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Wednesday June 29, 2022

Embarrassing verdicts in Pak history

July 28, 2017

ISLAMABAD: There are so many but 12 of them are major decisions in Pakistan’s judicial history, which not only embarrassed the legal fraternity but also left a question mark on the judicial system of the country, but despite criticism, such judgements continued coming from the superior courts throughout Pakistan’s history.

Such judgements always targeted the democratic leaders on made-up charges and always favoured the dictators. These judgements were termed an embarrassing chapter of the judicial history in the apex court’s own judgements and judges never consider principles laid down in those judgements as precedent, though such verdicts kept coming with oft-repeated observation — ‘justice will be done even if heavens fall’.

The very first coup against any civilian set up was sanctioned by Pakistan’s judiciary, not military, in 1954 when the then chief justice Munir overturned a high court decision to restore Constituent Assembly and declared dissolution by governor general Malik Ghulam Muhammad valid.

1- Maulvi Tameezuddin Case: Justice Munir CJ Maulvi Tameezuddin Case famous doctrine of necessity

When the Constituent Assembly was dismissed by Governor General Ghulam Mohammad in 1954,  Tamizuddin made history by challenging the dismissal in the court. Although the High Court agreed and overturned it, the Federal Court (Supreme Court) under Justice Muhammad Munir upheld the dismissal. Justice A. R. Cornelius was the sole dissenting judge in the landmark judgment handed down by the Supreme Court in the Maulvi Tamizuddin case.

2- Governor General Reference

After the Constituent Assembly ceased to function, having been dissolved by the Governor-General by a Proclamation on 24th October 1954, there was no legislative forum competent to validate the acts being in existence. The Governor- General made a Reference to the  Federal Court under section 213, Government of India Act, 1935, asking for the Court’s opinion on the question whether there was any provision in the Constitution or any rule of law applicable to the situation by which the Governor-General could by order or otherwise declare that all orders made, decisions taken, and other acts done under those laws should be valid and enforceable and those laws which could not without danger to the State be removed from the existing legal system should be treated as part of the law of the land until the question of their validation was determined by a new Constituent Convention.

3- Dosso Case 1958, validation of first Martial Law

Dosso Case, P.L.D. 1958 S.C. 553, was basically an appeal in a murder case, first filed in High Court of West Pakistan and then in the Supreme Court. A Loya Jirga (Council of elders) of Balochistan had convicted a citizen from Balochistan, Dosso, in a murder case under FCR 1901. The relatives of Dosso challenged the decision and jurisdiction of Loya Jirga in the high court. The high court reversed the decision of Loya Jirga declaring FCR against the article 5 and 7 of the constitution of 1956 of Pakistan. The decision raised serious questions marks on many other orders passed under FCR after promulgation of 1956 constitution. Federal government challenged the high court decision before the Supreme Court and case was fixed for hearing on October 13, 1958. Meanwhile, an important development took place and then President Iskaner Miraza promulgated Martial Law in the country and Ayub Khan became the Chief Martial Law administrator on October 7, 1958.

This big development diverted whole attention towards Dosso case hearing as the high court has reversed the Loya Jirga decision under 1956 constitution which was made redundant on October 7, 1958 through promulgation of Martial Law order and the October 10, 1958 The New Legal Order. The Dosso case thus was indirectly challenging the promulgation of Martial Law and a court order upholding the 1956 constitution, under which the Supreme Court itself was created simply two years back, could have reversed it.  

The Supreme Court however decided the case unanimously on October 27, 1958 against the verdict of the high court, recognized The New Legal Order of October 10, 1958, took away the power of the courts to hear appeals against the cases/actions of federal government and consequently the 1956 constitution, the first constitution of the country, stood repealed. This was the most tragic incident of the country’s judicial history as after the verdict Ayub Khan threw away President Ikander Mirza and fully occupied the power.

The martial rule continued till the breakup of Pakistan and even beyond that. The coups continued which resulted in creation of private militias, extremism, terrorism and terrorists organizations, eventually becoming the existential threat that country faces today.

The Supreme Court declared that 1958 Martial Law was a peaceful revolution and was not opposed by common people which meant they were happy with it. The apex court order claimed that the verdict was based on theory of legal positivism (commonly known as ‘doctrine of necessity’) presented by famous jurist and legal philosopher Hans Kelsen.

4- Bhutto Case

Supreme Court led by Justice Anwar ul Haq sentenced Pakistan’s first democratically elected Prime Minister Zulfiqar Ali Bhutto in a made up case. Following this order it became a ritual for the judiciary to target almost every democratically elected Prime Minister by the people of Pakistan on hypothetical charges. Justice Nasim Hassan Shah, who was the part of Supreme Court bench which ordered hanging of Zulfiqar Ali Bhutto, later, admitted he was wrong in his decision and under extreme pressure. From where this pressure was coming is question that is still haunting Pakistanis.

