This paper was presented by Justice (Retd) Rasheed A. Razvi, Member Pakistan Bar Council in a Seminar held by the Sindh Bar Council on 25th December, 2002 at Karachi.

The issues raised by Mr. Abrar Hassan, in his letter of invitation involves several constitutional and political issues which are all relevant and are need of the time. I will congratulate the Vice Chairman Mr. Abdul Sattar Kazi and all members of the Sindh Bar Council for timely raising these issues.

The Sindh Bar Council appears to be much worried and concerned about the present constitutional setup. They are justified as nobody can guarantee smooth functioning of a civilian government elected as a result of floor crossing with the President in military uniform who was elected by the extra constitutional means. These manipulations are not new to the history of Pakistan. On several occasions, we have witnessed abrogation of constitutions.  Strange enough, on all such occasions, our Superior Courts had legitimized all legislative acts of the dictators. There is a long history of Judicial pronouncement through which constitutional deviations were condoned and legitimized. Unfortunately, all such principles culminated in the decision of Zafar Ali Shah’s case. The doctrine of necessity has been again imposed on the nation. The 1973 Constitution has been again distorted, defaced and mutilated by the military rulers. My endeavor will be to highlight the role of Superior Judiciary in creating the present constitutional crisis and at the same time to justify the stand taken by the Pakistan Bar Council and the Supreme Court Bar Association.

There is no Constitution in any part of the world, so for as my knowledge is concerned, which has given authority to their Superior Courts to amend the Constitution. In Pakistan, it is settled law that the function of the Superior Courts are to interprete the Constitution, but despite that such authority was conferred by the Supreme Court on the military dictators who took over the government as a result of successful revolution. In the case of Dosso (PLD 1958 Supreme Court-533) it was ruled by Justice Mohammad Munir that “ a victorious revolution or a successful coup d’ e’tat is an internationally recognized legal method of changing a constitution.”

This doctrine of Prof. Hans Kelsen adopted by Chief Justice Muhammad Munir for validating the martial law imposed from by General Muhammad Ayub Khan was subsequently dissented from by Justice Hamood-ur-Rehman in the case of Asma Jilani (PLD 1972 Supreme Court 139). He was of the view that Kelsen’s doctrine of successful revolution was a pure theory of law and had not laid down any legal norm which are the daily concern of Judges, legal practitioners or administrator. He went on to observe (at page-181) that the proposition of Justice Muhammad Munir as of the Dosso’s case does not find support from any principle of International law. The doctrine of necessity was held to be a principle of condonation and not legitimization. However, subsequent events have proved that the doctrine of necessity was applied by the Supreme Court of Pakistan as an instrument of legitimization. In my humble view, the rule laid down in Asma Jilani’s case is the correct law which ought to have been followed religiously to put breaks on all military adventurism.

Recently, in the case of Qazi Hussain Ahmed (PLD-2002-Supreme Court-853), the present Chief Justice Shaikh Riaz Ahmed, while speaking for the full bench made a startling admission by observing that “ we have miserably failed to evolve a system of governance, transfer of power and to follow the Constitutional path for achieving the welfare of the people and establishment of democratic institutions as envisaged by the Constitution…” By using the word “ we ” I am not aware that how many classes of people were included. But I am certain that the Superior Courts of Pakistan occupies much greater part of the term “we”. In the same judgment the Supreme Court upheld the acts of by passing the constitutional provisions of the election of President, without realizing the implication and effects of the Referendum Order 2002, the limited scope of the authority given to the military rulers, without comparing the amendments with the “declared objectives”. It was held on the basis of concession extended by the advocates appearing on behalf of Federal Government that “ the Referendum Order does not have the effect of amending the Constitution”. In other words, it was said that the removal of President through unconstitutional means and by imposing a military dictator as President of the Country through sub-constitutional legislative measures “does not amount to amending the Constitution.”

