The self-promoted Field Marshal, with self-conferred Hilal-e-Pakistan and Hilal-e-Jura’at, resigned as President of Pakistan on 25 March 1969. And, as a parting kick to the nation, in his capacity as founding father of the khaki dynasty, handed over power to the Army Commander-in-Chief, not The Speaker, National Assembly, in blatant contravention of the Constitution, “enacted” by himelf.
The judiciary’s alacrity in legitimizing the 1958 coup had already set a dubious precedent for the future adventurers. It had shown them the way to trample the constitution and then seek judicial endorsement of their extra-constitutional actions, which they did with great relish.
The first to cash in on this unenviable precedent was none other than Ayub’s happy-go-lucky successor.
Agha Muhammad Yahya Khan, known for hedonistic lifestyle and penchant for alcohol, fearlessly abrogated the 1962 Constitution, imposed martial law and turned the Presidency of the second largest Muslim state into a night club.
Invoking the malignant Doctrine of Necessity, he, too, defended the indefensible by claiming that the country was on the verge of collapse, necessitating extraordinary measures.
The judiciary maintained discreet silence while Yahya was around, and broke it when he was gone.
And, the compliant judiciary acquiesced, tacitly accepting martial law as a means of restoring order. This reconfirmed its subservience to military authority, in utter disregard for its raison d’etre, and oath of office.
The judiciary maintained discreet silence while Yahya was around, and broke it when he was gone.
In the Asma Jilani v/s Government of Punjab (1972) case, the Supreme Court (SCP), headed by Chief Justice Hamood-ur-Rehman, declared Yahya ‘s rule unconstitutional, and him a “usurper.”
This was reminiscent of the saying that: “If you think of punching after the fight, punch yourself – hard!”
The legal community hailed this eye-wash as a turning point in Pakistan’s judicial history, which “rejected the Doctrine of Necessity as a legal justification”. Essentially, however, this was meant to provide academic consolation to the bruised judiciary.
The judiciary’s after-thought was, in fact, just a symbolic defiance. Its deliberately delayed whining could, at best, be described as an awkward attempt at going down in history as almost virgin, despite its expediently consensual rape.
Over the years, Pakistan’s judicial system increasingly became prisoner to the Doctrine of Necessity. The judiciary validated, as a matter of routine, unconstitutional actions, especially military coups, under the pretext of preserving stability and order.
The judicial subservience to extra-constitutional power, thus, undermined the judiciary’s independence and eroded public trust in its role as a guardian of the constitution.
To address this malady, framers of the 1973 Constitution came up with much trumpeted Article 6, according to which “any person who abrogates, subverts, suspends or holds in abeyance the Constitution, by force or conspires to do so, commits high treason”, punishable with death.
But within 4 years of its promulgation, the unanimously adopted Constitution was trashed by the uniformed “Amir-ul-Mo’mineen”, internationally known as the Butcher of Palestine.
In The Nusrat Bhutto v/s Federation of Pakistan (1977) case, the judiciary on sale, led by Chief Justice Anwar-ul-Haq “Jalandhari”, controversially legitimized Zia “Jalandhari’s” military intervention, under the tyrannical Doctrine of Necessity.
Instead of declaring the coup illegal, it allowed the military dictator to amend the Constitution, effectively subordinating civilian rule to military authority. Once again, it miserably failed in its fundamental duty of upholding the Constitution.
And, as if that was not enough, the two “Jallandharis” allegedly committed judicial murder of the usurper’s nemesis, the popularly elected Prime Minister.
This case remains a stark reminder of how judicial compromises can have lasting repercussions on governance, democracy, and the rule of law.
The fourth military assault on Pakistan’s democracy was launched by a master of guerrilla warfare, highly rated for his exploits. He demonstrated his ruthless skills to the nation soon after golden jubilee of its independence.
Armed with notorious precedents, Gen Pervez Musharraf struck on 12 October 1999, dislodging the civilian government of Prime Minister Nawaz Sharif.
Benefitting from legal expertise of the most obsequious souls in the country, he suspended, didn’t abrogate, the constitution, announced a state of emergency, and imposed himself on the nation as Chief Executive.
The coup was challenged in the SCP in 2000. Emulating his peers, Musharraf sought refuge behind the Doctrine of Necessity.
In Zafar Ali Shah v/s General Pervez Musharraf (2000) case, the court, led by Chief Justice Irshad Hasan Khan, not only generously condoned the day-light robbery, but also unabashedly empowered the usurper to play with the legal system at will.
Once again, the judiciary acted with impunity, characteristic of divine institutions, answerable to none on earth.
The “infallible” judiciary justified the unjustifiable on the technical ground that the Constitution was “held in abeyance,” not abrogated.
Relying on the Doctrine of Necessity, the “conditional” ruling repeated the usual mantra of “extraordinary circumstances”, political instability and much-needed public welfare.
In utter naivety, it boasted of restricting the military dictator’s tenure to three years, in which to restore democratic governance. And it did live embarrassingly to see him clung to power like his predecessors for almost a decade.
The validation of Musharraf’s take-over reinforced the Doctrine of Necessity, and further entrenched the deep-seated dominance of the military in Pakistan’s political landscape, a dynamic that continues to plague the country’s governance even today.
(Corrigendum: The word “imposed” in paragraph fourth-to-last of Part-I of this serial may be substituted with the word “orchestrated”. Likewise, the words “Field Martial’s” appearing in the second-last paragraph of the article may be read as “Field Marshal’s”. The oversight in addressing auto spelling/correction/prompts is deeply regretted.)
(To be Concluded)
The writer is a former diplomat, based in Canberra, and can be reached at khizar_niazi@ hotmail.com