Constitutional History of Pakistan
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Political backdrop of the time
Ayub Khan had transferred power to Yahya
Yahya in jail
Bhutto government in power
Altaf Hassan Gauhar (Dawn Editor) and Malik Ghulam Jilani had both arrested under martial law regulations
Punjab and Sindh High Courts had dismissed their habeas corpus and bail petitions for lack of jurisdiction, and the Supreme Court took on the combined appeal in 1972
Revoking Dossos case
SC decided 3 related issues:
the validity of the revolutionary legality doctrine established in the 58 Dosso case
the doctrines applicability to the transfer of power to Yahya Khan
the status of his legal framework were the revolutionary legality doctrine judged inapplicable
Judgement
The Court quickly concluded that Yahya Khan had usurped power,
His action was not justified by the revolutionary legality doctrine and consequently his martial law regime was illegal
Attitude toward Bhutto government was generous
Justice Yaqub: Judgements in Tamizuddin Khan case and the 1955 Reference and Dossos case had made “a perfectly good countryÐ.into a laughing stock.” Pointedly criticized the abrogation of the 56 Constitution and observed that Iskander Mirza and Ayub Khan committed treason and destroyed the basis of representation between East and West Pakistan.
Justices vented decade long frustrations
Asma Jilanis case, heard while a new constitution was being drafted, decided just before the constitution was drafted by the NA, helped the court place itself on the independent footing it felt was required and deserved.
Case was not just an attempt to rectify the wrongs of the General, but was also an attempt to combine political principle and practical politics, to determine anew the appropriate role of courts in the polity
Revolutionary Legality and Martial Law
CJ Hamoodur Rahman confronted Dosso at conceptual and historical levels, developing the latter in more detail
Dosso, he said, was never fully justified on Kelsenian grounds: Munir had used the doctrine haphazardly and wrongly, applying analytical precepts as prescription, substituting a vague notion of international acceptability for internal legitimacy, and seeking a grundnorm where none could or should be found
Thus Ðif a grundnorm is necessary the 1949 Objectives Resolution Ð- framed by political representatives, not alien legal theorists Ð- would be more satisfactory than imported doctrine.
ÐNo one is above the law Ð- Successive abrogations of Constitution & Yahya Khans declaration of martial law were all actions wrongly taken
Court chooses history carefully
Yahya Bakhtiar (AG) : if Ðthe yardstick of legitimacy as the source of law was applied, then the Ðreign of usurpers commenced as early as 1953, ending only in December 1971 when the Bhutto Government was formed
Bakhtiar contended that Dossos case was now the law of the land and that the necessity doctrine vitiated its continuance
(concerned with ensuring that Bhuttos regime was not invalidated) Ð- since if all previous rule was declared invalid, and since martial law rulers had called the elections whereby Bhutto was elected, then by logical intuition, Bhuttos government couldbe deemed illegal Ð- Ultimately, however, the question of the legal status of Bhuttos government was conveniently dodged by the court, and Bakhtiars job was done
Bhutto government, keen to show respect for the courts but far more anxious to retain power, found itself supporting Yahyas regime
AG argued for the same efficacy principle that had supported Ayub Khans authoritarianism
Manzur Qadir argued for fundamental rights that the government said had disappeared
Doctrine of necessity neither refined nor limited by either counsel
To achieve judicial approval the Bhutto government drew lines of continuity between prior military regimes and its own mixed government
Bakhtiar conflated concepts of legality, efficacy and legitimacy, while the petitioners tried to keep them distinct.
Qadir relied on a general notion of morality: proposed that Ðmere effectiveness of a political change or an enduring phenomenonshould not suffice but that the courts should ascertain that efficacy was Ðin conformity with morality and justice.
Court accepted his (Qadirs) view by defining sovereignty
as a principle of political trusteeship
Court concluded that Ayub Khan had no authority to turn over the government to Yahya Khan, who in turn had no authority to accept power or to impose martial law
Since the transfer of power was neither a revolution, nor a coup detat, the doctrine of revolutionary legality, which the court