The Dhaka University Studies Part-F, Vol.

1(1); 1-24

THE ROLE OF JUDICIARY IN THE CONSTITUTIONAL

DEVELOPMENT OF PAKISTAN (1947-1971)
by
7.1. CuOtfDHURV

The Government of India Act, 1935‘ establislxed for the first

time in British India a federal constitutional court-the Federal court
of India-with powers and jurisdiction, inter alia, to adjudicate on
the constitutionality of British Indian central and provincial legis­
lation in the light of the provisions o f the Constitution Act and
other Imperial statutes.^ On independence in 1947, a new Federal
Court-^ had to be established as a successor to the British Indian
Federal Court to exercise all its powers and jurisdiction with respect
to the territories of the new state of Pakistan. The superior
courts within the teritory of Pakistan including the new High Court
for East Bengal at Dacca inherited all the power and jurisdiction as
had been held by their repective predecessors in pre-independence
days. These superior courts were also given special writ jurisdiction
by the Constituent Assembly of Pakistan by inserting Section 223 A'*
to the Government cf India Act, 1935. This Act, as adapted to suit
the changed circumstances’ together with the Indian Independence
Act, 1947® formed the Constitution of independent Pakistan.
Further, in 1950 by an Act'^ passed by the Constituent Assembly of
Pakistan, the Federal Court was made the highest court in the
judicial hierarchy of the coimtry. The higher judiciary in Pakistan
was, thus, arranged in conformity with the traditional concept of
1. 2 6 G e o . 5. c, 2.
2. Section 204 & 205 of G ov‘t. of India Act, 1935.
3. The Federal C ourt of Pakistan Order, 1948 (G.G.O. 3 d t. 23. 2. 48).
4. “Every High Court shall have power throughout the territories in
relation to which it exercises jurisdiction to issue any person or
authority including in appropriate cases any government within those
territories writs including writs in the nature of hahas corpus,
mandamus, prohibition, quo warranto and certiorari ot any of them”,
inserted by Government of India (Amendment) Act. 1954, P.L.D.
1954 central statutes, 152.
5. Pakistan (Provincial C onstitution) Order, 1 9 4 7 (0 .0 .0 . 22 of 14.8,47)
6. 10 & 11 Oeo. 6, c. 30.
7. Privy Council (Abolition of Jurisdiction) Act, 1950.
2 CHOUDHURY

its position and role under a political system with a written constitu­
tion as the supreme law of the land.
In the field of law-making, apart from the four provincial
assemblies functioning under the Government of India Act, 1935, a
Constituent Assembly was created for Pakistan under the Partition
Plan® of 3 Jime 1947. The Constituent Assembly thus created was
given statutory' recognition by the Indian Independence Act, 1947,
which defined its powers and functions. The main function of the
Constituent Assembly was to prepare a constitution for Pakistan^
and in addition to this constituent power, the Assembly was to
exercise, during the interim period, the powers, and discharge the
functions, of the Federal Legislature.^® Subject to the law-making
powers of these legislatures, the Ordinance-making power of the
G oven or-General and the provincial Governors to meet immediate
necessity of law-making was re ta in e d .T h u s under the arrangement
of the interim Constitution, the legislative, executive and_ judicial
powers of the state of Pakistan were to be exercised on the basis
o f the written provisions of the Constitution Acts which stood as
the source of all Powers and jurisdiction.

As had been envisaged, soon after the establishment of Pakistan,

its superior courts were called upon to examine the constitutionality
of Acts passed by the Constituent Assembly. In Khuhro V,
Federations^ the action of the Governor-General under the Public
and Representative Ofiicers (Disqualification) Act, 1949, passed by
the Constituent Assembly was challenged on the ground that the
Act itself was void as it was not assented to by the Governor-
General. It was contended on behalf of the Government that the
impungned Act was passed by the Constituent Assembly in exercise
of its constituent powers and as such the Governor-General’s assent
was not necessary. Accepting this argument the Sind Chief Court

8. The Partition Plan, popularly known as the M ountbatten plan,

contained the term s and conditions of the political settlem ent for
the future ofB ritish India creating two independent dominions-India
and Pakistan-through p artitio n o fB ritish India.
9. Section 8, sub-section (1) of the Indian Independence Act, 1947.
10-. Section 8 (2) para (e) of the Act of 1947.
11. G overnm ent of India Act, 1935 section 42 (1) and 81 (1)
12. P.L.D. 1950 Sind 49
THE ROLE OF JUDICIARY 3

held that laws passed by the Constituent Assembly in exercise of

its constituent power were valid constitutional laws without the
assent of the Governor-General. In two other cases'^ before the
Federal Court, the statutes purported to have been passed by the
Constituent Assembly as constitutional laws were challenged on the
ground that the statutes in question should have been passed by
the Federal Legislature and should therefore, have been assented to
by the Governor-General, without which they had no legal effect.
The Federal Court, however, accepted the submission made on behalf
of the Government that they were constitutional laws and so were
fully valid without the assent of the Governor-General.
As things went on, by 1954 it would seem that the Federal Court
of Pakistan and other superior courts had been able to establish their
eompctencc and authority to protect and uphold the principales
and provisions of the Constitution of the country. But in late
October, 1954 the nation was plunged into its iirst major consti­
tutional crisis by an authoritarian action of the Governor-General
who by a proclamation'"* dissolved the Constituent Assembly. The
Governor-General claimed that the counti-y was faced with a serious
political crisis and that the constitutional machinery had broken
dowTi; that the Constituent Assembly had lost the confidence of the
people and hence could no longer function; that fresh elections
would be held and the newly elected representatives woutd decide
all issues including constitutional issues. It may be recalled at this
stage that the Constituent Assembly after seven years of relentless
efforts had been able to resolve controversial issues and at last
adopted a draft constitution at its last session ended a month before
its dissolution. The Prime Minister had even set 25 December
1954 for implementation of the Constitution after which it was
expected that general elections would be held to put the whole
administration of the country under the long cherished constitutional
rule.*’ The Constituent Assembly was not allowed to complete its
work and by dissolving it the country was pushed to an unprece­
dented constitutional crisis and political uncertainly.
13. Khan o f Mamdol Crown, P.L.D. 1950 F.C. 15; and Akbar K n a n \.
Crown, P.L.D. 1954 F.C. 87.
14. Gazette o f Pakistan, 24 October, 1954.
15. For the political background of the G overnor-G eneral’s action see
generally, G.W. Choudhury, Constitutional Development o f Pakistan 2nd
Edition Longman, London,
4 CHOUDHURY

