Governments have been changing in Pakistan for the last 70 odd years. Therefore, this latest episode should not surprise us. We have silently endured the previous disruptions of legal orders. None of our elected Prime Ministers has ever completed his tenure since independence. We have had 22 so far. Our twenty-third Prime Minister will meet the same fate. So what is the fuss all about? Go and relax. The powers will take care of the meal on your table and the diesel in your cars. Roam freely. Go shopping. Litter the roads. Rejoice in the holy month. Fleece people. Enjoy yourselves.
The above is what was expected to have happened after the latest change in the government. But it has not. The instant unreserved outpouring of anger and frustration all converging on a single agenda has stirred the silent waters. Names and ranks, civilian or otherwise, are circulating on social media targeted with unparalleled but direct verbal resentments. The unexpected has happened.
This is the 21st century, the age of social media and artificial intelligence
Today no one can stop people from expressing themselves. Even abuse of expression cannot be stopped. This age is routinely referred to by the military establishment as one of the most potent tools in Fifth generation warfare. What were the tools in the previous four generations of warfare is a question that begs for our leave and the same is granted!
People are talking. They are asking questions. They are looking for answers. They are on the streets in the thousands and these numbers will keep piling up. They are tweeting in the millions each day. Teachers, lawyers, doctors, businessmen, traders, media personalities, anchors, actors, sportsmen and even retired men in uniform, the entire civil society, are using/joining social media platforms like Twitter, Facebook, Instagram, making trends, memes, hash tags, images, to send a loud and clear message – WE WILL NOT ACCEPT FOREIGN INTERFERENCE IN OUR INTERNAL AFFAIRS. The resistance against blatant and naked foreign interference has just started. Where it will lead us is still quite uncertain.
The warm enthusiasm we see in the public is met with a cold silence from the state institutions. Their actions in the past few weeks have breached the patience of the populace. A rather unfathomable reality that cannot sink in is how this group of men mostly charged with massive monetary and moral corruption that has ruled and ruined Pakistan to its core in the last three decades, damaged the prestige of institutions, suddenly gears up and assumes the reins of power and all state institutions offer no resistance but to our general disbelief, extend a helping hand! How is this possible?
All this has happened multiple times before. In Pakistan, the regime never changes, only the governments change. Let me elaborate.
After independence, we were governed by the Government of India Act, 1935
This law was enacted by the British Parliament. The Act of 1935 provided for the establishment of legislative assemblies (elected representatives) representing the will of the people as well as the omnipotent office of Governor-General (unelected office) who was appointed by the King of England. The Governor-General was answerable only to the King.
The Governor-General could overrule or suspend the legislation passed by the federal assembly. Moreover, the Governor-General had the power to make laws too. The Governor General also enjoyed unbridled powers to dissolve the legislative assembly (Section 19 of the Act of 1935).
The office of the Governor General was used as a counterbalance to keep the supremacy of the legislative assemblies under constant check. In short, the concept of State institutions like the Governor General was introduced by the British Empire so that it can be used by the King to defeat any measures taken by the legislative assemblies to exert their legitimate influence.
This, ladies and gentlemen, was the formula used then and is in use even today. The regime belongs to the state institutions and not to the people of Pakistan. We are essentially and principally ruled by the unelected state institutions and the elected representatives are allowed limited elbow space to maneuver. This structure of the regime has never changed.
Those who tried to challenge it went to the gallows
In 1953, Governor-General Ghulam Muhammad using his powers given by the Act of 1935, dismissed Prime Minister Khawaja Nazimuddin and his government. The Governor General, in 1954, proceeded to dissolve the constituent assembly too. The constituent assembly was formed under the Indian Independence Act, 1947 to frame the constitution of the new country Pakistan. The reason behind the dissolution was that the constituent assembly tried to clip the powers of the Governor General. The action of Governor General had the full support and backing of the then Commander in Chief General Ayub Khan.
The act of dissolution of the constituent assembly by the Governor General was endorsed by a larger bench of the Supreme Court in the Molvi Tameezuddin case (1955). The judgment was authored by Late Justice Munir. The readers would be surprised to know that from 1953 to 1958 six Prime Ministers of Pakistan were sent home packing. Not one of them completed his tenure.
Pakistan had its first constitution in 1956. The author of this constitution was Mr. A.K. Brohi, a legal mind par excellence. Only two years later, in October 1958 this constitution was abrogated and the first president of Pakistan Iskender Mirza in active connivance with General Ayub Khan, imposed Martial Law. This Martial Law was also indirectly endorsed by the Supreme Court in Dosso’s case. This judgment was also authored by Late Justice Munir. Ironically, General Ayub removed Iskender Mirza and himself became the president of Pakistan.
In the infamous State Vs Dosso (1958), Justice Munir described the situation in these words “it sometimes happens, however, that the Constitution and the national legal order under it is disrupted by an abrupt political change, not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order”. Justice Munir further elaborated in that case that “if the revolution is victorious in the success that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law‑creating ‑fact”.
With these observations, the martial law/coup d’etat of that time imposed by President Iskander Mirza and enforced by General Ayub Khan was legitimized as a bloodless but effective and successful revolution. This was the first government change that bore the stamp of legitimacy given by the Supreme Court.