The most tragic aspect of the constitutional history of Pakistan is the judgment delivered in the case of Begum Nusrat Bhutto (PLD-1977 SC-657). A departure was made from the principles laid down in Asma Jilani case and the Kelsen’s theory as adopted in the Dosso’s case was reiterated. The imposition of martial law by General Zia-ul-Haq on 5th July, 1977 was validated again on the basis of the doctrine of necessity. The Chief Martial Law Administrator was granted right to promulgate all legislative measures including right to amend the Constitution. It will not be out of place to mention here the circumstances under which this right to amend the Constitution was granted by the then Chief Justice. General (R) K.M.Arif, who was one of the important member of Gen. Zia-ul-Haq regime, in his book “Khaki Shadows ” (Oxford University Press, Ed.2001 at page-291) has described the intrigue on the part of the then Chief Justice which reveals as follows:-

“ …..On 10 November 1977, a nine-member Bench of the Supreme Court, headed by Chief Justice Anwarul Haq, upheld Zia’s intervention under the ‘law of necessity.’ One day before the announcement of the judgment, the Chief Justice met Sharifuddin Pirzada at a party and told him that the judgment would be announced the next morning, at 9 a.m., adding that the court had decided to hold the promulgation of martial law as legal. He  (Justice Anwar-ul-Haq)  enquired from Pirzada if he would be attending court. Pirzada asked if the power to amend the constitution was also being conceded to the chief martial law administrator. Justice Anwar replied in the negative. ‘In that case,’ replied Pirzada, ‘the government would have to swear in a new chief Justice.’ ‘What do you mean? Your predecessor will have to be sworn in once again as he had retired through an amendment made in the constitution by the CMLA.’ Anwar inserted the words, ‘including the power to amend it (the constitution) in the sentence in his own hand. This conversation was narrated to the author by Mr. Pirzada……..”

Till this date, nobody has controverted the above allegations. Therefore, the judges have lost moral authority to follow the rule laid down by Justice Anwar-ul-Haq in the case of Begum Nusrat Bhutto.

It is a matter of record that during the proceedings of Begum Nusrat Bhutto’s case, time and again such impression was conveyed from the government side that the validation of Zia-ul-Haq coup d’ etat is for a temporary period. It was for this reason that Justice S. Anwar-ul-Haq observed that “this is not a case where the legal order has been completely suppressed or destroyed but merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution…” At that relevant time, Mr. Yahya Bakhtiar had rightly pointed out to the Supreme Court that the postponement of the elections scheduled to be held on the 18th October, 1977 had cast a shadow on the declared objectives of the Chief Martial Law Administrator. However, for reasons best known to the learned  Judges, they failed to take notice of such incident and merely on the statement of Mr. A.K. Brohi, that “ in his opinion a period of six months will be needed for concluding accountability process and thereafter to hold election within two months ” the Supreme Court did not prescribe any final period for handing over power to the civilian government, and therefore, acquiesced in the un-constitutional acts of General Zia-ul-Haq.

There was another opportunity available to the Supreme Court to ensure strict compliance of the decision in Begum Nusrat Bhutto’s case. The judgment in the case of Begum Nusrat Bhutto was delivered on 10th of November, 1997. Prior to that, the elections scheduled on 18-10-1977 was cancelled. In early January 1979, after lapse of 15 months one Advocate from Karachi, Mr. Fateyab Ali Khan filed a contempt proceedings against the Attorney General for giving incorrect information to the Court in the case of Begum Nusrat Bhutto but no action was initiated nor any direction was given to the military rulers for compliance of the verdict delivered by the Supreme Court in Nusrat Bhutto case. The contempt application filed by Mr. Khan was dismissed simply by observing that the learned Attorney General had merely stated his opinion as to the time needed for completing the process of accountability and holding of the general elections thereafter.  (Please see 1980 SCMR-1). This reflects lack of commitment on the part of Supreme Court to restore constitutional rule.

The eight (8) months period granted to General Zia-ul-Haq for transfer of power stood expired when the aforesaid contempt proceedings were heard by the Supreme Court. This inaction on the part of Supreme Court resulted in extension of the period of constitutional deviation from 90 days to 11 years. If some positive directions were given on the application of Mr. Fateyab Ali Khan, the constitutional history of this country would have been different and there would have been no need of a decision in the name of Syed Zafar Ali Shah case. This last cited case suffers from several inbuilt contradictions. Reference was made to the two speeches dated 13th & 17th October, 1999 of General Pervez Musharraf by the Supreme Court in its said judgment in order to show his declared objectives but the second speech or its objectives were not incorporated in the judgment.