The Goveraor-General’s action was challenged in the Sind Chief

Court by the Constituent Assembly’s President Maulvi Tamizuddin
Khan.'® The petitioner applied to the Court under section 223A of
the Government of India Act, 1935, for issue of writs of mandamus
and quo warranto with a view to : (i) restraining the Federation from
giving effect to the proclamation and obstructing the petitioner in
the exercise of his functions and duties as the President of the
Assembly; and (ii) to determine the validity of appointment of the
recently appointed Ministers who were not members of the legislature.
The respondents raised the preliminaiy objection that section 223 A
of the Act of 1935 which gave powers to superior courts to issue
writs, was, in the absence of the assent of the Governor-General,
not valid law and as such the Court had no jurisdiction to issue writs
to the respondents. The same objection applied to new sectien 10
of the Government of India Act, 1935 which purported to limit
the Governor-General’s discretion in his choice of Ministers to the
members of the Constituent Assembly.
The five judges of the Chief Court of Sind unanimously held that,
to constitutional laws passed by the Constituent Assembly the assent
of the Governor - General was not necessary and, therefore, the
amended section 10 and section 223A of the Government of India Act,
1935, were valid constitutional laws, enforceable without the assent
of the Governor-General. The Court also held that the Governor-
General had no power to dissolve the Constituent Assembly which
had no prescribed period of duration and could only be dissolved by
itself on the fulfilment of its main task of makmg a constitution for the
country.
The Government filed an appeal to the Federal Court against the
judgment of the Sind Chief Court.^'^ The Federal Court in its first
vital decision in the field of constitutional process of the country
reversed the judgment of the Court below. It held by a majority
of four to one (Cornelius, J. dissenting) that all Acts passed by the
Constituent Assembly includmg the Acts providing for constitutional
provisions required the assent of the Governor-General for their
validity. Since section 223 A of the Government of India Act, 1935,
by virtue of which the Chief Court of Sind had assumed jurisdiction

16. Maulvi Tamiziuklin Khan V. Federation o f Pakistan P.L.D. 1955 Siad 96.
17. Federation o f Pakistan V. Maulvi Tamizuddin Khan P.L.D. F.C. 240.
THE ROLE OF JUDICIAKV 3

to issue writs did not receive such assent it was not yet a law, and
hence that Court had no jurisdiction to issue the writs. In view of
this finding the Federal Court did not go into the other issues.
The main judgment of the Federal Court was delivered by the
Chief Justic, Muhammad Munir, who argued that being a Dominion
within the British Commonwealth, Pakistan’s constitutional structure
and practices were like those of the United Kingdom and other Domi­
nions. Legislation was the exercise of a ‘high prerogative power’
and even when it was delegated by statute or charter to a legislature,
in theory, it was always subject to assent, whether that assent be
given by the King or a person nominated by the King. The necessity
of assent was enjoined in the case of Pakistan so long as it continued
to be a Dominion,, though it was open to that Dominion, if the
Governor-General gave assent to a Bill of secession, to repudiate its
Dominion status. Inte'-preting sections 6(1)’^ and 8(1)'® of the Indian
Independence Act, 1947, the Chief Justice held that the combined
meaning of these two sections could not be other than that the
Constituent Assembly, even when exercising the constituent powers
in making constitutional laws, was the legislature of the Dominion.
“ That being the position,” Munir, C. J. concluded, “ There can be
no escape from the conclusion that the Governor-General’s assent
to the laws made by the Constituent Assembly is as necessary as his
assent to any future legislature of the Dominion brought into exis­
tence by the Constituent Assembly to replace itself.” ^« The Chief
Justice declined to consider the fact that since the inception of
Pakistan all organs of the government including the judiciary had
acted on the assumption that assent to the constitutional laws was
not necessary. In this connection Munir, C. J., held that the
doctrine of contemporanea expositio would apply only when there
was any doubt about the meaning of the provisions of the statute.
His lordship, in the instant case, did not entertain any doubt as to
the meaning of the material provisions.

18. “ The Legislature of each of the new Dom inions shall have full power
to make laws for th at D om inion . . . ”
19. “ In the case of each of the new Dominions, the powers of the Legisl­
ature of the D om inion, shall, for the purpose of making provisions
as to the C onstitution o f the Dominion, be exercisable in the first
instance by the C onstituent Assembly of that Dominion. .
20. P.L.D. 1955 F.C. 240, a t p. 289.
6 CHOUDHURY

Dissenting from the majority, Cornelius, J, as he then was, held

that the ‘independent’ Dominion of Pakistan, though a member of
the Commonwealth, was different in status from the older Domi­
nions, and the Constituent Assembly having been created by a
'supra-legal’ power to discharge the ‘supra-legal’ function of making
a constitution for Pakistan, its constitutional laws were not subject
to the ‘qualified-negative’ assent of the Governor-General.
Chief Justice M unir’s judgment has been viewed variously by
different authorities.^* But on an analysis of the circumstances
leading to the case it would perhaps not be an exaggeration to say
that here in this case Munir, C.J., was certainly confronted with a
dilemma as the Chief Justice of the United States of America, John
Marshall, was confronted more than one hundred and fifty years
ago.22 If he were to uphold the judgment of the Chief Court of
Sind probably in the face of almost certain disobedience by the
Governor-General, the Court would be powerless, and if he were
to reverse that judgment the authoritarian Governor-General would
triumph. In such a situation the Chief Justice found, as was f o u n d
by his great American counterpart, that the law empowering the
superior courts to issue writs was unconstitutional and invalid
because of the lack of Governor-General’s assent.

