Judgments Changing The Course of History

Justice (Retd) Sharif Hussain Bukhari The author enlightens readers of prominent English newspapers with his articles. He is a regular writer on Legal issues of National and International importance. He is also a senior Faculty Member of QLC. (Our Chief Justices have probably had more profound and lasting influence on their times and on the direction of the nation than most Presidents have had) (Richard M. Nixon President of U.S.A) Pakistan might have been a different country today, if some events, which changed the course of its history, were averted. Almost all these events are attributable to the conduct and performance of the civil and military bureaucracy, the politicians, the landed aristocracy and the superior judiciary. Most of the bureaucrats exceeded their authority or neglected to follow the Law and liaised with every ruler. Some of them, namely, Ghulam Muhammad, Ch. Muhammad Ali, Muhammad Ali Bogra, Sikander Mirza and Ghulam Ishaq Khan directly ruled the country as head of the government or the State. The military top brass staged coup d'etat four times and ruled the country for more than half of the period of its existence. They subverted the Constitutions and thwarted the democratic and political process. During this period the Army Generals, namely, Ayub Khan, Yahya Khan, Zia-Ul-Haq and Pervaiz Musharraf, with their comrade generals, directly ruled the country, while for rest of the period, barring a few years of political dispensation, they held the sway. The politicians failed to establish democratic institutions and did not prove themselves capable of giving the country a stable political system. They failed to frame the constitution although the first Constituent Assembly functioned for over seven years. The landed aristocracy cooperated with every ruler and often changed loyalties in order to preserve their vested interest. However the subject of this discussion is confined to those judgments of the Superior Courts of Pakistan, which in my view had the effect of changing the course of history of Pakistan. Before dilating on the subject, it would be useful to discuss briefly the system of governance prevalent at the time of independence. The pre partition India was governed under the Government of India Act, 1935 (hereinafter referred to as the Act of 1935) which provided a federal political structure, with the Governors Provinces, the Chief Commissioner's Provinces and the Indian States which had acceded to the Federation. The executive authority of the Federation was exercisable by the Governor General appointed by the King with the aid of the Council of Ministers. This Act also provided for the Federal Legislature, consisting of His Majesty, represented by the Governor General and two Chambers, 'the Council of State' and 'the House of Assembly.' The Law when passed by both the Chambers required the assent of the Governor General in accordance with Section 32 of the Act of 1935. For the administration of justice, the Act of 1935 also established a Federal Court, with original and appellate jurisdiction and at the provincial level High Courts, the Chief Courts and the Judicial Commissioner's Courts with original and appellate jurisdictions. Under Section 208 of the Act of 1935,

appeal from a decision of the Federal Court to His Majesty in Council (the Privy Council) also lay. On the establishment of Pakistan the provisions of the Act of 1935, with necessary modifications and adaptations, continued in force in Pakistan along with Indian Independence Act, 1947 (hereinafter referred as the Act of 1947). Both these acts formed the Interim Constitution of India and Pakistan, till the framing of the Constitution by the Constituent Assembly. Section 8 (2) of the Act of 1947 stated, ..each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of Indian Act, 1935 and of the Orders in Council, Rules and other Instruments made thereunder.Section 8 (1) of the Act of 1947 provided that for the purpose of making provisions as to the Constitution of the Dominion, the Legislature shall act as the Constituent Assembly. Accordingly Pakistan's Legislature acting as the Constituent Assembly, made some amendments in the Act of 1947 to bring it more in accord with the notion of independent Pakistan. By the Constitution (Amendment) Act 1950 the words, in his Majesty's name occurring in Section 6 (3) of the Act of 1947 were omitted. The Constitution (Amendment) Act, 1954 added a proviso in the nature of non-obstante clause to sub-section (1) of Section 8 of the Act of 1947 which provided that .the powers of the Constituent Assembly of Pakistan shall include .. powers to make constitutional provisions and that the power of the Constituent Assembly exercised under this sub-section shall not be called in question in any court of law. Similarly, some amendments in the Act of 1935 were also made. By the Government of India (Amendment) Act, 1954, Section 223-A was inserted which conferred upon the High Court the power to issue ..Writs etc to any person or authority and the government in Pakistan. On 24th October, 1954 Ghulam Muhammad, the Governor General of Pakistan, issued Proclamation whereby emergency was declared throughout Pakistan and the Constituent Assembly was dissolved as in terms of the Proclamation it had lost the confidence of the people and could no longer function. The Council of Ministers alongwith the Prime Minister Muhammad Ali Bogra was dismissed. On 26th October, 1954 the Council of Ministers was reconstituted with Mohammad Ali (Bogra) as the Prime Minister, and Maj.General Sikandar Mirza, General Muhammad Ayub Khan (The Commmander in Chief of Pakistan Army), Dr. Khan Sahib and five others as the Ministers. This action of the Governor General was challenged in a writ petition under Section 223-A of the Act of 1935 before the Sindh Chief Court by Maulvi Tamizuddin Khan, the President of the Constituent Assembly. A bench of four judges gave unanimous verdict on 9th February, 1955 holding that the Governor General did not have power to dissolve the Constituent Assembly and issued the necessary writs. The Court further held that the Acts passed by the Constituent Assembly did not require the assent of the Governor General, therefore Government of India (Amendment) Act, 1954 inserting Section 223-A in the Act of 1935 without Governor General's assent was valid. This judgment was challenged in appeal before the Federal Court of Pakistan comprising Chief Justice Muhammad Munir, Justice A.S.M Akram, Justice A.R. Cornelius, Justice Muhammad Sharif and Justice S.A. Rahman. By the majority of four judges, the appeal