In his speech at 3 a.m on 13-10-1999, General Pervaiz Musharraf, the then Chief of Army Staff justified his takeover of the Government on the ground of challenging the authority of Military in Pakistan. Subsequently, the Military action of 12-10-1999 was justified before the Supreme Court on the grounds of corruption and misconduct of the Nawaz Sharif’s Government. Incompetency of the previous regime, destruction of the state organs and creation of economic crises by them were also pleaded on behalf of the Attorney General for Pakistan. These alleged circumstances leads to several questions. Firstly, whether the material placed before the Supreme Court to justify the Military takeover was already with the Army prior to 12-10-1999 or that it was manufactured later on to defend a spontaneous re-action of some Generals of Pakistan Army as a result of dismissal of their Chief of Army Staff. If it is the first situation, then it supports the claim of Mian Nawaz Sharif that there was a conspiracy from the team led by General Pervaiz Musharraf to overthrow his Civilian Government which resulted in his acting hastily and dismissing the Chief of Army Staff. In the second case, the action of Military takeover on 12-10-1999 has no nexus with the material placed before the Supreme Court during the hearing of the petitions filed by Zaffar Ali Shah and others.

It is interesting to note that in para 108 of the report, the submissions of the then Attorney General for Pakistan Mr. Aziz A. Munshi have been noted that the previous regime got passed the 13th Amendment in the Constitution within 13 minutes. He further justified introduction of Article 58 (2) (b) by agitating that the same was adopted after deliberation for 40 days but the learned Judges did not notice that the promulgation of Provisional Constitutional Order, 1999, had put the entire constitution in abeyance. The Parliament, which reflects the will of the people was not competent to amend the Constitution while a Military General had full authority to destroy civil and constitutional fabric of the country. These glaring contradictions are apparent in the

Amongst others, it was also pleaded on the part of the respondent while referring to the conduct of past government that “all institutions of the State including Judiciary were being systematically destroyed in the pursuit of self serving policy.” (para 271 of the report). At the same time the Supreme Court has noted promulgation of the Oath of Office (Judges) Order No.1 of 2000” which resulted in unconstitutional removal of 5 senior Judges of Supreme Court and 5 Judges of Sindh and Punjab High Courts but did not express any opinion about the need or legality of issuing the said Order, perhaps in their view it was destruction of an institution. The issue of removal of Judges of superior Courts was declared to be hit by the doctrine of past and closed transaction but at the same time it was declared that the Judges of superior Courts and High Courts can not be removed in future without resorting to the procedure prescribed in Article 209 of the Constitution, 1973. On the other hand, removal of General Pervaiz Musharraf by Mr. Nawaz Sharif was held to be violative of the principles of “audi alteram partem” and declared to be of no legal effect. The post of Chief of the Army Staff was declared to be constitutional post but the Oath of Office (Judges) Order no.I of 2000 was not considered with the same scale.

It was also held in the above case that the process of accountability carried out by the former government was shady but no direction was given in the short Order dated 12.5.2000 by the Supreme Court to the Military Government for reviewing old cases initiated by the Ehtesab Bureau of Nawaz Sharif’s Government. Nearly all the cases lodged against Mohtarma Benazir Bhutto and Asif Ali Zardari were maintained and are still continuing. It was observed in the report by the Supreme Court that accountability process was directed against the political rivals but its continuation by the present regime has been justified in different judgments by the same Supreme Court. The accountability process of the previous regime was not seen to be fair and un-bias by the Court and it made this a point for justification of take over by military. These observations were made by the Full Court of the Supreme Court and should have been considered by the subsequent Benches.