The allegation of subservience^^ of the Court to the wishes of

the autocratic Governor-General would perhaps be a harsh remark
on the Court. It may, however, be time that having closely observed
the autocratic style of administration in the country since its
inception, and being fully conscious of the contemptuous attitude
of the ruling clique towards popular rule, principles of democracy
and constitutionalism, Munir, C.J., wanted to avoid direct confron­
tation with the clique without, of course, tarnishing the authority

21. See K.C. Wheare, The Constitutional Structure o f the Commonwealth

(Oxford University Press 1960). p. 100; S.A. de Smith. “ Constitutional
Lawyers in R evolutionary Situations”, Western Ontario Law
Review, 93; A. Gledhill, “The Constitutional Crisis in Pakistan”,
(1955). Indian Year Book o f International Affairs.
22. Marbury v. Madison, 1 Cranch 137 (1803), See for the Amerian Dilemma
Henry J. Abraham, The Judicial Process (OUP 1980) p. 329.
23. See, S.A. de Smith, “Constitutional Lawyers in Revolutionary Situa­
tions”, (1968) 7 Western Ontaio Law Review, 93,
THE ROLE OF WDICLA.RY '

of the Court. Under the garb of apparent strict legality he tried

to maitain a balance between the authority of the Court and the
stubborn attitude of the executive. That the Chief Justice was not
prepared to connive at every anti-constitutional and anti-people
action was aptly proved by his strong observation he made in the
case^"* that arose out of his ju d g m e n t in Afaz/Zw Khan’s
case.
It may be noted that the Federal Court in Tamizuddin Khan's case
refused to go into the legality of the Governor-General’s action in
dissolving the Constituent Assembly. However, as a result of the
Court’s finding forty-four Constitutional Acts, by implication, became
invalid for want of assent of the Governor-General. The Governor-
General, thereupon, declared a grave emergency throughout the
coimtry and purporting to act imder section 42(1) of the Govern­
ment of India Act, 1935, issued and promulgated the Emergency
Powers Ordinance, 1955.25 The Ordinance, after narrating that the
Federal Court’s judgment by invalidating certain constiutional Acts,
had caused a breakdown of the constitutional machinery, purported
to validate retrospectively thirty-five of the Acts, listed in the Sche­
dule to the Ordinance,
The above Ordinance came for examination before the Federal
Court in the case of Usif Patel v. Crown.'^^ The Court held that
the Governor-General could not, by Ordinance, validate any of the
laws, which had become invalid for want of his assent. Muhammad
Munir, C.J., held, on the authority of Tamizuddin Khan's case
discussed above, that the Governor-General’s power to make Ordi­
nance did not go beyond the Federal Legislature’s power to make
laws. The power of the Legislature of the Dominion to make provi­
sion for the Constitution of the Dominion could, under section 8(1)
of the Independence Act, 1947, be exercised only by the Constituent
Assembly, and that power could not be exercised by the Assembly
when it functioned as the Federal Legislature under the Govt, of
India Act, 1935. Therefore, if the Federal Legislature was incom­
petent to pass laws amending the Constitution Acts, the Governor-
General possessing no larger power than the Federal Legislature was

24. V sif Patel V. Crown, P.L.D. 1955 F.C. 387

25. Ordinance ix of 1955, P.L.D. 1955 Centra! Statutes 63,
26. P.L,D. 1955 F.C. 387.
8 CHOUDHURY

equally incompetent to amend either of the Constitution Acts by

Ordinance. The Governor-General could give or withhold his assent
to the legislation of the Constituent Assembly. But the Governor-
General, argued the Chief Justice, was not the Constitutent Assembly
and, on its disappearnce he could neither claim power which he
never possessed nor could he claim to succeed to the powers of the
Assembly .2'^
In the course of his judgment the Chief Justice referred to the
statement made by counsel for the Federation in Tamizuddin Khans
case regarding the constitutional position consequent upon the
dissolution of the Constituent Assembly. His lordship cited a por­
tion which implied that immediate steps were being taken to hold
elections to a new Assembly. The Chief Justice observed that it might
well be expected that the first concern of the government would be
to bring into existence another representative body to exercise the
powers of the Constituent Assembly. His Lordship, however, regret­
ted that events showed that other counsels had since prevailed. The
Ordinance (ix of 1955) contained no reference to elections, and all
that the learned Advocate-General could say was that they were
intended to be held.^^ It may also be noted that not only the Ordi­
nance contained nothing about the representative body that the Chief
Justice referred to, on the contrary, section 10 of the Ordinance (ix of
1955) contained an ominous provision empowering the Governor-
General to make, by order, such provisions as appeared to him to be
necessary or expedient for the future constitution of the country.
The situtation was worsened by the irresponsible public utterances
o f M ajor-General Iskander Mirza, the then Minister of the Interior,
who as the spokesman of the regime had nothing but contempt for
democratic and constitutional processes.^® In the circumstances, it
was apprehended in the political and judicial circles that a constitu­
tion of the regime’s liking would be promulgated by t!ie Governor-
General’s decree. It was in this background that the Federal Court
in U sif Patel's case rose to the occasion and held the Governor-
General’s Ordinance void which smacked of authoritarian rule devoid

27. l i W a t p . 392
28. Ibid p. 401
29. See, for M irza’s Statem ents on Political process and ‘controlled
democracy’, Dawn, 31 October and 15 November, 1954.
 THH ROLE OF JUDICIARY 9

of democratic principles. It was the strong criticism of the Chief

Jiistice that the Governor-General and his lackeys were dissuaded
from exercising powers under the Ordinance (ix of 1966). Paying
heed to the Chief Justice’s remarks the Governor-General issued
the Constituent Covention Order, 19553“, providing for the sett­
ing up of a “ Convention” to make a Constitution for the coun­
try and also issued and promiilgated a new Emergency Powers
Ordnances, 19553* assuming to himself, until other provisions
were made by the Constititent Convention, such powers as were
necessary to validate the invalid laws in order “ to avoid a
a possible breakdown in the constitutional and administrative
machinery of the countrry and to preserve the state and main­
tain the Government of the country in its existing condition.”
In exercise of these powers the Governor-General retrospectively
validated and declared enforceable the laws listed in the Schedule
to the EmergencN’ Powers Ordinace (ix of 1955), These pow'ers were
exercised by the Governor-General subject to any report of the
Federal Court on the constitutional position referred to it by the
Governor-General under section 213 of the Government of India
Act, 193 5 32.
Thus, at last the Governor-General had to seek the advice of the
Federal Court to help him out of the constitutional crisis w'hich he
himself created. The question referred to the Federal Court^^ covered
the scope of the Governor-General’s powers and responsibilities in
governing the country before the proposed ‘Convention’ passed the
necessary legislation; and whether, in view of the Federal Court’s
decision in Usif Patel'?, case, the Governor-General had any power
under the Constitution or any rule of law to declare the invalid laws
to be part of the law of the land until their validity was determined
by the proposed ‘Convention’. During the hearing of the Reference,
however, at the instance of the Court, two more qiiestions were
added. One was whether the Constituent Assembly was rightly
dessolved by the Governor-General, and and the other, whether the
proposed Constituent Convention would be competent to exercise

