Pakistan has faced multiple problems in its early days regarding framing of
constitution. Due to death of Qaid-e-Azam, Liaqat Ali Khan’s assassination,
abrogation of first constituent assembly, legal interpretation of powers of
Governor General. Then imposition of martial laws and instability of elected
governments due to army intervention time and again, till 2009, when supreme
court has declared every act abrogating the constitution as illegal and unlawful
and also nipped the evil in bud by stopping the gateway to martial law in its
land mark judgments. These steps are discussed in this writing to highlight the
core issue of instability of the Constitution in Pakistan.
THE INDEPENDENCE IN 1947
Pakistan came into being on 14th August, 1947 and adopted the Indian
Independence Act, 1935 as its constitution. This act, drafted by the colonial
master Britain, functioned as Pakistan’s constitution at the time and provided
for a strong central government, a governor-general with unreviewable powers,
and very limited representation which continued feudal-like politics.
FIRST PHASE- 1954
On 24th October 1954, such vast powers resulted in dissolution of the first
constitutional assembly headed by Moulvi Tameezuddin Khan. The council of
ministers was reconstituted with the task to make constitution for the Country.
It is awful fact of the history that the first constitutional assembly has
worked for day and night for upto seven years and the draft was almost ready to
be placed before the Governor General and at this eve Governor General has
dissolved the assembly because new proposed constitutional draft has diminished
the powers of the Governor General office. Moulvi Tameezuddin Khan has
challenged the abrogation of the constitutional Assembly and reconstitution of
council of ministers by the Governor General, beforethe Sindh Chief Court at
Karachi. The Sindh Chief court has allowed the petition under section 223-A of
the Government of India Act, 1935, filed by the president of first
constitutional assembly in the case reported as PLD 1955 Sindh 96 (Moulvi
Tameezuddin Khan v/s Federation of Pakistan)
The said order of the Sindh Chief Court was challenged before Federal Court
where the order of Sindh Chief Court was set aside with majority of 4:1 ratio by
Justice Muhammad Munir, the then Chief Justice of Federal Court, the case is
reported as (PLD 1955 FC 240 Federation of Pakistan v/s Moulvi Tameezuddin
Khan). The decision of Federal Court was manly based on the following points:
• Assent of Governor General was necessary for all laws passed by the Assembly,
which was not obtained.
• Section 223-A Government of India Act, 1935 was not a valid law as it did not
get assent of Governor General, hence petition under section 223-A was illegal.
• The Sindh Chief Court has no jurisdiction to entertain the petition as the
section 223-A per se is illegal, wherefrom the Sindh Chief Court assumes
jurisdiction.
• The constitution Assembly has no sovereignty and it cannot go beyond the
boundaries.
This decision has far reaching effects upon the constitutional history of
Pakistan. It created a political crisis in the country and legal problems also
raised their head as decision of Federal Court declared that all the 46 Acts
passed by the Assembly were null void ab initio because these Acts has not got
assent of Governor General. Thus the country has fallen into a legal vacuum.
In such situation, after six days of the judgment in Moulvi Tamizuddin Khan
case, the Governor General has promulgated Emergency Ordinance, 1955 regarding
• Framing of Constitution of Pakistan
• Make provisions to constitute the province of West Pakistan
• validation of Laws passed by the Constituent Assembly and had not received
assent of the Governor General
• Authenticate the Central Budget
• Name of East Bengal changed as East Pakistan.
The emergency powers of the Governor General were challenged in a number of
petitions. One of the most popular cases was Usif Patel v/s The Crown (PLD 1955
FC 387) whereinit was challenged that the power to make provisions to the
constitution of the country could not be exercised by the Governor General by
means of an ordinance. The Federal Court, headed by Chief Justice Muhammad
Muneer has held that emergency powers of the Governor General are ultra vires
and powers to make provisions to the constitution of the country was not
conferred by the law on anybody except the Constituent Assembly whole continuing
legal status was recognized. The Governors of the Provinces were empowered, by
the Governor General, to promulgate ordinance under section 92-A of the
Government of India Act, 1935. The Governor of Sindh Province has promulgated
The Sindh Control of Gundas Act, 1952. One Usif Patel was arrested by the Deputy
Commissioner Larkana and detained under the said Act, 1952. The detention was
challenged in the Federal Court by UsifPatel.Thecourt has held that powers of
Governor General were ceased on 31.3.1948 by virtue of Indian Independence Act,
1947; therefore, promulgation of Sindh Gundas Control Act, 1952 was illegal and
having no legal consequences under the law and having no legal and lawful effect
ab initio.
Now in such situation the system was collapsed as there is no law to run the
state and there is no authority to promulgate the laws, hence the Governor
General has made a reference to the Chief Court to guide in such situation and
following queries were raised in the reference:
• What are powers and responsibilities of Governor General?
