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1973 Constitution - a heritage for the future.

The main argument concerns the claim of General Zia-ul-Haq that the milirary coup of July 1977 was legalised and full authority given to him by the judgement of the Supreme Court of Pakistan in the Begum Nusrat Bhutto Case of 1977. The case arose as the result of a Constitutional Petition brought by Begum Nusrat Bhutto which challenged the detention of Zulfikar Ali Bhutto and ten other leaders of the Pakistan People's Party under Martial Law Order No. 12 of 1977.

It was argued that the Chief of the Army Staff had no authority under the 1973 Constitution to impose martial law; that his action amounted to high treason under Article 6 of that Constitution; and that, consequently, the Proclamation of Martial Law (5 July 1977), the Laws (Continuance in Force) Order, 1977 and the Martial Law Order No. 12 of 1977 were all without lawful authority. In defence of General Zia-ul-Haq, it was argued that the riotous demonstrations and general civil disturbance following the General Election of March 1977 gave him no alternative but to dismiss the Prime Minister and his government and to dissolve the institutions of civilian government in order to restore law and order under martial law. In doing so he said that his sole aim was "to organise free and fair elections which would be held in October this year"; this was said during the address to the nation on 5 July 1977. The hearing of the Begum Nusrat Bhutto Case began on 20 September 1977 and the elections were postponed in 1st October 1977, five weeks before the judgement on 10th November 1977. However, the Court still accepted the assurance of General Zia-ul-Haq that "the period of constitutional deviation shall be as short a duration as possible ... that all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections leading to the restoration of democracy in accordance with the Constitution": and said further that "the Court expects the Chief Martial Law Administrator to redeem this pledge". Accordingly, the Court found that General Zia-ul-Haq had validly assumed power by means of an extra-constitutional step and was entitled to take such measures as fell within the scope of the law of necessity; these included all acts or measures which are in accordance with the 1973 Constitution and which would lead to the redemption of his pledge, including the right of amendment.... but this was expected to be confined to minor matters not major changes such as relationship of the Prime Minister and the President.

However, the Chief Justice, S. Anwarul Haq, stressed that "I have held that the new Legal Orders is only for a temporary period, and for a specified and limited purpose ... the new regime represents ... only a phase of constitutional deviation dictated by necessity."

He further drew attention to the Mustafa Ibrahim Case of 1964 (1964 CLR 195) which had centred around an elaborate discussion of the legal doctrine of necessity and said that "It seems to me that the summing up of the law of necessity by one of the learned judges of the Cyprus Supreme Court embodies the true essence of the doctrine, and provides useful practical guidelines for its application."

The passage referred to by Chief Justice Anwarul Haq is to be found in the contribution of Justice Josephides when he outlined the principles by which the doctrine of necessity was to be applied, namely: first, there must be an imperative and inevitable necessity or exceptional circumstances; secondly, that in the circumstances there is no other remedy that can be applied; thirdly, that the measures taken must be proportionate to the necessity and to the aim to be achieved; and finally, the application of the doctrine of necessity must be of a temporary character limited to the duration of the exceptional circumstances.

The late Mr. A. K. Brohi, Federal Minister for Law under General Zia and acting for the Federation of Pakistan in the Begum Nusrat Bhutto Case, said in January 1979 that" ..... the present regime was an interim arrangement and its scope of action had been clearly defined by the Supreme Court. All laws framed by the present regime ... would lapse unless they were given protection by the elected rulers of the country. The Martial Law regime ... could enact laws only under the law of necessity for the interim period." (Pakistan Times, 14 January 1979; in a report on the Islamic Law Conference being held in Lahore).

On September 16th, 1979, General Zia-ul-Haq appointed himself President of Pakistan; he announced that elections would be held in November 1979 and then cancelled them (in October 1979), banning all political activity and dissolving all political parties; the civil courts lost the right to hear appeals from military courts, and a Provisional Constitution Order was promulgated which purported to validate--without challenge in the courts -- all actions of the military regime since July 1977. These actions led to the resignations of 19 justices of the Supreme Court and the High Court. Chief Justice Anwarul Haq was reported as saying that General Zia-ul-Haq had misinterpreted the judgement of the Supreme Court in the Begum Nusrat Bhutto Case. There is no need for a detailed review of the actions and initiatives of the military regime since 1979 (particularly the 1984 Referendum and the 1985 "party-less" elections) in order to demonstrate that General Zia-ul-Haq went far beyond both in time and in extent of actions the strict limits set by the Supreme Court in 1977. (e.g. Article 212A added in 1979 and backdated to 5 July 1977, establishing Military Courts and taking away to jurisdiction of all other courts, including the high court). It is arguable when non-compliance with the limits and non-redemption of the pledge took away the grounds on which the conditional validity given by the Supreme Court rested, but the introduction of the Provisional Constitution Order in 1981 (CMLA Order No. 1 of 1981, 24th March 1981) was certainly the outer limit of that validity if it had not already been removed by the cancellation of elections and banning of political parties in 1979 or even earlier. Whatever date is chosen the regime would thereby become without legal authority ab initio, the 1973 Constitution returns to its state as it was on 4th July 1977, and all those who aided and abetted the military regime would stand to be charged, even if they are not so charged, with high treason for violation of Article 6 of the 1973 Constitution and for violation of the oaths taken when they assumed their military or civilian offices. The illegality of the totality of the acts of the military regime would encompass the 1984 Referendum proceedings, the 1985 "party-less" elections and the Assembly that was created thereafter including all the actions of that Assembly, notably the passage of the Eighth Amendment which purported to make major structural changes in the 1973 Constitution. There is no need to fear a legal vacuum for the Supreme Court faced a similar problem in the Asma Jilani Case in 1972 as did the Federal Court in 1955, and I would respectfully suggest that guidance can be obtained by Chief Justice Hamoodur Rahman's elaboration of the principle of "condonation" in the Asma Jilani Case, suitably tailored to the needs of 1989.

"So what," some of you are doubtless thinking, "this reasoning is all very well for law seminars at the LSE in London but it is not practical politics in the Pakistan of today - it is right in principle but not in practice". I would turn this last comment around and assert that if it is right in principle it must be made right in practice. The means are for those in the political and legal life of Pakistan to devise but I would urge that they be based on discussion, agreement, consensus; they can range from the expression of the will of the people in a referendum, a Presidential Order, a resolution of the parliament of Pakistan, a Special Reference to the Supreme Court of Pakistan, a decision of the Prime Minister in Cabinet, to other means that others may elaborate. What goes without question is that the constitutional problems resulting from the period of military rule must be solved; I urge you to solve them so that the Government, Parliament and people of Pakistan can put the endless wrangling of the last forty years over the legal and constitutional framework of their country behind them and bend their undoubted abilities and energies to the solution of the pressing social and economic problems of this country.
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Title Annotation:part 2
Author:Wolf-Phillips, Leslie
Publication:Economic Review
Date:Mar 1, 1990
Previous Article:A glimpse at Pakistan's economy.
Next Article:Inflation: recent trend and prospects.

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