“It sometimes happens that a constitution and the national legal order is disrupted by an abrupt political change which is called a revolution and its legal effect is not only the destruction of existing constitution, but also the validity of the national legal order.”
On Oct 24, 1954 Governor General Ghulam Mohammad dissolved the constituent assembly and proclaimed emergency throughout Pakistan. This action by Ghulam Mohammad was greatly welcomed by a number of politicians namely, Mian Mumtaz Daultana, Mian Mahmood Ali Kasuri, Makhdoomzada Hassan Mahmood, Sardar Abdur Rashid, Abdus Sattar Peerzada, Mir Rasul Bakhsh Talpur and Ghulam Hussain Somroo. However despite all odds against him the speaker Maulvi Tameezuddin challenged this decision in the Sindh High Court (then called Chief Court). The assembly which was dissolved was not only the constituent but also the legislative assembly. Maulvi Tameezuddin was its President and Speaker respectively. It was a very bold decision on his part, as it would entail the wrath of the establishment. On 11th November 1954 Maulvi Tameezuddin’s petition was admitted, however it had become very difficult for him to reach the court as the secret agencies were monitoring all his movements. So he put on a burqa and left from the backdoor of his residence in a rickshaw. His lawyer Manzar Alam was taken into custody at the door of the High Court. The Deputy Registrar of the High Court Mr. Roshan Ali Shah had not only facilitated the filing of the petition but also informed Justice Constantine about the arrest of Manzoor Alam who then directed the IGP to release him. Molvi Tameezuddin did not have the money to pay the fee of his lawyers. However the lawyers did not charge a single penny. The legal team of Tameezuddin included English lawyer D.M Pritt whose fee and hotel expenses amounting to one thousand pounds were borne by Mr. Roshan Ali Bhimjee.
On 9th February 1955 Chief Justice Sir George Constantine of the Sindh High Court heading a full bench, nullified the action by the Governor General.
On 16th May 1955 Chief Justice Mohammad Munir of the Federal Court also head of a full bench, overturned the earlier judgment of Justice Constantine. Justice Abu Saleh, Justice Mohammad Akram, Justice Mohammad sharif and Justice S.A Rahman supported the dissolution of the constituent assembly. The judgment had altered the course of politics in Pakistan forever and sealed the fate of democracy.
Mohammad Munir, Chief Justice, who wrote the leading judgment, observed therein that “it sometimes happens however that a constitution and the national legal order under it, is disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution and its legal effect is not only the destruction of the existing constitution, but also the validity of the national legal order.”Justice A.R Cornelius was the only one on the bench who came up with a dissenting note declaring the action of Governor General Ghulam Mohammad as illegal. The judgment by Justice Munir et al laid the foundations of the doctrine of necessity which was to hound this nation and its institutions for a very long time.
On 5th July 2007 General Zia-ul-Haq overthrew the democratically elected government of Z.A Bhutto and assumed power as Chief Martial Law administrator. In November 1977 Justice Anwar ul Haq heading a nine member bench legalized Zia's intervention under the "law of necessity." The decision was duly conveyed to the General Headquarters the night before. Finding that the decision did not include the authority to amend the constitution, Sharifuddin Pirzada threatened Justice Anwar ul Haq with his job. Next morning when the Supreme Court decision appeared, Anwar had inserted a sentence in his own hand writing! These added words gave authority to the Chief Martial Law Administrator to amend the Constitution of Pakistan, an amendment which legally needed the approval of a two third majority of Pakistan's parliament. This was total capitulation by the Judiciary.
When General Zia-ul-Haq promulgated the PCO on 24 March 1981, Justice Dorab Patel refused to take a fresh oath under it. A lesser man might have succumbed. The temptation certainly would have been great; for due to seniority, he was set to become the chief justice of Pakistan as soon as the incumbent retired the following year, he would have headed the apex court for seven years.
In the Bhutto trial Chief Justice Anwarul Haq took more than eight hundred pages of foolscap to write the "casting vote" decision that sent Bhutto to the gallows. He dismissed all the "errors" and "illegalities" in the Lahore High Court's trial as totally irrelevant to the verdict.
Mr. Justice Dorab Patel who disagreed with Anwar-ul-Haq and 3 others wrote in his independent judgment “Masood Mahmood was not a reliable witness and his evidence required stronger corroboration than was needed in the usual sort of murder case based on the evidence of an approver. The Judge was of the view that conspiracy between Bhutto and Masood Mahmood had not been proved. The second approver Ghulam Hussain was a thoroughly dishonest witness. His evidence was nothing more than hearsay upon hearsay. The corroboration of Masood Mahmood’s statement by Saeed Ahmed Khan was of no avail to the prosecution. The Judge was not satisfied with regard to the prosecution version that bullets had fallen at four places fired by two men. It was held by the Judge that the High Court had erred in proceeding with the trial in the absence of Z. A. Bhutto.Soon after taking over in a military coup on October 12, 1999, General Pervez Musharraf suspended the constitution and put in place a Provisional Constitutional Order (PCO).The order suspended parliament and provided emergency constitutional backing to the new military rulers. On January 26, 2000, 13 Judges of the superior judiciary refused to take oath under the PCO.
Justice Irshad Hassan Khan became the new Chief Justice of Pakistan as 85 judges of the Supreme Court, Federal Shariat Court and four High Courts were administered oath under the PCO.
Chief Justice Irshad Hassan Khan, as author of Zafar Ali Shah’s judgment dated May 12, 2000, not only condoned the military take over of October 12, 1999 on the grounds of the doctrine of necessity, granted three years' time to Gen. Musharraf as Chief Executive but also empowered him to amend the 1973 Constitution, without even being asked for it.
On November 3, 2007, following the Proclamation of Emergency by General Pervez Musharaff, Abdul Hamid Dogar was appointed as Chief Justice of Pakistan, who immediately took oath under the PCO. Earlier on a 7-member bench of the Supreme Court had overturned the PCO.
Justice Rana Bhagwandas refused to take oath under the PCO of Nov 3rd 2007, issued by Pervez Musharraf and was among the 60 judges sacked by the General and put under house arrest.
Earlier he was among the 3 dissenting judges who held that Pervez Musharraf should relinquish Army Chief’s post and was not eligible to run for the Presidential elections.
Justice Munir, Justice Anwarul Haq, Justice Irshad and Justice Dogar symbolize vested interest, betrayal, cowardice and dishonesty which altered the course of history to the disadvantage of the country they belonged to and would always remain a symbol of disgust for all times to come.
Justice Constantine, Justice Cornelius, Justice Dorab Patel and Justice Bhagwandas are heroic figures from our judicial history who displayed stellar personal bravery, integrity, steadfastness and devotion to duty and will be remembered far into the future.
|Waseem Altaf is a human rights activist. .|
Illustration by: Abro Khuda Bux