elections to the Lok Sabha. After the split the Congress Party had become an instrument of the Prime Minister’s will. (No organizational elections have been held since 1972 to this day.).
Mrs. Gandhi decided to offer the gift to the safest person she could find. Fakhruddin Ali Ahmed, her father’s contemporary at Cambridge. On 25 June 1975, when asked to sign a Proclamation of Emergency on grounds of “internal disturbance” (Article 352) which he knew to be false, Ahmed did not flinch. The excesses that followed saddened him as did the indifference to which he was subjected.
Indira Gandhi had the Constitution amended while the opposition leaders were behind the bars. Section 13 of the Constitution (Forty-Second Amendment)Act, 1976 added the italicized words to Article 74(1) of the Constitution: There shall be a Council of Ministers with the Prime Minister at the Head to aid and advise the President who shall in the exercise of his functions, act in accordance with such advice.”
Ahmed died of a heart attack and the Vice-President, B.D. Jatti, was sworn in as Acting President on 11 February 1977. In the elections to the Lok Sabha the following month, Indira Gandhi was defeated. The opposition combine, the Janata Party, came to power. It secured the enactment of the Constitution (Forty-Fourth Amendment) Act, 1978 which left intact the amendment to Article 74 but added a proviso: “Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice after such reconsideration.”
In the 1977 Presidential election N. Sanjeeva Reddy was supported by all the political parties, including the Congress. His memoirs reveal tensions between the President and Prime Minister Desai. The former was inevitably drawn into controversy when in July 1979 the Janata Party broke up. Reddy could not be faulted for inviting Mr. Charan Singh, Leader of the breakaway faction, as Prime Minister. But he insisted – and set a precedent that has been followed since – that the PM secure a vote of confidence of the Lok Sabha : “I trust that in accordance with the highest democratic traditions and in the interest of establishing healthy conventions you would seek a vote of confidence in the Lok Sabha at the earliest possible opportunity, say by the 3rd week of August 1979.[20]
On Reddy’s retirement in 1982, Mrs. Gandhi selected her Home Minister, Giani Zail Singh, as Congress Candidate. He had been Chief Minister of Punjab earlier and had been a politician all his life. The Opposition was in disarray. He was elected with ease but differences soon arose over Punjab. Zail Singh readily swore in Mr. Rajiv Gandhi on Mrs. Gandi’s assassination on 31 October 1984. That did not prevent differences arising between them in a form and manner for which there are few precedents. On 12 June 1982 the Congress’ General Secretary, Mr. G.K. Moopanar had said that the Party wanted a President who would see eye to eye with the Prime Minister. That and the fact that the candidate was a Sikh were the main considerations for his nomination. It did not work. The President returned the Indian Post Office (Second Amendment) Bill, 1986, on the ground that it enabled mail interception.[21]
On 28 March 1987, the President and the Prime Minister met to resolve their differences on constitutional issues. The President was no longer being sent copies of dispatches from Ambassadors. The Prime Minister had stopped calling on him let alone consulting him. Their second meeting on 8 April marked a further advance. They decided to ask two senior officials, the Cabinet Secretary, B.G. Deshmukh, and the Secretary to the President, S. Varadan, to trash out the constitutional issues.
The President had no remedy short of dismissal. On 16 April 1987 the Befors scandal was out in the open. The President began demanding information on this, as he had on earlier matters; but to no avail. Parliament was of no help to a wronged President.
On 4 November 1992 Zail Singh revealed that he had contemplated dismissing Mr. Gandhi from office in 1987 on grounds of “corruption and negligence”. I ought to disclose an interest. My opinion was sought at this stage. Present that late afternoon of 3 May 1987 on the lawn of the Rashtrapati Bhavan in the consultation with the President were a couple of aides. I expressed the emphatic opinion that he had, under the Constitution, no right or power to dismiss Rajiv Gandhi in those circumstances however valid his grievances or true the disclosures. I specifically cited Ghulam Mohammed’s dismissal of the Naximuddin Government in 1953, and pointed out that Pakistan’s democracy never recovered from the blow and Ghulam Mohammed’s name is ever recalled with revulsion.
I drafted a brief statement in his presence, disclaiming any intention of sacking Rajiv Gandhi. It was released to the press immediately.
Rajiv Gandhi played safe in nominating the Vice-President R. Venkataraman as Congress Candidate in the July 1987 Presidential elections. He won handsomely. His quiescence was due to Prime Ministerial authority, not to lack of ambition. He had served as Minister for Defence and Finance under Mrs. Gandhi and was a Congress veteran from the Nehru era. Mr. Venkataraman said on 25 July 1987: “When the Government is functioning smoothly, the President has no political function. When there is a breakdown in the administration, then the President has to restore the Constitution.”[22]
On 13 July 1992 the Vice-President Dr. Shankar Dayal Sharma was elected President as the Congress (I)’s candidate in succession to Venkataraman. He was selected as candidate by Prime Minister Narasimha Rao and enjoyed the backing of the two communist parties, CPI and CPM. He won 675,864 votes (65 percent0 against 346,485 (33 percent) polled by G. G. Swell, supported by the National Front and the Hindu revivalist Bharatiya Janata Party.
He asserted his independence within a short time. On 6 December 1992, the day the Babri Mosque at Ayodha was demolished, the Press Secretary to the President issued a statement which read: “The President, Dr. Shankar Dayal Sharma, has strongly deplored vandalism that has caused damage to the Masjid in Ayodhya and has observed that such acts are absolutely against the doctrine and practices of Hinduism and all other great religions…The President has requested the Prime Minister to initiate appropriate expeditious steps to uphold the rule of law, the maintenance of public order and protection of all law abiding citizens.”[23]
The President took good time to accord his assent to the terms of the Reference of the dispute at Ayodhya to the Supreme Court for its advisory opinion, under Article 143 of the Constitution, on 7 January 1993. He raised important queries and accorded assent only after they were answered. The President’s objections were widely reported in the press.
It is no exaggeration to say that it was only in 1992, forty-two years after the Constitution went into force that the office of the President of India – and, therefore, parliamentary democracy – came to acquire the stature which the framers of the Constitution intended it should. Rajendra Parasad, Radhakrishnan and Zail Singh were ambitious and would have subverted the system if the political checks were absent. Zakir Hussain held high promise but died after a mere two years in office. Giri, Fakhruddin Ali Ahmed and R. Venkataraman were “rubber stamps” as the expression goes. Sanjeeva Reddy was clumsy and inept.