5- Nusrat Bhutto Case

Nusrat Bhutto moved superior judiciary against the imprisonment of his husband Zulfiqar Ali Bhutto during the General Zia ul Haq Martial Law which was imposed on July 5, 1977. This case also challenged the imposition of Martial law and the Supreme Court headed by Justice Anwar ul Haq upheld the subversion of the constitution by General Zia. The Supreme went to the extent of declaring; (viii) The doctrine of necessity and the principle embodied in the maxim salus populi est supreme lex is accepted not only in the Islamic jurisprudence but in other systems as well. The Zia Martial Law sowed the seeds of extremism in Pakistan polarising the society, created sectarian-based terrorist organizations which played havoc with the country and the nation is still reaping the crop sowed by General Zia.

6- Jonejo Case

General Zia ul Haq used his draconian power he got from article 58(2)(B) which was made part of the constitution through 8th constitutional amendment and dismissed the government of Muhammad Khan Jonejo on May 29, 1988. In Khawaja Muhammad Sharif Vs Federation of Pakistan case PLD1988 Lahore 725, the high court termed the act of the president illegal but didn’t restore the national assembly. While the Supreme Court in 1989 held that this was dead matter because the new assemblies came into being.

7- Benzir Bhutto Case:

Petition was filed for restoration of assemblies dissolved by President Ghulam Ishaq Khan in the case “Khawaja Ahmad Tariq Vs Federation of Pakistan” PLD 1990, Lahore 505 which was “rejected” by the high court and the Supreme Court upheld the high court decision in PLD 1992 SC 646. Justice Nassim Hassan Shah was in the bench. New York Time has quoted benzir Bhutto and reported; “I don't feel betrayed by the President,'' she said. ''I believe there were other elements that wanted me out.'' Before Mrs. Bhutto won an election in 1988, Pakistan had been ruled by military governments for 25 of the 41 years since it became independent in 1947.

8- Second case of Benazir Bhutto Case

After her second dismissal by her hand-picked president who was acting as a puppet, Benazir Bhutto Shaheed turned to the Supreme Court hoping for justice against President Leghari's act. But the Supreme Court once again justified and affirmed President Leghari's act in a 6–1 ruling.

9- Zafar Ali Shah Case

Following ouster of Muhammad Nawaz Sharif on October 12, 1999, the Supreme Court was moved through Zafar Ali Shah case “Zafar Ali Shah vs General Pervez Musharraf” 2000 SCMR 1137. The Supreme Court led by Justice Arshad Hasan Khan and also including Justice Iftikhar Muhammad Chaudhry not only “rejected” the petition but also empowered the fourth dictator of Pakistan to himself amend the constitution — a relief which was not even sought. This black judgement pushed Pakistan into a blind alley. The backbone of country’s economy was broken and incompetent dictators and his associates played havoc with country’s energy and all other sectors. Pakistan became one of the leading countries worst hit by terrorism. No plans were made to meet electricity shortage and future gas requirements. Pakistan was facing 12 to 18 hours daily loadshedding the day country got rid of the fourth dictator.

10- Allowing General Musharraf to contest Presidential Elections in Army Uniform

After the forcible exit of former Chief Justice Iftikhar Muhammad Chaudhry, whole nation stood with the deposed chief justice and the country’s supreme judiciary and he was restored through July 20, 2007 apex court order. The Supreme Court under restored Iftikhar Muhammad Chaudhry, on September 28, 2007, allowed General Musharraf to contest presidential elections in the army uniform at a time when assemblies were to complete their tenure in a few weeks. The order is considered as one of the black judgements of the judicial history of the world.

 11- Youssaf Raza Gillani Case

The Supreme Court ordered former Prime Minister Syed Yusuf Raza Gilani to write a letter to the Swiss authorities to get information about cases against the then president Asif Ali Zardari. Prime Minister Gilani refused to obey the court order and claimed to have immunity under article 248(1) of the constitution which reads; “248 (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.”

Prime Minister Gilani might have taken a wrong decision while exercising his powers and performing his functions as the chief executive of the federation, but many respected jurists agree that an elected prime minister must not be thrown out through conspiracies. The contempt notice against Gilani could have been kept pending, like in the case on many issues, and could have been decided after he would have completed his constitutional term. The eagerness to try democratically elected prime ministers on made up charges without any proof of corruption or misuse of authority can lead the country towards complete collapse. It is better to always honour article 175(2) of the constitution, think before making decision instead of thinking after passing judgements and rendering whole legal fraternity embarrassed.

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