WE ARE OFFERING THE DISCOUNT IN THIS BOOK DUE TO ITS SLIGHLTY DAMGE CONDITION.
"Pakistan's famous article 58-2B of its constitution that lies at the core of this book empowers the president to dissolve elected assemblies. Osama siddique brings to his admirable study of the jurisprudence of dissolution a high capacity for close probing and perceptive analysis of the work of the supreme court in its decisions on specific dissolutions. But this book achieves far more than a revealing legal comparison, analysis and evaluation of the judgments. It places the major events leading to and influenced by these judgments in a context that extends from Zia to Musharraf and that embraces several major crises in government. The issues and judgments cut to the very nature of pakistan's governing ideals and structures and to basic changes in them from the country's creation to the present.
Throughout the book we are in the world not simply of law but of politics, political theory and constitutive understanding that shape the polity and deeply influence Pakistans political and moral character. The author's deep criticism of the jurisprudence within this dangerous field of constitutional law requires him to engage in this study the three branches of government and to some extent explore his own view of the appropriate relationships among them within democratic aspirations. This is a demanding enterprise and one that Siddique cogently and successfully executes to the great benefit of the reader."
Henry J. Steiner
Professor Emeritus, Harvard Law School
April 12, 2008
Review Two
"The tussle between democracy and authoritarianism in Pakistan is almost as old as the country itself. At the heart of this struggle has been the judiciary‟s role in legitimizing military interventions under spurious notions ranging from the doctrine of state necessity to new-fangled conceptions of public welfare. Using the insights of existing scholarship on the history and judiciary of Pakistan as well as his own extensive archival research, Osama Siddique sheds refreshing new light on the jurisprudence surrounding the controversial Article 58(2) (b) that empowers the president to dismiss popularly elected governments and legislatures.
Thorough, methodical and dispassionate in approach, the author brings admirable clarity to a complex and confusing debate in Pakistan on the balance of powers between the president and the prime minister in an ostensibly parliamentary system of government. By carefully analyzing the consistencies and inconsistencies of the judicial arguments used in four different cases against the dissolution of elected governments and assemblies between 1988 and 1996, Osama Siddique probes whether 58(2) (b) is in fact the 'safety valve‟ against direct military rule that its proponents claim it is or an inherently unstable mechanism designed to undermine parliamentary democracy. His findings have a direct bearing on not just the history of jurisprudence in Pakistan but the very future of the country as it once again attempts to break out of the clutches of military authoritarianism to make the elusive transition to a working democracy capable of reflecting the aspirations of its people. This transition to a working democracy capable of reflecting the aspirations of its people. This excellent book is a must read for anyone interested in Pakistan‟s eventful judicial and political history."
Ayesha Jalal
Mary Richardson Professor of History
Tufts University
April 17, 2008
Review Three
"Now that the people of Pakistan have spoken, in unmistakable terms, for democracy – a government of the people, by the people, for the people – there is no more propitious moment for the publication of a book like “The Jurisprudence of Dissolutions,” a treatise on Article 58(2) (b) of the Constitution of Pakistan, 1973, and the decisions of the superior courts of Pakistan given in cases arising out of the orders dissolving the assemblies and dismissing the elected governments. Coming as it does from an academic, the treatise is all the more welcome. Academics have come to occupy an important place in the law development process and besides serving its avowed objectives, to which we shall revert, the treatise ought to serve as an exhortation to the academics in Pakistan to come forward and play their
rightful part in the law development process."
The legacy of the most debated cases in the judicial history of Pakistan – the Maulvi
Tamizuddin Khan case and the Governor-General’s Reference of 1954 – is the extraconstitutional doctrine of State or Civil Necessity; the principal use of that doctrine has been to validate military take-overs and extra-constitutional actions of the military rulers. An English author, S.A. de Smith, said that the Federal Court, “was able to discern legal continuity by invoking the doctrine of necessity to bridge the gap between the law and the facts of political life…” But the gap, it needs to be emphasized, was created by the Court‟s own interpretation. It is obvious that if there were no gap, there would have been no need to erect the bridge of State Necessity. It seems in retrospect that the gap had better not been created.