It must, however, be pointed out that bar his ambitions, Prasad proved to be a good President and set high standards of scrutiny of Bills, appointments to judicial and executive posts besides letters of caution on matters of policy. He was against arbitrary imposition of President’s Rule in the States and abuse of Article 370 of the Constitution in respect of Jammu & Kashmir. His Note of 6 September 1952 to Nehru exposes the illegality of subsequent Presidential Orders whittling away Kashmir’s autonomy. President Shankar Dayal Sharma had no ambitions, but was determined to do his duty strictly as constitutional head of state, keeping an eye on the doings of Prime Minister P.V. Narasimha Rao whose lack of scruple was well known.
Sheila Kaul was censured by the Supreme Court for improprieties when she was Union Minister for Urban Development in what was called the housing scam. By then she had become Governor of Himachal Pradesh The censures warranted interrogation by the Central Bureau of Investigation. The President issued a statement on 20 April 1996 virtually reprimanding Rao but with perfect propriety. It quoted from his letter to Rao in which he asserted that “the correct course” was for her to resign, “without further ado,” adding properly but tellingly “You may like to advise me in this regard.” The statement complained “The president is yet to receive any advice of the Union Cabinet relating to the Governor of Himachal Pradesh”.[24] Ambedkar’s dicta warranted her dismissal by the President even in his own discretion. He did not wish to set that precedent. His public censure, the first of its kind, led to her resignation. The nation would have supported him had he dismissed Sheila Kaul
Sharma’s successor K.R. Narayanan strengthened this tradition. He made it a practice to issue detailed explanatory statements whether on appointing a Prime Minister or on accepting his advice to dissolve the Lok Sabha. (Vide The Hindu December 5,1997 on dissolution; March 16, 1998 on appointment of A.B. Vajpayee as PM, and of 27 April 1999 on dissolution. There were brief announcements on 13 May 1996 and on 20 April 1997 on appointments of Vajpayee and I.K. Gujral respectively as PMs. These documents constitute useful precedents in the parliamentary system).
Narayanan twice used his prerogative under Art. 74 (1), Proviso to ask the Council of Ministers to reconsider its advice to impose President’s (i.e. Central) Rule in Bihar, on 22 October 1997, and 25 September 1998. He finally relented on 12 February 1999. A debacle ensued because the Rajya Sabha refused to ratify the action. [25] When the Australian missionary Graham Staines and his two sons, aged 9 and 6, were burnt to death in Orissa on 22 January 1996 by the affiliates of the ruling BJP, Narayanan issued a statement denouncing the crime as one which “belonged to the world’s inventory of black deeds”.
During the pogrom of Muslims in Gujrat under the BJP Ministry headed by Narendra Modi, who was protected by the BJP dominated Government at the Centre headed by A.B. Vajpayee, President Narayanan by letters and in person expostulated with him about the centre’s neglect. Currently the Central Information Commission, established by the Right to Information Act, 2005, is seized of a petition for disclosure of those letters between 28 February and 15 March 2002. Narayanan demitted office that year and was succeeded by A.P.J. Abdul Kalam, the BJP’s candidate who quits in 2007.
However, in March 2005, Narayanan disclosed in a press interview: “There was governmental and administrative support for the communal riots in Gujrat. I gave several letters to Prime Minister Vajpayee in this regard on this issue. I met him personally and talked to him directly. But Vajpayee did not do anything effective. Had the military been given powers to shoot, the carnage in Gujrat could have been avoided to a great extent. I feel there was a conspiracy involving the State and Central Governments behind the Gujrat riots.”[26]
Abdul Kalam’s record has not been without scars. He appended a qualification when giving his assents to the Right to Information Act, 2005. Vir Sanghvi revealed on high authority that when in 2004 Vajpayee advised dissolution of the Lok Sabha, as it neared expiry of its term, the President gratuitously and improperly advised him to resign “because it would be wrong for the government to continue in office while elections are being held.” Vajpayee rightly refused. Abdul Kalam “blinked.”[27] The President showed crass ignorance of the Constitution which requires a PM in office at all times.
Dr. Manmohan Singh became Prime minister on 22 May 2004. In July 2006 a crisis arose as Abdul Kalam threw hints that he would withhold assent to the re-enactment of the office of Profit Bill. He accorded assent, eventually.
The record from 1950-2007 establishes the following eleven principles:
First and foremost, it is now firmly established that the President is entitled, in exercise of his own judgment, to question the Government’s bills, appointments, and policy proposals.
Secondly, within limits, Presidents can comment on affairs of the State in public. Criticism of the government must be muted, though it should be more in the nature of sounding an alarm. In rare cases, public expression of disquiet, even censure, is proper.
Thirdly, the President is entitled to admonish and even censure the Prime Minister in private.
Fourthly, the President’s right to know, embodied in Article 78, is not challenged.
Fifthly, the practice is now established of the President receiving leaders of opposition parties singly or in a delegation to lodge a protest against the Government’s action. He offers no comment but forwards the protest to the PM and speaks to him, if he so decides.
Sixthly, it is established that the President is not bound to accept the Prime Minister’s request for dissolution of the Lok Sabha but is entitled to exercise his judgment and consider the alternatives before accepting it.
Seventhly, the power of dismissal of the Government cannot be exercised except on the extreme grounds mentioned in text books. There was universal criticism of Zail Singh’s intentions in 1987 and again of his admission of them in 1992. The best course is to have an explicit provision on the lines of Articles 91(5) and 130(5) of the Pakistan Constitution, respectively for the Prime Minister and Chief Ministers of State. They say that while the Prime Minister and the Chief Ministers hold office “during the pleasure” of the respective heads of state, the latter will not exercise their powers unless satisfied that the Head of Government has ceased to command the confidence of the House. There follows this crucial constraint – in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly. An identical expression is used for Governors. This paper is confined to the Centre.
Eighthly, not only the opposition parties but Chief Ministers of States also invoke the President’s moral authority as “guardian of the Constitution,” in their case specifically, to safeguard its federal character.
Ninthly, in 1977, the acting President, Mr. B.D. Jatti was extremely reluctant to sign the proclamation under Article 356 imposing President’s rule in certain States. The Government’s threat of resignation induced him to sign the documents. The Postal Bill is of far less consequence. The fact remains that two successive Presidents, Messrs Zail Singh and R. Venkataraman declined to sign it. They returned it for reconsideration in exercise of their own individual judgment. It is well settled that assent cannot be withheld; only reconsideration can be sought. If re-enacted assent must follow.