was accepted and the judgment of the Sindh Chief Court was set aside. The reasons given by the Chief Justice, with which the other three concurring judges agreed, are summarized in his judgment under the heading Conclusion which is reproduced below:I hold that the Constituent Assembly when it functions under sub-section (1) of section 8 of the Indian Independence Act, 1947 acts as the Legislature of the Dominion within the meaning of section 6 of that Act, that under sub-section (3) of the latter section the assent of the Governor General is necessary to all legislation by the Legislature of the Dominion, that since section 223-A of the Government of India Act 1935 under which the Chief Court of Sind assumed jurisdiction to issue the writs did not receive such assent, it is not yet law, and that, therefore that Court had no jurisdiction to issue the writs. In view of this conclusion we cannot go into the other issues in the case whatever their general importance may be. (Federation of Pakistan Vs. Moulvi Tamizuddin khan 1955 F.C.R 155). The dissenting judgment was given by Justice A.R Cornelius, who, regarding this crucial question held, there is nothing in the law which makes the grant of assent by Governor General to Acts of the Constituent Assembly, which makes provision as to the Constitution of the country, a sine qua non, so that the absence of assent has the effect of invalidating all laws which have been passed in that mode, i-e without the Governor General's assent. He also observed, As has been pointed out above the Constituent Assembly, as early as May, 1948 formally recorded its considered will that its Constitutional Laws should become operative with no more formality than (a) the President's signature on a copy of the Bill, by way of authentication and (b) publication in the Federal Government's gazette under the authority of the President. In support of his views, Justice Cornelius stated that this question was before the Superior Court of Pakistan on earlier three occasions. Then be referred to the cases of 'M.A Khuro Vs. The Federation of Pakistan' (PLD 1950 Sind 49) decided in early 1950 by the Sind Chief Court, and 'Khan Iftikhar Hussain Khan of Mamdot Vs. The Crown' (1951 F.C.R. 24) and 'Ex.Maj. General Akbar Khan and Faiz Ahmed Vs. The Crown' (PLD 1954 F.C. 87) both decided by the Federal Court. In all these cases it was held that the assent of the Governor General was not sine qua non for constitutional law passed by the Constituent Assembly. He further observed that the Constituent Assembly had throughout maintained that assent was not necessary. It was clearly stated in Rule 62 of the Rules of the Constituent Assembly, which was originally framed on 24th February, 1948 at a meeting presided over by Quaid-e-Azam, its President and on 22nd May, 1948 was amended which provided that when a Bill was passed by the Assembly, a copy of the same would be signed by the President and would become law on being published in the official gazette of Pakistan. Justice Cornelius then stated that The second great limb of the State, namely, the executive government of the Federation, has never, until after the event of the 24th