• Federal Court has held in Usif Patel Case that laws listed in the Emergency
Powers Ordinance cannot be validated nor be given retrospective effect and there
is no legislature body to validate the laws now in such situation is there any
provision in the constitution to authorize the Governor General to validate the
laws and invalidate the others until the question of their validation is
determined by the new Constituent Assembly/Convention?
• Whether Constituent Assembly was validly dissolved?
• Whether constituent Convention proposed to be set up will be competent to
exercise the powers conferred upon the Constituent Assembly?
The reference, (PLD 1955 FC 435),was replied by the Federal Court that due to
civil and state of necessity, all the acts and laws are to be validated till
Constituent Assembly finalize these laws and present the same for assent before
the Governor General.Therefore, it is said that necessity knows no laws or
necessity makes lawful which otherwise is unlawful.
Another important case was Ali Ahmed Shah’s case reported as (PLD 1955 FC 522)
wherein doctrine of state necessity was applied by the Federal Court that though
the judgment of Moulvi Tameezuddin Khan has invalidated all those acts including
the Privy Council (Abolition of Jurisdiction) Act, 1950 and Constitution
Assembly for Pakistan (Increase and Redistribution of Seats) Act, 1949, even
though the same are validated temporarily and retrospectively by virtue of reply
of the Reference of Governor General, by the Federal Court, as discussed above.
The second Constituent Assembly sought main guidance from the work already done
by the First Constituent Assembly therefore, there has no need to set up special
committees or sub committees for deep discussion or elaboration of the framing
of the constitutional draft. The objective Resolution was included as preamble
of the constitution. It consisted of 245 Articles and overall thirteen parts.Out
of which many articles were contested by the opposition party specially Awami
League (East Pakistan dominated party). In the final form only 234 Articles were
included in 13 parts
The new constituent Assembly has passed the 1956 Constitution for the Country
being first Constitution of Pakistan after a struggle of more than nine years
since independence in 1947. The new constitution was out-rightly condemned by
Awami League and some Hindus in East Pakistan and demanded it to be done away
withmainly on demand of powers to the province of East Pakistan. So sever
agitations were launched in East Pakistan in this connection which has deep
effects on the history of Pakistan opposing strong national governments.
Eventually by adoption of first constitution, 1956 the Government of India Act,
1935 was laid to rest on 29th February, 1956.
Main features of 1956 Constitution
• It was a written constitution
• It fulfills all requirements of federation
• It provides for distribution of powers between center and federating units so
also judiciary
• It allowed decentralization process.
• The 1956 constitution named the country as Islamic Republic of Pakistan
• Itincluded provisions regarding Fundamental Rights, though there was no such
provision in the Government of India Act, 1935.
• Directives Principles of State Policy were included in it.
• It introduced Parliamentary Form of Government though there were a few people
who were against it.
• Federal Legislature was unicameral (Single House) unlike Federal constitution
having bicameral system.
• Powers of president were subject to advice of Cabinet i.e. appointments of
Chief Justice and judges of Supreme Court and High Courts, Governors of the
Provinces, Attorney General and Principal Military Officers etc.
• Powers to be supreme Command of Armed forces were vested in the President.
• He would assent the bills passed by Assembly.
• Islamic provisions were inserted in the constitution, 1956.
• Emergency provisions (Articles 191-196)
• Urdu and Bangali were declared official languages of the Country.
SECOND PHASE-1958
Constitution 1956 was passed by the constituent assembly but unfortunately the
Constitution,1956 was annulled in 1958 only after two years of its life. The
central legislature was dissolved as the parliamentary system of democracy has
failed. It also resulted in dissolution of Provincial Assemblies. Martial law
was imposed and chief of Army Muhammad Ayub Khan took the office of Chief
Martial Law Administrator (CMLA) and became head of the state and then
president. Sikandar Mirza has to leave the office of president as he was sent to
London by force.
At this juncture the promulgation of law (continuance in force) Order 1958 was
introduced. It gave effect to all laws already existed except the Constitution,
1956. Several writ petitions were filed by different petitioners wherein certain
actions were challenged. Among these one Dosso has also filed a Writ challenging
the validity of Frontier Crimes Regulations (FCR). The High Courts has decided
the writ petitions in favor of the petitioners. The Government has challenged
these orders before Supreme Court. Supreme Court has allowed the petition filed
by the Government. (PLD 1958 SC 533 the State v. Dosso). In this decision it was
held by the Supreme Court that there are two ways to change the constitution one
is peaceful and other is by way of revolution. A change brought about by the
revolution is internationally recognized. Where a successful revolution is
accepted the constitution can be changed. It was held that after change of the
constitution the courts have no jurisdiction to take up any case until the same
is provided in new set up. Thus the FCR was valid as the Law (Continuance in
force) Order, 1958 has validated all existing law and assumption of powers of
Chief Martial Law Administrator Muhammad Ayub Khan, as the revolution was
successful. The courts have also limited powers to entertain the petitions or
enforce fundamental rights.