Tenthly, the question whether the President can assert a right, under Article 86, to address Parliament or to send messages to either of its Houses in his own discretion, is open. In 1950 the Attorney-General opined against it in the face of the President’s challenge on a host of issues. His opinion on the point gave no reasons. At the least, the matter is open. It is unthinkable that in an extreme case a President would flinch from taking his case to Parliament.
Lastly, the President is entitled to insist, when appointing a PM that he obtain a vote of confidence from Parliament within a stipulated short period.
Furthermore, the existence of the President’s power of dismissal has not been seriously challenged. There is near unanimity on fears of its abuse. No responsible politician has sought such an intervention by the President against his political opponents. In 1987, some carpetbaggers did. In June, Zail Singh was tempted; but wiser counsel prevailed. He would have come to grief.
India’s democracy has functioned for sixty years, bar the interlude of the emergency. But the parliamentary system came into its own only in the last fifteen years; since 1992.
The Parliamentary System in Pakistan.
Sadly, in contrast, the parliamentary system functioned in Pakistan, only fitfully in brief interludes either with a hostile President or a pliable one. The system did not fail the nation. It was never given a chance. A common notion is that it would have been firmly established if only the founder of Pakistan, Quaid-e-Azam Mohammed Ali Jinnah, had lived longer. Recent archival disclosures prove that it was he who impaired the parliamentary system in its infancy, if not at its very birth. The Indian Independence Act, 1947, while conferring complete independence to both India and Pakistan, provided that pending the framing of a Constitution by the Constituent Assemblies of these countries, they “shall be governed as nearly as may be in accordance with the Government of India Act, 1935” subject to such adaptations as may be “specified in orders of the Governor-General” of each country (Section 8 (2).
The last Viceroy and his acolyte, Alan Campbell – Johnson, spread the falsehood that while India’s leaders sought to adapt the Act to establish a parliamentary democracy, Jinnah’s adaptations as Governor-General sought to make him a virtual dictator. Prof., Khalid B. Sayeed exposed the lie in his pioneering work Pakistan: The Formative Phase 1857 – 1948.[28] However, after a meticulous survey of the law and practice, Sayeed concluded that in actual practice the description of Jinnah as “King Emperor, Archbishop of Canterbury, Speaker and Prime Minister rolled into one” was “not an exaggerated description of Jinnah’s powers.” He was Governor-General, President of the Constituent Assembly and of the Muslim League. In India, when the Assembly acted as an interim Parliament, it was presided over by a person other than its President, Rajendra Prasad – who was also Food Minister – namely, G.V. Mavalankar. Jinnah presided over the Assembly when it acted as a Constituent body and also as legislature and accorded assent to Bills as Governor General. He presided over the Cabinet and retained the portfolios of Ministry of States and Frontier Regions,. Evacuation and Refugee Rehabilitation. Dawn of 25 August 1947 announced his appointment as Legal Guide to the Assembly. The Governors sacked two Chief Minister, Dr. Khan Saheb of NWFP on 22 August 1947 and M.A. Khubro of Sind on 26 April 1948, on the Governor General’s directions.
He not only appointed members of the Cabinet but himself allotted their portfolios, usurping the prerogative of the Prime Minister, Liaquat Ali Khan.[29]
In 1996 was published Allen McGrath’s book, The Destruction of Pakistan’s Democracy (Oxford University Press), based on archival material and interviews. He records: “In July 1947, while engaged in negotiations for dominion status, Jinnah jotted a note to himself: “Danger of parliamentary form of government (1) it has worked satisfactorily so far in England and nowhere else (2) Presidential form of government more suited to Pakistan” (p.35). The first proposition was demonstrably untrue. It worked in Canada, Australia, New Zealand, South Africa and in Europe. The second was an ipse dixit.
Jinnah undermined the status of the Prime Minister as well as the Cabinet. Both abdicated readily in favour of the Governor General on the policy on Kashmir, to cite one striking instance.[30] His decision “would be final and binding”.
Far more ominous was Jinnah’s speech to the officers of the Staff College at Quetta on 14 June 1948: “I want you to remember and if you have time enough you should study the Government of India Act, as adapted for use in Pakistan, which is our present Constitution, that the executive authority flows from the Head of the Government of Pakistan, who is the Governor-General and, therefore, any command or orders that may come to you cannot come without the sanction of the Executive Head. This is the legal position.”[31] This was a palpably wrong. It is the Prime Minister, not the Governor General who is “the head of the Government.” It is anyone’s guess as to why he felt the need to speak to the army as he did.
Understandably, nor was Liaquat Ali Khan free from insecurities given the treatment he had received. He was not a model of tolerance after Jinnah’s death. McGrath’s survey bear quotation in extenso: “Liaquat’s approach to party politics was direct and forceful. Those who would form other parties were traitors, liars, and hypocrites. Words like ‘dogs of India’ were part of his vocabulary when discussing opposition. He equated opposition to the Muslim League with opposition to Pakistan itself, and made it clear publicly that he would not tolerate the existence of an opposition party as long as he lived. When the East Bengal members in the Constituent Assembly planned a protest day in opposition to Liaquat’s proposals for a new constitution, he declared that the government ‘shall not tolerate these activities any longer and shall put an end to them in the interest of the existence and stability of Pakistan.’ On one occasion his voice reached an emotional pitch while addressing a crowd and declaring that Pakistan was ‘the child of the Muslim League’. Those who joined ‘mushroom organizations’ were ‘enemies of Pakistan who aim to destroy the unity of the people’[32].
But he was, nonetheless, a mass leader. As the scholar Ayesha Jalal perceptively remarks “The murder of Liaquat Ali Khan (on 16 October 1951) removed the one politician with the will and the ability to lend an ear to popular opinion and turn it to positive advantage.”[33] .
