A history of legitimizing the illegitimate

(Syed Faisal Hayat, Islamabad)

Allah says “Certainly we have sent our messengers with clear guidance, and we sent down to them the book and the scale so that humans may conduct themselves with justice” A society can only progress when it has justice more than anything else. In countries like Pakistan courage is of no use without justice. The sum of all moral duties leads it path to justice.

Pakistan would have been a great country by now, had the Judiciary served its purpose. Had Justice Munir not legitimized the illegal act of the then Governor General Ghulam Muhammad, when he dissolved the general assembly on 25th Oct, 1954 no other judge would have dared to legitimize any illegitimate act. The Sindh chief court had of course used its judicious mind when it declared the constituent assembly as the sovereign power and it was held the prerogative of the sovereign power to amend and repeal the existing laws in the case of Maulvi Tamizuddin Khan.

But the judgment of Justice Munir in the case of Maulvi Tamizuddin khan with which the other three judges of the bench concurred had shaken the country to its very foundation. Whereby the court did not go into the question whether the assembly was dissolved rightly by the Governer General, rather the court went on discussing the so called technical ground of section 223-A of Government of India Act,1935 not having obtained the assent of the governor general.

Rather providing justice, Justice Munir was seemed more bent towards his kinship fellow governor general Ghulam Muhammad. The judgment of the Federal court dragged the ountry into a legal vacuum and almost forty six Acts on the statue books became invalid.

Soon after emergency powers Ordinance IX of 1955 was promulgated, whereby the governor general assumed powers to make provisions for framing the constitution validate laws, authenticate the central budget etc. The Federal court had now the opportunity to compensate for its previous judgment given without any reasonable legal ground, when Usif Patel moved an application whereby he impugned the Act of governor general as invalid.

Again Justice Munir lost the opportunity the opportunity to make reparation for his unreasonable judgment in the case of Maulvi Tamizuddin khan. Again in the case of Usif Patel(PLD 1955 FC 387), Justice Munir held that the Governor general did not go beyond the Federal legislative powers to make laws. The judgment in the case of Usif Patel took the country into the constitutional crisis of a greater magnitude. In the Usif Patel case Federal court held that governor general was not empowered to issue Ordinance for constitutional matter in the absence of legislative body(Constituent Assembly).

To legitimate is illegal Act, the governor general made a reference to the Federal court, whereby the Federal court in the special reference case (PLD 1955 FC 435) allowed retrospective validation of invalid acts to be approved by the new constituent assembly directed to be elected.

The judgments of the Apex courts in the cases of Maulvi Tamizuddin and Usif Patel gave birth to the so called doctrine of necessity, whereby it paved the way for dictators to abrogate the constitution and then legalize their illegal Acts through the Judiciary.

The simpleton intellectualism of judges did not come to an end there, it kept dragging the country into chaos and political and legal vacuum. Justice Munir kept on legitimization of the usurpers acts by adopting the so-called Hans Kelson theory in the Dosso Case (PLD 1958 SC 553), the theory which never have had any practical application.

It would be inappropriate not to applause the lonely defender of fundamental rights Justice A,R,Cornelious. He gave dissenting opinions in all the cases whereby Justice Munir and other judges had tried to legitimize the acts of usurpers. In Dosso case the Supreme court declared the fundamental rights are not part of the law of the land and no writs no writs can be issued on its basis. In Mehdi Ali khan’s case Justice Munir had a golden opportunity to undo or alter his judgment in Dosso’s case. But unfortunately the Supeme Court led by Justice Munir let go the opportunity.

However in the landmark judgment of Asma Jilani case (PLD 1972 SC 139), the Supreme Cour tried to shut the doors for the Martial Laws in future. In the instant case the Lahore High Court dismissed the Constitution petition against the detention of Malik Ghulam Jilani relying on the so-called doctrine of necessity as was applied in the case of Dosso Vs the State. Judicial Activism known as the so-called well established doctrine of necessity was put to an end in the Asma Jillani case. The Military Government pleaded the doctrine of necessity but the same was rejected and General Yahya Khan was declared as usurper.

But unfortunately the end to doctrine of necessity did not lost for longer period of time. The Supreme court did not follow the rule in the Nusrat Bhutto case (PLD 977 SC 657) that it had adopted in the state Vs Dosso case.

General Zia suspended the constitution on 5th of July, 1977 and imposed martial law. Begum Nusrat Bhutto challenged the proclamation of martial law as in intervention amounted to an act of treason under Article 6 of the Constitution. Begum Nusrat Bhutto also challenged the law (continuation in force) order 1977 as well as martial law Order number 12 under which Zulfikar Ali Bhutto and his colleagues were detained. The Supreme court again relied on the principle of necessity applied in the aforesaid mentioned cases. The Supreme Court declared the power of General Zia to oust Bhutto in the name of “State necessity”.

General Zia appointed Maulvi Maushtaq as chief election commissioner and later as acting Chief Justice of the Lahore High Court. And it was well established fact that Maulvi Mushtaq had persona grudges against Bhutto as the PPP government led by Bhutto had appointed eight years junior Justice Aslam Riaz Husain as Chief Justice of Lahore High Court. Justice Aslam had superseded as many seven senior judges including Maulvi Mushtaq of Lahore High Court.

Finally Bhutto was convicted to hang till death by the Supreme Court in the trail which has been argued was never a fair trial. On 4th April 1979, Zulfikar Ali Bhutto was hanged at 2:00 am at Rawalpindi Central jail unlike the usual rules of hanging prisoners at dawn. The country was left with sorrow and politics of the country at the mercy of an a dictator.

The pity is our parliament approved the validation of martial law and laws made by the army chief when General Zia restored the constitution in 1985.

In the backdrops of these embarrassing judgments how could we have a flourished democratic system? Independent judiciary which is considered as the backbone of a country, if it does not adjudicate independently then it is very clear that the country will fall on its feet. These embarrassing and shameful verdicts kept on continuously delivered by the pseudo intellectuals.
When Pervez Musahraf ousted the then elected Prime Minister Muhammad Nawaz sharif on 12th October 1999. The case of Zafar Ali Shah (2000 SCMR 1137) was moved and heard by the Supreme Court, whereby the imposition of martial law was challenged. The case heard by a bench of supreme court including Justice Arshad Hassan Khan and also Jusice Iftikhar Muhammad Chaudry not only “rejected” the petition but also empowered the dictator Musharaf to amend the constitution himself.

Legitimization of illegitimate actions of the dictators through the verdicts of the courts and then subsequently being approved by parliament has changed and devastated the democracy in Pakistan. The verdicts in the past had raised many questions. And till day there are questions which remained unanswered. Did Mushraf not abrogated the constitution? Did President Arif Alvi rightly removed Justice Shaukat Siddique?

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03 May, 2019 Views: 117


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