In the Mir Hassan case of 1969, some defendants stood trial before a martial law-created special judge in Rawalpindi. The defendants in the case filed an acquittal application on legal grounds before the West Pakistan High Court alleging that proceedings against them were politically motivated, and they did not engage in conduct that could result in conviction for the offence. Those applications were pending before the High Court when the then military dictator, General Yahya Khan, in a brutal exercise of unconstitutional power, transferred the case to a military court.
The defendants complained of the action of the Chief Martial Law Administrator, and challenged it before the High Court. The judge hearing the matter requested the Chief Justice of the West Pakistan High Court to form a larger bench. The chief justice formed a larger bench comprising three judges and fixed a date for hearing of the case. That infuriated the CMLA.
The court went ahead and heard the case. After the hearing the judgment was reserved. In the meantime, the martial law authorities, apprehending that a judgment against them was coming, started preparing for a counter attack. After all, how could independent judges be allowed to hear matters against the CMLA?
When the judgment was announced, it was one of the boldest and principled judgments the country had ever seen. The High Court held that when the courts are sitting in times of peace, they sit under the right of the constitution and not as mere delegates of the military power. They held that the jurisdiction of the courts was not misplaced by the martial law, and the acts of the CMLA in transferring a sub judice case to a military court was an improper and a colourful exercise of power. They further held that the order of the transfer of the cases was without jurisdiction and, therefore, the trial of the defendants could only continue before the ordinary courts of the country.
The martial law authorities were ready. On the day this judgment was announced, i.e. June 30, 1969, the CMLA issued a presidential order titled Jurisdiction of Courts (Removal of Doubts) Order 1969. This order stated that any court decision given, judgment passed, writ ordered, notice or process issued or made in a case dealing with special and/or military courts would be ineffective. It further reiterated that the decision of the CMLA in relation to where the trial of an accused was to take place, including special or military courts, was to be final, and no court, including a High Court or the Supreme Court, could interfere with the decision.
Anxiety of the bar associations over the reference filed against Justice Isa reflects alarm and distrust that maybe this is just a means to fulfil a more sinister purpose
Reversing the Mir Hassan case decision, however, was not all that the martial law authorities wanted; they also wanted to defame and ridicule the judges. Therefore, another presidential order was passed titled Judges (Declaration of Assets) Order, 1969.
That order required every superior court judge to submit a list of properties and assets held by the judge, his family or any other person for his benefit on a prescribed form to the Supreme Judicial Council (SJC). The SJC was to inquire whether these properties and assets were acquired by legal means. As a result of such inquiries, Justice Fazle Ghani of the Lahore High Court resigned, and Justice Shaukat Ali, whose proceedings before the SJC also found mention in the reference prepared against Justice Qazi Faiz Essa, was found guilty of judicial impropriety. The SJC recommended that he should be removed by the president. The recommendation was accepted.
Whatever the merits or demerits of the presidential order, it was clear that the order had been passed out of spite against an independent judiciary. Even though the allegations against Justice Shaukat Ali might have been true, and he was removed following the due process of law, it also served the martial law authority’s purpose of cutting the judges down to size by pressuring them into declaring assets, and making it clear who was in charge.
I do not intend to create parallels between the Mir Hasan case and the Faizabad dharna case, but the anxiety of the bar associations over the reference filed against Justice Isa reflects alarm and distrust that maybe this is just a means to fulfil a more sinister purpose. Whatever decision may come out of the proceedings startng on June 14, it can only be hoped that independence of courts is not trampled upon.
Sometimes history repeats itself. Sometimes it doesn’t.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law