She adds “By the time Pakistan’s first prime minister became the target of an evidently hired assassin, the institutional balance had begun gravitating away from the political centre in Karachi to military headquarters in Rawalpindi. It was to take a few years and the unfolding of yet more painful domestic political and economic crises before the central government itself was forced to make the shift..[34]
Ayesha Jalal describes the rot that set in when Khwaja Nazimuddin succeeded Liaquat as Prime Minister (p. 140). But she renders service to the truth by her well documented thesis.. The system did not fail, because of the incompetence or misdeeds of politicians. It was deliberately undermined by a cabal. She “questions interpretations which place the responsibility for the 1958 coup solely at the door of inept and corrupt politicians. Instead her book investigates how the military and the bureaucracy railed and eventually broke down the political system to ward off challenges to which the state, dominated by these non-elected institutions, was still vulnerable…there was nothing preordained about the collapse of political structures in Pakistan. Those who are content to attribute the dominance of the Pakistan army to weaknesses in political organization or to a poorly developed political culture are justifying a phenomenon without fully understanding its origins. Undeniably, the League was never more than tottering political machinery…the political process in Pakistan went off the rails long before the military takeover in October 1958. Liaquat’s failure to frame a constitution and hold elections, however deplorable, was a consequence of the massive dislocation following partition and the very real fears of those entrusted with the task of constructing the state. But the first four and a half years of Pakistan’s existence had at worst tarnished the political process. It was during Nazimuddin’s tenure in office that the decisive blows were dealt… Nazimuddin had neither skill nor vision to withstand the tests. As a result, decision-making fell increasingly to the bureaucracy and, in the last resort, the governor-general.”[35]
Nazimuddin became Governor General on Jinnah’s death on 11 September 1948 and Prime Minister on Liaquat’s assassination on 16 October 1951. The elevation of Finance Minister Ghulam Mohammed, a notoriously ambitious man, as Governor General was a fateful choice. Nothing in his record revealed commitment to democracy or to norms. Faith in his readiness to work the system was ill-founded. He did not share Liaquat’s commitment to non-alignment or to democracy. With Zafrullah Khan, M. Ikramullah he was part of the cabal that, in concert with the army, sought a pro-Western orientation. Less than two years in office he struck a blow at democracy under which it still reels for the simple reason it was never given a good chance fully to recover. On 17 April 1953 the Governor General sacked Prime Minister Nazimuddin and replaced him with the pliable Mohammed Ali Bogra, former Ambassador to the US. M. Ayub Khan the Commander-in-Chief of the Pakistan army, became Defence Minister. The very next day the Law Minister A.K. Brohi, who became a stellar figure in the Congress for Cultural Freedom and International Commission of Jurists and a champion of human rights, justified the action criticizing dutifully “undue emphasis on certain conventions as they are known to the British Constitutional practice.”[36] This was to be but the first of the coups to which he readily lent his support.
However, in the brief phase of democratic rule, Brohi produced a tome of 1017 pages entitled Fundamental Law of Pakistan (Din Mohammadli Press, Karachi), a commentary on the Constitution of 1956, in which he asserted the direct opposite (p. 3): “Over and above the law of the Constitution, is invariably to be found a set of rules, rules which are habitually obeyed by those who are concerned in the administration of public affairs, and these are called conventions of the Constitution or, what comes to the same thing, the political understanding – and they form the hard core of the ethics of constitutional behaviour or constitutional morality.”
Published in 1958 the book was overtaken by the first military coup that year. Brohi prospered under that and subsequent regimes. McGrath holds that “not a voice was heard in protest to (sic.) Nazimuddin’s dismissal.”[37] When Bogra began to assert himself, the Governor General. dissolved the Constituent Assembly on 24 October 1954. Bogra consented to it, albeit under pressure.[38] H. S. Suhrwardy lauded the action. By then the draft constitution had already been prepared.
The President of the Assembly, Maulvi Tamizuddin Khan, successfully moved the Sindh High Court. McGrath describes how his counsel, the English Q.C. D.N. Pritt, entered Pakistan via Colombo by a ruse that he was a doctor.[39] The High Court’s judgment was scorned by the Chief Justice of the Federal Court M. Munir and the Governor General’s action was upheld; Justice A.R. Cornelius alone dissented.
McGrath records on the strength of an interview: “According to a private secretary of Ghulam Mohammad, while the case was pending before the Federal Court, Ghulam Mohammad communicated with Munir by coded written messages on a regular basis. Delivery was allegedly made between the two men by one of Ghulam Mohammad’s private secretaries. Ghulam Mohammad also made at least one visit to Munir at his home. He drove to Minur’s residence in his official car with flags flying and escort. With Tamizuddin pending at the time, this was effective notice to Munir and the political community of the Governor-General’s involvement in the issues which were pending before the court…later years, Justice Cornelius was to comment that the Governor-General had been effective in influencing not only Munir but also the other Justices who voted in the Tamizuddin majority. It is easy to understand what Munir meant when he said years later that Tamizuddin Khan came to court with a case he could not win..[40]
Ayub Khan’s Diaries published in 2007 contain at page116 clinching evidence of Munir’s complicity. There followed the army coup 7 October 1958. Mohammad Asghar Khan writes in his memoirs: “I was at that time the Commander-in-Chief of the Pakistan Air Force, a post to which I had been appointed in 1957 by Suhrawardy, at that time the Prime Minister and Minister of Defence. I was summoned by the President at about 9 p.m. on 7 October. When I arrived at the President’s House, I found Ayub Khan and a number of other army officers, amongst them Brigadier Yahya Khan, present there. I was told by Iskander Mirza that he had decided to abrogate the Constitution, marital law had been declared and the army was moving in take over the government. I had no prior knowledge of such a plan and was told that I should stay there for the next couple of hours presumably till all moves had been completed……The following day or the day after, I attended a meeting presided over by Iskander Mirza at which Ayub Khan, the Chief Justice of Pakistan and the newly appointed members of Ayub Khan’s cabinet were present. At this meeting the Chief Justice, Mohammad Munir, was asked by Ayub Khan as to how he should go about getting a new constitution approved by the people. Justice Munir’s reply was both original and astonishing. He said that this was a simple matter. In the olden times in the Greek states, he said, constitutions were approved by ‘public acclaim’ and this could be done in Pakistan as well. Most of those present laughed and Ayub Khan laughed the loudest.”[41]
To resume, after the dissolution of the Constituent Assembly a new Assembly was established. It framed a democratic Constitution based on the parliamentary system the Constitution of the Islamic Republic of Pakistan, which came into force on 23 March 1956. Iskander Mirza, who had become Governor General after Ghulam Mohammed’s forcible removal, was elected President. On 7 October 1958 Mirza himself was forcibly removed and Ayub Khan proclaimed himself President.
This brief study of the working of the parliamentary system will not attempt a detailed survey of the events of the last nearly half a century. Bearing in mind the principal theme only the main landmarks will be indicated. The writer has no hesitation, however, in stating here his own conclusions. The Quaid-e-Azam’s practice was unfortunate but people cherish his valuable precepts and attribute the practices to the pressures of an abnormal period. The political class did not stand by those precepts; but they have struck roots in the popular mind. It is nonetheless a fact that every coup was welcomed by politicians opposed to the politicians over thrown by the coup – Ayub Khan’s of 7 and 27 October 1958; Yahya Khan’s of 25 March 1969, Zia-ul-Haq’s of 5 July 1977; President Ghulam Ishaq Khan’s arbitrary dismissals of Prime Ministers Benazir Bhutto and Nawaz Sharif; President Farooq Leghari’s sack of Benazir Bhutto in 1996 and General Pervez Musharraf’s coup of 12 October 1999.