What Justice Munir said was that if the new system, originating from use of “coercive apparatus”, completely or substantially replaces the previous system, is sustainable, has the capability and capacity to defeat competing forces of the previous system, is largely a accepted by the populace, executive and the judiciary, then it would be considered as a bloodless revolution and creates legitimate claim to the throne. Pakistan has witnessed such bloodless revolutions multiple times.
In 1962, a new constitution of Pakistan was promulgated with General Ayub in full command over the affairs of the state. He ruled with absolute authority for nearly 7 years when he too was forced to resign. The second Martial law was imposed in March 1969 and General Yahya took control.
Elections were held in 1970
Bangladesh came into existence in 1971. In 1972 an interim constitution was promulgated. Ultimately, in 1973 the constitution that we read today was promulgated. The government was handed over to the civilian administration headed by Zulfiqar Ali Bhutto as the Prime Minister.
In 1972, almost fifteen years after the Dosso case, a five member bench of the Supreme Court headed by then Chief Justice Hamoodur Rehman, in Asma Jillani Vs Government of Punjab, overruled the findings in Dosso’s case in the following words “where a constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the constitution then such change is a revolution and its legal effect is not only the destruction of the constitution but also the validity of the national legal order, irrespective of how or by whom such change is brought about is wholly unsustainable and cannot be treated as good law either on the principle of stare decisis or otherwise”.
The Supreme Court in Asma Jillani’s case further observed “that martial law does not by itself involve abrogation of civil law and functioning of civil authorities certainly does not vest the Commander in Chief of Armed Forces with the power of abrogating the fundamental law of the country. The Commander of Armed Forces is bound by his oath to defend the Constitution”.
Justice Jaqoob Ali, an honorable member of the bench referred to the person who abrogated the constitution as a usurper in the following words “a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of lawmaking. Maybe, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper; he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would‑be adventurers”.
However, it is noteworthy that the Supreme Court in Asma Jillani’s case used the doctrine of necessity to condone the illegal acts of the martial law regime in these words “recourse therefore has to be taken to the doctrine of necessity where ignoring it would result in disastrous consequences to the body politic and upset the social order itself but one has to disagree with this view that this is a doctrine for validating the illegal acts of the usurpers”
The deterrent referred by Justice Yaqoob Ali never came but another martial law did.
The constitution of 1973 was abrogated by Late General Zia Ul Haq in 1977. Zulfiqar Ali Bhutto was incarcerated. Again the matter came before the Supreme Court in Nusrat Bhutto’s case (1977). A new version of the doctrine of necessity was invoked to justify Zia’s Martial Law and Asma Jillani’s case was distinguished on the touchstone of the doctrine of State Necessity. The Supreme Court observed that “it follows, therefore, that the legal consequences of an abrupt political change, of the kind with which the Court is dealing in this case, must be judged not by the application of an abstract theory of law in a vacuum, but by a consideration of the total milieu in which the change is brought about, namely, the objective political situation prevailing at the time, its historical imperatives and compulsions; the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed. Only on a comprehensive view of all these factors can proper conclusions be reached as to the true character of the new Legal Order”.
While legitimizing the Zia’s Martial Law, the Supreme Court concluded “Explanation given by Chief Martial Law Administrator for Army’s intervention-A true reflection of situation-Sincere and unambiguous declaration of Chief Martial Law Administrator, with which, he took over administration only for a short time to arrange for fresh elections fairly at shortest possible time and intended to hand over the government to chosen representatives of people persuading people and Judges of Superior Courts to willingly accept such interim arrangements-New arrangement, dictated by considerations of State necessity and welfare of people, held, acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions and justified in circumstances.-[Doctrine of necessity]“.
The promised fresh elections never came and in the process Bhutto was judicially assassinated on April 4, 1979.
Then democracy came dancing in the late eighties
During these times the establishment never stayed to the sidelines. They were inside the ring, dearly holding on to the system. They believed that it was necessary for the longevity of their rule that the political process does not acquire permanence. Resultantly, uncertainty and instability were carved deep into the political discourse.
The establishment made and broke political parties. They were quite successful too. Nawaz Shareef came out as the most favorite of the available lot. However, he too did not complete any of his terms. Benazir Bhutto’s government was toppled but not restored by the Supreme Court. Nawaz Shareef was lucky. His government after dismissal was restored by the Supreme Court but he had to go and tendered his resignation under a Kakar Formula.
Till now, the readers must have appreciated that the civil dispensation, the will of the people, has always remained subservient to the will and power of the unelected state institutions. Martial Laws were imposed by the army and legitimized by the judiciary. That is a harsh reality.
Allow me to continue. I have more sinister historical facts to share with you.
The constitution of 1973 was again abrogated by General Musharraf in 1999
Again the Supreme Court was approached for the stamp of legitimacy. In Zafar Ali Shah’s case (2000), the Supreme Court granted legal over to Musharf’s Martial Law under the doctrine of State Necessity. Many judges of the Supreme Court took oath under the Provisional Constitution Order that unlawfully replaced the constitution of 1973. General Musharf launched an aggressive accountability drive against the Shareefs and Benazir Bhutto.