CORRUPTION IN PUBLIC SERVICE OFFICE AND POLITICIANS
Ayub Khan has started a thorough screening process against all government
servants and conducted close scrutiny of the service records of the public
servants. Tribunals were created who were presided over by the retired judges of
Supreme Court and High Courts to try the cases of misconduct, bribery,
corruption. Thus action was taken in shape of dismissal from service, reduction
in rank compulsory retirement etc of the public servants at large.
Ayub Khan also took action against politicians as due to martial law all
political parties were banned. Disqualification Order 1959 was promulgated and
the politicians were tried by the tribunals as that of public servants.
He also introduced the land reforms and over 500 irrigated acres and over 1000
unirrigated acres were taken over by the government. All types of Jagirs were
abolished.
Ayub Khan introduced Basic Democratic form in shape of local government at
lowest level. In this system the people were to elect the man they know
personally, directly to local union council level. It introduced Union Council
for in village areas, and town committees in town areas. Whereas in East
Pakistan Thana Council and Tehsil council in West Pakistan. Same as division
council in a division.
THIRD PHASE-1962
Ayub Khan has introduced in 1962 Constitution the presidential form of
government and declared that it is simple form of government more akin to our
system and polity, practicable and effective. He introduced centralized federal
system and a unicameral legislature for the country. Provinces were given more
powers to legislate the laws. Jamaat-e-Islami was banned in both provinces by
issuance of notifications. These notifications were challenged by MolanaMaudoodi
in West Pakistan High Court and Dhaka High court in writ jurisdiction. The
petition at Lahore High Court was dismissed and that of Dhaka High court was
allowed. Two different appeals were filed against these orders which were heard
together. Supreme court has heard and decided the matter in favor of
MolanaMaudoodi and declared the notifications as illegal and unlawful. This
judgment is one of the most important constitutional case law upholding
fundamental rights.
FOURTH PHASE-1969-71
In 1969, when Ayub Khan became president, he handed over power to Army Chief
General Yahya Khan. He abrogated the Constitution resulting dissolution of
National Assembly, two provincial assemblies and two governor of the provinces.
Yahya Khan assumed the office of Chief Martial Law Administrator (CMLA). He has
also appointed the deputy army chief, air force and naval chief as Deputy CMLA
and promulgated 25 Martial law regulations, including offences, punishments and
their procedures in trials. Though the sole aim, as per Yahya Khan, of Martial
law was to protect the life and property of people and take the administration
back on track. All the laws before promulgation of Martial law, were to continue
in force and all courts and tribunals were also allowed to continue and exercise
all the powers and jurisdiction which they had before abrogation of the
constitution. The judges of the Supreme Court and High Courts, the attorney
general, advocate general shall continue the offices subject to pleasure of the
CMLA. However the courts cannot pass any orders against Martial law regulations,
nor call into question the CMLA.
Provisional Constitutional Order was promulgated by Chief Martial Law
Administrator in April, 1969 which stated that the country shall be governed as
nearly as possible to the abrogated constitution. Many a fundamental rights were
abrogated and all continuing proceedings regarding fundamental rights were
abated forthwith.
The powers of the superior courts and tribunals were curtailed by Yahya Khan and
certain powers of appeal were conferred upon himself. The judges of the superior
courts were required to declare their assets and every judge was required to
submit his statement to the supreme judicial council regarding his properties.
Mir Hassan Case
Malik Mir Hassan and others were summoned to be trialed before the special judge
(Central ) Rawalpindi. They have approached the High Court of West Pakistan, to
set aside the said case and quash the proceedings. The Single judge of the High
court has referred the matter to the Chief Justice to constitute a full bench,
in the mean time the CMLA has passed orders that the matter may be transferred
to special Military court. The court has held that transfer order was defective
and without jurisdiction. It was also held the powers of high court could not be
withheld under Martial Law Regulation as the same is protected under the
provisional constitutional order. It was further held by the court that the as
per article 2 of 1962 Constitution still held. As such anyorder of any authority
would be invalid if it has not been given by the constitution. It was a landmark
judgment.
The one unit was dissolved with effect from 1st July, 1970. In general elections
Shaikh Mujeeb’s Awami League has got majority of the seats while Bhutto’s
Peoples Party was second in number. As the Peoples Party did not nominate a
single candidate in East Pakistan therefore, there became a big gulf in between
two wings of Pakistan. Yahya Khan has declared that even after elections, the
Martial Law shall continue for maintenance of Law and Order situation in the
country. The situation after general election were critical amongst both wings
of the country which resulted in fall of Dhaka on 16th December, 1971. It is
tragic to say that arrogance of west Pakistan establishment has lead the east
Pakistan people leading to separation and fall of union of east and west
Pakistan.