The system mattered less than the immediate gains; with one qualification. Every politician in power – Z. A. Bhutto, Benazir Bhutto and Nawaz Sharif – rode roughshod on the fundamentals of the system.
This writer holds that, despite all this – rather because of it – there is a deep yearning for parliamentary democracy but its full restoration requires much more than the cooperation in this enterprise of President Pervez Musharraf and the armed forces. It requires a revival of the political process freed of the intrigues of those who created the situation that preceded the coup of 1999. Of this there is no sign. But if the bases of the parliamentary system are borne in mind they are, as will be pointed out later in this paper, compatible with the concerns voiced by President Musharraf. A National Pact re-establishing the system in full force with the consent of all, the army included, is a constitutional possibility which only politics can make a political possibility as well.
(There are able studies of constitutional developments in Pakistan; to wit: Pakistan; A Study of Its Constitutional History (1857 – 1975) by Justice ® Masud Ahmad; Research Society of Pakistan, University of Punjab, Lahore, 1978… Pakistan; A Modern History by Ian Talbot: Oxford University Press; 1998; and Constitutional and Political History of Pakistan; by Hamid Khan: Oxford University Press, 2001; a formidable work of 959 pages).
Ayub Khan discovered the need for political support and a Constitution suited to his needs. The Report of the Constitution Commission (1961) recommended, predictably, in favour of a “presidential form of government.” It was promulgated by his fiat on 28 February 1962; martial law was lifted on 8 June 1962 and political activity was revived. In 1965 elections were held to the office of President and to the National and Provincial Assemblies. Ayub Khan defeated his rival Miss Fatima Jinnah in the election to the Presidency
Ayub Khan’s rule ended when on 25 March 1969; the Commander-in-Chief, General Yahya Khan, proclaimed himself Martial Law Administrator and President on 30 March (retrospectively from 25 March) when the Legal Framework Order was promulgated. Under it, general elections were held in August 1970. The subsequent tragic course culminating in the establishment of Bangladesh need not detain us. Suffice it only to say that Zulfikar Ali Bhutto took over from him as Chief Martial Law Administrator on 30 December 1971. He won a vote of confidence from the National Assembly which also adopted the Interim Constitution. It established for the second time in Pakistan, a presidential system on 21 April 1972 and he became President. It was no small achievement for Bhutto to have got enacted by the Assembly in April 1973 a new Constitution based on a national consensus. To this day, it provides common ground. Zia-ul-Haq’s coup of 1977 invested it with nostalgic appeal obscuring its serious flaw – it made the Prime Minister all powerful and crippled the President. He was shorn of discretion on dissolution of the National Assembly (Art.58) and the power to dismiss a wayward Prime Minister (Art. 48 [1] ) All the orders of the President had to bear “the counter-signature of the Prime Minister” (Art.48[3]).. The Cabinet system was undermined by empowering the Prime Minister to act directly (Art.90 [2]). He became “the Chief Executive of the Federation” Art.90[1]) A pliable Fazal Elahi Chowdhry was elected President..
There were two salutary provisions. The Prime Minister was to be elected by the National Assembly (Art. 91 [2]}. Germany’s “constructive note of non confidence” was emulated. A motion of non-confidence must name the successor (Art. 96 [2]}.
Zia-ul-Haq disclosed (Urdu Digest, September 1977) that he had decided to stage the coup “in the last week of June” He struck when he did because Bhutto had succeeded in arriving at a pact with the opposition Pakistan National Alliance as Asghar Khan admits.[42] That he wrote, as he did, to the armed forces in May 1977 soliciting their help reflected his commitment to democracy (p.116).
As with political trails a fig leaf of legality is used to give a veneer of legality to a military coup. It is “the Provisional Constitution Order”. Yahya promulgated it is Chief Martial Law Administrator on 4 April, 1969 and Zia in the night of 24-25 March 1981. The Constitution is held in abeyance; for the rest it remains in force. To be sure, Zia suspended the fundamental rights. On 2 March 1985 came the Revival of the Constitution of 1973 Order. On 23 March, Mohammed Khan Junejo was nominated Prime Minister. This followed the “party-less elections” in February 1985 to the National and Provincial Assemblies. His exertions secured a unanimous enactment of the notorious Eighth Amendment to the Constitution by the Majlis-e-Shoora on 9 November 1985, as a compromise with Zia. The Eighth Amendment did away with its grosser features but made concessions to the President in order to pave the way for the Proclamation of Withdrawal of Martial Law which he made on 30 December 1985. He secured the total deletion of Article 152A inserted by the President’s Order of March 2, 1985 which provided for the establishment of a National Security Council “to make recommendations” on matter concerning the issue of a Proclamation of Emergency, “the security of Pakistan and any other matter of national importance that may be referred to it by the President in consultation with the Prime Minister.”
The core of the Eight Amendment lay in these changes it made in the rules governing the relationship between the Head of the State and the Prime Minister.
(1) Article 46 was an exact replica watch of Article 78 of the Indian Constitution on the “duties of Prime Minister in relation to President,” specifically the Prime Minister’s duty to keep the President informed of the affairs of the country and “to furnish” such information relating to it as the President may call for. As originally enacted in 1973, Article 46 simply required the Prime Minister to “keep the President informed on matters of internal and foreign policy” and on all legislative proposals.
(2) The English Amendment retained the provision in the 1973 Constitution which enjoined the President to “act in accordance with the advice of the Cabinet or the Prime Minister.” As in India, the President can ask the Prime Minister or the Cabinet to reconsider the advice. But he is bound to act “in accordance with the advice rendered after such reconsideration.” (Art.48 [1]}. But Article 48 now deleted the emphatic part of the original provision that “such advice shall be binding” on the President.
(3) The Presidential Order of March 1985 which conferred on the President the power to hold a referendum on “any matter of national importance” even without or contrary to the advice of the Prime Minister. The Eighth
Amendment retained this obnoxious provision as also the President’s power to dissolve the National Assembly in his own discretion and appoint a caretaker government.
