mnptdid not succeed. Ayub concluded that Mujib, an energetic and aggressive the movement. In 7 he again viii st Pakistan where, Fecemb cceeded in Weaning away some of id, be st 1 ee cupporters and In cutting the Six Point jit’ teoen to manageable proportions by a emmuaribution of import licences and other sespinning AVOurs, ne this. the movernent continued and on Tay 147 mas announced that on a Six Point Programme Day would be 1 Feo event was significant enough to take ip Fast Pakistan yet again, in the month of ot uring this visit, Ayub said that demands for army would divide the country, involving aaeiiwfor Fast Pakistan. Later, on his return to, dunt, be abo said that the demand for automany aan amoullage for separation’. It was evident at The ame that his visit had not been as successful as the eather one, but the official view clatmed that the fie Point Movement was osing ts appeal, Meanwhile, pore and more Fast Pakistanis were accepting this programme as minimal. So the word warfare went on Fhti, some months later, events took another and much more dramatic turn. avis mone} Despite Or ew Year's ay Ma The Agartala Conspiracy Case On 7 January, it was made publ. that twenty-eight people had been taken inte cusinly on serious charges. Allof them belonged tw (he eastern province and included officers and meni ot the armed forces as well as three members of the civil service of Pakistan It was also stated that the nifice of the Deputy High Commissioner fur Lowa wes implicated and that the Pakistan governiment liad asked for PN, Ojha,a First Secretary, to be withdrawn. This request as complied with and the Indian government retaliated by expelling M.M. Ahmad, Counsellor at the Pakistan High Commission in Delhi. alleging tat he had distributed arms and money tw subversive Pepsin India. A few days later. it was announced tet Mop, at that time in jail, was involved and Treat Eat tial along with those already under dere fe! Tose steadily with the news that fo make coPitators had visited Agartala in India * Plans by which, with Indian help, an Warwith intinand tune winia 161 independent East Bengal could be established. Hence the Agartala conspiracy case. After the arrests and the excitement associated there with, little was heard of the matter until 22 April 1968, when an ordinance appeared by which a Special Fibunal could be set up to try the conspirators. intitled the Criminal Law Amendment (Special Tribunals) Ordinance 1968,2* it was promulgated by Ayub under Article 30 of the Constitution, relating to the President's powers in an emergency (which had been declared in September 1965) and other Provisions. ‘The ordinance is an interesting piece of legislation because it did not purport to set up a Single, special tribunal to deal with the Agartala case, but made it possible for a special tribunal, at any time, to try any case relating to offences concerned with conspiracy, mutiny in the armed forces, or inciting or seducing a member of the armed forces against or from his allegiance or duty. Thus, under this ordinance, the government could, whenever it chose, put together a special tribunal to deal with the alleged offences. The ordinance contained a section which ‘overrode all laws for the time being including the vidence Act 1872, and the provisions of the ordinance could not be questioned in any court including the Supreme Court. ‘The intention of the government was clear that if Mujib was convicted and sentenced to a substantial term of imprisonment, he could be safely silenced for 2 long time without the constitutional complications inherent in any sole reliance upon the Defence of Pakistan Rules and without the legal difficulties involved in sedition cases before the ordinary courts. On 19 June 1968, the trial opened and was conducted in Dhaka cantonment where the accused were kept in custody. Eleven peoeple associated with the affair had made full confessions and were pardoned. Four of the accused made judicial confessions, All these confessions formed, of course, the testimony of accomplices and even if they corroborated one another, as accomplice-testimony this evidence was clearly tainted. The amount of direct evidence. as it came out in the Court, was limited. During the proceedings, there was some confusion over identification and one prosecution witness was declared hostile and, therefore, made liable to cross- examination by the prosecution. The evidence was extensively reported and provided people with plenty182 Constnutional and Polttioa! History of Pakistan to talk about and discuss, especially in East Pakistan where, in offices and factories, the day's work started with a thorough discussion of the morning's newspaper report. On behalf of Mujib,a British lawyer, T. Williams, QC, appeared before the Dhaka High Court with a Petition that raised a number of weighty and Pertinent constitutional issues relating to the validity of the ordinance under which the trial was Proceeding, The High Court heard Williams, but the Petition was adjourned for further hearing. subject to the condition that the trial would go an, As it turned, out, the petition was rendered infructuons by the government's own action in withdrawing the Agartala case and nothing more was heard of Wilhams' legal ingenuity.