Bhutto being deputy Prime Minister and elected member of the National Assembly,
took over the office of President from Yahya Khan and thus assumed dual office
of President so also Chief Martial Law Administrator. It was first ever civilian
CMLA in Pakistan’s History.
Lahore based politician Malik Ghulam Jilani was arrested from Karachi with Altaf
Hussain Goharunder the Defense of Pakistan Rules MLR 78. Malik Ghulam Jilan’s
Petition was dismissed by the Lahore High Court based upon the dictum laid down
on the case of State v/s Dosso, as discussed above. This order was challenged in
the Supreme Court of Pakistan and the Court had to decide whether the High Court
had jurisdiction under the 1962 Constitution to entertain petition against the
Martial Law Regulations or otherwise. Supreme Court has held that Hans Kelsen
theory is not universally acceptable nor it is a theory of basic doctrine of
science of modern jurisprudence nor it was a theory of totalitarianism. It is
also held by the Supreme Court that Grund-Norms of the constitution are provided
in its objective resolution, which says that sovereignty belongs to Allah and
the authority exercised by people of Pakistan is a sacred trust for which they
are accountable. It was also held that it is not correct that promulgation of
martial law does not automatically authorize the Commander of Army to abrogate
the Constitution rather he is bound to defend it as per his oath. The Supreme
Court has examined all events occurred from handing over of power to Yahya till
the case in hand, in detail and held that Yahya Khan was usurper of the power
and all laws enacted in his regime were illegal. At this juncture Supreme Court
has condoned that all past and closed transactions were given validity.
Therefore, AsmaJilani case was actually a practical departure of Supreme Court
from its past decision particularly from Dosso case. It was declared that
Dosso’scase observations were incorrect. It was observed by the Supreme Court
that a person who seeks power by illegal means and then brings about certain
change in Legal Framwork of the country shall not be declared legalized by the
courts rather when he gives up or is removed, he shall be punished for high
treason as provided in the constitution itself.
Fifth phase 1972-1976 Zulfiqar Ali Bhutto’s regime
An interim Constitution was in force by the National Assembly on 21st April 1972
after withdrawal of Martial Law. In fact there would have been fresh elections
in Pakistan after war 1971 and separation of East Pakistan (now Bangladesh) but
history traces that it was Mr. Bhutto who did not want to loose the sustained
majority in the earlier elections. As there were chirpings that Mr Bhutto was
responsible for loss of East Wing of the country. However the same, earlier
elected members of National Assembly were to continue as Constituent Assembly
for drafting the Constitution of Pakistan.Thsu an Islamic cum socialist
constitution was drafted by the National Assembly. Recognition of Bangladesh was
an important issue for Mr. Bhutto therefore, he has referred the matter to the
Supreme Court as to whether the National Assembly is competent to pass a
resolution for recognition of Bangladesh. The supreme Court has declared that
there was no bar under the law for national assembly to pass such resolution.
1973 CONSTITUTION
History of Pakistan shows that it was the most significant work of Bhutto who
has successfully passed the constitution of Pakistan unanimously without any
dissenting votes from National Assembly. Features of 1973 Constitution required
a separate discussion, therefore, the same are skipped here, as we focus the
main constitutional cases which resulted in development of the constitution of
Pakistan.
After elections 1977 rigging allegation were leveled upon Bhutto by Pakistan
National Alliance (PNA) and others. Mr. Bhutto has arrived at a settlement
between himself and PNA which annoyed General Muhammad Zia-ul-Haq. Therefore, it
was resolved by General Muhammad Zia-ul-Haq to oust Mr. Bhutto in April, 1977 as
Corp Commanders had advised General Muhammad Zia-ul-Haqto impose Martial Law. At
this juncture, Mr. Bhutto has delayed a little bit to settle the differences
with PNA and thus unconsciously gave opportunity to General Muhammad Zia-ul-Haq
to take over the power.
Sixth phase 1977 to 1988
In the first week of July 1977 army stormed the administration country and
General Muhammad Zia-ul-Haq has assumed the office of Chief Martial Law
Administrator (CMLA) and announced that he did never want the government nor the
army is on way to usurp the power rather he being true soldier of Islam. The
Constitution was held in abeyance by General Zia however Laws (Continuance in
Force) Order, 1977 was promulgated to run the affairs of the State. Provisional
Constitutional Order (PCO) was promulgated. The PCO gave the military not only
the power to rule, but to amend the Constitution, 1973 to remain in
power.Fundamental rights, as guaranteed under the Constitution 1973, were
suspended and all pending cases, wherever may be, regarding enforcement of
fundamental rights were ordered to be abated. It was allowed to continue the
political activities for Election purpose and the same were at peak when PNA
felt that Mr. Bhutto was the main hurdle in its way.