Foreign assets made from tainted money were uncovered that belonged to our political leadership. But then, the doctrine of necessity struck again and through a black law (NRO), all these culprits were pardoned or their cases were withdrawn. Those who were labeled as corrupt were now positioned to assume the reins of the government and they did so. Our state institutions did the right thing. They looked the other way. History has just repeated itself in the last few weeks.
What we can see from the above is that the regime, the real power center, has always remained vested in the unelected but extremely powerful establishment with the enabling help of the judiciary. These institutions of the state have formed an alliance in our past with the judiciary to overthrow elected governments and legitimize the disruption of a constitutional order.
The regime has defended its actions under the pretext that security of the state of Pakistan is paramount and stands above all other considerations. This premise has always dominated our political and constitutional scheme. Given our political culture, ethnical divides and lack of maturity and vision of our politicians, this argument has found favour with the ultimate arbiter as well. Ideally, who and what endangers national security is a question that must be determined by a collective body and not by one institution.
The judiciary had welcomed the dictators who crumpled the constitution in the past by legitimizing their rule while damaging the prestige of the very institution they were supposed to protect. During this era, the judicial institution was diluted to suit the rulers of the time. This was achieved when judges of superior courts who sympathized with the military ruler were retained and others shown the door. The formula was simple. The constitution was held in abeyance. A new so-called constitutional order in the form of a Provisional Constitutional Order (PCO) or Laws in Force Order was promulgated by the martial law regime to replace the original constitution.
But sanction of law was needed even by the military junta to transform what was unconstitutional into something that carried the illusion of being lawful. The “doctrine of necessity’ was introduced which was readily adopted by the superior judiciary to legitimize the military takeovers. Understandably, the judges were offered a quid pro quo. They were required to adhere to the new martial law regime or face termination of their services. A point of concern is that very few, among our judges, refused to accept the PCO. Many preferred continuation of their privileges and opted for a fresh oath to enjoy their stay at the seat of justice. Those who lingered on were used to perpetuate an otherwise illegitimate grasp over the reins of power. Rule of law was grossly compromised while the rule of might prevailed.
It was the abrupt and unconstitutional changes in the system that ultimately shaped the system of Pakistan. The real issue or conflict is that our constitutional scheme does not permit such a change. Therefore, the doctrine of State Necessity was used to give legal cover to otherwise unconstitutional actions.
If we disentangle ourselves from our prejudices and proceed dispassionately to read the above referred post-independence constitutional and political history of Pakistan, two major developments will surely stand out. The first being that the colonial-era administrative and governance structure still exists and has never left Pakistan.
The most damaging conclusion one may draw from this is that the people of Pakistan have been inveigled into accepting that they do not play any constructive and meaningful part in political structuring and discourse. But we are happy with this arrangement so long as our worldly pursuits and gains made therefrom are not threatened.
The second development that stems in part from the first is that all the three organs of the State – legislature, executive and judiciary have been, at varying times, during martial laws as well under civilian political set-ups, contaminated to a certain degree by the powers that be in their search of elusive perpetuity and enforced legitimacy. In the process, these organs of the State lost their true constitutional identity and credibility.
It is in the above background that the people of Pakistan see and measure the developments that occur on an almost daily basis within our constitutional organs. Today, there is an air of general distrust. Even an attempt by any organ of the State to rectify the wrongs of the past or to strengthen the institution is viewed with skepticism if not suspicion.
After the Lawyers Movement, there was hope and anticipation that our superior judiciary would reclaim its constitutional mandate by ridding itself from the influence and interference of other State institutions. Some major and encouraging developments at the judicial front do suggest that this organ of the State is fighting back to guard its territorial and institutional borders. There are ominous signs that show that the judiciary is well entrenched to protect its constitutional integrity. But the malaise is deep rooted and it will take substantial time and effort to weed it out.
Let the truth be told
In the above backdrop, it should not come as a surprise when a corrupt lot ascends the throne in the presence of those who were supposed to prevent this from happening. It should not come as a surprise when the court opens its gates at 12 midnight apparently to cater to the demands of the most delinquent amongst us. It should not come as a surprise when soul trading is at its zenith and there are no puritans out there to question this practice. It should not come as a surprise when the sitting Prime Minister repeatedly alleges at the top of his voice that there is foreign conspiracy to remove him and no one takes any interest or notice not even after he was removed. Undeniably, the impregnable walls of our regime drown all calls of help.
The ordinary folks of Pakistan live in a parallel world where only the punitive might of the Constitution is seen. The healing part is reserved for the extraordinary mortals. So readers, in your own interest, refrain from asking questions as now you all know the answers.
Faisal Zaman is a lawyer with more than 25 years of professional experience. He writes regularly on legal, social and political issues. He has authored a book on corporate affairs titled “The Corporate Structure of Private Companies – For Business Leaders, Startups and Entrepreneurs”. His legal practice involves transactional & contractual drafting, mediation, advisory and research assignments within one or multiple jurisdictions. He can be contacted at firstname.lastname@example.org.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.