Back in 1961, a Hollywood film called Judgement at Nuremberg won a raft of Academy Awards and other accolades. The background of this film was the post-World War II series of trials in the German city of Nuremberg, in which the numerous civil, military and political functionaries of the racist regime of Adolf Hitler’s Nazi Party were brought onto the dock.
The plea that these functionaries “were only following orders” was not found acceptable and most were found guilty of having committed, or been party to, atrocities. The direct subject of the film is what was called ‘The Judges’ Trial’ — the calling to book of certain German judges, who failed to question the actions of the Nazi dictatorship and thereby effectively legitimised it.
Today, we can commemorate our own recently concluded Judges’ Trial and celebrate its conclusion that high members of the Bench, who chose to legitimise and take oath under a patently illegal dispensation, are unworthy to retain that status. That, let us be clear, is as far as this judgement goes. There are no significant further implications, despite the hyperbolic claims of its being a of ‘landmark judgement’ that would wipe out the dire legacy of repeated Supreme Court findings that have upheld and legitimised past military takeovers. Thereby, it is claimed, this 2009 judgement will safeguard our much-battered and disfigured Constitution against future armed adventurers.
No such golden denouement is likely. To examine as a first premise the assumption that Pakistan’s juridical downward path began with the Tamizuddin Khan case, this case was not even about a “military adventurer”, nor did it involve the notorious Law of Necessity. What happened was that the members of the Constituent Assembly of Pakistan, elected by provincial assemblies as long ago as 1946 and charged with framing a Constitution for the country, were still sitting eight years later and showed no sense of haste to frame the Basic Law document. Moreover, provincial elections in East Bengal in 1954, in which the ruling Muslim League Party had been utterly routed, and defections from that Party in other provinces had rendered the Constituent Assembly an unrepresentative body that nevertheless seemed to go on unendingly.
Taking advantage of these ground realities, Governor General Malik Ghulam Mohammed — a former bureaucrat who had served as Pakistan’s first finance minister — sacked the Constituent Assembly and the government of Khwaja Nazimuddin. This termination was challenged by Speaker Maulvi Tamizuddin Khan (whose own seat had been lost in the 1954 East Bengal electoral debacle). The Supreme Court under Chief Justice Mohammed Munir upheld the Governor General’s actions under the Government of India Act, as amended by the Pakistan Independence Act, which still comprised the Basic Law as a result of the Assembly failing to draft the Constitution for which it had been formed.
No ‘uniformed adventurer’ was involved at this time. Nor did anyone quote a ‘Law of Necessity’. These were still to come. But, yes, there is a clear endorsement of the overarching ‘guardianship’ of the governor general over supposedly elected prime ministers and assemblies. This kind of quasi-authoritarian status had been accepted when the Quaid-e Azam himself chose to be governor general and not prime minister of the new Dominion.
Now, the Quaid may have had very good reasons for doing this. But this post-Imperial idea of the governor general as some kind of ‘guardian’ took root and came to be consolidated by Malik Ghulam Mohammed. It was later transferred to the office of the president in 1956 when Iskander Mirza assumed that title. After 1958, under Ayub Khan and Yahya Khan, the president assumed direct executive control and there was no prime minister. This remained the status until 1973, when Zulfikar Ali Bhutto stepped down from the office of the president to that of the prime minister, inverting the locus of power as he did so. Each of the later military dictators, Zia-ul Haq and Pervez Musharraf, returned to absolute presidential power and, thereafter, used the spurious Article 58-2(b) to assume a kind of viceregal status without a Paramount Power over them.
But this aside, which has permitted me to make a point about the kind of frozen political culture that is our lot, has taken me away from the main argument in this article. In 1959, Justice Mohammed Munir’s judgement in Dosso’s case legitimised General Ayub Khan’s seizure of power. The famous jurist Hans Kelsen’s concept of “a successful revolution”, being one of the sources of law, was distorted to justify this armed power grab. There was, in this judgement, mention of the idea of “necessity”, but, as used here, it was unrelated to the 1977 so-called Law of Necessity.
However, the next Supreme Court pronouncement on armed coups d’etat in the series we are discussing in fact took away the legal crutches from would-be putschists. In the 1972 Asma Jillani case, Chief Justice Yakub Ali declared General Yahya Khan an illegal usurper and all the actions of his government as illegal.
As a deterrent to future adventurers who might seek to do what General Yahya had done, the Constitution of 1973 included Article 6, which declared such actions as High Treason, whose sentence would be life imprisonment or even death. As our sad subsequent history has shown, this Article of the Constitution has failed to prevent forcible military takeovers.
In 1977, Begum Nusrat Bhutto filed a suit against General Zia’s military regime, challenging the validity of the July 1977 military usurpation. Chief Justice Anwarul Haq’s Supreme Court ruled, in what would become known as the Doctrine of Necessity, that given the unstable political situation of the time, General Zia’s overthrowing of the Bhutto government was “legal on the grounds of necessity”. With reference to Article 6, it averred “…the impugned action has not been taken under any constitutional provision, but it is the result of an extra-constitutional measure and, therefore, reference to the above constitutional provision is of no consequence.” So much for the Rule of Law!
This pernicious judgement led directly to the hanging of an elected prime minister. Worse, it opened the floodgates to the extreme excesses of the pseudo-puritanical tyranny of Zia’s regime, whose long-term gifts to the nation include institutionalised bigotry, sectarianism, violence, crime, drugs, guns, insurgency and civil war. The findings in this case also formed the basis on which Chief Justice Irshad Hasan Khan would uphold Pervez Musharraf’s first coup d’etat in 1999 (the Zafar Ali Shah case) and Abdul Hamid Dogar his second coup d’etat in 2007 (the Tikka Mohammed Iqbal case).
And, thus, we return to our Judges’ Trial. While, certainly, this judgement is to be applauded (as was the judgement against the German judges at Nuremberg), it is worth asking as to the manner in which it affects the rest of us, the ordinary citizens of Pakistan. The people are struggling with the effects of armed insurgency, crime, power crisis, economic failure, failure of education or heath or employment, social collapse and political collapse — all of which can be traced to the actions or inactions of the last two military usurpers.
With all the respect in the world — indeed, with the greatest of admiration — for the Chief Justice, let me humbly suggest that a specific reiteration of the Asma Jillani judgement was necessary, coupled with an explicit reversal and denunciation of the Nusrat Bhutto and Zafar Ali Shah judgements. Only then would the country begin to return to some kind of valid juridical basis.
Finally, one is obliged to query the Lords of the highest judicial bench in the land as to how they have “prevented future military takeovers” when the armed takeover that in fact brought in the Pervez Musharraf era still stands legally untouched and unquestioned.
The writer is a marketing consultant based in Karachi. He is also a poet
Reproduced by permission of DT