October, 1954, shown any sign of doubt on this point and the Government of Pakistan composed of the Governor General and his Ministers have throughout the relevant period, been aware that the Constituent Assembly had formally declared that its constitutional laws become law under its Rule 62, without the need of Governor General's assent. The majority judgment was based on the sole ground that the Government of India (Amendment) Act, 1954 which inserted Section 223-A to the Government of India Act, 1935 giving power to the High Court to issue writs, had not received the assent of the Governor General. Therefore the Sindh Chief Court had no power to issue the writ which it did on 9th February, 1955. The more important and basic questions raised and argued before the Sindh Chief Court and the Federal Court were whether Governor General was competent under the law and justified to issue Proclamation and to dissolve the Constituent Assembly, but were left unresolved by the Federal Court. Resultantly the Proclamation of Emergency issued on 24th October 1954 by the Governor General whereby the Prime Minister alongwith his cabinet and Maulvi Tamizuddin Khan as the President of the Constituent Assembly, were removed and the Constituent Assembly was also dissolved, remained in the field. The judgment of the Federal Court had the effect of upholding the authority of the Governor General to issue Proclamation of Emergency and to dissolve the Constituent Assembly without any express provision to that effect in the Constitutional Instruments ie, the Acts of 1935 and 1947, although the Constituent Assembly in the light of Section 8 of the Act of 1947 was a sovereign representative body and had to continue till making the Constitution. It is pertinent to mention that prior to the dissolution, the Constituent Assembly had adopted on 6th October, 1954 the final Report on Constitution prepared by the Basic Principles Committee and the Prime Minister had declared that the Constitution would be formally announced on 25th December 1954. The judgment also created constitutional crises in the country by declaring that laws made by the Constituent Assembly required assent of the Governor General and thereby invalidating all such laws made during the past seven yeas. A serious vacuum was thus created to run the State. Even the laws for the election of new Constituent Assembly and the delimitation of the constituencies did not exist. The constitutional crises thus created forced the Governor General to make Special Reference No. 1/1955 (1955 F.C.R 439) to the Federal Court in the circumstances stated by the Federal Court in the following words:On the 15th April, 1955, the Governor General summoned a Constituent Convention for the 10th May 1955, for the purpose of making provision as to the Constitution of Pakistan, and on the following day issued a Proclamation assuming to himself, until other provision was made by the Constituent Convention, such powers as were necessary to validate and enforce the laws that were needed to avoid a breakdown in the constitutional and administrative machinery of the country or to preserve the State and maintain the Government of the Country in its existing condition, and in exercise of those powers

retrospectively validated and declared enforceable the laws mentioned in the Schedule to the Emergency Powers Ordinance, 1955. These powers were exercised by the Governor General subject to the opinion of this Court on certain questions which had in the meantime been referred to it under section 213 of the Government of India Act, 1935. The Reference made for opinion to the Federal Court included the following questions:1. 2. Whether the Constituent Assembly was rightly dissolved by the Governor General. Whether the Constituent Convention proposed to be set up by the Governor General will be competent to exercise the powers conferred by Section 8 of the Indian Independence Act, 1947 on the Constituent Assembly.

The Reference was answered by the split judgment. The leading majority judgment was written by Chief Justice Muhammad Munir which was concurred by Justice A.S.M. Akram, and Justice S.A. Rehman. Therefore on the basis of majority judgment the opinion of the Federal Court on some question was as follows: the Governor General had during the interim period the power under the common law of civil or state necessity of retrospectively validating the laws, and all those laws, until the question of their validation is decided upon by the Constituent Assembly, are during the aforesaid period valid and enforceable.. To the question relating to the dissolution of the Constituent Assembly, the opinion was, ----- the Governor General had under Section 5 of the Indian Independence Act, legal authority to dissolve the Constituent Assembly. It will be advantageous to reproduce Section 5 ibid to see whether, such an authority can be derived from it:Section 5. For each of the new Dominions, there shall be a Governor General who shall be appointed by His Majesty and shall represent His Majesty for the purposes of the Government of the Dominion. In the discussion Chief Justice Muhammad Munir observed:It seems to me to be perfectly clear from this scheme of Indian Independence Act 1947, and the adapted Government of India Act, 1935, that the absolute and unqualified and prerogative right of the Crown and of the Governor General as representative of the Crown to dissolve the Assembly was taken away. Justice Muhammad Sharif in his separate judgment observed, It might on occasions lead to dangerous consequences if in any real or supposed emergency of which the head of the State alone must be the judge, the constitutional structure itself could be tampered with. It has a sanctity of its own which is not to be violated. My answer, therefore, to Question No.2 is that it is beyond the authority of the Governor General, both under the constitutional and the general law, to do even for a