Article 58(2)(b) gained ingress into the Constitution of 1973 when the military rule
imposed in 1977 was sought to be lifted in 1985 and the Amendments contained in the Eighth Amendment, one of them being Article 58(2)(b), were introduced. Article 58(2) (b) was the price exacted by the then military ruler for the restoration of democracy. It has been said that the object of the provision was to avoid martial law. Interestingly, that was the justification also advanced in favour of State or Civil Necessity.
I have read the book with great interest for the additional reason that I have in my
book “Judicial Review of Public Actions,” dealt with Article 58(2) (b) and all the decided cases under it. The primary queries and findings of this treatise, so says the author, “pertain to Article 58(2) (b)‟s negative externalities in terms of contradictory and inconsistent jurisprudence and the resultant adverse impact on judicial neutrality and its publicperception,” – in other words, the decisions in the Article 58(2) (b) cases, so thinks the author, bristle with inconsistencies and have politicized the judiciary. These conclusions are the result of an extensive scientific survey of each judgment and of the views expressed therein. The criticism may at places seem to be couched in strong language but that I attribute to the emphasis that the treatment and the importance of the subject require.
You have a right to differ with the views expressed and the conclusions drawn, but it
will be difficult to deny the force of the logic and reasoning behind them; they are an appeal to the “brooding spirit” of the law, “to the future intelligence of a future day” to make the dissolution jurisprudence logically consistent. For, “if justice is to be seen to be done, the discretion which will fall to be exercised by different Judges in different cases must manifest a reasonable consistency between one case and another.” Such reasonable consistency should, to a large extent, exclude the possibility of different judges guiding themselves by their personal inclinations or disinclinations.
I have, in my book, referred to Justice Holmes‟ observations in Northern Securities v.
U.S. about great cases. Great cases, like hard cases, says that great judge, “…make bad law. For great cases are called great not by reason of their importance in shaping the law of the future but because of some incident of immediate overwhelming interest which appeals to the feelings and distorts judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which even well settled principles of law will bend.” That applies equally to the cases under Article 58(2)(b); they were great as well as hard cases and part of the explanation for the flaws pointed out by the author perhaps lies in the kind of hydraulic pressure of “the overwhelming immediate interest.”
Fazal Karim
Former Judge of the Supreme Court of Pakistan
April 3, 2008
Review Four
I have gone through this well researched and analyzed text on a Constitutional
provision which was not part of the Constitution as originally framed by consensus in 1973. The Constitution envisioned a dispensation which was parliamentary in essence. Article 58(2) (b) represents the most obvious distortion in the ethos of the 1973 Constitution.
On 18th February 2008, general elections to the National and Provincial legislatures
were held, returning the Pakistan Peoples Party and the Pakistan Muslim League (N) to the National Assembly. It is these two parties whose Governments were, on four occasions, dismissed through use of Article 58(2) (b) of the Constitution.
Mr. Osama Siddique has commented on the Supreme Court‟s approach to the use of
Article 58(2) (b) and the variations in this approach in different cases. The reasoning of the Supreme Court and of judges who sat on its benches, has been examined critically and competing arguments have been articulated with clarity and skill.
Since the elections on 18th February 2008, and the decision of the PPP and PML (N)
to form a coalition Government, there has been much talk of Article 58(2) (b) and its rankling presence as part of the Constitution. The issue is topical and will be debated within Parliament and outside. This book will enable legislators, the media and the legal fraternity among others, to have an informed debate on all aspects of Article 58(2) (b) and will also provide a ready reference to various judgments and key players involved in adjudicating the contention which has followed each invocation of the Article.
Jawwad S. Khawaja
Former Judge of the Lahore High Court
April 4, 2008
Review Five
The “Jurisprudence of Dissolutions” is a most valuable addition to Pakistan‟s legal
literature. Well researched and properly documented, this book builds up a strong argument against the introduction of Article 58(2) (b) in the Constitution of Pakistan. It is the provision under which the President of Pakistan was bestowed with sweeping powers to dissolve an elected national assembly and send a representative government packing, in his discretion. The President, it may be observed, is not directly elected by the people of Pakistan under the Constitution of 1973.
The Constitution of Pakistan as enacted in 1973, was the product of a properly elected legislature. It was the outcome of a broad consensus between the representatives of the people belonging to different political persuasions and hailing from different parts of the country. One of the founding principles of that Constitution was the establishment of a parliamentary democracy, wherein the President was to be a nominal head of the state without any executive power. The provision of Article 58(2) (b) had the effect of interfering with that basic principle by superimposing the President over the Parliament.
