Book Review From Dawn

Dawn, May 15, 2005
REVIEWS: Hands in glove
REVIEW of: History of Pakistan and the Role of the Army By Syed Sami Ahmad Royal Book Company BG-5, Rex Centre Basement, Zaibunnisa Street, Karachi-74400 Tel: 021-565 3418, 567 0628 Email: royalbook@hotmail.com ISBN 969-407-306-5 440pp. $25 Reviewed by A.R. Siddiqi

To the meagre knowledgeable literature on the role of the army and the judiciary by a Pakistani author, Syed Sami Ahmad’s book makes a valuable and refreshingly lucid addition, chronicling the major landmarks and landslides in Pakistan’s turbulent history. The book should have been entitled as an account of Pakistan’s judicial failure and the military muddle in war and peace.

Except for a rapid survey of the Ayub and the Yahya periods the book says nothing about the catastrophic Zia period, the Musharraf period marked for its sweeping constitutional engineering to secure a permanent power base for the military establishment within a (quasi) democratic set-up. An eminent lawyer and a former president of the Karachi Bar Association, the author uses his vast experience and knowledge of the circumstances forcing the judiciary to cast the first stone at the glasshouse of the budding Pakistani democracy with telling relevance. The naked and repeated military interventions to upset the democratic process drew their legitimacy from the higher judiciary’s resort to the doctrine of necessity: “Legal positivism” (in the words of Justice Munir).

Under chapter 12 captioned “Justice Munir on his role in judicial politics”, Syed Sami calls (actually denounces) him as the ‘chief architect of the Federal Court judgment — in the case of Tamizuddin Khan, speaker of the constituent assembly. An ailing, half-witted governor-general (GG) Ghulam Mohammad by a sort of a Papal Bull or a fiat ex cathedra dismissed the assembly in October 1954 to pave the way to future martial laws. Justice Munir and his colleagues held the well settled view that the constituent assembly was a “sovereign body much like the British Parliament”. However, when the case of Tamizuddin Khan was taken up, the federal court judges (Chief Justice Munir and his colleagues) “deviated completely from the settled view and came out with the altogether novel idea that the constituent assembly was not a sovereign body”.

The chief justice’s final verdict was a reversal and total negation of the judgment of the Sindh chief court supporting Tamizuddin’s plaint against the GG’s order. Mr Justice Constantine, chief justice of the Sindh chief court, and his colleagues had unanimously upheld Maulvi Tamizuddin’s writ petition regarding the sovereignty of the assembly and the GG’s malafide action in dismissing it with a stroke of the pen.

Mr Justice Muhammad Bakhsh who actually drafted the Sindh court judgment for his chief warned against “the consequences” of the governor general’s diktat. Justice A.R. Cornelius (later chief justice of Pakistan) appended his note of dissent to the ruling of the federal court headed by Chief Justice Mohammad Munir. He expressed his “sincere regret” for being “unable” to agree with “My Lord the Chief Justice and my learned brothers”. The chief justice’s invocation of the doctrine of necessity, together with the view of a British member of the Queen’s Council (QC) Mr Diplock upholding the GG’s action on the ground of public welfare, made a mockery of the whole case.

Diplock used the following Latin legalism in support of the dissolution of the assembly by the GG. “Salus populi est suprema lax” — the welfare of the people is the supreme law. This amounted to a reaffirmation of the doctrine of state necessity in popular, almost poetic language.

Another QC, Dean Pritt, appearing on behalf of the petitioner Maulana Tamizuddin along with Mr I.I. Chundrigar, denounced the Munir ex-cathedra judgment as a ‘dark day’ for Pakistan’s democracy. The author speaks of “the personal involvement” of Justice Munir in the case and of the secret visits of the GG to his residence for “influencing not only Munir but also the other justices who voted for Tamizuddin”.

The author goes on to quote Ayesha Jalal who writes, “After consulting with the Punjabi chief justice of Pakistan, Mohammad Munir, the governor-general heaved a sigh of relief.”

In the aftermath of the dissolution of the assembly, the GG found himself in a legal quandary shorn of the power to “legislate” or validate those laws which had already been declared invalid. That led to the famous Yusuf Patel case challenging the detention in prison of a number of persons sentenced for criminal offences.

The fact was that the GG drew all his legislative powers from the constituent assembly, denied to him after its dissolution. A new constituent assembly was convened to validate the GG’s action and frame a new constitution. The 1956 constitution was thus the end result of the “Federal Court’s decision on Yusuf Patel’s case...” Less than two years later, the president of Pakistan, General Iskandar Mirza, would abrogate the 1956 constitution, place the country under martial law and appoint the army chief, General Muhammad Ayub Khan, as the chief martial law administrator.

Within a week of the proclamation of martial law, a criminal appeal in the case of Dosso came up for hearing before the federal court. The appeal challenged the validity of all laws enforced between the proclamation of martial law and the promulgation of the laws (continuance in force) order. Once again a legal vacuum was created to nullify the proclamation of martial law.

“Justice Munir suo motu” accorded “constitutional recognition to the revolution brought about in the shape of the first martial law. A successful coup (revolution) is by itself a law-creating fact.”

After a close study of Syed Sami Ahmad’s work, one is irresistibly drawn to the conclusion that but for the supportive rulings of the judiciary in respect of martial laws the army might have been greatly restricted in its interventionist role in civil affairs. The formulation may well be reduced to a mock syllogism as follows:

The higher judiciary is the supreme source of state-government legitimacy. The military establishment is an integral part of the state and government. Therefore the military must draw legitimacy for its interventions in civil affairs from the higher judiciary.

As for the author’s account of the military’s role, it is overwhelmingly a rehash of its performance through the 1965 and 1971 wars based chiefly on Altaf Gauhar’s Ayub Khan: Pakistan’s First Military Ruler and Colonel Siddiq Salik’s Witness to Surrender. The professional value of their accounts of the course and conduct of the wars, above all, the personalities involved in it at the highest level of command and control, remains open to more than one assessment.