Constitutional History of Pakistan

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 Dosso's case

SC decided 3 related issues:

1) the validity of the revolutionary legality doctrine established in the '58 Dosso case

2) the doctrine's applicability to the transfer of power to Yahya Khan

3) 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 Dosso's 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 Jilani's 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 Ð''if 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.

- Ð''No one is above the law' Ð'- Successive abrogations of Constitution & Yahya Khan's declaration of martial law were all actions wrongly taken

Court chooses history carefully

- Yahya Bakhtiar (AG) : if Ð''the yardstick of legitimacy as the source of law' was applied, then the Ð''reign of usurpers' commenced as early as 1953, ending only in December 1971 when the Bhutto Government was formed

- Bakhtiar contended that Dosso's case was now the law of the land and that the necessity doctrine vitiated its continuance

(concerned with ensuring that Bhutto's 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, Bhutto's government couldbe deemed illegal Ð'- Ultimately, however, the question of the legal status of Bhutto's government was conveniently dodged by the court, and Bakhtiar's job was done

- Bhutto government, keen to show respect for the courts but far more anxious to retain power, found itself supporting Yahya's regime

- AG argued for the same efficacy principle that had supported Ayub Khan's 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 Ð''mere effectiveness of a political change or an enduring phenomenonshould not suffice' but that the courts should ascertain that efficacy was Ð''in conformity with morality and justice.'

- Court accepted his (Qadir's) 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 d'etat, the doctrine of revolutionary legality, which the court