On 10th November 1974 Nawab Muhammad Ahmed Khan was murdered, when asked Mr.
Kasuri alleged that he was targeted but mistakenly his father sustained bullet
and he doubted Mr. Bhutto behind the murder, thus police recorded name of Mr.
Bhutto in murder FIR.
On 28 July 1977 Mr. Bhutto was released from protective custody and used to
address large crowds for election campaign. The family members of Ahmed Raza
Kasuri had revived the murder case of Nawab Muhammad Ahmed Khan and filed a
criminal complaint, the murder complaint was then transferred to Lahore High
Court and a challan in murder case was filed by state against Mr. Bhutto, too.
On 3rd September 1977 Mr. Bhutto was arrested from his Karachi residency and
taken to Lahore to facetrial of Murder case, where his bail was allowed by
Lahore High Court and was released.
On the other hand Bhutto’s habeas corpus petition was admitted in the Supreme
Courtresulting the removal of Chief Justice Yakub Ali Khan replace by Justice
Anwar-ul-Haq due to amendment in Constitution 1973, though it was still in
abeyance. This amendment was the very first of its nature by CMLA when fifth and
sixth amendments were withdrawn. By now PPP was practically lead by Begum Nusrat
Bhutto. Zia’s rift with Bhutto has become larger and larger. PNA was in favor of
postponement of elections seeing that large crowds are being attracted to PPP
through Begum Nusrat Bhutto thus PNA leaders joined hands with General
Zia-ul-Haq and a formal announcement was made by General Zia to ban all
political activities.
Nusrat Bhutto Case
Begum Nusrat Bhutto has challenged the detention of Mr. Bhutto before the
Supreme Court of Pakistan mainly on the grounds relying on AsmaJilani Case
(supra) that General Zia had no powers or authority under the constitution 1973
to declare martial law rather such act amounts to high treason under article 6
of the constitution. The PCO and other enactments by General Zia were ab initio
illegal and unlawful including imposition of Martial Law in July, 1977. The
supreme court has observed that there was state necessity therefore, the acts of
General Zia as CMLA were validated. By this judgment, Judiciary has given
ultimate services to the Martial Law regime and thus given powers to the CMLA to
amend constitution, 1973
GENERAL ZIA-UL-HAQ AND JUDICIARY
As we have earlier discussed that the political activity was fully banned during
Zia’s era. Press was also under severe clutches as many, senior press related,
personalities were arrested. It was also worded that no decision, act, order
etc. is challengeable in any court of law. In those days the military courts
judgments were frequently overturned by the superior courts in appeals the
militaryregime has severely reacted. Resultantly article 212-A in the
constitution was added through an amendment, whereby military courts or
tribunals were established. This gave the military rule vast powers that any
case can be transferred from any ordinary court to military courts. The military
tribunals has powers to try any case under any law/especial law or military law.
It amounted to recognized the military courts, which were established under Army
Act, 1952, as constitutional courts. In each province such military courts were
established and hundreds of politicians, press related and civil servants were
arrested and under martial law regulation. The said amendment in constitution
was challenged before the supreme court in a number of petitions but later on
the advocate for petitioner has withdrew the same with plea that he will pursue
like nature petitions before Lahore High court.
When Lahore High court was about to decide the said petitions, the military
government had heard that the decision in Asghar Khan’s case may be against the
government, it passed another amendment that no High court can make order
against any martial law regulation or any martial law order etc. it also banned
High courts from reviewing any such order of martial law. It was mainly intended
from the said amendment to curb the powers of superior judiciary to review the
judgments of military courts or tribunals established by the CMLA. Immediately
after the said amendment, the chamber of the chief justice of Lahore High court
was locked by army men and was also forcibly dispatched to the Supreme Court as
an ad hoc Judge. Almost all the decisions in favor of General Zia were obtained
by Military from the superior judiciary including getting rid of Mr. Bhutto, now
these judges are of no use to the General Zia government, therefore, he thought
to cut down the size of number of judges of the superior judiciary.
One Hamid Baloch was tried and convicted to death by Military court in
Balochistan. The governor of Balochistan Lt. Gen. Rahimuddin Khan has stated in
October, 1979 that all sentences by military courts should be executed
forthwith. The High Court of Balochistan has passed stay order against the
convictions of Military courts. The advocates of the accused hasapproached the
High court that their clients would certainly be hanged by the Jail authorities
at the Orders of Military persons. Thus High court of Balochistan has passed
orders to the Jail authorities not to execute the sentences of Military courts
lest the jail authorities shall exposed themselves to contempt of court on one
hand and on the other hand to premeditated murder of the accused. Thus due to
firm decision of the High Court, these sentences were not executed. Despite
constitutional amendment 1980, the Balochistan High Court has continued to hear
the vires of Article 212-Aetc and lastly declared that it was ultra vires to the
constitution. In another decision of the Balochistan High Court, in case of
Muhammad Niaz it was held that an ordinary citizen could not be tried by the
Military courts. But on the other hand new chief justice of the Lahore High
Court did never take up the case of Asghar Khan because of the question of his
own survival.