* The accused elected not to give sworn evidence in the witness-box, Instead, each of them submitted a written and signed statement to the Court. The burden of all these statements, taken together, was that? fa) None of them had conspired against the state. (b) During interrogation, they had been subjected to inhuman treatment, including various specified forms of physical torture, in arder to extract a confession. (c) Those accused who were members of the armed forces or the civil services had taken no part in politics and did not know the political people implicated in the case. (d) At least one of the accused, Ahmed Fazlur Rahman, said he had been falsely implicated out of spite. As a Deputy Secretary in the Ministry. of Finance of the central government, he had made it his business to conduct his work equitably between the two provinces and had opposed measures which were unfair to East Pakistan or wasteful of the nation’s resources For these reasons, he claimed that he had incurred the dislike of his superiors who happened to belong to West Pakistan. (©) Mujib madea statement in writing giving details of the preceding two years during which he had been moved from one jail to another, the inference being that a man in jail ought to find it difficult to conspire with others outside in order to plan an insurrection, He declared his Innocence and mentioned th the Tashkent Declaration, ®B&day Peng And so the trial wore on and before am was overtaken by polltical events nn) 4 Demonstrations, political and otherwiye (8 the administration and Ayub was forcey Pt! ee, withdrawal of the Agartala case, ‘They '° #ony came to an abrupt end and all the geee**ding released unconditionally" This outcome nae te by the death of one of the accused when feet and bayoncted ‘attempting to escape’ ay yhe as hs version had it, Apart from this traghe inetd armed forces personnel were reinstated wif a of pay. Atay ‘The withdrawal of the Agartala case was event of great significance, Of all the teers! Ayub suffered in the course of his tor ee ary administration, this was the most seriouy ae most humiliating. It was inflicted by East rage and it was the outcome of his duel with Moy fe fact of withdrawal and the circumstances vag, compelled it bear implications of a most soma nature, Either the accused were guilty. that thetena a true bill agsinst them, in which ease Ayub wu evidently bent on saving his own skin ireespectveet the nation’s interests, or they were not gulty in whack case the prosecution should never have bets instituted. Political Developments in West Pakistan: February 1966-November 1988 aid tn defence of Ayub that his poli! ast Pakistan was due to some extensatiog here iste in West It may be failure in circumstances not of his making, But offer in his defence for his political failures it Pakistan, the languages, culture, and way ofhiee people he largely knew. Ayub i bs Contr Nawab of Kalabagh. opted a Nawab of Kalahagh. had adopted apotiey constituent 2 Unit 19 or conniving at violence, as a met ‘They sought to keep together the the province which formed the One Uke, Pakistan. The creation of One Unit in sea political fall-out until October 1958 Hee voll discussed. Some factors that calof the superior courts in relation to special or summary miliary courts. It was clarified that any fourt decision given, judgment passed, writ ordered, fate of process isstied or made in such case were fnetfective. All matters of correctness, legality, ur propriety ofthe exereise of any powers or jurisdiction fyamilitary court or a martial law authority were ta pereferred to the CMLA whose decision therean had tobe final. All questions regarding the interpretation fany mattal aw regulation or martial law order had tobe referred t the martial law authority issuing it and its decision could not be challenged before any court or tribunal including the High Court or the Supreme Court. ‘As fto cut the judiciary to size, a presidential order was passed for the judges of the superior courts, requiring them to declare their assets.” Every judge was to submit to the Supreme Judicial Council a statement of his propertiesand assets on a prescribed form. Such a statement had to include the properties and assets that stood in the name of the judge's parents, wife, or children or any ather peryon. Upon teceiving the statement of assets from «judge, the Council was to make enquir 1 the earrectness of the statement and propriety of acquisition of the assets declared and submit a report to the President setting out its findings and recommendations. It was under this presidential order that eaquties were held {nto the financial affairs of the judges by the Supreme Judicial Council and some judges were found delinquent, One of them resigned whtle full-fledged proceedings for misconduct were held against another who was found guilty and his removal from office was recommended." The Mir Hassan Case What appears to have prompted the CMLA to make Jurisdiction of Courts (Removal of Doubts) Order, 1969 was the case of Mir Hassan. Malik Mir Hassan and others were summoned to stand trial before the special judge (central), Rawalpindi, They filed Fetitions