(4) Article 58 of the 1973 Constitution made the Prime Minister’s advice to dissolve binding on the President unless the Prime Minister was facing a motion of no confidence. The March 1985 order retained this but gave an extra power to the President to dissolve the National Assembly “in his discretion” if he felt “an appeal to the electorate is necessary.” By the Eighth Amendment, the President was empowered by Article 58 (2) (b), to dissolve the Assembly of his own sweet will if, in his opinion, “a situation has arisen in which government of the federation cannot be carried on in accordance with the provisions of the constitution and an appeal to the electorate is necessary.” These words are borrowed from the hated section 93 of the Government of India Act, 1935 which enabled governors to sack ministers and take over the government. A similar provision exists in the Indian Constitution enabling the Centre to sack state governments and take over the government (Article 356). No such provision exists in India for President’s rule at the Centre.
(5) Article 91 of the 1973 Constitution left it entirely to the National Assembly to elect the Prime Minister. The Eighth Amendment meekly retained the change made in Gen Zia’s Order of March 1985 conferring on the President the power “in his discretion” to appoint as Prime Minister one “who, in his opinion, is most likely to command the confidence of the majority of the members of the National Assembly.”
(6) However, on the crucial power to dismiss the Prime Minister, the Eighth Amendment was better than the President’s Order. Article 91(5) as then enacted restrained the President from dismissing the Prime Minister unless he was “satisfied” that the latter had lost the confidence of the Assembly. The Eighth Amendment deleted this. It obligated the President to summon the Assembly and empowered him to require the Prime Minister to seek its confidence.
(7) Unfortunately the Eighth Amendment, following Zia’s Order of March 1985, did away with a very salutary innovation in Article 96(2} of the 1973 Constitution – the constructive vote of no-confidence based on the Basic Law of the Federal Republic of Germany. A motion of no-confidence must name the successor Prime Minister. There cannot be a vacuum after the ouster of a PM in which horse-trading can flourish.
(8) Finally, the Eighth Amendment enabled the President to appoint the governors of the Provinces “in his discretion.” He is bound to consult the Prime Minister, but no more than that (Article 101).Under the 1973 Constitution the President, like the Indian President, was bound to act on the Prime Minister’s recommendation. He was entitled to object, to seek reconsideration but – except in a gross case – he was bound by advice.
Sure enough on 29 May 1988 Zia invoked “the Eighth Amendment”, in popular parlance, but precisely Art 58 (2) (b), to dismiss Junejo and dissolve the National Assembly. Only on 9 June was a caretaker government appointed but with no prime Minister, in breach even of Art 48 (5).
Following Zia’s death in an air crash on 17 August 1988, general elections were held and Benazir Bhutto was appointed Prime Minister by President Ghulam Ishaq Khan on 1 December 1988. As leader of the Pakistan People’s Party she had promised to support his candidature to the Presidency. It was a ‘deal.”[43]
The Eighth Amendment survived to blight relations between the President and the Prime Minister: (1) Benazir Bhutto was dismissed by President Ghulam Ishaq Khan on 6 August 1990 invoking Art. 58(2) (b) (2) Her successor, Mohammed Nawaz Sharif who won the elections that followed was dismissed by the same President, invoking the same provision. (3) Benazir Bhutto returned to power in the 1993 elections and was dismissed on 5 November 1996 by the colleague she had got elected as President, Farooq Ahmed Khan Leghari.
Nawaz Sharif returned to power as Prime Minister in the general elections of February 1997 and promptly secured the repeal of the Eighth Amendment by the Thirteenth Amendment. The Fourteenth Amendment barred defections. Nawaz Sharif’s majority was frozen. But it was suspended by a bench headed by Chief Justice Sajjad Ali Shah who, Hamid Khan writes, was “a benefactor of the ruling PML (N) and had paved the way for its coming back to power.” The Judge’s autobiography Law Courts is a Glass House (Oxford University Press, 2001) reveals unwittingly that he was a politician on the Bench. Nawaz Sharif fell foul of the Court by his speeches and was charged with contempt of court. On 28 November 1997 the Court was stormed by a mob led by Ministers, Members of Parliament and politicians.
The crisis intensified. Parliament passed the Contempt of Court (Amendment) Bi1l which fairly made an order of punishment appealable to another Bench. Leghari withheld assent saying he needed the Court’s permission. Taking the cue, the Court restrained him from giving assent. Both actions were unconstitutional; brazenly. Hamid Khan traces the techniques by which the Chief Justice was ousted.[44] He had gone so far as to suspend even the Thirteenth Amendment without “adequate hearing.” The Court broke up into two rival parts on 2 December 1997. Sajjad Ali Shah was de-notified as Chief Justice and Justice Ajmal Mian appointed in his place by the Government on 23 December 1997. Meanwhile, Leghari resigned as President. Mohammed Rafiq Tarar was elected President. Less than a year after he became Prime Minister, Nawaz Sharif had secured the ouster of the President and the Chief Justice who were themselves no small players in the game of power. The nuclear tests in Chagai in May 1998 buttressed his popularity. In July 1998 the Army Chief General Jehangir Karamat was obliged to retire for expressing views which were unexceptionable.[45] Lt. General Pervez Musharraf (as he then was) was appointed Chief of Army Staff. It was a matter of time before differences arose between them. The Kargil crisis in May-July 1999 only made them public; they were well known even before that.
Hamid Khan’s work is more than a study of constitutional developments. He also describes the political context in which they occurred. Parliamentary democracy was maimed at birth and starved of nourishment by successive heads of State and Governments since 1947. Aggrandizement of power, personal and political, was pursued relentlessly and unchecked. The judiciary proved a feeble reed to rely on when it was not actually complicit. Experience of two military regimes (1958 – 1971) did not instil caution. Z.A. Bhutto (1972 -77), Benazir Bhutto (1988-90 and 1993-1996) and Nawaz Sharif (1990-93 and 1997-99) were particularly culpable. The last was the worst. By sacking the army chief in 1999 and preventing the landing of his plane he all but virtually constrained the army to take over.[46] It was an institutional move by the army and was widely welcomed as a temporary measure; but disenchantment set in with the passage of time.
It is unnecessary to narrate in detail the subsequent constitutional developments. Emergency was proclaimed on 14 October 1999, followed by a Provisional Constitution Order which held the Constitution “in abeyance.” Fundamental rights were continued in force in so far as they were “not in conflict with the proclamation of emergency.” The Army Chief became the “Chief Executive.” Another break from the past was freedom of the press. The Supreme Court validated the military takeover, as it had the ones of 1958 and 1977, on 12 May 2000. It ordered the Chief Executive to appoint a date not later than 90 days before the expiry of three years after the military’s take over to hold a general election to the National Assembly and Senate and the Provincial Assemblies. On 17 October 1999, the Chief .Executive. announced establishment of a National Security Council.