short period what the Constituent Assembly alone could do. The warning given by Justice Cornelius in this Reference is worth noting here:And in the English case, the fate of the King and the Judges who delivered the opinion favoring absolute power in the King, stands for all time as a warning against absolutism, and as a landmark in the struggle for the freedom and eventual sovereignty of the people. He concluded his opinion saying, .. that the power vests exclusively in the Constituent Assembly and that the Governor General can claim no share in the positive exercise of that power. The dissolution of Constituent Assembly and assumption of all the executive and legislative powers by the Governor General with legal cover provided by the judgments in Tamizuddin Khan's case and the Special Reference No. 1 of 1955, paved the way for a coup d'etat staged jointly by the civil and military bureaucracy. On the 7th October, 1958, Major General Sikandar Mirza, the President of Pakistan by the Proclamation abrogated the Constitution of the Islamic Republic of Pakistan, which was framed by the reconstituted Constituent Assembly and had come into force on 23rd March, 1956, dissolved the National and Provincial Assemblies and dismissed the Central and Provincial Governments. The Commander in Chief of Pakistan Army became the Chief Martial Law Administrator. The Martial Law was imposed throughout the country. On 10th October, 1958 the President promulgated the Laws (Continuance in Force) Order, 1958 whereby all laws, other than the Constitution, were validated and the jurisdiction of the Courts was restored, subject to this Order. Only a few days later, on 27th October, 1958 the Chief Martial Law Administrator removed Major General Sikandar Mirza and assumed the powers of the President of Pakistan as well, thus establishing complete military rule in the country for the first him. Both the aforesaid Proclamations of 7th and 10th October, 1958 were not directly challenged in the Superior Courts but were considered by the Supreme Court of Pakistan in four criminal appeals entitled The State Vs Dosso (PLD 1958 S.C533) which were filed before 7th Oct, 1958 but were decided immediately thereafter in the month of October, 1958 by a Bench comprising Chief Justice Muhammed Munir, Justice Muhammad Shahabuddin, Justice A.R Cornelius and Justice Amiruddun Ahmad. Chief Justice Muhammad Munir( with whose conclusions Justice Muhammad Shahabuddin and Justice Amiruddin Ahmad concurred ) upheld both the aforesaid Proclamation of 7th and 10th October, 1958 observing, Thus a victorious revolution or a successful coup d' etat is internationally recognized method of changing a Constitution. To arrive at this conclusion the doctrine of 'legal positivism' was applied and the following reasoning was advanced:It sometimes happens however, that a Constitution and the national legal order under it are 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. Thus the abrogation of the Constitution of 1956, the dissolution of the Assemblies and the imposition of Martial Law in the country and the assumption of all the State powers by the military authorities were given legal cover and legitimacy by the Supreme Court in the aforesaid manner. The first Martial Law continued for a little less than four years. On 1st March, 1962 General Ayub Khan (who had appointed himself Field Marshal) declared that I, Field Marshal Muhammad Ayub Khan.do hereby enact this Constitution which was enforced from 7th June, 1962 dispensing with the adult franchise and the federal parliamentary system of government. His Constitution introduced Presidential system in the country and got himself elected as the President twice by the electoral college of about eightly thousand members, which he had created under the Basic Democracies Order, 1959. The first time it was almost uncontested and the second time in 1965 he faced Mohtarma Fatima Jinnah who had overwhelming public support, but the former manevoured election results in his favour. After this election Ayub Khan started loosing ground and in the face of public opposition, handed over the State powers to the Commander in Chief of Army, General Yahya Khan on 25th March, 1969 in violation of his own Constitution. The same day General Yahya Khan imposed Martial Law in the country, abrogated the Constitution, dissolved the Assemblies, and removed the President, Governors and the Ministers etc. He himself becomes the Chief Martial Law Administrator and the President of Pakistan. A few days later, Yahya Khan promulgated the Provisional Constitution Order, 1969. On 30th March 1970 he issued Legal Framework Order and under its provision general elections were held on adult franchise basis in December, 1970.This Martial Law came under scrutiny before the Supreme Court in the cases of Asma Jilani and Zarina Gauhhar (PLD 1972 SC 137) which were decided by Chief Justice Hamood ur Rehman, Justice Yaqub Ali Khan, Justice Sajjad Ahmad, Justice Waheeduddin Ahmad and Justice Salahuddin Ahmad. The Supreme Court examined its decisions in the cases of Maulvi Tameezuddin Khan and Dosso and analyzed the political vicissitudes through which the country had passed since 1954. The Chief Justice observed that, I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself, but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization. Justice Yaqub Ali observed as follows:My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law-making. May be, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will

remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers. Justice Sajjad Ahmad summarized his conclusions in the following terms:The Martial Law as proclaimed by General Agha Mohammad Yahya Khan was illegal. The assumption of power by General Agha Mohammad Yahya Khan as the President and the Chief Martial Law Administrator was wholly unconstitutional, and cannot be recognized as valid. General Agha Muhammad Yahya Khan was no doubt in effective control of Governmental power for the period that he remained in the saddle, and only those of his legislative and administrative acts can be recognized by the courts, which may be found to be absolutely necessary on the doctrine of necessity within the limitations of that doctrine to be adjudged by the Courts. After the fall of Dacca in December, 1971, the new government headed by Zulfiqar Ali Bhutto whose party had secured majority seats in the National Assembly in West Pakistan (now Pakistan) was installed in power. This National Assembly adopted the Interim Constitution on 17th April, 1972 which was replaced by the permanent Constitution of the Islamic Republic of Pakistan enforced on 14th August, 1973 which provided for Federal Parliamentary system of government and a bicameral Parliament. It envisaged trichotomy of the State-powers with power of judicial control of the superior judiciary over the executive authorities. It guaranteed fundamental rights and social justice and above all 'the rule of law'. Article 4 declared that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and of every others person in Pakistan. And no action detrimental to the life, liberty, body, reputation or property shall be taken except in accordance with law. Article 5 declared that 'obedience to the Constitution and Law is the basic obligation of every citizen. Article 6 provided that the abrogation or subversion of the Constitution would be an offence of high treason. Notwithstanding these Constitutional safeguards and the judgment of the Supreme Court in Asma Jilani Case, on 5th July ,1977 General Zia-Ul-Haq, Chief of Army Staff and his military junta staged another coup d' etat. He dismissed the Federal and Provincial Governments, removed Zulfiqar Ali Bhutto the Prime Minister of Pakistan and his Cabinet, dissolved the Parliament and the Provincial Assemblies. The Constitution was held in abeyance. The Martial Law was imposed in and the administration of the country was taken over by the Army and the Military Courts were established. On 6th July, 1977 he announced that I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator. He declared that I have accepted this challenge as a soldier of Islam. My sole aim is to organize free and fair elections which would be held in October this year. I give this solemn assurance that I will not deviate from this schedule. But the people of Pakistan witnessed the breach of 'Solemn assurance' General