for quashment before the West Pakistan High Court on the ground that allegations against ‘hem did not constitute an offence. While the matter ‘aspending before single judge, orders were passed the martial law administrator transferring these ‘es from the special judge to a special military ‘Yahys's Martial Law = 203 COU. It was urged before the High Court that the oa could not be transferred to the special military Hr ar Pale judge requested the Chief Justice to fer the case toa larger bench. A full bench of three Wdges of the High Court, in one of the most Courageous judgments, upheld the contention of the Petitioners by giving the ruling that the order of transfer of the cases was defective and without Jurisdiction.” It was also held that the promulgation of Martial Law Regulation No, 42 had not in any manner whittled down the power or curbed the jurisdiction of the High Court, as the provisional Constitution Order could not he subjected to martial law regulations or orders, and the jurisdiction of the superior courts of the country had been recognized by Article 6 of the Provisional Constitution Order. Mt was further held that as Article 2 of the 1962 Constitution still held therefore, any direction or order of any authority including a martial law authority, would be invalid if it did not have the backing of a constitutional provision. A few passages from the judgment deserve mention verbatim: Martial law arises from State necessity, and is justified asthe common law by necessity. and by necessity alone, quod mecesst ax cog. defend, Gwhat necessity forces, t justifies), where the cave 4 case of rot rather than a ‘eascof rebellion, asthe necessity isless,sothe discretion these concerned is limited Where the courts are sitting, there is no doubst that (i it 4s time of peace, (a) they are sitting in their own right, and (ii) not merely as licensees of the military power, ‘The jurisdiction af the ordinary courts, therefore, continues to vest in them and the same cannot and has rot been taken away by the proclamation of martial law. “The Provisional Constitution Order isin addition tothe provisions of the proclamation and neither In Uerogation of it nor subject to. I can, therefore, be mended not by 4 martial law regulation or order but by Jmendment of Provisional Constitution Order itself Whether the President and Chief Martial Law “Administrator, who is hse not above the law, can aaa all amend sa question which wil be answered sete the time comes to do ¥0 a recognized rule of law isthe jurisdiction aiken nny xe Te fecessary Implication and that such cannot be excluded unless there is clear Janguage in the statute which isuadonar hal e iherefore, not open t0 anyone 10 &4BUE re a ene ak A general a ‘of superior words or jurisdicU4 Constitutional and Poulical nustory of Faxisan by a statute containing no express words to that effect init, Unless, therefore, it could be shown that a martial {aw regulation exists which deprives the ordinary courts of jurisdiction to try offences under the ordinary law, such jurisdiction would exist in its full force, It was no coincidence that the judgment in Mir Hassan's case and Jurisdiction of Courts (Removal of Doubts) Order 1969 came on the same date, 30 June 1969. Constitutional Changes: Dissolution of One Unit Ina nation-wide broadcast on 28 November 1969, Yahya announced far-reaching constitutional developments, outlining the legal framework for the restoration of a federal parliamentary system; the holding of general elections on 5 October 1970.0n the basis of ‘one man, one vote’ the task of framing the Constitutions for the newly elected National Assembly which would have to be completed within 120 days, failing which the Assembly would be dissolved and a new National Assembly elected: the conferment of maximum autonomy on the provinces, consistent with the maintenance of a strong federation; the dissolution of the One Unit in West Pakistan and the restoration of its separate provinces; and permission for the resumption of uncestricted political activity from 1 January 1970. In preparation for the resumption of political activities, a regulation was promulgated in December 1969 by the CMLA laying down rules and guidance for the conduct of political campaigning." According, to this regulation, ‘no political party shall propagate opinions or act ina manner prejudicial to the ideology, integrity, or security of Pakistan's the interests of the common man would be protected against the acquisition of political power through the use of money, force, or coercion; freedom of the Press would be fully protected: and any action which might amount to causing obstruction in the way of holding general elections would constitute an offence under the regulation, In conformity with the reforms announced in November 1969, full-scale political activity in Pakistan, including the lifting of all restrictions on public meetings and processions, resumed from 1 January 1970, but general elections had to be postponed to December because of the di, caused by exceptionally severe floods ing Pakistan, which had claimed about a hundred i," and rendered hundreds of thousands of homeless. People ‘The two decisions taken by Yahya of dispensation