Repeal of 17th Amendment

The euphoria over the restoration of the judges should not blind us to one reality: while the sacking of the chief justice and other judges was at the hands of a military ruler, the reversal of this decision was the result of executive action propelled by a popular movement. Parliament was nowhere in the picture.

Gen Pervez Musharraf had rendered Chief Justice Iftikhar Chaudhry ‘non-functional’ in March 2007. Even though he was restored to his post through a legal process, Chaudhry was out of the Supreme Court again when on Nov 3, 2007 Gen Musharraf imposed emergency as army chief. Many of the judges refused to (or were not invited to) take oath under the infamous PCO.

More recently, the prime minister informed the nation of the decision to restore the pre-Nov 3 judiciary. But the actual notification restoring the top judges was signed by President Asif Zardari. Barring the fact that he cannot enact a PCO by decree — the privilege is reserved for army chiefs — Zardari enjoys all powers flowing from the 17th Amendment.

The cornucopia of those laws makes the president more powerful than the prime minister in what is supposed to be a parliamentary democracy. The most controversial of these powers flows from Article 58-2(b), which authorises the head of state to dissolve the National Assembly and sack the prime minister even if he enjoys the house’s confidence.

Gen Ziaul Haq had inserted this clause in the 1973 Constitution and used it to sack the Junejo government. Since then, the two presidents — Ghulam Ishaq Khan and Farooq Leghari — have used it three times to dismiss elected governments headed by Benazir Bhutto and Nawaz Sharif. When Nawaz Sharif returned to power a second time with ‘a heavy mandate’, the PML-N government did away with this article. However, Gen Musharraf revived this clause, which was made part of the constitution through the 17th Amendment.

The post-Zia democracy could have survived if presidents Ishaq Khan and Leghari had refrained from invoking Article 58-2(b) for reasons which were political rather than constitutional, and that violated the stipulation in the clause that the president could resort to this extreme measure only if there were circumstances in which the state machinery could no longer work according to the constitution. In at least two cases, the courts declared the presidential action illegal. The current situation provides all parties with an excellent opportunity to do away with the 17th Amendment and restore to the constitution its parliamentary character.