How Pakistan’s Ruling Classes Destroyed Their Judiciary And Their Democracy

The role played by an independent judiciary in a constitutional democracy can be understood through lived history. For, as M. Oakshott said, “the past which a historian studies is not a dead past, but a past which in some sense is still living in the present”. Illustrations of how independent judiciaries were broken and democracies decimated, is the unfortunate story of every newly independent post colonial democracy with the exception of India.

For us, the illustration of neighboring Pakistan resonates better, both for reasons of proximity and substantial documentation. Pakistan’s Constitution of 1956, was drafted by its Second Constituent Assembly. It took only two years to be torn to shreds. President Iskandar Mirza, who had lost his popularity, unwilling to face a free and fair election, imposed martial law. It stripped the court’s powers of judicial review. General Ayub Khan was made the Martial Law Administrator, who in his address to his bewildered countrymen told, ‘we must understand that democracy cannot work in a hot climate. To have a democracy we must have a cold climate like Britain.’

The legitimacy of Ayub Khan’s Martial Law Administration came under judicial scrutiny in a strange and remote way. A Pashtun tribal called Dosso was convicted for murder by a Council of Elders (constituted under an antiquated 1901 law) in the province of Baluchistan. The High Court of Lahore struck down the Council’s decision. The Constitution of 1956 was held as supreme and only judicial authorities constituted under the constitution had this power to convict. Dosso’s appeal to the Supreme Court of Pakistan would inevitably decide the fate of General Ayub Khan and his administration. For, if the Constitution of 1956 was the paramount law, it followed that the Martial Law of 1958 was also illegitimate.

An ambitious Barrister and a confidante of the General, Zulfiqar Ali Bhutto, is rumored to have persuaded the judges of the Supreme Court of Pakistan to endorse temporarily the martial law. At this nascent stage of Pakistan’s history, Chief Justice Munir (widely acknowledged to have even drafted the Martial Law) and his brother judges wrote a stunning judgment in the Dosso case (Dosso v. Federation of Pakistan P.L.D. 1958 S.C. 533). It spelt the death warrant for Pakistan’s democracy.

The judges invoked a spurious constitutional rationale called ‘the doctrine of necessity’. For this, they resurrected the jurist Hans Kelsen who had propounded that a legal system always derived its validity from a ‘Grundnorm’, meaning a new legal order. A successful coup d’état, like that of Ayub Khan, was held to be legitimate because it created a new ‘Grundnorm’. It is no coincidence that Kelsen’s jurisprudence of real politic was invoked by Bhutto on an earlier occasion, to be specific, on 25^th October 1957 in his speech before the United Nations to justify Pakistan’s aggression and illegal occupation of Kashmir.

The infamy of the Dosso judgement did not deter its rampant and widespread use. Every despot across the globe cited its constitutional dictum to great success before pliant and ambitious judges.

It took 15 years for Pakistan’s Supreme Court to reverse its ignominy in Dosso. In 1969, General Yahya Khan took over the reins of power once again from civilian rule. The indefatigable lawyer Asma Jilani challenged her detention under the new Martial Law of 1971. The fiercely independent Chief Justice Hamoodur Rahman and his brother judges reversed their judgment in ‘Dosso’. In ‘Asma Jilani v. Government of the Punjab’ (PLD 1972 SC 139), the coup was held as unconstitutional. The General surrendered to the verdict and democracy was restored in Pakistan.

This judicial victory was pyrrhic and short-lived, for, the Supreme Court of Pakistan failed to stand up against another usurper. In 1977, Pakistan came under Martial Law for the 3rd time under General Zia ul Haq. Zia suspended the Constitution, dissolved the National Assembly and all the Provincial Assemblies. Prime Minister Zulfiqar Ali Bhutto and other leaders of the Pakistan People’s Party were arrested. The General unabashedly declared, “the survival of Pakistan depended only on democracy alone and I hope the judiciary will extend wholehearted cooperation to me”. The ruling elites, welcomed the self proclaimed ordinary soldier and his heady promise of Islam, law and order and stability.

After Bhutto’s bail by the High Court of Lahore, the crowds surged at his meetings, which ruffled the General. The General now had to rely on a slow and uncertain legal process to eliminate his political opponent. The Federal Investigation Agency (FIA) brought trumped up charges against Bhutto for the murder of Dr. Nazir Ahmed. Zia got four retired judges to appeal to him to “prosecute and punish Bhutto”. These charges were incredulous even by the partisan standards of the FIA. But Zia had solutions. He appointed Maulvi Mushtaq Hussain as the Chief Justice of the Lahore High Court, who would cancel Bhutto’s bail and eventually conduct a Kangaroo Court trial to hand him a death sentence.

Zia had thought out his moves till the finish line. He appointed his personal friend Sheikh Anwarul Haq, who was neither a lawyer nor a judge, as the new Chief Justice of Pakistan. At the early stages of the coup, he had hailed Zia as a “National Saviour”. The new Chief Justice lived up to his mentor’s worth by overruling the ‘Asma Jilani’ decision. The Court did not resurrect the much maligned Dosso verdict or invoke the jurisprudence of Kelsen. Instead, it now propounded an even more dubious and new rationale. They cited widespread disturbances, loss of confidence in the civilian administration and demands of the masses for fresh elections (all these were straight out of General Zia’s speeches) as reason enough for the imposition of the martial law.

After Bhutto was sentenced to death by the Lahore High Court, this farce was taken to its logical end by the Supreme Court of Pakistan with the new Chief Justice Sheikh Anwarul Haq heading the bench. The death sentence was endorsed. The saving grace were the memorable dissents by three judges, especially notable was the one by Justice Dorab Patel.

Pakistan’s Constitution was broken for the first time by its pliant judiciary in 1958. They destroyed the newly woven and binding threads of its Constitution. Emboldened by a reticent and timid judiciary and insouciant elites, General after General deposed civilian governments despite the same being made punishable with death. Pakistan has had to spend more than three decades post Independence (1958 – 1971, 1977 – 1988, 1999 – 2008) under tyrannous military rule. And the rest of its years it has spent under feeble and tenuous civilian administrations forever fearful of a military takeover.

As for Chief Justice Munir, he is till date remembered as the servile and Machiavellian architect of the 4 coups and 3 Martial Law administrations in Pakistan. His infamous dicta “necessity makes lawful that which is unlawful” is still the lowest water mark of judicial surrender.

This is not just the story of Pakistan, but every post colonial democracy with the exception of India (with our basic structure doctrine in place, atleast theoretically democracy cannot be abolished). The modus was always the same. The constitutions were desecrated, independence of the judiciary emasculated and democracy eclipsed. For aggregating unaccountable power, calls were made for alternatives to painstakingly made constitutions after hard won independence movements. Indonesia's Sukarno and Nepal's King Mahendra called for "guided democracy", Guinea's Touré demanded "total democracy", Egypt's Nasser labeled it "presidential democracy", Pakistan’s Mohammed Ayub Khan sought for "basic democracies". In all these vocabularies lay the underlying hidden subtext, that of the destruction of democracy by jettisoning the jurisprudence of an independent and viable judiciary.

But it is not individuals like Chief Justice Munir or Chief Justice Sheik Anwarul Haq alone who made possible these tragic turn of events. The role played by Pakistan’s ruling classes is significant. They gave the intellectual legitimacy for the wanton destruction of the independence of the judiciary, consequently, undermining their own democracy forever. This could be a modern-day cautionary tale for those who are willing to comprehend and understand.

The author is a Senior Advocate at the Supreme Court . Views are personal.