with the principle of parity between the two wis the country ending One Unit in West Pakistan hurried and unilateral, He had no mandate to mate these basic constitutional changes which went tothe roots of the understanding between the two wings of the country were made by one of the wings of the country, West Pakistan. The principle of parity ig Tepresentation in the central legislature was the resuk of a protracted and exhaustive constitutional debate in the first Constituent Assembly and had been duly incorporated in both the 1956 and the 1942 Constitutions. It was a sacred pact between the two parts of the country which no General. no matter how powerful could undo. No less than a new Constituent Assembly ar a Constitution Convention could change this pact. This step was certainly a factor that contevhuited to the country’s disintegration. Had the parity 11: representation of the two wings been tnarnt an (sand his party would not have had an absolute anajarity im the mew National Assembly with the unfortunate consequences that followed Much ce be said against the creation of One Unit tn West Pakistan by an unpopular Governor-General 1 1955, yet this was adopted as a constitutional measure by the second Constituent Assembly! and was incorporated tn the first 1956 Constitution of Pakistan. In tact, One Unit and parity between the tivo wings of Pakistan were the basic cornerstones of constitution-making and were mote of less wedded one another West Pakistan, as one pravinice with 46 percent of the population and 85 per cent of the liad area, and East Pakistan, with 54 per cent of the population and 15 per cent of the land area. $0 balanced one another and parity between the ™ Provinces a natural and reasonable arrangement. true that the principle of parity was accepted 19 #* overall sense: not only: in representation but abo 4 the economy, services, military, and so on, which e not been not been adhered to. The answer was dispensing with the principle but in akiCk affirmative steps to achieve true and effectiveoe ee petated Ad I govertmments at Sh 972, Wall KI law or lose the rnattatened to launch Mon of democtacy hand Punjab 0 pave the ultimatum to co-operation of NAD. He 4 mass movement for the ‘The demand was soon RBZ constitutional and Potion) tstory of Pakistan Martial Law Regulation No, 78. The Constitution Petition against the detention of Malik Ghulam filant Was dismissed by the Lahore High Court, relying on the decision ofthe Supreme Coutt in the ease af Sate ePesse holding the lursdiction of Court (Remora PE Doubts) Order 1969 as iris lid, anud ousting the slicton of the courts. ‘The Constitution petition Hat Gauhar also failed Vgh Comet held that it had no relief agavnst martial aw orders {ytubstantilly the same reasons giver by the palers igh Court a the ease of Stalk Ghalam Mane Hoth appeatea to the Supreme Canty against the detention of Al eause the Sindh Jurisdiction to gran Pe: The precise question before the § c Hon before the Supreme Court was Whether the High Courts had juriadiction under the 2 Constitution to enquice inta the validity of detention under " 8 the Jurisdiction of Courts (Removal of Doubts) Order, 1969, Another question was whether the doctrine enunciated in the case of Sate ¥ Dosso was correct and applicable. The Supreme Court observed that in laying down a novel juristic principle of such far-reaching importance, the Chief Justice in Dowse's ‘case proceeded on certain assumptions, namely: 1 That the basic doctrines of legal positivism, which he was accepting. were stich firmly and Universally accepted doctrines that the whole science of modern jurisprudence rested upon them; that any ‘abrupt political change not within 1 Contemplation of the Constitution’ constitutes a Fevolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it; and, 3. that the rule of international law with regard to the recognition of states can determine the validity also of the states’ internal sovereignty, ‘The Supreme Court held that these assumptions were not justified. Kelsen’s theory was by no means a universally accepted one, nor was it a theory that could claim to have become a basic doctrine of the scence of modern juipeudenc nor dM Keun even attempt to formulate any theory which ‘favours, totalitarianism The Court frther held tha the observation in Dosso’s case, that if the territory and the people remain substantially the same, there is'no Karachi were artested and placed tention under the Defence of Paki The Asma Jdilani Case Malik Ghulam filani, Altaf Husain Gauhae, Edi politician fr ins Lahore, and Chief, Daven, inder preventive istan Rules and ry change in the corpus or international enti sate andthe revolutionary government ang tt sate are, secording to Internationa ee leihmate government and the valid come be the state? does not find support from am rincipte international law. Pree ‘he Cour eld tht the grund-norm® of ay ‘as contained inthe Objectives Relat Hestultsthat eal sovereignty belongs ng th Alla alone, and the asthonty excrete ee Deople witin theimits prescribed hy han trust Itisunder this system that the func ofthe sate scien by thecommunty andere assisted by a council which must held Pablic view and remain accountable