The powers of the superior judiciary regarding Islamic provisions were snatched
by creation of Federal Shariat Court. It was a blow to superior judiciary. The
legal fraternity was agitating at Lahore High court bar against Military rule
and restoration of the Constitution, 1973 and restoration of powers to the
superior judiciary thus the Military regime has established permanent benches of
the Lahore High Court at Bhawalpur, Multan and Rawalpindi in 1981 to break the
unity of the lawyer community at Lahore and to scatter them.In Sindh the
permanent bench at Sukkur, whereas in NWFP (now KPK) Abbotabad and Dera Ismail
Khan and Sibi in Balochistan were established under 1981 amendment.
A provisional constitutional Order, 1981 was passed by General Zia and
resultantly fresh oath of the office of Justices and Chief Justices of the
superior Judiciary was to be administered. The matter has never been consulted
with the Chief Justices but it was kept secret that whom of these judges would
be administered oath. Justice Dorab Patel and Justice Fakhruddin G Ibraheemhas
refused to take oath. By this way the judiciary was humiliated as such three of
the judges of Lahore High Court were returned back from Oath taking ceremony and
were refused to have administered the oath of the judge of Lahore High court.
This PCO was challenged before the Lahore High Court which was upheld to be
valid.
In 1985 Revival of Constitution Order was passed. Non party based elections
resulting in civil government under Martial Law was established. It was clearly
declared by General Zia that this civilian government is not transfer of Powers
rather it is sharing the Powers. The conflicts of civilian government with
Military authorities arose over Afghan war. Thus in May, 1988 he dissolved the
National Assembly so also provincial assemblies. Later on 17th August, 1988
General Zia died due to air crash in Bhawalpur, Punjab. The dissolution of
National Assembly was challenged in the Lahore High Court, Lahore but the same
could not succeed. An appeal was also made before the Supreme Court by filing
petition by the Federal Government v/s Haji Muhammad Saifullah wherein supreme
court has upheld the decision of Lahore High Court.
SEVENTH PHASE 1988-1999
As a result of 1988 general election, Benazir Bhutto formed PPP government and
later on Ghulam Ishaque Khan was also elected as President of Pakistan securing
majority votes from the electoral college. Though the PPP lead government was a
fragile government from its first inception, therefore, could not continue and
the President has used his powers to dissolve the PPP government and nominated
care taker prime minister and care taker chief ministers in provinces from the
opposition party who were in favor of Nawaz Sharif and also facilitated Nawaz
Sharif in general election openly. Such dissolution of Benazir Government was
challenged before Lahore High Court and Sindh High Court. The Lahore High Court
has upheld the action of the President and declared it to be intra vires to the
constitution. The Sindh High court also upheld the president’s order of
dissolution of National Assembly on the same lines as that of Lahore High Court.
The Lahore High Court Judgment was challenged in the Supreme Court but could not
succeed.
Likewise the dissolution of provincial assembly of NWFP (now KPK) was challenged
before the Peshawar High Court and the court has declared that Governor order of
dissolution of Provincial Assembly was illegal thus ordered to restore the
Provincial Assembly. This judgment was challenged in Supreme Court which was set
aside by a majority view, mainly on the point that mandatory notice was not
given to Attorney General while deciding the petition. The minority view
dissented that notice was not necessary particularly when the Peshawar High
Court has taken a sound view and the attorney general was otherwise well aware
and could have stepped into the proceedings. The dissolution of Sindh Assembly
was also challenged before the Sindh High Court, the said petition was dismissed
with observation that governor has used his discretion rightly.
GENERAL ELECTION 1990
In general election 1990, IslamiJamhooriItehad (IJI) secured majority and Nawaz
Sharif became Prime Minister of Pakistan. Soon after formation of new government
of IJI there occurred serious differences between President and Prime Minister,
thus President has used his powers under article 58 (2) (b) of the Constitution,
1973. The dissolution of National Assembly was challenged by speaker of the
Assembly before Lahore High Court, while this petition was sub judice, Nawaz
Sharif has filed petition before the supreme court under article 184 (3) of the
constitution 1973. The Supreme Court has set aside the order of president and
restored the government of Nawaz Sharif.
GENERAL ELECTION 1993 AND BENAZIR 2ND TERM
After being elected as prime minister of Pakistan for second time, Benazir
Bhutto has firstly conducted election of President and resultantly Farooq
Leghari was elected. It was suggested to present a bill for repeal of eighth
amendment in the constitution, 1973 but Nawaz Sharif did not cooperate with PPP
Government therefore, no such bill has ever been presented in National Assembly.