30. G.G. ‘s O. VIII of 1955. P.L.D, 1955 Central Statutes 118,

31. P.L .D , 1955 Centra! Statutes 113.
32. Ibid. See the provisions of the Ordinance.
33. Reference by H. E. the Governor-General P. L.D. 1955 F.C. 435
2—
10 CHOUDHURY

powers conferred on. the Constituent Assembly by section 8 of the

Indian Indepence Act.
The majority opinion of the Federal Court given by Munir, C J .
held that the first question was too general and need not be answered.
On the second question the court said that “ hi the situation presented
by the Reference, the Governor-General has, during the- interini
period, the power under the common law of civil or state necessity, of
retrospectively validating the laws listed in the Schedule to the Emer­
gency Powers Ordinance 1955, and all these laws, until the question
of their validation is decided upon by the Constituent Assembly, are
during the aforesaid period valid and enforceable” .^'* In expounding
the doctrine of state necessity the Chief Justice referred to Lord
Mansfield’s address to the Jury in George Stratton’s easels and the
opinions of Chitty and Bracton on the doctrine of state necessity,
and observed that “'iiecessity' makes lawful that which otherwise is
not lawful” . In this context considermg the condition following the
decision in Usif Patel's case Munir, C.J., held that ‘'the Governor-
General must, therefore, be held to have acted in order to avert an
impending disaster and to prevent the state and the Society from
dissolution” .^®

On the all-important question of the dissolution of the Constituent

Assembly, the Chief Justice examining the scheme of the Indian In ­
dependence Act, 1947, and following tlie principle enunciated
by the House of Lords in De Keyser’s Royal Hotel case” held that
the absolute and unqualified prerogative right of the Crown and of
the Governor-General as the representative of the Crown to dissolve
the Assembly had ciearly been taken awa>'.^^ He, however, observed
that where a statute made provisions for a particular situation it
excluded the common law. But if the situation was entirely beyond
the contemplation of the statute, it would be governed by common
law. In the instant case the Constitution Acts assumed that the
Constituent Assembly would frame a constitution within a reasona­
ble time; it was not given power to function as long as it liked and

34. Ibid. at pp. 520-21

35. 21 Howard’s St. tn’al 1046.
36. P.L.D. 1955 F.C. 435 at p. 486
37. Attorney General \. De Keyser's Royal ffolel, (1920) A.C. SOS.
38. P.L.D. 1955 F.C. 435 at 452.
r a e ROLE OF JUDICIARY 11

assume the form of a perpetual or indissoluble legislature. In this

context, accepting the statement of facts made in the Reference that
the Coiitsitucnt Assembly had failed to fulfil its task and acted
illegally or in a manner different from the one it was intended to
function, Munir, C.J., held that the common law prerogative, which
was kept in abeyance must be held to have revived, when it became
apparent to the Governor-General that the Constituent Assembly
was unable or had failed to provide a constitution for the country.
In view of this the Court came to the conclusion that “ the Governor-
General had under scction 5 of the Indian Independence Act, legal
authority to dissolve the Constituent Assembly.”^’
Dealing with the question of the competence of the proposed
Constituent Convention, Munir, C.J., following the same principle,
held that in the absence of statutory prohibition, the Govcrnor-G Jnc-
ral had under common law the power to create a fresh Constituent
Assembly to prepare a constitution for the counti7 . The only legal
requirement in setting up a new body was that it should be a repre­
sentative one. The term ‘Convention’ being misleading, the new
body should be called the Constituent Assembly which would have
all powers exercised by the dissolved Constituent Assembly.^®
Dissentiitg from the majority, Cornelius and Sharif, JJ, held that
the Governor-General had no authority to validate the invalid laws,
whether temporarily or permanently. On the application of the
doctrine o f ‘state necessity’, Sharif, J., pointed out that general appli­
cation of this doctrine could lead to dangerous situation where the
Head of the state might be tempted to tamper with the constitutional
structure itself.
In the Special Reference case, the Federal Court gave its opinion
in the cxercise of its advisory jurisdiction. The Governor-General’s
authority temporarily and retrospectively to validate the invalid laws
was subsequently recognised by the Federal Court in a contentious
case.'*2 Munir, C.J., distinguished Usif PateVs case where validation by
the Governor-General was held to be beyond his power “ because by
the validating Ordinance, the Governor-General claimed for himself

39. /W r/atp . 486.

40. p.p. 472-475
41. /6/Wat p. 519
42. Federation o f Paliistan v. A Ahmad Shah, P.L.D. 1955 F.C. 522
12 CHOUUHtFRY

the power to vaUdate, without any reference to, and in the absence
of the legislature, whereas, in the present case, the validation is only
provisional and subject to legislation by the Constituent Assembly.”''^
The end result of these judgments was that status quo in the legal
structure was to be maintained till the new Constituent Assembly
decided on the issue.
On an analysis of the above discussion it would be seen that
although the Federal Court’s decision in Maulvi Taniizuddin Khan's
case and its opinion in the Special Reference case were not free
from the allegation of having a taint of political bias,'*'* these
decisions, without doubt, contributed much in overcoming an
unprecedented constiutional crisis created by an autocratic Gover­
nor-General. It might be alleged that the Federal Court’s decision
in the Maulvi Taniizuddin Khan's case might have encouraged the
Governor-General with the support of his coterie, to take unto
himself the power to give a constitution to the country according
to his ideas. The fact that the Proclamation dissolving the Cons­
tituent Assembly contained a promise of fresh elections which was
totally forgetten while issuing the Emergency Powers Ordinance
(ix of 1955) which empowered the Governor-General to provide
for a suitable constitution as he deemed fit and necessary, may be
cited to support the allegation. But it must be admitted that the
Court’s strong observations in Usif Patel’s case had been able to
restrain the Governor-Genenral from exercising the constituent
pov/er and made him submit to the Court seeking its advice in
tiding over the crisis. The Federal Court, not only advised the
executive to leave the task of constitution-making to the represen­
tatives of the people, it at the same time, enabled the Governor-
General to take appropriate measure to run the administration
according to law temporarily for an interim period by invoking the
common law doctrine of ‘state necessity’. This was hideed a great
contribution on the part of the Federal Court to guide the country
on the path of democracy and constitutionalism.
Soon after the Federal Court’s opinion in the Special Reference
case, elections to the new- Constituent Assembly were held and it was

