Constitutional question marks in the electoral politics of Pakistan punctuated with judicial interpretation are perennial. Pakistan’s legislature rather than redress the issues has always indemnified the wrongs and become the part of the problem.
All military interventions in Pakistan have a distinction of getting legal/constitutional. First, the judiciary legalises the intervention by invoking the ‘Doctrine of Necessity’ accepted by the eminent international jurists and some Superior Courts from foreign jurisdiction, to fill a political vacuum and bridge the gap’. This is followed by elections and an Act of Parliament that indemnifies the entire duration of the intervention to prolong the interests of the elites. This mutual back scratching has a conspiratorial history.
As early as the pre partition elections, the political parties that that morphed into elites of Pakistan had to rely on the Election Petition Commissions for settlement of election disputes. Most petitions were ruled in favour of Muslim League. The magistrate Mr. Samuel Martin Burke nullified the Congress/Unionist machinations in at least 17 cases. This gentleman was to later, become the pioneering diplomat of Pakistan and die in wilderness in 2010.
This intrigue endemic to Pakistani politics became apparent as early as 11 August 1947, when Jinnah’s speech to the Constituent Assembly was effectively blacked out on radio and press. The daily DAWN of Karachi practically a Jinnah publication was the only newspaper that dared to publish it. This was the first indicator that some forces within the ruling elites were conspiring to set aside Jinnah’s vision of Pakistan. Debates between the minority members in the Constituent Assembly including Mr. S P Singha, Jogendra Nath Mandal of East Pakistan and Joshua Fazal Din indicate the sharp divide that began to emerge between Jinnah’s Vision and Pakistan’s first Prime Minister Liaqat Ali.
It was during such heated debates that Jinnah died gasping for fresh air. Schedule Caste Hindus whose representative Mr. Mandal had cast his vote for Pakistan became the target of religious violence in East Pakistan. The atrocities inspired by religious forces bent on redefining the identity of Pakistan led to the exodus of Hindus to India both from East and West Pakistan. By 1950, Jogendra Nath Mandal, who should be counted as a leader of Pakistan movement could take it no more. Thereafter, he lived a political and social outcast for having supported Jinnah. This was the end of the first phase of Jinnah’s Utopian Pakistan that never became.
It was during the second phase from 1950-58 that the judiciary also became part of this dirty game. The Constituent Assembly was dissolved by the Governor General Mr. Ghulam Mohammad and emergency imposed. The Bengali Speaker of the Assembly Maulvi Tameez Ud Din, against all odds challenged the dissolution in the Sindh High Court.
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. The Federal Government backed by men such as Mian Mumtaz Daultana, Mian Mahmood Ali Kasuri, Makhdoomzada Hassan Mahmood, Sardar Abdur Rashid, Abdus Sattar Peerzada, Mir Rasul Bakhsh Talpur and Ghulam Hussain Somroo went into appeal. On 16th May 1955 Chief Justice Mohammad Munir of the Federal Court heading 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. Justice A.R Cornelius came up with a dissenting note declaring the action of Governor General Ghulam Mohammad illegal. It is of interest to note that all those individuals who opposed the dissolution were East Pakistanis, progressive leaguers or Non Muslims. Politicians and judges of Pakistan in the mould of Jinnah’s Vision once again lost this round.
The stage was thus set for the illegitimate children of opportunity to team with Military to set the course of Pakistan’s political future. All progressive Muslim Leaguers most significantly, the Progressive Papers Group was branded as traitors. The second phase of intolerance ended through the Ahmadiya riots and subsequent imposition of Martial Law. Interestingly Ayub Khan who ultimately took over had been adversely reported during the 2nd World war in Burma. He had even failed to discharge his duties in escort of refugee convoys at Lahore. Jinnah had ordered his court Martial, a directive that was mysteriously ignored.
On 5th July 1977 was another dark day in Pakistan’s political evolution. In November 1977 Justice Anwar ul Haq heading a nine member bench legalized Zia's intervention under the "law of necessity." Curiously, 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. When General Zia-ul-Haq promulgated the PCO on 24 March 1981, Justice Dorab Patel refused to take a fresh oath under it. He was also the dissenting judge in the Zulfiqar Ali Bhutto case. Incidentally, once again a Non Muslim!
The next military coup faced resistance from some members of the judiciary. On January 26, 2000, 13 Judges of the superior judiciary refused to take oath under the PCO. Chief Justice Irshad Hassan Khan, as author of Zafar Ali Shah’s judgment dated May 12, 2000, condoned the military coup on the grounds of the doctrine of necessity. He granted three years to Gen. Musharraf as Chief Executive empowered him to amend the 1973 Constitution and also return to court if needed. Once again the Constitution of Pakistan and the political system were brought onto the dissecting table for reformative surgery at the hands of butchers.
Fortunately, this trend of increasing dissenting judges was to see the beginning of the Judicial Activism in Pakistan led by the Chief Justice Ch. Iftikhar and other honourable members of his court. Justice Bhagwandas declared the references against Justice Iftikhar without merit.
It is noteworthy that right from 11 August 1947 to date, clear divides have existed between the forces that held on to Jinnah’s vision and justice versus the forces that conspired and upset the system repeatedly in contravention.
It is also to note that till 2000, only the Non Muslim judges upheld the ends of justice. It was after this that the tide began to change its course.
Curiously, despite repeated exploitations of the Doctrine of Necessity, the judiciary never took it upon itself to ensure that the ends of justice so enunciated were met. They permitted political stagnancy.
Secondly, all democratic regimes in eagerness to get into the corridors of power, condoned and provided constitutional indemnities to treacherous acts, implying that they too became a party to sacrilege. Hence, both are guilty of decimating and defiling the body of Jinnah’s Pakistan.
I have always argued that however belated, it is the responsibility of the independent Judiciary to redress this deformity. A beginning can be made through implementation of the Supreme Court Judgement on the NRO case or any point that the legal experts deem fit under the question of law. Thereafter the Supreme Court must review all decisions beginning Justice Munir and remove forever, this daemon from the system. It is also the duty of all executive organs of the state including the executive to support all orders of the apex court.
If this does not happen, be assured that Pakistan is headed on a disastrous course. All revolutions have a history of being hijacked.
