Amendments, martial laws and the courts

Pakistan Affairs · Constitutional history. The idea in plain words, the rules to remember, the mistake to avoid and a worked example, written and checked by Mega Lecture.

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The idea

Pakistan's constitutional history moves between civilian rule and military rule. Each time the army took over, the courts were asked whether the takeover was lawful. Several times they accepted it under the doctrine of necessity: an act outside the Constitution may be treated as valid if it was needed to save the state.

The amendments tell the same story. The key question is who can dismiss an elected National Assembly. The power under Article 58(2)(b) was given to the President in 1985, removed in 1997, restored in 2003 and removed again in 2010.

The 1971 break-up followed the 1970 election, when power was not transferred to the Awami League, which had won the majority.

Rules to remember

Military take-overs: 7 October 1958 (Ayub Khan as Chief Martial Law Administrator), 25 March 1969 (Yahya Khan), 5 July 1977 (Zia-ul-Haq; martial law lifted 30 December 1985), 12 October 1999 (Pervez Musharraf).
Eighth Amendment (1985): President may dissolve the National Assembly at his discretion. Thirteenth (1997): power removed. Seventeenth (2003): power restored. Eighteenth (2010): power removed.
Eighteenth Amendment (2010) also abolished the Concurrent Legislative List, renamed NWFP as Khyber Pakhtunkhwa and added Article 25A (right to education).
Federation v Tamizuddin Khan (1955, Chief Justice Muhammad Munir): the dissolution of the first Constituent Assembly was upheld.
State v Dosso (1958) validated the 1958 martial law; Asma Jilani (1972) overruled Dosso and called Yahya Khan a usurper; Nusrat Bhutto (1977) validated Zia's take-over; Zafar Ali Shah (2000) validated Musharraf's.
1966: Sheikh Mujibur Rahman's Six Points. 1970: Awami League wins the overall majority. 16 December 1971: surrender at Dhaka; Bangladesh emerges.
The Hamoodur Rahman Commission inquired into the 1971 defeat and the loss of East Pakistan.

Common mistake

Students give the Eighth and Seventeenth Amendments opposite effects to the Thirteenth and Eighteenth. Remember the pattern: amendments made under military rulers (Eighth, Seventeenth) gave the President the power to dissolve; amendments made by elected parliaments (Thirteenth, Eighteenth) took it away.

Worked example

A President dissolved the National Assembly at his own discretion in 1996. Under which amendment was this possible, and could a President have done the same in 1998?

The discretionary power to dissolve came from Article 58(2)(b), added by the Eighth Amendment in 1985.
In 1996 the Eighth Amendment was still in force, so the President could use it.
The Thirteenth Amendment of 1997 removed this power, and it did not return until the Seventeenth Amendment of 2003.

Answer: It was possible under the Eighth Amendment; in 1998 it was not possible, because the Thirteenth Amendment had removed the power.

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Constitutional History Of Pakistan

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