Zia-ul-Haq continued his Martial Law for eight years and held party less elections in 1985, which was boycotted by the people of Pakistan. Even after the lifting of Martial Law 1985, General Zia remained in absolute power till his death on 17th August, 1988. The imposition of Martial Law, its validity and legal effects was directly brought before the Supreme Court by Begum Nusrat Bhutto in a Constitution Petition wherein she had challenged overthow of the constitutional government, the imposition of Martial Law, the detention of her husband, Zulfiqar Ali Bhutto, the deposed Prime Minister and other leaders of Pakistan Peoples Party This petition was heard by Chief Justice Anwarul Haq, Justice Waheed-ud-din ,Justice Muhammad Afzal Cheema, Justice Muhammad Akram, Justice Dorab Patel , Justice Qaiser Khan, Justice Muhammad Haleem, Justice Safdar Shah and Justice Nasim Hassan Shah. The Supreme Court dismissed the petition holding .it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July, 1972. The Supreme Court faced difficult situation in wriggling out of its own judgments in Asma Jilani Case wherein Dosso's case was not only not followed but was held to have laid down incorrect law. Yet contrary to Asma Jilani Case in the leading judgment written by the Chief Justice it was, inter alia, held as followed:the Proclamation of Martial Law on 5th of July, 1977 appears to be an extraconstitutional step necessitated by the complete breakdown and erosion of the constitutional and moral authority of the Government of Mr. Zulfiqar Ali Bhutto That the imposition of Martial Law stands validated on the doctrine of necessity and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures. This judgment conferred on the Chief Martial Law Administrator i.e General Zia-Ul-Haq, the power to perform all such acts and promulgation all legislative measures which are in accordance with or could have been made under the 1973 Constitution including power to amend it. The last such judgment was delivered by the Supreme Court in the month of May, 2000 in seven Constitution Petitions filed by Syed Zafar Ali Shah and others wherein take-over of the government by General Pervez Musharraf on 12th October, 1999 and the issuance of the Proclamation of Emergency, the Provisional Constitution Order, 1999 and the Oath of Office (Judges) order 2000 were challenged. The cases were heard by the Full Court consisting of the Chief Justice Irshad Hassan Khan, Justices Muhammad Bashir Jahangiri, Sh.Ijaz Nisar, Abdul Rehman Khan, Rashid Aziz Khan, Nazim Hussain Siddique, Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq andRana Bhagwandas. All the learned judges, following the pattern of Begum Nusrat Bhutto's case, gave unanimous verdict inter alia, holding;On 12th Oct,1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra constitutional measure became

inevitable, which is hereby validated on the basis of the doctrine of State necessity and the principle of salus populi suprema lex as embodied in Begum Nusrat Bhutto's case. That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity. That General Pervez Musharraf, Chairman, Joint Chiefs Of Staff Committee and Chief of Army Staff through Proclamation of Emergency dated the 14th October, 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter. All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it. This is not a case where old legal order has been completely suppressed or destroyed, but merely a case of Constitutional deviation for a transitional period so as to enable the Chief Executive to achieve his declared objectives. It will be seen that the Supreme Court by the judgments in the cases of 'Begum Nusrat Bhutto' and 'Syed Zafar Ali Shah' also empowered one individual, namely, the Chief of Army Staff who had over thrown the government of the day in violation of the Constitution in 1977 and 1999, to amend the Constitution which could only be amended by an Act of the Parliament (Art: 238) and by a two-third majority of total membership of the National Assembly and majority of the Senate. (Art: 239). It is debatable whether the Supreme Court, a creation of the Constitution, having only that jurisdiction which is conferred on it by the Constitution and the law (Art: 175), besides the power of judicial review, could give power to amend the Constitution to the Chief of Army Staff, although it did not possess the same and whether in exercise of such a power laws made and the action taken have any validity. The conclusion drawn by the Court in the judgment of Zafar Ali Shah's case was similar to those of the judgment in Nusrat Bhutto's case. Both judgments legitimized the overthrow of the constitutional governments by the Chief of Army Staff, suspension of the Constitution including the Fundamental Rights, the dissolution of the Parliament and the Provincial Assemblies and the introduction of the new Legal Order in place of the existing Constitutional Order, applying the rules of State necessity and the 'salus populi est suprema lex'. Let us now briefly examine the judgments of the Federal Court of Pakistan in the aforementioned cases of Molvi Tameezuddin Khan and Special Reference No.1/1955 and those of the Supreme Court of Pakistan in the cases of Dosso, Begum Nusrat Bhutto and Syed Zafar Ali Shah, on the touchstone of its own judgments.