Another glaring example of legalizing a constitutional deviation is the removal of Mr. Muhammad Rafiq Tarar as President of Pakistan. He was elected on 29-12-1997 for a period of 5 (five) years from the day he entered upon his office. The President could only be removed on the grounds of mental or physical incapacity or impeachment on a charge of violating the Constitution or gross misconduct (Article 47). Only two thirds of the total membership of Majlis-e-Shoora (both houses) can successfully vote for removal after holding an investigation and with the right to the President to appear before the joint sitting No such constitutional requirement was followed. On 20-6-2001 the C.E. Order II of 001 was of both the Houses promulgated through which it was declared that the President shall ease to hold office. On the same day, Chief Executive Order-III was promulgated whereby General Pervez Musharraf assumed the office of the President of Pakistan. Both these orders were in direct conflict with the provisions of Constitution, 1973. No judicial notice was taken by the Supreme Court in the case of Qazi Hussain Ahmed (supra) on mere technical ground that a writ of quo warranto can not be brought through collateral attack. In addition, the principles of laches was also applied while upholding removal of Mr. Rafiq Tarar. It will not be out of place to mention here that retirement of General Pervez Musharaf was condemned and removal of Judges of Superior Courts were condoned and legalized in the case of S. Zafar Ali Shah which was a collateral proceedings. Usurpation of the highest office was condoned by the Supreme Court on mere technical grounds.

On 20th August 2002, the Legal Frame Work Order was imposed by General Pervez Musharaf thereby amending the Constitution and the same time introducing several other provisions. These are more than eighty (80) Articles which stand amended by the L.F.O. Even Article 17 which deals with the Fundamental Rights to form an association has been amended. Although its preamble speaks of “smooth and orderly transition” but its result is to strengthen the one man rule, i.e. General Pervez Musharaf. For last more than three (3) years, in several judgments of the Superior Courts, “the declared objectives” have been referred. In none of these judgments these declared objectives have been defined. Subsequent events have proved that it was a secret agenda or a hidden desire to subject this nation to one man rule. All the acts, legislative and administrative, have been legitimized by the Supreme Court without laying down the details of these so-called declared objectives. In the words of Mr. I.A. Rehman (Herald Dec. 2002) if L.F.O. is treated as part of the Constitution, “Pakistan will not be able to claim title of a constitution, parliamentary democracy.” In the evening of 9th October 2002, another amendment was made in the L.F.O. through which the retirement age of the High Courts and Supreme Courts Judges was increased by three (3) years. No public discussion was invited as in the case of L.F.O. Now, these judges are beneficiaries of this so-called Law. It is one of the principle of natural justice that no man should be judge in his own cause. Thus, any adventurism on the part of the Bar to challenge the same in court will give the same result as of past decisions.

Above are few examples when our Supreme Court legitimized the acts of military dictators. We are living under the rule of absolutism justified under the doctrine of necessity. The fight for political domination by two political parties have paved ways for imposition of military rule which now stand legitimized by the order of Supreme Court. Any Resume of recent decisions of the Supreme Court will reveal that we have no constitution, no super or fundamental law which may rule against all arbitrary acts of the government. Under the self styled doctrine of necessity, good conscience and greater national interest, the 1973 Constitution has been disfigured. Our constitutional history is running in a circle, i.e. from Molvi Tamizuddin Khan’s case to Zafar Ali Shah’s case. Today, we cannot claim that we are being ruled under Constitutional mandate. We have not learnt from the history of past fifty (50) years. To sum up, I will quote John Maxcy Zane, who has defined the constitution of USA in the following words:-

“It represents a totally new departure in the law, the establishment of great empire under the forms of a republic. The fine and just balance between the functions of the federated government and the functions of the states is the result of what we may call a stupendous wisdom…………The tendency among short sighted men who think that by laws the conduct of human beings can be forced to an artificial mode will always be a source of danger in democratic government. The Law giver, of all men, should have a sense of historic value…..”

At least, speaking for myself, I have lost hope in restoration of the 1973 Constitution. The ruling junta which took over the government in the night of 12th October, 1999 is likely to continue. Under these circumstances, in my humble view, the stand of Mr. Hamid Khan, President, SCBA and Member PBC is fully justified.

I will request this august house to fully endorse the statement at the Bar filed before the Supreme Court on behalf of the Supreme Court Bar Association.

Rasheed A. Razvi
Member
Pakistan Bar Council