Due to differences with NWFP government, the president FarooqueLeghari has
imposed Governor rule under article 234 and dissolved the provincial assembly.
SABIR SHAH CASE
Sabir Shah has challenged the validity of proclamation before Supreme Court and
same was accepted by majority.
Legal Reforms Ordinance 1996
By the order of Supreme Court, the judiciary was separated from executive and
thus Judicial Magistrates were empowered to exercise jurisdiction under Pakistan
Penal Code and to try other offences under supervision of Sessions Judge, while
executive magistrates were empowered to try cases of public tranquility,
contempt of lawful authority etc. under the control of district Magistrates.
AL JIHAD TRUST CASE
Benazir Bhutto’s PPP government was in direct confrontation with superior
judiciary and wanted to pack the superior judiciary with political appointments
without considering merit for considering nomination of a person to be appointed
as judge of the superior court. In these days, when appointments were made in
different High courts were purely on political affiliations and merit was never
considered. Thus the most important case of Al-Jihad Trust came on surface which
was decided by the Supreme Court, wherein appointment of 20 judges of Lahore
High court was challenged. The Supreme Courthas mainly held in Al Jihad Trust
Case as under:
• Appointment of ad hoc judges against permanent posts is violation of the
Constitution.
• Acting chief justice shall be for only 90 days and not more than that period
and he cannot be a consultee judge.
• Additional judge of High court is expected to be appointed as permanent judge
except with strong exception.
• All permanent vacancies shall be filled first. Particularly the posts of Chief
Justices.
• Senior most judge of High Court is expected to be appointed as Chief Justice
of the Court.
• Supreme Court judges are not desired to be sent to act as acting chief Justice
of a High Court.
• Recommendation of Chief Justice is binding upon executive.
• Ten year practice as required for appointment as judge of a High court means
actual practice but not mere enrolment.
• Political affiliation of nominee judge shall not come in his way if he is
otherwise fit to be appointed as judge of High Court.
President Farooq Leghari has dissolved the Government of Benazir Bhutto and such
order was challenged Supreme Court has upheld the order of the president whereby
validated dissolution of National Assembly.
THIRTEENTH AMENDMENT AND END OF EIGHTH AMENDMENT
In 1997 general elections Nawaz Sharif has got two-third majority, therefore, a
constitutional amendment for omission of 58 (2)(b) was passed by both houses and
now such powers of president was subject to advice of Prime Minister.
Supreme Court Chief Justice Sajjad Ali Shah has recommended five judges of high
courts to be elevated to Supreme Court and the recommendation of Chief Justice
was binding upon government as per Al-Jihad Trust case. Nawaz Sharif was
reluctant to agree therefore, he got issued a notification whereby number of
judges of supreme court was reduced. The confrontation of Nawaz sharif and
Sajjad Ali Shah has been raised to its heights. A two member bench of supreme
court registry at Quetta has decided case of Asad Ali v/s Federation of
Pakistan. It was held that appointment of Chief Justice Sajjad Ali Shah was
against the norms lead down by Supreme Court in Judges Case i.e. Al Jihad Trust
Case, supra, therefore, he was stopped to function as Chief Justice till further
orders. On the other hand Chief Justice Sajjad Ali Shah has suspended the said
order while in his chamber in administrative capacity. Cases of contempt of
court were in process when PML (N) supporters had stormed the Supreme Court of
Pakistan Building. Justice AjmalMian has decided the contempt cases and
announced a land mark judgment which is a golden piece of work for reference on
the subject of contempt of court.
During Nawaz Sharif era law and order situation was getting worse thus Pakistan
Armed Forces ( Acting in Aid of the Civil Power) Ordinance, 1998 was promulgated
and military courts were established to try civilian citizens for offences
scheduled therein. Such ordinance was challenged before the Supreme Court by
filing a petition which as accepted.
EIGHTH PHASE 1999-2008 GENERAL MUSHARRAF ERA
On 13 October, 1999 General Parvaiz Musharraf has announced that PML (N)
government has been removed and the Army had taken control of the affairs of the
state. On 14 October, 1999 he proclaimed state of Emergency throughout country
and assumed office of Chief Executive and constitution was held in abeyance. The
National Assembly, Senate and all four provincial assemblies were suspended.
Provisional constitution Order (PCO) was promulgated and it was stated that the
PCO and other orders of Chief Executive would run as nearly as possible in
accordance with constitution. Initially Musharraf has not touched the Judiciary
nor required any fresh oath under PCO.
Several petitions were filed before Supreme Court against the military take over
and for restoration of the Assemblies. When these petitions were fixed for
hearing, it was believed that these petitions would be allowed and Nawaz
Government may be restored by the order of the court, therefore, Oath of Office
(judges) Order, 2000 was promulgated on 25th January, 2000 wherein all the
judges of superior judiciary were required to take oath that they will discharge
their functions and duties as per PCO and if anyone who does not take oath
within time fixed by the Chief Executive, he shall cease to hold such office.
