Tuesday, August 16, 2016

Costs of Justice Munir's Doctrine of Necessity: 4 Martial Laws and 35 years of dictatorships

Doctrine of Necessity Decision by Justice Munir had been disastrous for Pakistan. Not only did this decision annulled the historic judgement of Sindh High Court that has disallowed the dissolution of assemblies by Gen Iskandar Mirza in 1954 [1], it also laid the foundation of subsequent usurpation of power by the saviors on the horseback leading to disastrous martial laws and their horrendous costs.

I recall a documentary that I saw in the late eighties celebrating 200 year celebrations of US Constitution in which ABC anchor Peter Jennings describes the incident of a Governor dissolving the assembly and the dissolution of assembly case goes to a court that holds the dissolution illegal. [I need reference for this] I remember Peter Jennings saying that this was a crucial time in the constitutional history of US. Had the decision gone the other way, the history of US would have been different. Unfortunately, in our history the supreme court overturned the Sind High Court decision and as a result we had lost 50 years until Chief Justice Iftikhar Chaudhry's bold decisions brought back the autonomy to our court.








Institutionalization of violation of constitution and law: Matti-Pao

Justice Munir's decision institutionalized the violation of constitution. In a country where even the constitution can be abrogated by a couple of trucks of army from triple one brigade, what can there be the sanctity to the laws. No wonder not only the military dictators have been treating the constitution and law as piece of paper that can be shredded at will as publicly stated by General Zia. Political leaders following on the footsteps of these dictators and supported by establishment continued to follow the tradition of trampling the law and constitution. In Pakistan constitutional amendments are passed without any debate in a few minutes. This is unheard of in established democracies where a great amount of debate precedes such amendments.

Doctrine of Necessity = Might is right

• Law shredded with might: MLR, MLO, LFO, PCO,…
• Violation/Abuse of law trickles down to all levels
• Abuse of autonomy of institutions: ECP, AGP, FIA,….

The doctrine established the rule of jungle; might is right. Anyone with might can trample on the rights of the people. This happens not only at the highest office but the practice has now permeated to the lowest echelons of power and society. Anyone with power feels that he can get away with an indiscriminate use of force. The resulting damage can always be regularized. Just as MLR, MLO, LFO, PCO can regularize the takeover of the government by the Generals, similarly SROs and other ordinances can be used to regularize everything from corruption, nepotism, town planning violations, and even murder, kidnapping and gang warfare and targeted killings.  

The law centralized the power in the top person robbing the institutions of their autonomy and the institutional checks and balances. On one hand this centralization disrupted the federal nature of the constitution, led to the grievances of smaller provinces, on the other hand it slowed down the executive decision making. Over decades the decision making at the lower level became less and less as all files had to move to the top, and no one was willing to make any decision slowing the resolution of issues.

Dependence of Judiciary and its Politicization

Judiciary became politicized. Supreme court and high court judeges were moved around, replaced and superseded at will. It was only with the Judges Case that the seat of the judge got the sanctity of tenure. The way judiciary was played around for getting the decision of choice in ZA Bhutto's trial is a true indication of the malaise that doctrine of necessity had introduced.

Judiciary was dictated decisions. It became popular that instead of hiring the lawyers and paying them money, it is more efficient and faster to pay the money to the judges [7].

Judges appointed/fired at will. Through PCOs they were made to resign. Characters such as Dogar were installed.

The doctrine of necessity had been used each time to throw out an elected government. This resulted in political leadership pandering to the power centers rather than to the electorates. Given its unpredictability, the political leaders used the little time that they could see to either consolidate their power or to reward themselves and their cronies with no threat of public accountability.

Justice Munir Doctrine used by SC for validating dictatorships: Matti-Pao and muk muka became the operating doctrine for the transitory governments.

It led on the one hand to the establishment of the principle of anyone can get away with violating the Constitution /Law with impunity. On the other hand, it destroyed the independence of judiciary and destroyed the system of justice in Pakistan.

[Work in Process: Details being filled in]

1956

Molvi Tameezuddin who was the speaker of the assembly which was dissolved by General Iskandar Mirza. Molvi Tameezuddin was a Bengali and the case he filed in the high court brought him a positive verdict in his favor. However, Justice Munir threw validated the dissolution of assembley and who condoned the dissolution by Gen Iskandar Mirza on the altar of doctrine of necessity. This led to the musical chairs of prime ministers as General Iskandar Mirza (great great grandson of the notorious Mir Jafar of Bengal) played havoc with the system for the next three years. He ousted four prime ministers in 2 years.  With each ouster of a prime minister, General Ayub Khan gathered more and more power till the time came for him to oust General Iskandar Mirza.

General Iskandar Mirza consolidated the One-Unit program which led to severe unrest in the Bengalis and created language riots. During his reign, one of the prime minister was Suharwardy (another Bengali) who was ousted creating another cause of pique to the East Pakistan.

1958

Gen Ayub’s Martial Law was challenged in the courts. The famous Dosso Case which legitimized constitution abrogation again used the notorious Justice Munir's doctrine of necessity. This led to the ushering in of 11 years of dictatorial reign. The tremendous costs of Genearal Aybu's Martial Law are detailed elsewhere and led to the dismemberment of the country.

1972

  • Asma Jilani Case: Constitution Abrogation by General Yahya validated, again on the altar of Doctrine of Necessity. 
  • Gen Yahya’s Martial Law who presided over the secession of East Pakistan and the surrender of 92000 troops in erstwhile Pakistan. 

1977

  • Nusrat Bhutto Case: Constitution Suspension validated again using Justice Munir's doctrine of necessity, which would eventually culminate in ZAB’s judicial murder that can be termed as the lowest point in our constitutional history where the chief justices would stoop so low on the whims and fancies of a general dictator. 
  • Costs of Gen Zia’s Martial Law and dictatorship of 11 years



2000





See other posts related to Pakistan History 101: 



References:

  1. Constitutional Coup
  2. Doctrine of State Necessity: Ghulam Mohammad’s need, Muhammad Munir’s invention
  3. Doctrine of Necessity-Application in Pakistan- Cases of Immense Importance- A Critical Review
  4. Necessity as the mother of laws
  5. BEGUM NUSRAT BHUTTO V. THE CHIEF OF THE ARMY STAFF
  6. Doctrine of necessity — a portal to Martial Law?
  7. Citizens vs the Courts: A Decision on the Faltering Justice System  and Pakistan's Justice System: Success or Failures
  8. Justice Munir's Statements Mystery

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