Osama Siddique has examined Pakistan‟s constitutional and political history which in
his words “…has been repeatedly interrupted by praetorian rule through several impositions of martial law…” It appears that his view is that the introduction of Article 58(2) (b) in Pakistan‟s Constitution is merely a device to legitimize and extend such a praetorian rule.
The fact that this provision was added in the Constitution firstly in 1985, during the rule of the military dictator Zia-ul-Haq, and after its repeal by an elected parliament in 1997 it has been re-enacted by a pliant parliament in 2004 under the influence of another dictator, supports such a view. It may not be out of context to point out that in 1985, Zia-ul-Haq had another addition made in Article 243 of the Constitution by inserting Clause 1 (a) which states that: “…the Supreme Command of the Armed Forces shall vest in the President.” There is no change in that position to date.
The main burden of Osama‟s thesis, however, is not the politics of Article 58(2) (b).
His principle interest seems to be to examine what is suggested by the title of the book, i.e. the “Jurisprudence of Dissolutions.” Between 1988 and 1996, in just eight years four national assemblies were dissolved and as many elected governments were sent packing in exercise of these controversial Presidential powers. Each one of these dismissals was called in question before the Supreme Court of Pakistan. In view of the nature, extent and importance of the issues involved, many judges on the benches of the Court were tempted to express their separate opinions. The four Supreme Court judgments in these dissolution cases, therefore, run into several hundred pages. Osama has very carefully examined all these cases and has
painstakingly analyzed their various aspects.
He finds that the judgments in the dissolution cases have exhibited inconsistencies
both as regards the application of legal principles, as also in the matter of the approach towards evaluation of evidence and material facts on which the dissolutions were based. Judges who sat on the bench in more than one case changed their position from case to case while the Court as a whole was also caught in contradictions. This seriously impaired the neutrality of the highest judiciary which was perceived to be politically polarized. The fact of the matter is that the judiciary in Pakistan has remained for long under the awe and influence of martial laws and extra-constitutional dispensations. Recourse to the highly controversial
theory of “State Necessity” is the direct consequence of that influence. The dissolution judgments are not directly based on that theory and yet one notices its pervasive influence throughout.
It is fundamental for the development of healthy, democratic and vibrant judicial
traditions to free the judicial mind from the spell of extra-constitutional influences. That calls for a paradigm shift. It is also necessary to purge the Constitution of all anti-democratic amendments including the one added by Article 58(2) (b). Osama Siddique‟s book, I am sure, will be helpful in clearing many minds and shall be instrumental in raising the intellectual level of discourse in support of a democratic dispensation."
Abid Hassan Minto
Former President Supreme Court Bar Association & Senior Advocate of the Supreme
Court of Pakistan
April 16, 2008
Review Six
"Article 58(2)(b) is one of the most controversial provisions that were added to the
original 1973 Constitution of the Islamic Republic of Pakistan by General Zia-ul-Haq, the military dictator who upstaged late Zulfiqar Ali Bhutto‟s Civil Government through a coup in 1977. The obvious objective was to retain the potentially unfettered right to dismiss, at his whim, the National Assembly, which he had allowed to be elected, albeit on non-party basis, after retaining one man rule for eight years. Needless to add, General Zia-ul-Haq was also the first person to invoke Article 58(2) (b), in that barely three years after the swearing in of the Junejo Government, which he had allowed to be inducted on his absolute terms, he unceremoniously dismissed the same. It may be recalled that General Zia-ul-Haq had staged
the coup in 1977 on the pretext of holding free and fair elections within three months, but later reneged on his promise and held on to absolute power for eleven years, relinquishing it only when he died in a plane crash in 1988.
Mr. Osama Siddique‟s book on the subject, first appearing as an elaborate article in
the Arizona Journal of International and Comparative Law, is a multi-dimensional approach to the discussion on this most significant undemocratic provision of the Constitution. His narrative not only proceeds linearly in tracing the historical genesis and progression of Article 58(2) (b), including its demise in the year 1997, and its resuscitation in the year 2002 by another dictator, it also gives an in-depth analysis of both the provision itself and its multifaceted interpretations by the apex Court in the four leading cases on the subject.