On 26 June 2002 were published “Proposals of the Government of Pakistan on the Establishment of Sustainable Federal Democracy.” Public comment was solicited by the end of July. They were drawn up by the National Reconstruction Bureau headed by Lt. Gen. Tanvir Naqvi. On 21 August 2002 the Legal Framework Order was promulgated as a forerunner to the proposed elections. The 1973 Constitution was revived with 29 Amendments. Art. 58 (2) (b) was restored. The elections resulted in a Government headed by Prime Minister Shaukat Aziz. The set-up failed to win general acceptance.
After he assumed power on 12 October 1999, President Musharraf made three propositions. “What Pakistan has experienced in the recent years has been merely a label of democracy not the essence of it. I shall not allow the people to be taken back to the era of sham democracy but to a true one. And I promise you I will, Insha Allah.” This was perfectly true. His two other propositions were that checks and balances must be restored and military rule rendered impossible. Both are laudable aims, but the Legal Framework Order does not secure them.
Consider the background. In 1985, the Eighth Amendment put undemocratic curbs on the Prime Minister’s power and tilted the balance in favour of the President. In 1997, Nawaz Sharif secured the repeal of that Amendment through the Thirteenth Amendment and restored the 1973 imbalance in favour of the Prime Minister. It reflected a national demand and was passed unanimously by the National Assembly – thoughtlessly without the checks of the 1956 Constitution.
The Eighth Amendment was the other extreme. It empowered the President (Article 58 (2) (b) to 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.” Article 48 (5) empowered the President to appoint a caretaker Cabinet on the dissolution of the Assembly as also to order a referendum “on any matter of national importance” even without the Prime Minister’s advice.
On 12 July 2002, President Pervez Musharraf posed the question whether the check on the Prime Minister under Article 58 (2) (b) was effective. “I think it was not effective and failed to provide good governance.” Article 58 (2) (b) of the Constitution, he said, each time caused confrontation between the President and the Prime Minister and every time, the Chief of the Army Staff, was dragged into the confrontation.[47] .
The Supreme Court of Pakistan took a short-sighted view in Mehmood Khan Achakzai’s case (1997) when it said, “In fact Article 58 (2) (b) has shut the door on martial law for ever which has not visited us after 1977.” It did not because successive Presidents abused the power to sack Benazir Bhutto (1990 and 1996) and Nawaz Sharif (1993).It did not restore a proper balance between the Prime Minister and the President. Neither did Nawaz Sharif in 1997, which he would have were he a statesman.
However, in its judgment of 12 May 2000 the Supreme Court of Pakistan was less than fair to the record, and indeed, to itself. It quoted Chief Justice Hamoodur Rehman’s note of 24 September 1977 to Zia-ul-Haq pointing out that the 1973 Constitution had reduced the President to a ‘rubber stamp.” One wishes the court had quoted also the note of 4 January 1978 by Ghulam Ishaq Khan, then Secretary-General, to Zia. It was written on a summary submitted by the Ministry of Law on the judge’s retrograde proposals and bears quotation in full so prescient it is: “CMLA (Chief Martial Law Administrator) may kindly see, apart from opinion of the Attorney-General, that except for the provision relating to the restoration of constitutional safeguards to civil servants, the other amendments proposed by Justice ®. Hamoodur Rehman would not be upheld by the courts under the doctrine of necessity. It would also not appear politically advisable to change the basic structure of the Constitution in such a radical manner by a Martial Law Order.
“The need for checks and balances is no doubt there; but what other checks should be and how this balance be struck requires a political consensus which will not be forthcoming in the present circumstances and if it is imposed from the top is not likely to prove enduring. Even otherwise, some of the proposals, particularly the arrangements envisaged for carrying on the administration of the affairs of the Federation and the provinces when the Assemblies are dissolved, are debatable and are likely to give rise to a different type of problem.
“Personally I am also not in favour of getting the armed forces involved, as a permanent feature, even if such a course be politically acceptable, as in the long run it will politicize the armed forces themselves and result in weakening of the defence of the country. The best that can be done is to try to educate the political parties on the need of some checks and balances which would avoid repetition of the happenings in the near past in the hope that, when elected, they would on their own bring about the required constitutional changes.”
These documents were disclosed by Syed Sharifuddin Pirzada, on 19 September 1991 following an exchange in the Supreme Court on 13 September 15, with Raja Mohammad Anwar. Article 58(2( (b) was thus not necessary to prevent “derailment of democracy”.
To repeat, under the conventions of the parliamentary system, recognized in the United Kingdom, Canada, Australia and New Zealand, to go no further, the head of state has the following rights: (1) to be consulted; (2) to demand information; (3) to select the Prime Minister if the elections yield a hung Parliament in which no party has a clear majority; (4) the discretion to dissolve a House; and (5) albeit in the last resort, to dismiss the Prime Minister. These add up to a President and a Prime Minister each powerful enough to prevent the subversion of the Constitution by the other, but not powerful enough to be able to subvert it himself.
What precisely could and ought President Fakhruddin Ali Ahmed have done on the night of 25 June 1975 when Prime Minister Indira Gandhi advised him to proclaim an Emergency on manifestly, demonstrably false grounds? Was India’s democratic system incapable of meeting her challenge? The answer is that the President could have, and ought to have, sacked her; invited the Leader of the Opposition to form a government; dissolved the Lok Sabha; ordered fresh elections and revealed to the nation the reasons for the action.
After the dismissal of Prime Minister Gouigh Whitlam by the Governor General in 1975, the labours of the Joint Select Committee of the Australian Parliament on the republic referendum yielded in August 1999 its “Advisory Report on Constitution Alteration (Establishment of Republic) Bill 1999, and Presidential Nominations Committee Bill, 1999”. It is very instructive. The fact that the people decided not to have a republic does not minimize its value. Its remit was to consider what powers the President should have. It decided to retain those of the Governor-General; no more, or less.
The Republic Bill sought to insert Section 59 in the Constitution of Australia Act, 1900. Its clause (3) read thus: “The President shall act on the advice of the Federal Executive Council…but the President may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating to the exercise of that power.”