43. Ibid. at p. 529

44. See S.A. de sm ith, “ C onstitutional Lawyers in Revolutionary S itu a ­
tions”, (1968) 7 Western Ontario Law Review, 93.
THE ROLE OF JUDICIARY 13

convened forthwith to deliberate on the burning legal and constitu­

tional issues. Apparently, having learnt a lesson through the fate
of its predecessor, the second Constituent Assembly took only
about two months from the date of the publication of the draft cons­
titution to finally adopt it on 17 Februrary, 1956 which came into
effect on 23 March, I956.‘‘5
But “ the Constitution which emerged nine years after iudepeii-
deticc, the product of so much turmoil and strife, had a very short
lifc.”'*'^ It could not give the expcctcd political stability in the coun­
try due to dissension among political leaders on both fundamental
and petty issues. However, in the course of thirty months of its
working, when the country was preparing for the first ever general
elections scheduled to be held m Fcbmrary, 1959,“*^ by a Proclama­
tion'*® of the President issued on the night of 7 October, 1958, the
Constitution of 1956 was abrogated, the national and provincial
legislatures were dissolved, the Central and Provincial Governments
were di smissed, all pol Itlcal parties were abolished and martial law
was declared throughout the counti'y. The President appointed General
M .A y u b K h an , the then army Chief, as the Chief Martial Law
Administrator with supreme command over all the armed forces.
On 10 October, 1958, three days after the abrogation of the Con­
stitution of 1956, the President issued the Laws (Continuance in
Force) Order, 1958'^!^, which turned out to be the principal constitu­
tional document for the m artial law period.
The Laws (Continuance in Force) Order, 1958 which was deemed
to have taken effect immediately upon the making of the Procla­
mation, provided that subject to the Proclamation, any Order of
the President or Regulation made by the Chief M artial Law Admi­
nistrator, the country was te be governed as nearly as possible In
accordance with the abrogated constitution. The powers and

45. Seo A. G ledhiil, Pakistan (2nd Edition, Stevens 1967) pp. 81-83.
46. Ibid. p. 101.
47. See for oleclioa alliances and other political background, K.B. Sayeed,
The Political System o f Pakistan (Boston, 1967), pp. 90-91; G. W.
Clioudhury, Constitutional Development in Pakistan ( Longman 1959 )
p. 255.
48. Gazette o f Pakistan, 7 October, 1958, also, P.L.D. 1958 Central S tatute
577.
49. P resident’s O rder (post-proclam ation) No. 1 of 1958.
 14 c iio u D iiU R y

jurisdiction of civilian authorities were not interfered with, but all

these had now to function subject to the orders and directions of
the Chief M artial Law Administrator or authorities designated by
him. The Supreme Court and the High Courts retained their
powers and jurisdiction including their power to issue writs, but
they were not to call in question the President’s Proclam ation of
7 October, any Order made under the Proclamation, or M artial Law
Order or Regulation or findings or judgment of any military court.
All orders, and judgments made or given by the Supreme Court
before 10 October, 1958 were valid and binding, but saving thoss,
no other order or writ made or issued after 7 October would bo
valid unless permitted by the Order, and all applications and pro­
ceedings in respect of any writ, which was not retained by the
Order, would abate. All laws in force, except the late Constitution,
subject to the Orders and Regualtians made by the President or the
Chief Martial Law Administrator, were to continue in force until
altered, repealed or amended.
In such extra-ordinary circumstances, the Supreme Court of
Pakistan was called upon to determine the legality of the regime
which had abrogated the Constitution of 1956, abolished or
destroyed the legal order under it, and established entirely a new
one backed by the armed forces of the country. There was no
doubt in the minds of the people concerned, and the regime also
did not attempt to hide the fact that the entire armed forces were
behind the coup. In the State v. Dosso^'^ the question arose whether
a writ issued by tlie West Pakistan High Court under the provisions
of the abrogated Constitution had abated by virtue of the
provisions of the Laws (Continuance in force) Order. The Supreme
Court, by a majoritty (Cornelius, J. dissenting) held that it had,
inasmuch as the late Constitution itself had been abrogated; the
Court recognised the Laws (Continuance in Force) Order as the
‘new constitution’ which determined the jurisdiction of all courts
including the Supreme Court. The Court took judicial notice of the
President’s Proclamation of 7 October, 1958 abrogating the Consti­
tution which both the President and the Judges were oath-bound
to “ preserve, protect and defend” , and accepted the position
provided for in the Laws (Continuance in Force) Order of 10
October 1958.
50. P.L.D. 1958 S.C. 533
THE ROLE OF JUDICIARY 15

Muliammad Munir, C.J., who gave the main judgment of the

Court, in a detailed discussion of constitutional changes maintained
that an abrupt political change, not contemplated by the existing
constitution emerging as a ‘victorious revolution’ or a ‘successful
coup (V e ta t' was an internationally recognised method of changing
a constitution. He said,
‘It sometimes happens___that a constitution and the national legal
order under it is disrupted by an ab ru p t political change not
within the contem plation of the constitution. A n y 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’,51
The learned Chief Justice pointed out that a revolution was
generally associated with public tumult, mutiny and bloodshed, but
‘from a juristic point of view the method by which and persons by
whom a revolution is brought about is wholly im m aterial.....
Equally irrelevant in law is the motive for the revolution...... ’ For
the purpose of the dectrine ‘...... a change is, in law', a revolution
if it annuls the constitution and the annulment is effective’. In
support of his view Munir, C.J. applied the positivist theory of
‘efHcacy’ propounded by Hans Kelsen and quoted extensively
from his famous work General Theory o f Law and State^^ and came
to the conclusion that the revolution having been successful, it had
satisfied the test of ‘efficacy’ and become a basic law-creating fact.
‘On that assumption’, the Chief Justice held, ‘the Laws (Continuance
in Force) Order, however, transitory or imperfect it may be, is a
new legal order and it is in accordance with that Order that the
validity of the laws and the correctness ofjndicial decisions has to
be examined.^3
This historic judgment of Munir, C.J., and endorsed by the
majority of the judges of the Supreme Court gave approval to an
utterly unconstitutional act of an autocratic President who had a
tremendous hatred towards normal democratic political process
and constitutional rule. He was instigated and backed by an
ambitious army general, M. Ayub Khan, who had his own political
designs.S'* The Court simply recognised the ‘abrupt political change’
51. Ibkl. p. 538.
52. H arvard University Press : 1946 (Tr, ByAnders Wedberg).
53. State v. Dosso, Ibid, at p. 540.
54. See M. Ayub Khan, Friends Not Masters, (OUP : 1967) pp. 73-75
16 CHOUDHURY

in, view of its effectiveness’, having no opposition from any quarter.