tong fovernment of laws and not of men, Theat Principle enunciated in Doss case coul noe treated as good aw either as precedent one otherwise. ‘he Supreme Court raced the history of evens fom 24 March 1969,and obsereedthat Ayub had popes under the Constitution of 1952 to hand over poverty anyborly. He cool have resigned and the Speateray the National Assembly could have taken over at acting President. After a thorough discussion on the legal interpretation of martial law the the conclusion that it is not ¢ ct to say thatthe Proclamation of miortis law must necessarily givethe commander of the armed forces the power te abrogate the Constitution, which he is bound by oath to defend After 1§ 8 detailed examination of the event and circumstances leading to the handing over ¢ Hower to Yahya, the Court came to the conclsia, that Yahya did nor allowthe constitutional machiner to come inte effect Instead, he usurped the farction nent and started issuing all kinds of mati Jaw regulations, presidential orders and ee brine There was thay ne queton th military rate sought to be imposed upon the cot by Yala wan etic egal The presen od barring the jurisdiction of the courts, beng constitutional legislation, could not eutal jurisdiction given to the High Courts 499 Supreme Court under the Consution of 9 hat jurisdiction was preserved ever ff Prowsional Constaion Onder artAfter No. 78 was struck down as havi ion B avin, . ‘an incompetent authority and, the Bren th theattribute of legitimacy. erefore, paving held Yahya as an usurper and all ays waved during bis fegime as illegal, the Supreme 1! pease ignoring it would resuh in diay toak recourse to the doctrine of Necessity trous esto the body politic and upset the social ir After having come to the conclusion that the wpe the usurper were illegal and illegitimate, the gon arose as {0 how many of his acts, legislative Pe yherwise, should be condoned ot maintained, potwthstanding their tlle ity, in the wider public interest. Applying this test, the Court condoned, 1 Alltransactions which were past and closed, (for no useful purpose could be served by re- opening them); Allacts and legislative measures which were in accordance with, or could have been made under, the abrogated Constitution or previous legal orders: Allacts which tended to advance or promote the good of the people; and All acts required to be done for the ordinary orderly running of the state and all such measures as would establish or lead to the éstablishment of the objectives mentioned in the Objectives Resolution of 19: The judgment in Asma Jilani’s case was certeinly a departure from the past, particularly the Diasso case. The judgment was widely appreciated [1 was also ctiticized because it was piven aff the overthrow of the usurper. The real test of independence of the Supreme Court would have been if the judgmnent had been made while Ya! ya was still in power, However, ‘sma filani’s case was an important milestone in the Indica history of Pakistan. Notes "Khan, Lt-Gen, Gul Hasan, Memoirs, 1993, Oxford University Press, Karachi, pp. 339-40. He describes the meetings of army officers which the COS General Hamid addressed on 19 December. He was antinuously interrupted by a near-rebel 10. 1. M4. 15 16. 18. 19, 20. 21 2 2. Cwillan Maria Law 253, 0 collet himaelt. and thon eed : i and talk Such Performance bya ‘hci tea otme ' before, Lt.Gen, Gul Haan to es 4 yeleworthy that about three months wutto became Prev {egnedandalieoris wetaieede geen {Brointments Gul Hasan in his book Memoiesdeciee any ditect role in inducting Bh writes that it was Bhutto who sum 0 who summoned and Treated spon him tn become Commander-in-Chief my which he accepted ertai conditions Seep 3430 “MIST 19 certain President Mirza and Bhutto had wives of franian SEs which appears tobe common ground between re two. hid. p. 13. Daven, 3 January 1972. Dawn, 4 lanvary 1972, Presidents Onder Lof 1972. PLD 1972 Cental Statutes Martial Law Regulation No. 115. PLD 1972 Centeal Statutes 388. Martial Law Regulation No. 118. PLD 1972 Central Statutes 441 Hoard of Foreign Missions of Presbyterian Church ¥ Government of the Punjab, PL} 1987 S.C. 464. Rernowal from Service (Special Provisions) Regulation, 1972, Martiat Law Regulation No, 114. PLD 1972 Central Statutes 387, Dawn, 16 Januaey 1972. Dawn, 25 January 1972, Dawn, 31 January 1972, Dawn, 7 February 1972 and 12 February 1972, Dawn, 19 February 1972. Dawn, 4 March 1972, Gul Hasan writes in his book Memoirs that he voluntarily offered to resign because he no longer could work with Bhutto, However, the resignations from him and Air Marshal Rahim were presented with separate files, im which thet respective tesignations had already been typed out, to sign. See 367.9, Down, 7 March 1972. Dawn, 15 April 1972 C.333, PS ter Dm Bias i bat “basic principle’.