In State v. Zia ur Rehman (PLD 1973 SC 49), the Supreme Court about its on position observed that, ..it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution.. it is a creature of the Constitution; that it derives its powers and jurisdiction from the Constitution. In the earlier judgment in Fazlul Quader Chowdhary's case (PLD 1963 SC 486) the Supreme Court observed that, No power can be claimed by any functionary which is not to be found within the four corners of the Constitution nor can anyone transgress the limits therein specified Instead of commenting myself on the judgments in the cases of Maulvi Tameezuddin khan and 'State vs Dosso', it is appropriate to quote the Supreme Court in this regard. In Asma Jilani's case Chief Justice Hamood ur Rehman commented on Maulvi Tameezuddin Khan's case in the following terms:The disaster which was apprehended in the case of Maulvi Tameezuddin Khan, had occurred. The Governor General has unconstitutionally dissolved the Constituent Assembly. Proceedings taken to question the validity of the Governor General's action by invoking the jurisdiction of the High Court under section 223-A of the Government of India Act were held to be incompetent, because, that section itself had been incorporated in the Government of India Act by a resolution of the Constituent Assembly which had not, according to the practice up to that time prevailing, been formally put up for the assent of the Governor General, though tacitly accepted and acted upon in a large number of cases. Thereafter when the Governor General attempted to validate a vast body of such constitutional legislation, which had been passed between 1947 and 1954, retrospectively by an Ordinance, the Ordinance itself was struck down. In desperation the Governor General in turn invoked the advisory jurisdiction of the Federal Court under section 213 of the Government of India Act vide Governor General's Special Reference No.1 of 1955, and asked the Court to find a solution for the constitutional impasse created by the judgments of the Court itself. The Federal Court again came to his rescue and although no 'law' of any kind could be found to meet the situation, it invoked in aid the supreme principle of necessity embodied in the maxim 'salus populi est suprema lex', and on the basis thereof evolved a new political formula for the setting up of a new Constituent Assembly, even though this very maxim when used in support of the contention of the Maulvi Tameezuddin Khan that the invalidation of a large number of constitutional laws merely on the ground of want of formal assent of the Governor General would cause disaster and create a Constitutional impasse, had not found favour with the Court. In the same judgment Justice Yaqub Ali observed:The assent of the Governor General was, therefore, not necessary to give validity to the laws passed by the Constituent Assembly. With great respect to the learned Chief Justice the interpretation placed by him on sections 6 and 8 of the Indian Independence Act, 1947, as a result of which the appeal was allowed, is ex facie erroneous though we do not propose to examine in detail the reason given in the judgment. Apart from the political cataclysm which the proclamation of the 24th October, by Mr. Ghulam Muhammad brought into being a large number of laws passed by the Constituent Assembly which had

from the very beginning not been placed before the Governor General for assent were declared by the Court in the case of Maulvi Tameezuddin khan as invalid. With regard to the case of 'State v Dosso' the Supreme Court in Asma Jilani's case made important comments. Chief Justice Hamoodur Rehman observed as follows: I do feel that in laying down a novel juristic principle of such far reaching importance he did proceed on the basis of certain assumptions.. These assumptions were in my humble opinion not justified. Upon this analysis, I m unable to resist the conclusion that he erred both in interpreting Kelson's theory and applying the same to the facts and circumstance of the case before him. The principle enunciated by him is wholly unsustainable, and I am duty bound to say that it cannot be treated as good law. Justice Yaqub Ali made the following comments: The judgment in State v Dosso set the seal of legitimacy on the Government of Iskandar Mirza though he himself was deposed from office by Muhammad Ayub Khan, a day after the judgment was delivered on the 23rd October 1958, and he assumed to himself the office of President. The judgments in the cases of Maulvi Tameezuddin khan; Governor General Reference 1 of 1955 and The State v. Dosso had profound effect on the constitutional developments in Pakistan. As a commentator has remarked, a perfectly good country was made into a laughing stock. A country which came into being with s written Constitution providing for a parliamentary form of Government with distribution of State power between the Executive, Legislature, and the Judiciary was soon converted into an autocracy and eventually degenerated into military dictatorship. From now onwards people who were the recipients of delegated sovereignty from the Almighty, ceased to have any share in the exercise of the State powers. An all omnipotent sovereign now ruled over the people in similar manner as the alien commander of the army who has conquered a country and his will alone regulates the conduct and behavior of the subjugated populace. He quoted Mr. Sharif uddin Pirzada's arguments that Munir C.J. disclosed after retirement that the decision was not based on judicial considerations. He further observed, It was questioned how did the Court came to hold on the 13th October, 1958 that the new Government was able to maintain its Constitution in an efficacious manner and that the old order as a whole had lost its efficacy. Justice Sajjad Ahmad observed, The decision of this Court in Dosso's case does not lay down good law and must be overruled. Thus the doors for Army coup d'etat appeared to have been closed for ever by the Supreme Court though judgment in Asma Jilani's case and by the Constitution of 1973 which in Article 5 made the obedience to the Constitution and law obligatory and in Article 6 made the abrogation or subversion thereof an offence of high treason. But after about four years, another coup d'etat was staged by General Zia ul Haq, Chief of Army Staff on 5th July, 1977, who according to the Supreme Court judgment in the Begum Nusrat Bhutto's case, had validily assumed power by means of an extra Constitutional