It did not taice into consideration the objective political condition
obtaining in the counti7 at the material time nor did it think it fit
to examine the validity of the claim of the usurpers that the
Constitutioa of 1956 was unworkable. It also ignored the fact
that llic constitution itself had provisions for its own amendment
which was universally reconised m ethod for bringing about any
necessary change.

Thus, the Court, not only upheld the destruction of a legal

order which was based on a Constitution enshrined with democratic
values and principles, but also, implicitly allowed the usurpers of
power to design and implement a constitution without any heed to
the political sensitivities of the people of the country in general,
and those of the eastern wing in particular. The presidential system
with the extreme centralisation of powers in the hands of the
President under the provision of the Conslitution of 1962 promulgat­
ed by Field Marshal Ayub Khan, was a single major factor
alienating the people of the eastern wing from the main political
stream of the country. The people generally suffered from a sense
of deprivation and lack of participation in the state activities which
ultimately led to the disintegration of the country.^^ Tlie post-1958
political episode in Pakistan seems to have left an ominous legacy
for the two successor states which are still in search of a political
system based on democratic principles. The sad experience of
Pakistan and Bangladesh since their seperation proves the correct­
ness of the prophetic remark made by Professor Gledhill who, while
commenting on the Supreme Court’s judgment in the ease of Dosso
said, “ the course taken by the Supreme Court] was calculated to
encourage an individual weilding supreme power to seek the
approval of the courts for unconstitutional action.^"
The judgment of the Supreme Court of Pakistan in the ^S'/are v.
Dosso has since been referred to in many cases before the highest
courts of different countries. In all these cases the courts were
called upon to deal with the effects of ‘abnipt political change’

55. See Roiinaq Jahan, Pakistan, Failure in National Integration, (OUP :

1973) Ch. VII pp. 143-177.
56. A. Gledhill, Pakistan, the Development o f its Laws and Constitution
(Sterens : 1967) p. 109.
 THE ROLE OF JUDICIARY 17

in their respective jurisdictions and they seem to have agreed in

substance with the view s of Chief Justice Munir that such a change
amounted to a ‘legal revolution’ which the courts perforce of the
circumstances had to recognise.^^ The judgment of Munir, 0 , J., also
drew criticison from commenta.tors. Macfarlane, a political scientist
obsen'cd that the manner in which the Supreme Court of Pakistan
had interpreted the phenomenon of change was fraught with the
danger that the arbitraiy ruler would be free to take whatever
measures he liked and even the courts might be required to find
‘legal’ reasons for his arbitrary measures. ‘In such circumstances
for judges to uphold the decrees of those in power in the name of
lav,' and de jure authority’, Macfarlane pointed ottt, ‘is to mock and
imdermhie ordinary- men’s confidence in the rule of law. It is one
thing to argue...that men cannot be required to behave ui conformity
with norms of a total legal order which has passed away; quite
another to conclude, as the Pakistani ... judges have done, that this
requires that the cotirts of the old order are required to validate the
norms of its effective replacements,
It is to be noted that what happened in Pakistan in October, 1958
then an isolated incident in the Commonwealth became, with the
exception so far,' of India, Malaysia Singapore and a few other
countries, a patterji for the newly liberated Commonwealtli and
other third world countries. In most cases the army and other forces
established, patronised and used by the former colonial administrators
to suppress popular movements for liberation and independence, in
collaboration with each other, overthrew the constitutional regimes
on allegations of cormption, inefficiency and oppression and usurped
the power with the grand promise of establishing honest, efficient and
fonvard-looking administration based on ‘true’ democratic principles.

57. See the Ugandan case of Uganda Commissioner o f Prisons, ex parte

Matuvo, (1966) E.A. 514; the Rhodesian cases of Madzimbamuto v.
L a r d n e r - B u r k e ,{ m « ) 2 ^ .\.2 U (R.A.D.); R .Y . Ndholvu, (1968) 4 S.A.
514 (R.A.D.) The Judicial Com m ittee of the Privy Council though
refused to accept the validity o f Sm ith regime, because B ritain as the
legal sovereign was com m itted to p u t an end to the rebellion, accepted
M unir, C.J., s contention as right, see Madzimbamuta v. Lardner-Burke,
(1968)3 All E.R. 561.
58. L.J. Macfarlane, “ Pronour.cing on Rebellion ; The Courts and the
U .D .l.” (1968) Public Law, 32^.
3—
18 CHOUDHURY

But the experience of nearly four decades of the era of decolonisation

suggests that with a very few rare exceptions, the usurpers of state
power have failed to deliver the promised good; rather, after a short
while of their assuming power tliey indulged in the same vices,
sometimes in greater scale, resulting in coups and coimter coups or,
in the words of Munir C.J., in the succession of ‘abrupt political
changes’, without any substantial benefit for the suffering masses. The
net result being interriiption in the normal political process which,
even the Marxists now admit, is vital for socio-eonomic development
of the people and the mation. The administration set up by the new
rulers invariably deprive the people of their basic democratic right to
participate in the government of their com try, a right for which the
people had fought against their colonial masters.