The merits of this article lie in the fact that at no point in time does it waver from its
mainstream subject with empty sloganeering or verbose deprecation, rather the dissertation closely follows the line of reason and logic, even where the author is expressing emotive or subjective preferences; while the precision with which this subject, involving potentially unending arguments for and against the retention of this provision in the Constitution, has been dealt with in all its essential ramifications is highly commendable.
The references in this book to parliamentary debates on the controversial Eighth
Amendment Bill, that was designed to, inter alia, justify the introduction of Article 58(2)(b) as a “safety valve” against imposition of martial law (in that resort to this controversial provision was projected by the pro-Zia protagonists as the only alternative to breakdown of “normal” political processes), provide not only insight into the purported rationale of the contentious issue itself, but they also whets one‟s curiosity to know more about the details of the dramatically opposed arguments put forth by the respective parties during the National Assembly Debates. The culture of referring to parliamentary debates, which actually form the bedrock of all significant legislation and provide their raison d’être, and which are an essential aid in ascertaining the correct intention of the legislature in promulgating any particular law, is sorely missing from jurisprudential literature in Pakistan. This book, however, is a first step towards rectifying this fault by its introduction of such material in the
main body of the text as well as through extensive footnotes.
The allied discussion qua the contemporaneous amendments sought to be carried out in Article 48 of the Constitution through the Eighth Amendment Bill enables us to have a lucid understanding of how a dictator‟s mind works in a bid to bring about the illusion of a shift of power to the democratically elected popular government, while essentially retaining his absolute power and, in effect, conceding nothing on this count to pro-democratic forces. Thus, two features of these originally profiled amendments sought to be introduced in the Constitution are brought into sharp relief by the author: firstly, the manner in which these amendments were thrust upon the newly elected Parliament, i.e. as a condition precedent to the transition of (limited) power from the self-imposed dictator to the elected government and, secondly, the effort to place the exercise of the discretionary powers (inter alia, with
respect to Article 58 (2)(b)), that vested in General Zia-ul-Haq by virtue of his continuing to hold the post of the President of Pakistan, “beyond the pale of judicial review.” In effect, therefore, through these amendments, Zia-ul-Haq not only sought to arrogate to himself the powers to dismiss the constitutionally elected Government at his whim, he also sought assurance that both the vesting of this power in him and the exercise of this power in future would not be subjected to judicial scrutiny. As pointed out by Mr. Osama Siddique, it was only through relentless persuasion by the die-hard pro-democratic protagonists in the National Assembly that the deleterious effects of these strongly proposed in built Constitutional prohibitions in the restoration package were considerably diluted, especially qua immunity from judicial review of the exercise of Presidential discretion as envisaged by Article 48 of the Constitution read with Article 58(2) (b).
While the author laments and castigates the repeated invocation of Article 58(2)(b) to stifle nascent democratic processes, and brings out the anomalies and contradictions of a judiciary repeatedly forced by these un-parliamentary interventions to consider what should be the constitutional ethos of the nation, and what moral lines are to be drawn and measures adopted to harness the impulse to make the “appeal to the electorate” necessary in terms of Article 58(2)(b), he also acknowledges that the judiciary, despite its failings in impartiality, and in avoiding the constraints of, at times, thinly disguised and, at other times, blatant duress, did measure up to the task and invariably entered and carried out very high standards
of discussion of these fundamental constitutional issues - which, inter alia, involved political history, principles of constitutional law, principles of parliamentary governance, and comparative constitutional systems and political theories, both in their historical and analytical contexts. His comparison of the “Herculean” task thus thrust upon the judiciary, with that of grappling with “Hard Cases” as defined by Ronald Dworkin, is quite apt in that, notwithstanding the high quality of jurisprudential debates in these judgments, in most of these decisions the ultimate outcome is seen to have been predetermined to fit in the post dismissal scenarios. Though I do believe that the author is quite considerate in being willing to concede that the issues raised before the judiciary in those cases did not fit any preexisting,
or clear rule of law, hence the concept of “hard cases” and consequent room for
discretion, yet the fact remains that the judges have not been immune from multifarious extraneous considerations in reaching their conclusions, a fact duly noted and adroitly discussed by the author. Thus, for example, Saad Saud Jan, J, while writing his separate judgment in the Nawaz Sharif case, obviously contradicted himself in that while categorically holding that Article 17 could not be subjected to the “expansive” interpretation given by the majority of the Members of the Bench, he nonetheless proceeded to accept the petition, though on his own logic, it should have been dismissed as not maintainable.