step and the imposition of Martial Law, therefore, stands validated on the doctrine of necessity. The door again opened for another coup d'etat staged by General Pervez Musharaf, the Chief of Army Staff and his comrade Generals. He overthrew the Government of Prime Minister Nawaz Sharif and seized the State power on 12th October, 1999. He issued Proclamation of Emergency on 14-10-1999 stating that, In pursuance of deliberations and decision of Chiefs of Armed Forces and Corps Commanders, I proclaim emergency and assume the office of the Chief Executive of the Islamic Republic of Pakistan. By the same Proclamation he held the Constitution in abeyance, suspended National and Provincial Assemblies and the Senate, removed the Prime Minister and his Cabinet, the Provincial Governors and the Chief Ministers along with their Cabinets and put whole of Pakistan under the control of the Armed Forces. The Proclamation was followed by the Provisional Constitution Order which was superimposed over and above the Constitution and subjected the Superior Courts and all other Courts to its provisions. Under the Oath of Office (Judges) Order, 2000 the Judges of the Superior Courts were required to take fresh oath in the new form. The Army take-over, the Proclamation of Emergency, the Provisional Constitution Order, the Oath of Office (Judges) Order and other steps taken by General Pervez Musharaf were challenged before the Supreme Court in many Constitution Petitions, entitled. Zafar Ali Shah etc V. General Pervez Musharaf etc (PLD 2000 SC 869) which were decided by the full Court vide judgment dated 12th May 2000. The reasoning and the conclusion of Begum Nusrat Bhutto's case were followed and some passages were copied. The coup d'etat was held a mere constitutional deviation and the Proclamation an extra Constitutional step and validated, applying the doctrine of state necessity about which the Supreme Court in Asma Jilani's case had held that usurpation of power and cannot be legitimized. With regard to the oath of office by the Judges of the Superior Courts, the Supreme Court opined in Asma Jilani case in the following terms: Another view is that the judges of the Municipal Courts who have taken oath of the office to preserve, protect and defend the Constitution will not break the oath and declare that because of the superior will of the usurper they have been relieved from their legal obligations. If the judges find the executive organ of the state unwilling to enforce their decrees and orders, the only course open to them is to vacate their office. Those who were desirous of serving the usurper may take office under the legal order imposed by him, but it depends upon the discretion and personal decision of judges and has no legal effect. If they adopt the second course they will be acknowledging that might is right and become collaborators with the usurper. The same result is achieved if they foreswear their oath and accept as valid the destruction of the national order and confer recognition on the legislative, administrative and executive acts of the usurper. Further observed in the same judgment:

However, there is another aspect. Article 163 of the 1956 Constitution provided that the law declared by the Supreme Court shall be binding on all Courts in Pakistan and that all executive and judicial authorities throughout Pakistan shall act in aid of Supreme Court. By laying down the law that victorious revolution and successful coup d'etate are internationally recognized legal methods of changing a Constitution and that the revolution itself becomes a law-creation fact, and, that Court can function only to the extent and in the manner declared by the new constitution, this Court closed the mind of all the Courts subordinate to it and bound down the hands of all executive authorities to accept the new government as de jure. The Attorney General did not hesitate in acknowledging that the decision in this case encourages revolutions and that it held out promise to future adventurers that if their acts of treason are crowned with success; Courts will acts as their hirelings. No judge who is true to the oath of his office can countenance such a course of action. Thus, with greatest respect to the learned judges who are parties to the decision in the State v. Dosso we feel constrained to overrule it and hold that the statement of law contained in it is not correct. The Supreme Court then declared that, No valid law can come into being from the foul breath or smeared pen of a person guilty of treason against the national order. With regard to the grund-norm and its unchangeability the Supreme Court held in Asma Jilani's case: In Pakistan, in particular we do not have to depend on Kelson or other jurists or legal philosophers for constitutional inspiration. Our grund-norms are derived from our Islamic faith, which is not merely a religion but is a way of life. These grund-norms are unchangeable and are inseparable from our polity. These are epitomised in the Objective Resolution passed by the Constituent Assembly of Pakistan on 7-3-1949, and were incorporated in the first Constitution of the Islamic Republic of Pakistan, 1956 and repeated in the Constitution of 1962. Its basic postulates are that sovereignty belongs to Allah Almighty which is delegated to the people of Pakistan who have to exercise the State powers and authority through their chosen representatives on the principle of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, wherein the fundamental human rights are to be respected and the independence of the judiciary is to be fully secured. Can it be argued that any adventurer, who may usurp control of the State power in Pakistan, can violate all these norms and create a new norm of his own in derogation of the same. On overview of judgments in the cases of Maulvi Tmeezuddin khan, State v. Dosso, Begum Nusrat Bhutto and Syed Zafar Ali Shah, the conclusions can be summarized as follows:1. In terms of Asma Jilani's case 'the entire legal system of Pakistan has been derailed and the syetem requires to be put back on the rail'; and 'It cannot be gainsaid that the very name of Martial Law had become an anathema and it is intolerably repugnant to the common people regardless of its necessity or potentiality for doing any public good, which cannot otherwise be done'.

2.

These decisions according to Asma Jilani's case ' encourages revolutions and that it held out promise to future adventurers that if their acts of treason are crowned with success, Courts will act as their hirelings' In 'Judging the State' its author Paula R. Newberg wrote: The Court's decision, which supported the martial law government on the basis of necessity doctrine, reconsidered the Governor-General's Reference, Dosso's case and Asma Jilani's case, finally pronouncing a judgment of greater scope than they had offered. Sidestepping methodological pitfalls in earlier constitutional cases, newly appointed Chief Justice Anwar ul Haq issued an opinion giving the military government free rein to hold power as it wished and offering General Zia warrant to retain that power. Nusrat Bhutto's case confirmed the legal foundation for a decadelong military government that made deep inroads into the civil society and orchestrated a legal system that endured well beyond General Zia's death in 1988. The same author further states: Justice Munir's court supported the Governor General's intercession in the constitution- making process and then the military's intervention in the politics. Tamizuddin Khan's case and the 1955 Reference reflect the visions and myopias of their time. By refusing to examine the national political structure and the constitutional requirements for political change, the Supreme Court helped to cement power relationships between the bureaucracy, army and the political classes, and thus undercut the very constitutional concepts it hoped to encourage. By declining to provide meaning to the concept of parity in the Reference, for example, the court laid down the jurisprudential groundwork both for the 1958 coup d'etat and the demise of the two winged state in 1971. By insisting on strong central, executive power, the court helped to reinforce patterns of governance, party roles and provincial politics; it thus helped to restrict the scope for political change.

3.

Mir Khuda Baksh Marri (former Chief Justice of the Baluchistan High Court) wrote in his book ' A Judge May Speak' with reference to Maulvi Tameezuddin Khan's case: Note this ill fated judicial and executive engineering which was perpetrated on the people of Pakistan. Had it been avoided our present Constitiutional wrangles and successive Martial Laws might not have been encouraged. With regard to the Special Reference No. 1 of 1955 he wrote: This reference inter-alia included whether Constituent Assembly was rightly dissolved by the Governor General, to which the Court gave answer that, in special circumstances set out in the Reference the Governor General had the power to dissolve the Constituent Assembly and that during the interim period, he had the power under the Common Civil Law or State Necessity of retrospectively validating the Laws listed in the Schedule to the Emergency Ordinance. Note the unfortunate use of words of Proclamation. Validation

of Laws retrospectively, State Necessity and Special Circumstances, which cast a gloomy and long shadow on Constitutional history, to this day. The common law rule of 'civil or state necessity' applied by the Federal Court to provide legal cover to the otherwise unconstitutional acts of Governor General Ghulam Muhammad and the Doctrine of 'legal positivism' applied by the Supreme Court to give legal recognition to 'Ayub Khan's 'successful coup d'etat, still haunt Pakistan and remain available to the Superior judiciary of Pakistan to legitimizing usurpation of the State powers through extra Constitutional means. Such a usurpation of State-power by General Zia and General Musharaf was described by the Supreme Court as the 'Constitutional deviation' and the intervention by the Armed Forces was validated on the doctrine of the State necessity and the principle of Salus populist Suprema lex.