A case study of Pakistan's constitutional and political development

since the overothrow of the 1956- constitutional government would,
it is submitted, provide a sample pattern of administration which the
usurpers attempt to establish under the garb of a constitutional
system of their own choice. Commenting on the Pakistan Constitii-
tion of 1962 given by the self-made Field-Marshal M. Ayub Khan,
K.J. Newman observed that “ the document bears all the hallmarks of
a constitution devised by the Executive, to be imposed through the
Executive, and for the Executive’’.^*^ As for the motive behind such
a constitutional system, Newman, who was a keen observer o f
Pakistan political development, said, “ what emerges .. is the fact that
the constitution has been drafted in such a way as to perpetuate the
present regime, and to eliminate the competition of political parties
for a long time to come.” ^** The designs of the detractors of
democracy, however, did not succeed and Ayub’s regime was
overthrown by a country-wide popular movement of 1968 - 69
demading establishment of democratic constitutional rule based on
popular mandate. In the melee that followed, Ayiib on 25 March 1969
handed over the power to the Commander-In-Chief of the army who
poclaimed martial law throughout the country, assuimg to himself

59. K.J. Newman, “ The C onstitutional E volution in Pakistan'’ (1962) 38

Inlernational Ajfa rs, 533.
60. K.J. Newman, “ Democracy under C ontrol”, The Times (London), 16
March, 1962. p. 13.
THE ROLE OF JUDICIARY 19

“ the powers of the Chief Martial Law Admiaistrator and the

command of all the armed forces of Pakistan.” ®'
It is significant to note that though some concrctc political
demands had emerged out of the Round Table Cocference*^ con­
vened by Ayub Khan in early March, 1969 to tackle the political
crisis that had been raging the cotinti^ during the past one year,
Ayub Khan and his henchmen refused to accommodate them in the
existing political system. They preferred to impose military rule
which was bound to be West Pakistani dominated because of the
composition of the armed forces and thus estranged the people of
the eastern wing further. In the events that followed, the military
rule could not hold the two wings together leading to the secession
of the eastern wing to become the soverign state of Bangladesh.
The March, 1969 coup d'etat like its predecessor of October, 1958
also camc for judicial scnitiny before the same Court in 1972. It is
heartening to note that the Supreme Court, this time, overruled the
State v. Dosso and held the military take over as il legal The
Court headed by Hamoodur Rahman, C.J., refused to accept Hans
Kelsen’s pure theory of Law to find a ‘legal revolution’ in the
change that took place in the country on 25 March, 1969. The Chief
Justice noted with apparent approval the views of Mr. A.K. Brohi
appearing as amicus curiae, that the Supreme Court in Dosso's case
accepted Kelsen's theory as a “ question of law itself, although it
was nothing more than a ‘question about law’ and no legal judgment
could possibly be based on such a purely liypothetical proposi­
tion”.®'* In analysing Kelsen’s theory he found that it was never
accepted universally and that Kelsen never admitted to support
totalitarianism. His lordship, therefore, agreed with the ‘criticism’
that “ The Chief Justice o f the Supreme Court [in Stale v. Dosso]
not only misapplied the doctrine of Hans Kelsen but also fell into
error in thinking that it was a generally accepted doctrine of modern
jurisprudence” .®’ The Chief Justice held : ‘‘The Principle enuncia­
ted [in Dosso's case,] is wholly unsustainable and it cannot be treated

61. F o r full text of the Proclam ation, sec Gazelle o f Pa/ciitait, 25 Murch,
L69.
62. See for details, S.M. Zafar, Through the Crisis, (Lahore : 1970)
63. Miss Asm aJihni v. Govt o f the Punjab. P.L.D. 1972 S.C. 139
64. Ibid. at p. 171 and also see pp. 178-181.
65. Ibid. p. ISl.
20 CHOUDHURY

as good law either on the principle of stare decisis or even other-

wise” .®'' Having held that “ the military rule sought to be imposed
upon the country by General Agha Mohammad Yahya Khan was
entirely illegal” , His Lordship, however, proceeded to ‘Condone’
or ‘mamtain’, on the basis of necessity, certain acts, legislative or
otherwise, of the regime “ notwithstanding their illegality in the
wider public interest. I would call this a principle of condonation
and not legitimization”.”
The case of Miss Asma Jilani discussed above is quite relevant
for our purpose because the Supreme Coiu't in this case had ruled on
a situation occurred during the period under our consideration. It
is to be noted, however, that the same Court within five years of its
pronouncement on Martial Law of 1969 had to deal with a similar
situation in Bhutto y. Chief o f Army Staff & others.^^
The constitutional government of Prime Minister Z.A. Bhutto was
ousted by the Commander-iti-Chief of Pakistan Army, General
Muhammad Zia-id-Haq on 5 July 1977 who proclaimed martial law
throughout the country. A brief mention of this case woaild, it is
submitted, also be relevant in the contcxt of our discussion about the
impact of abrupt political changc on a coimtry’s political develop­
ment. The Supreme Court o f Pakistan, following Miss Asma Jilani s
case, refused to validate the military rule of General Zla-ul-Haq on
the basis of i t s ‘effectiveness’, and to see a ‘legal revolution’ in the
change, and held that the abrupt political change was “ merely a
case of constitutional deviation for a temporary period and for a
specified and limited objective, namely, the restoration of law
order and normalcy in the country, and the earliest possible holding
of free and fair elections for the purpose of restoration of democra­
tic institutions under the 1973 Constitution” .
In giving the main judgment of the Court the Chief Justice of
Pakistan, S. Anwarul Haq discussed at length Kelsen’s pure
theory o f law, other authorities on the subject and also similar cases
decided in foreign courts and readied the conclusion, as did liis
predecessor Ham oodur Rahman, C.J., that the judgment of the

66. Ibid’P .m .
67. Ibid. p. 207.
68. P.L.D. 1977 S.C. 657.
69. Ibid. p. I'll, per S. Anwarul Haq C.J.
IHU ROLE OF JUDICIARY 21

Supreme Court in Dosso's ease was not based on correct interpreta­

tion of any legal doctrine. The Chief Justice I’eiteratcd that Kelseu’s
pure theory of law was not universally accepted as a legal doctrine;
it was “ also open to serious criticism on the ground that, by making
effectiveness of the political change as the sole condition or criterion
of its legality it excludes from consideration sociological factors of
morality and justice which contribute to the acceptance or effecti­
veness of the new Legal Order. The legal consequcnces of such a
change must, therefore, be determined by a consideration of the total
miheu in which the change is brought about including the motivation
of those responsible for the change; and tlie extent to which the
legal order is sought to be preserved or suppressed” .™

