Eighth Amendment to the Constitution of Pakistan

The Constitution (Eighth Amendment) Act, 1985 was an amendment to the Constitution of Pakistan passed in 1985. It changed Pakistan's government from a Parliamentary system to a Semi-presidential system by giving the President a number of additional powers. These powers included the right, expressed in sub-section 2(b) inserted into Article 58, to dissolve the National Assembly (but not the Senate) if, in his or her 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." (Constitution of Pakistan, Article 58) with the consequence of dismissing the Prime Minister and his or her Cabinet.

Article 58 2(b)

The Eighth Amendment, besides making a number of other changes to the Constitution, introduced the following clause into Article 58 of the Constitution:

"(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,"
"(a) a vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the member’s of the National Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose; or "
"(b) 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 58 2(b), which granted the discretionary power to dissolve the National Assembly mentioned in the previous section, was invoked three times in the 1990s - by President Ghulam Ishaq Khan against Prime Minister Benazir Bhutto on August 6, 1990, by President Ghulam Ishaq Khan against Prime Minister Nawaz Sharif in 1993 and by President Farooq Ahmad Khan Leghari against Prime Minister Benazir Bhutto in November 1996. In the second instance, Prime Minister Nawaz Sharif was reinstated as Prime Minister by the Supreme Court, but the resulting stalemate ended with the resignations of both Ghulam Ishaq Khan and Prime Minister Nawaz Sharif. The use of Article 58 2(b) was almost exclusively justified by the President as necessary, for the removal of corrupt governments that, it was asserted, had lost the confidence of the people. Elections were held each time that caused the ruling party to lose its majority or plurality in the National Assembly.

In 1997, the Thirteenth Amendment was passed, stripping the President of the power to dissolve the National Assembly and call for new elections, effectively reducing the Presidency to a ceremonial figurehead.

Pakistan's democracy provides no means for the people to directly recall members of Parliament before the end of their terms. Consequently, the Thirteenth and Fourteenth Amendments had the effect of removing the institutional Checks and Balances on the Prime Minister's power, by giving him or her immunity from being legally dismissed.

The power of the President's office was partially restored by the Seventeenth Amendment. The power to dissolve the National Assembly and dismiss the Prime Minister is now subject to Supreme Court approval.

The Eighth Amendment as a compromise

In general discourse, the Eighth Amendment has become synonymous with Article 58 2(b), which in turn is considered to be the provision that introduced the presidential power to dissolve the National Assembly. However, the Eighth Amendment was in fact a compromise between the Parliament elected in the non-party elections of 1985 and then President Gen. Zia-ul-Haq. Prior to the 1985 election, over a period of 6 years, Gen. Zia-ul-Haq had already made numerous amendments to the Constitution of 1973 through various Constitution Amendment Orders, the most significant being the Revival of Constitution of 1973 Order (President's Order No. 14 of 1985). That Order had in fact granted to the President even more discretion in dissolving the National Assembly. Clause (2) added to Article 58 by that Order stated: "The President may also dissolve the National Assembly in his discretion where, in his opinion, an appeal to the electorate is necessary." Note that the test of the constitutional functioning of the government was not required for the President to dissolve the National Assembly.

It must also be stated that the Eighth Amendment also caused the elected Parliament to endorse all Orders made by Gen. Zia-ul-Haq by substituting the Article 270A introduced by President's Order No. 14 of 1985 by a slightly modified version, preserving the text declaring the validity of all of Gen. Zia's actions, including his takeover of July 5, 1977 and subsequent constitutional amendments.

It is not clear whether this explicit parliamentary approval was required for Gen. Zia's amendments to obtain legal validity, but it appears that Gen. Zia considered it desirable to obtain this approval and thus chose to compromise by watering down some of the presidential powers his amendments had granted.

ee also

* Zia-ul-Haq's Islamization
* Separation of powers
* Nawaz Sharif
* Benazir Bhutto
* Pervez Musharraf
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1140669 A Constitutional Analysis of Article 58(2)(b)]