Supreme Court has upheld the military takeover while deciding petitions against
the said takeoverby observing that the situation arisen on the day for which
there was no solution in the constitution, 1973 and it was inevitable except to
adopt extra constitutional measures. It based the principle of saluspopuli
suprema lex as in Begum Nusrat Bhutto case.All past and closed transactions were
validated in the prime good of the people of Pakistan. Constitution remained the
supreme law of the country. All superior courts would continue their
jurisdiction as per constitution, 1973. It was also declared the General Pervaiz
Musharraf has rightly assumed powers of Chief Executive office. The Chief
Executive can resort to constitutional amendments if constitution does not
provide its solution. No amendments shall be made in the salent features of the
constitution i.e. Judiciary, federalism, form of parliamentary government and
Islamic provisions. All act and actions of the Chief Executive are subject to
judicial review. Judges of superior courts would be subject to accountability.
Later on 17th amendment was passed by the military regime. Several petitions
were filed to challenge and the same had been rejected and 17th amendment was
upheld.
3rd November, 2007
The Chief Justice Iftikhar Muhammad Chaudhary was called by Chief Executive,
General Musharraf on 9th March, 2007 at Army House Rawalpindi, to resign from
the office of Chief Justice but he refused. General Musharraf sent his on
compulsory leave till submission of a reference to supreme judicial council. The
said reference was challenged by Chief Justice Iftikhar Muhammad Chaudhary
before the Supreme Court under article 184 (3) of the Constitution. The Supreme
court has allowed the said petition and such decision brought a sigh of relief
and was thought to be one of its nature in sixty years that people of Pakistan
developed a sense of independence of Judiciary in Pakistan. These events has
raised certain events like protest by legal fraternity, media and public at
large. Thus state of emergency was seen by Military ruler. Musharraf proclaimed
emergency in his capacity as Chief of Army Staff and he also issued PCO No.1 of
2007. On 3rd November 2007 Oath of Office (judges) Order, 2007 was promulgated.
As many as all judges refused to take oathonly four judges of the Supreme Court
took oath under PCO, whilerest of the judges defy Musharraf and remained loyal
to the constitution. More than 70% of the judges of the Sindh High Court did not
take oath under PCO, 2007.
GENERAL ELECTIONS 2008
PPP and PML (N) were elected as majority parties in General Elections 2008 in
Pakistan. Both parties agreed to set up a coalition government resultantly in
all four provinces the speakers, deputy speakers, Chief Ministers were elected
unopposed. Both the parties also agreed to restore the judges deposed since 3rd
November, 2007, as were agreed on Murree Declaration. On 17th March, 2009
Ministry of Law and Justice has issued notification of restoration of Chief
Justice (as then he was) Iftikhar Muhammad Chaudhary and ten other Judges of
Honourable Supreme Court and High Courts of the provinces. After restoration of
the deposed Chief Justice and judges of the superior courts, there was a sense
of fear that certain judgments of the Supreme Court are hanging rapiers upon
them. There were several petitions filed against above mentioned illegal acts of
Army General Pervaiz Musharraf before the Supreme Court challenging acts after
3rd November, 2007. In the petition filed by the Sindh High Court Bar
Association v/s Federation of Pakistan a fourteen member bench of deposed judges
has allowed the petition and declared all act done or taken on 3rd November,
2007 and later on to be ab initio illegal and ultra vires to the constitution,
1973. It is , by now, deemed that by this judgment the door of military takeover
in Pakistan is closed permanently so also effects of previous judgments was
declared to be of no legal effect. More than one hundred judges who took oath
under PCO were sent back home without hearing them by a single prick of pen.
Though it was strongly felt by the members of the bench that it is against the
equity and natural justice that no one should be condemned un heard as held in
the maxim Audi Alteram Partem. However, the past and closed transactions done by
those judges were accepted, thereby, validated the judgments and orders passed
by those PCO judges of the superior courts were given validity. This judgment is
deemed to be most important development in the constitutional history of
Pakistan. Though there are much reservations and much more written for and
against the said judgment.
Conclusion
From above discussion and case laws, it is evident that the supreme court of
Pakistan has time and again validated the illegal takeovers of powers by any one
on one or the other context. It is deemed and felt that Judgment of Sindh Bar
Council v/s Federation of Pakistan (supra) has closed the chapter of forceful
takeover of Military over the civilian governments and favors given by the
superior courts on and context of Kelsen’s theory “state necessity” is closed
permanently, however, the other sources and forces, including but not limited to
the military influence, which influence the civilian governments may continue to
penetrate in the decision making of any civilian government till long time.