Pointing out the fact that the Court in Asma Ji/ani’s ease had to
determine ex post facto the legality of the acts of the past military
regime functioning since 25 March, 1969, till 20 December, 1971, and
thus had enunciated tlie doctrine of ‘condonation,’ the Chief Justice
observed that in the instant case the Court had to extend validity
to certain acts of the regime aiincd at achieving ‘the specified
and lijnited objectives’ namely, the holding of general elections and
restoration of democratic institutions under the Constitution. While
the learned Chief Justice did not consider it appropriate to issue
any directions as to a definite time-table for holding the elections,
he made a signilicanl observation expressing the Court’s sincere
expeetation in that regard. His Lordship observed ;
“ ... the court would like to state in clear terms that ith a sl'o u iid
it possible to validate the extra-constitutional action of the Chief
M artial Law A dm inistrator not only for the reason th at he stepped
in to save the country at a time of grave national crisis and Consti­
tutional breakdown, but also because of the solemn pledge given by
him that the period of constitutional deviation shall be o f as short
a duration as possible, and that during this period all his energies
shall be directed towards creating conditions conducive to the hol­
ding of free and fair elections, loading to the restoration of dem ocra­
tic rule 'n accrodanee with the dictates of the C onstitution, the C ourt
therefore, expects the Chief M artial Law A dm inistrator to redeem
this pledge, which m ust be construed in the nature o f a mandate
from the poeple of P ak istan . ,.” 7i

70. Ib id .p .l2 \.
71. Ibid. p . m .
22 CHOUDHURY

Unfortunately, however, the expectation of the learned Chief

Justice did not comc tnie. The Chief Martial Law Administrator,
contraiy to his own solemn promise and the expectation of the Chief
Justice, took a series of steps, including amending the Constitution
by decrees, which would prolong his stay in power and ultimately
creating a situation devoid of political process in the country leading
to his own election to the office of the Pesident, weilding absolute
powers according to the amended Constitution. After eleven years,
of General Zia-uI-Haq’s assimiing power through a coup d' etat, on
the eve of his death in a plane crash in August, 1988, there was no
sign of normal democratic processes visible in the political horizon
of Pakistan.
It was only after General Zia-ul-Haq’s death that through a
free and fair elections held in November, 1988 and participated by
all main political parties that a democratic Government on the basis
of popular mandate has been installed in the office. But in late 1989
It appears that Pakistan cannot possibly, be said to have overcome
the political crises which have become endemic in its political life
through frequent interruptions.'^^ The same is the case, it can safely
be submitted, with most other countries where normal political
processes have been deliberately interrupted by anti-political forces.
In the light of the above discussion and having found that the
judgment in the Slate v. Dosso has been rather connter-productive
in the sense that instead of helping the country move towards pro­
gressive constitutional development, it had recognised a situation
where might could be considered as right and as a ‘constitutional
fact’ in the political arena, it remains for us to comment on the
proper role of the judicial^ in such a sititation. It may at once be
recalled that eveji the sincerest expectation of the highest court,^^ of
going back to constitutional rule could be ignored with impunity by
^he usurpers who, in the name of the people’s right and liberty sup­
press them without fail and establish personal rule in the countiy.

72. Sco Sangbad, 28 August, 1989. An editorial catitied “Democracy under

Challenge, N ot Benazir B hutto,” analysed the political situation of
Pakistan tracing the constitutional history .since the first military croup
in O ctober, 1958.
73. Begum Nusrat Bhutto v. Chief o f Army Staff, P.L.D. 1977 S.C. 657.
THE ROLE OF JUDICIARY 23

It is in tiic above context the judiciary, it is humbly submitted,

should be willing to play a role commensurate with the hopes an,d
aspirations of the people who have the fundamental right to parti­
cipate in the government of the counti^. Any situation which is
designed to stifle the democratic process must be opposed by all
concerned including the judges. Admitting the long established
principle that the courts fuixction within the limited sphere of state
activity to apply law as they are, which ‘pre-supposes an estab­
lished government capable of enacting laws and enforcing their
execution','^'' would it not fall within the sphere of judicial power to
examine the natxire and status of the ‘established government’ with­
in a constitutional framework which provides specific functions for
each organ of the government and also the procedure for effecting
necessary change in the framework through constitutiojial amend­
ment ! In a modern written constitution the judiciary, generally, is
given the constitutional right and dut>' to protect and uphold the
principles of the constitution in accordance with its letter and spirit
and the courts will be failing in their constitutional responsiblity, it
is subinitted, if they abdicate this authority in favour of a situation
created deliberately countrary to constitutional contemplation.
If it is accepted to be a basic constitutional rule that the govern-
]iient must be run on the basic of the consent of the governed, the
court must ensxtre, whenever situation warrants, the fimctionhig
of democratic process enabling the people to make their choice of
governmet through free and fair elections. If the court fails to uphold
this right of the sovereign people, its role could possibly be seen to
be devoid of political reality, in the sense that its judgment would be
contrary to the hopes and aspiration of the people.''^ The judgment
in the State v. Dosso might be appropriate, indeed should be appro­
priate, in a siluation where a foreign or dictatorial oppressive rule
is overthrown by pop;ilar ;iprising establishing a new legal order on
the basis of popular consent as the first constitution of extra-legal
origin, as envisaged by authors of text-books on jurisprudence.'^®
But such a change in the legal order must not be equated with

74. Per Taney, C.J. in Lttlher V. Borden, (1849)7 Howard 1

75. C.J. Madzimbamuia v. Lardner-Bi,rke (1968)2 S.A. 284, observation of
Beadle C.J. a t pp. 329-330.
76. See, foi; example Sir John Salmond, Jurisprudence (12th ed. 1966) pp.
84-85 G.W. Paten, A T exl-B o d k on Jurispmdenee (2nd. ed. 1951) p. 12,
24 CHOUDHURY

unwarranted intervention in normal political process contemplated

by the established constitutional arrangement.
Analysing the experience of decades of dictatorial or near-
dictatorial niie in the countries of Asia, Africa and Latin America, it
can be easily established that the system is neither capable of ensii-
rmg political stability nor can it advance the socio-ecoiiomic and
political interest of the people at large. Democratic system witli
all i(s shortcomings provides for a built- in system for its own
correction through trial and error method by ensuring the right
of the people to choose their rulers in free and fair elections. The
ji[diciary must, it is submitted, discharge its constitutional responsi­
bility to guide all concerned, whenever called upon to do so, to
ensure this right of the people. The elections are costly and some­
times hazardoiis, but a nation must be made used to bear with the
cost and hazards, if it wants to have a government running the
administration on the basis of the consent of the governed. And
only such a government can ensure basic funamental rights in the
state and socio- economic devlopment in the interest of the people
which are universally recognised to be the main objectives of any
modern sovernment.