The current revival of ‘Doctrine of Necessity’ by the Judiciary is more dangerous for our body politics than its use of this doctrine in nascent years of our history.
When British India was partitioned in 1947, India inherited the infrastructure of British government based in New Delhi, particularly because by accepting the last British Viceroy Lord Mountbatten as the Governor General. It lent certain continuity to British system of governance that prevailed under the British Empire.
Pakistan, on the other hand, being a ragtag collection of some parts of British India that claimed to have Muslim majority but without any ethnic unanimity, could not claim any such continuity more so because of its disinclination to accept Lord Mountbatten as the Governor General, which left it with no institutional structure to start with. Civil Services that Pakistan inherited were merely a shadow of their past. Judiciary was almost ineffective except in criminal matters while the Executive after the passing away of Quaid-e-Azam, was in doldrums, torn apart by hubris and ambition of politicians - most of whom were opportunists and sought power for the sake of using it to undermine their opponents.
In their pursuit, they were prepared to go to any extent even assassination, first of which occurred when Liaquat Ali Khan was shot dead while addressing a public meeting in Rawalpindi in 1951. The only institution that Pakistan inherited and which had a modicum of any organization or discipline was the Army, which was due to the fact that the Pakistan Army was essentially part of the British Indian Army and had the same mores and culture.
The warring politicians, who succeeded Liaquat Ali Khan in office being part of the Executive, immediately came into conflict with the Legislature because it was also the Constituent Assembly and was commissioned to give a Constitution to the nascent country about the nature or provisions of which there was no agreement amongst them, because of their ethnic differences.
However, one thing was certain that it was to be a democratic constitution a basic feature of which, as enunciated by the French Political scientist Montesquieu, is that of Separation of Powers that is Executive, Legislature and Judiciary were to be separate and were to function independently of each other, thereby providing a system of checks and balances. Since this would entail curtailing the power of unscrupulous politicians, it was obviously not palatable to them. Nor for that matter was it acceptable to Civil Services for the same reason. Consequently, a member of Civil Service at the time i.e. Ghulam Mohammad, who had manipulated to install himself as the Governor General, dismissed the Constituent Assembly in April, 1953 and a crisis ensued. When the matter came before the Judiciary, initially the Judiciary withstood the pressure but eventually succumbed to it, resulting in the passing of the infamous judgment by Justice Munir, in what came to be known as Maulvi Tamizuddin’s case. Justice Munir bent the law backwards and evolved the “Doctrine of Necessity” to favour the bureaucracy, thereby upholding Ghulam Mohammad’s illegal move to dismiss the Constituent Assembly.
Thus began the dominance of Judiciary by Executive in Pakistan to the extent that Judiciary became almost a handmaiden of the Executive. Later in 1958 when Ayub Khan imposed martial law and the Executive acquired teeth by the Army becoming part of the Executive, Legislature, the other arm of the government, became irrelevant because it was the Army that dictated as to what laws the Legislature would make in order to ensure that the Army remained Supreme.
As the power of Executive waned due to series of martial laws, the only institution to which the people generally and for that matter even the Legislature could look up to uphold their respective interests was the Judiciary. But because of the position of Judiciary being undermined for so long it was in no position to decide things independently and became party to political wrangling throwing its weight on the side of one contestant for power or another, thereby losing its moral strength to the extent that it even turned a blind eye to Judicial murder of an elected Prime Minister Zulfikar Ali Bhutto in April, 1979.
It is indeed ironical that the institution responsible for the undermining of the Judiciary, that is the Army, by a strange quirk of fortune caused the revival rather resurgence of Judiciary. This occurred when Gen. Musharraf demanded the resignation of then Chief Justice Iftikhar Choudhry in 2008 and met resistance not by the Chief Justice but by the lawyer’s associations, which were the only organizations in the country that had the intellectual awareness and which understood the principle of separation of powers.
The writer is a former judge of the Sindh High Court. He has been actively involved in human and women’s rights causes.
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