Prof. Greg Craven’s characterization was apt: “You are taking the existing jewel of our Constitution from an 1890 setting and you are putting it into a 2000 setting. The jewel remains the same”. Para 4.10 of the Report spells out those “reserve powers” explicitly: “It is generally accepted that there are probably only four such powers; namely, the power to appoint a Prime Minister, the power to dismiss a Prime Minister, the power to refuse to dissolve Parliament and the power to force a dissolution of Parliament”. If the labours of the various Constitutional Conventions held in Australia from 1975 to 1985 are followed, it should be possible to codify the conventions and rules of the parliamentary system.
In the context of Pakistan, a fair course is to restore the President’s powers under the 1956 Constitution and to codify the conventions of the parliamentary system in the Constitution itself to prevent abuse of power by both the Prime Minister and the President. The reports of the Australian Conventions can help in this exercise.
President Musharraf’s censures of Nawaz Sharif and Benazir Bhutto are justified. Both disgraced themselves twice over as Prime Ministers. Benazir’s party would not abandon her and her capacity for vengeance is notorious as is her disdain for democratic governance. Would she ever agree to forge a consensus? The best course would be nonetheless to formulate and publish a package of constitutional reforms based on a national consensus between the parties and between them and the army on agreed amendments to the 1973 Constitution which would establish a genuine parliamentary system with checks and balances, as the Australian Report suggests, and invite the political parties to accept it. A parliamentary system so devised fully meets the criteria President Musharraf laid down. In 2007 as in 1947 the question facing Pakistan is whether its political class is prepared to work the parliamentary system in its true form.
All of which brings up to the crux of the matter – which is not the mechanics of the parliamentary system but its very heart the quality of the political process. Consider the Indian situation. Instead of dismissing it summarily the Supreme Court fixed 9 July 2007 as the date on which to hear a public interest petition seeking judicial intervention to ensure that the government does not sign the nuclear agreement with the United States “until the same is thoroughly examined by a committee appointed by this Hon’ble Court in respect of its immediate need and essentiality and its implications on national security, sovereignty, dignity and honour and till the matter is thoroughly discussed and passed in the Parliament. “This is utterly unheard of. On 17 May 2007 Prime Minister Manmohan Singh lamented that 44 per cent of the time was lost in the Rajya Sabha and 34 in the Lok Sabha; all because the BJP refuses to accept its defeat in the 2004 election and is prepared to destabilize the system. The Supreme Court has latterly encroached on the legislative sphere drawing strong, repeated protests from the Speaker of the Lok Sabha Somnath Chatterjee. The situation in Pakistan is, if anything, more critical.
As Judge Learned Hand sagely observed of split polities. “A society so riven that the spirit of moderation is gone, no court can save; a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens – real and not the fictitious product of propaganda – which recognizes their common fate and their common aspirations – in a word, which has faith in the sacredness of the individual. If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilizations, delicate and easily overrun by the weeds of our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil.”
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[1] A.G. Noorani is an eminent Indian scholar and expert on constitutional issues.
[1] The Hindu, 15 May 2007.
[2] Constituent Assembly Debates, Vol. 7, p. 38.
[3] Volume 1 (Part 1) Report, HMSO, London, 1934, HL 6 (I Part I); HCS (Part xi); p.11.
[4] The English Constitution: The World’s Classics Oxford University Press; pp. xxii-xxiii,,
[5] Blanche E.C. Dugdale, Arthur James Balfour, London, Hutchinson, p.364.
[6] Gladstone, Gleanings of Past Years, 1879, Vol. I, p.245.
[7] Ivor Jennings, Cabinet Government, 1959, pp. 6, 400, 427.
[8] Constitutional Conventions, Oxford University Press, 1986, p.27.
[9] Vernon Bogdanor, The Monarchy and the Constitution, Oxford University Press, 1995, p.65.
[10] Eugene A, Forsey, The Royal Power of Dissolution of Parliament, Oxford University Press, 1943, p.170.
[11] Karl Loewenstein, Political Power and the Government Process, University of Chicago Press, 1965, pp. 114-5.
[12] Vide B. Shiva Rao, The Framing of India’s Constitution,, Select Documents, Vol. 4, pp 67-68 for the text.
[13] Constituent Assembly Debates,Vol. 10, pp. 114-116.
[14] Ibid, pp. 269-270.
[15] For the texts see Dr. Rajendra Prasad Correspondence and Select Documents, V.Chaoudhary ed., Allied Publishers, New Delhi, 1989, Vol. 12, pp. 278-286.
[16] Granville Austin, The Indian Constitution,, Oxford University Press, p.140.
[17] Chester Bowles, Promises to Keep, 1972, p.496.
[18] A.G, Noorani, President Zakir Hussain, 1967.
[19] Morarji Desai, The Story of my Life, Macmillan, Vol I, p.281.
[20] N. Sanjeeva Reddy, Without Fear or Favour, 1985.,
[21] The Week, 8 February 1987.
[22] The Telegraph, 26 July 1987.
[23] The Hindu, 7 December 1992.
[24] The Hindu, 21 Aprl 1996.
[25] A.G. Noorani, Constitutional Questions in India, Oxford University Press, 2000, pp.265-281.
[26] Mainstream, 18 March 2005.
[27] The Hindustan Times, 3 June 2006.
[28] Khalid B. Sayeed, Pakistan: The Formative Years 1857-1948, Oxford University Press, 1968, pp, 236-237.
[29] Ibid. Chapter 8.
[30] A.G. Noorani article in Criterion quarterly , October-December 2006, pp.32-33.
[31] Jinnah: Speeches and Statements 1947-48, Oxford University Press, 2000, p.225.
[32] Allen Mcgrath The Destruction of Pakistan’s Democracy, Oxford University Press, 1996, pp.67-68.
[33] Ayesha Jalal , The State of Marital Rule, Cambridge University Press, p.33.
[34] Ibid., p. 135.
[35] Ibid, pp.6 and 139-140.
[36] Dawn, 19 April 1953.
[37] Allen McGrath, The Destruction of Pakistan’s Democracy, p.97.
[38] Ibid., p.134.
[39] Ibid., p.159.
[40] Ibid., p.196.
[41] Mohammad Asghar Khan, Generals in Politics: Pakistan 1958-1982, Vikas, New Delhi, 1983, pp.6-7.
[42] Ibid., p.142,
[43] Hamid Khan, Constitutional and Political History of Pakistan, Oxford University Press, 2001, p. 712.
[44] Ibid.,pp.824-829.
[45] Brian Cloughley, A History of the Pakistan Army, Oxford University Press, Third Edition, 2006, p.303.
[46] Ibid., p. 335.
[47] The Nation, 13 July 2002.
