Thursday June 13, 2024

How democracy was derailed — Part – II

By Asad Umar
April 28, 2024
Pakistans third Governor General Ghulam Muhammad. — National Portrait Gallery website/File
Pakistan's third Governor General Ghulam Muhammad. — National Portrait Gallery website/File

As discussed in the previous article in this series (published on April 21), the imposition of Section 92A and dismissal of the Bengal Assembly was a body blow to democracy. However, the good thing was that the progress for the finalization of the constitution soon took centre-stage again.

In September 1954, the constituent assembly approved the amended report of the Basic Principles Committee. Anticipating a reaction from the governor-general, the assembly passed a bill on September 20, 1954 – abolishing the PRODA Act which was used by the executive as a weapon to control recalcitrant politicians.

The next day on September 21, the assembly amended the Government of India Act. This amendment took away the power of the governor-general from acting except on the advice of the cabinet and all members of the cabinet were made answerable to the assembly and could only serve until they had the confidence of parliament. The assembly was not only finalizing the constitution but also standing up for the supremacy of parliament and the future of constitutional democratic governance in the country seemed assured.

The approved clauses of the Basic Principles Committee report were drafted into a formal constitution document by the drafting committee and sent to the government printing office on October 15. The document was published under the title ‘Draft Constitution of Pakistan’. December 25, the birthday of Quaide Azam, was announced by then-PM Bogra as the date the constitution would go into effect. Voting for the formal approval of the agreed-upon constitution was to take place on October 28.

Just four days before that, governor-general Ghulam Muhammad issued a proclamation dissolving the constituent assembly and sacking the PM and his cabinet. Just when Pakistan seemed on the cusp of settling the core issues it faced as a new nation and having a democratic constitution, democracy was derailed in the most brazen of manners.

The new cabinet included COAS General Ayub Khan as defence minister. This signaled that in the standoff between the assembly and the governor-general, the army had thrown its weight behind the governor-general. This meant that both the civil and military bureaucracy were on the same page to thwart constitutional governance in Pakistan. Emergency was imposed after the proclamation of dissolution and severe censorship was imposed on the country.

PM Bogra, like Nazimuddin earlier, did not challenge the patently illegal action of the governor-general. However, speaker of the Constituent Assembly Moulvi Tamizuddin decided to challenge this illegal action. On November 8, a petition challenging the decision was filed in the chief court of Sindh.

Amazingly, the government's defence of the dissolution decision was based on the argument that as a dominion Pakistan was not an independent country and the ultimate power was still with the Queen of England. The British government and parliament had stated that Pakistan was now a completely sovereign independent country but the government of Pakistan was arguing that Pakistanis were still subjects of Her Majesty the Queen of England and subject to her commands and decisions.

The Sind Chief Court unanimously decided in favour of the speaker and decided that the dissolution of the constituent assembly was illegal and without any basis in law. The government filed an appeal against the Sind Chief Court decision in the federal court. Chief Justice Munir initially felt it was a political issue rather than legal. Moulvi Tamizuddin agreed and suggested a compromise formula – but Ghulam Muhammad refused. This proclivity of Pakistani politicians to take political issues to the courts rather than settling them in parliament unfortunately continues even today.

The federal court started hearing the case in March 1955. On March 21, the federal court in a judgment written by Justice Munir found in favour of the governor-general. The only dissenting note was written by Justice Cornelius. Finding nothing in the Independence Act, which governed Pakistan, to justify the power of the governor-general to dissolve the assembly, Justice Munir fell back on British history to justify his ruling. He stated that to understand the powers of the governor-general of Pakistan you had to look deep into British history and the development of the British empire. He ruled that ultimate authority in Pakistan was still with the Queen of Britain and on her behalf with the governor-general.

The governor-general and the head of the highest court in Pakistan were in agreement that Pakistan was not an independent country. By accepting a position in the cabinet after the dissolution of the Constituent Assembly, the chief of army staff had also endorsed this view of Pakistan not being independent.

The brazen hypocrisy of the Munir judgment was exposed by Justice Cornelious. He quoted an earlier judgment by Justice Munir himself when Munir was chief justice of the Punjab High Court: “The governor-general is the head of the dominion and is there by reason of the will of the government and not by the will of the British government or that of His Majesty, His Majesty in such matters having no will at all”.

One week after the Tamizuddin judgment, the governor-general issued an Emergency Powers Ordinance. One unit was created, and all powers were centralized in the office of the governor-general. However, while the dismissal of the constituent assembly had been sanctified by the court, the governor-general still had no powers under the Independence Act to carry out legislation or appoint a new assembly. So, the government filed a reference (special reference No 1) seeking the advice of the federal court in this matter.

Since the answer could not be found in the laws governing Pakistan, Justice Munir had to delve deep into British history to find a justification. In addition to drawing on Cromwell (a 17th-century English soldier and politician who became a dictator after the execution of King Charles), he relied upon Bracton’s maxim developed by Henry of Bracton, an English jurist from the 13th century. According to this maxim, “that which is otherwise not lawful is made lawful by necessity”.

In international law, such an exception is allowed to a state when it faces grave and imminent peril. No such condition existed in Pakistan in 1955. The constitutional vacuum had been created by an illegal action of the governor-general which was sanctified by the court. Now the consequent constitutional vacuum was used by the court to justify unbridled unaccountable powers for the governor-general. The path from constitutional governance to autocracy ran through the hallowed halls of the superior judiciary of Pakistan.

The judicial arm of the state had provided complete cover to the illegal actions and power grab of the civilian executive authority which had been backed by the military leadership. All three non-elected elements of the state structure had gotten together to deny the people of Pakistan the right to have a decisive say in how and by whom the nation would be governed.

Unfortunately, there were political collaborators also for this non-democratic anti-people power grab. This behaviour has continued unabated throughout our history. Pakistani politicians are hell-bent on never learning from our history and continue to weaken democracy for temporary political gains.

To be continued

The writer is a retired corporate CEO and former federal minister.