The main discussion of this book is an analytical and comparative study of the four
High Court and four Supreme Court cases, each relating to the separate occasion when Article 58(2) (b) was invoked to dismiss a democratically elected government and also the Eighth Amendment Case, wherein the vires of Article 58(2) (b) was considered. Thus, while the book begins with a consideration of the genesis and purported rationale of Article 58(2)(b) in its historical context, the main portion of the book deals with the manner in which the use of this provision and, inevitably, the genesis and the purported rationale of the Article were judicially considered, historically contextualized, rationally legitimized (or in some cases, illegitimated) and, more importantly, effectually precipitated in essentially differing and mostly contradictory ways by the High Courts of the several Provinces and the Supreme
Court of Pakistan. The avenues of debate opened up by the author‟s incisive discussion based on this analytical and comparative approach to his subject are multifarious, while the author's manner of handling his subject provides a paradigm for dealing with such an unruly subject with absolute precision and committed focus.
With the repeal of Article 58(2)(b) on 4th April 1997 (re: Constitution (Thirteen
Amendment Bill) 1997), and considering the clear implications of Article 6 of the
Constitution, which makes any act committed in deviation of the Constitution an offence of High Treason involving capital punishment, it was widely believed that the era of army takeovers was over. However, like all good news in our country, this perception also proved to be short-lived, if not outright illusory. In fact, the citizens of Pakistan should have learnt a lesson from the political history of our country ever since the decision in the Asma Jilani Case. Notwithstanding the fact that like all such anti-dictatorial decisions, this decision too had come at a time when the chances of re-imposition/re-visiting of martial law were minimal, if not non-existent, this decision was nonetheless considered to be a milestone in the judicial history of our country, in that it not only sought to undo the mischief of the Maulvi Tamizuddin Khan Case and, in the process, do away, once and for all, with the “Doctrine of Necessity” on which this earlier case was based, it also proceeded to warn that any future usurpers would be exposing themselves to prosecution for High Treason. Yet this pronouncement did not deter the anti-democratic forces, and within five years of this judgment, there occurred the Army-take-over by General Zia-ul-Haq. Needless to add, no case of High Treason followed this usurpation. Rather Zia-ul-Haq ruled for eight years and was ultimately removed only through intervention that was wholly alien to any judicial pronouncement. As it happened, history was poised to repeat itself with greater venom in 1999.
In fact, the repeal of Article 58(2) (b) proved to be the strongest argument in favour of its retention in the Constitution. As it happened, within two years of its repeal, another military adventurer planned to remove the legitimately elected political government, but found little support for such action in the Constitution. He, therefore, proceeded to borrow a leaf from late General Zia-ul-Haq and, with the support of the omnipresent Mr. Sharifuddin Pirzada, clamped martial law in the country.
Mr. Osama Siddique concludes his dissertation on Article 58(2)(b) with a discussion of this shamefully momentous occasion and its variegated consequences, which continue to haunt and engage us, even today, more so when General Pervaiz Musharraf, the perpetrator of this latest assault on and murder of democracy, unabashedly continues to hold on to power. In doing so he brings his narrative and analysis of Article 58(2) (b) full circle, i.e. its resuscitation by a domineering General Pervaiz Musharraf through the Legal Framework Order, 2002, with the help of a pliant Parliament (wherein a slender majority had been cobbled together by political intrigue and, “transparent” horse-trading and “Constitutional” deceit) and an equally obliged MMA component of the opposition. The author‟s personal view of the very concept of Article 58(2)(b) being an anathema to parliamentary form of government and democratic imperatives, and his demonstration of, at times, the selfcontradictory
and, in any case, opportunistic resolution of the issues arising pursuant to invocation of this power by a wavering judiciary, and his well reasoned conclusion that Article 58(2)(b) is actually a veil provided for camouflaging military intervention in political
affairs, provides the leitmotif for this very interesting and thoroughly researched dissertation which is a must read for both the students and the practitioners of law and political history."