- set partial ew requlations and tart law rite deemed to have become Acts of the cede we legulatute and with the necenary aes bad effect at such "All proclamations ders, martial law tegulations, martial epsesth orceth Sd all other Law made a4 ftom the 25 gw ede Men se were dete ald pt wttaring any eee wnany cour. Allordery made proxeedicgs Fife and acta dove by any authority ot persons fie nrofte above mentored pane bees. raid mac, ax the legal proceed) ve ava 5 would Lie in any court Tee opening of pesce nes Faisan wat delved soustnes i thefts fe tee respective pe Ea ititen Murte.r 1 Gand Stee the beginning of Jane The ammit conference between Bhutto and Mrs (Gtr opened ot 28 june 1972, 1m Sarl, which at ed in preference to Nvew Delhi because of @ Save in the Indian capital. In the absence of an rent the main stumbling boc being Kashmir Hs which had been due to end on | July wete | Aint for another day. An agteerent was finally rdagie 7? Hy and as signed shortly after The Fagg RH contained the elements of eat ied bat the wording was considerably | pangetd 12 make it acceptable to Pakistan. In Kaye cause referring to the ceasefire line in "a8 rephrased to read: "The line of control a, Tatuenn Gemmnee diva 267 fevulting from the ceate fire f 17 December 1971, shall be respected by bith tides withers prejudice to the recognized penton of ether side! The effect uf the clauses of the Agreement relating to the withdrawal of forces and the ceasefire line in asthat Indium tteega winld be withdrawn, Vadhm Punjab and Sindh occupied during the war, and Pabistans troops fren 9 square miles of Indian terntony nthe India wend BU uguate miles of eritary west and rank ofthe line inthe Ponneh, Tithwal, and Kargil sects, and Pabustan 52 square miles eastof the line tn the Chhamb vector Following te ratification by Pakistan on 15 July and ty India on } August, the agreement came into effect on $ August 1972 The Ziaur Rahman Case Soon taking over power, Bhutto came down ily on political opponents and the editors and outnalists who wrote agsinst him, Mubammad member ofthe National assembly labad, who belonged to the People's Party, vut with Bhutto soo after his assumption of power He was charged with criminal offences under snartallaw regulations in February 1972 and sent for trial befite a special military court. Altaf Husain Qureshi, editor, and his brother Dr tar Husain and publisher of the monthly Urdu et and Munb-ur-Rahman Shami. editor of the ly Zindagi were arrested and detained under martial law regulations in April 1972 for writing against Bhutto and his policies Similarly, Husain ‘Nagi and Muraffar Qudit, editor publisher and the printer ofthe weekly Punjab Punch respectively, were Aso arrested and detained under martial law regula- tions ll these men, were sentenced to various terms ‘of imprisonment by special military courts under ‘various martial law regulations. However, writ petitions filed by them or by their friends or rcatives before the Lahore High Court challenged their detention and subsequent conviction, These writ petitions were allowed by a Full Bench ofthe Lahore High Court on 6 July 1972. “The judgment of the Lahore High Court in these «cases was challenged by the government before theB58 construtscnal ant Positioal History of Paxistan, Supreme Court in various appeals which were all heard together and deckted on $ January 1973." It was argued by the Attorney-General on behalf of the Sowernment that the judictary could, in no way, be Soncerned with the question of pohcy, nor could it exercise the prmwer to sttihe down any provision of the Constitution on the bass of any other document, however important or sanctified tt may he." The Constitution, he urged, being a fundamental and supreme organic law of the countey fron which alll functionaries of the State derived their existence and Powers, its substantive provisions could not be controlled by its preamble or even the Objectives Resolu: He argued that the position of the Oblectives Resolution in a system in which a Constitution had been subsequently framed, was no mote than what it described itself to be, namely, an enunciation of declaration of the goals sought to be attained by the people, an expression of their aspirations and the ideal sought to be achieved, Its Position was no better than that of a preamble to a statute and that it could serve no higher purpose. He urged that the Constitution once framed and adopted had become the organic law of the state and there was no power or authority that could exist outside the Constitution. The judiciary; like other organs of the state, was a creature of the Constitution and had to submit, like all other organs of the state, to the Limitations placed upon its jurisdiction The Supreme Court accepted this contention and held that it never claimed to be above the Constitution or had the power to strike down any provision of the Constitution. The Court accepted its position that 1 derived its powers and jurisdiction from the Constitution and that it had to confine itself within the set limits by which it had taken oath to protect and preserve. It had, however, the right to interpret the Constitution and could declare any legislation as unconstitutional and void. This power did not mean that judicial power was superior in degree or dignity to legislative power but that the Constitution itself had vested it with this power. It was held that the judiciary could not claim to declare any provision of the Constitution as ultra vires or void under its power of interpretation. The Supreme Court repelled the contention that it had already declared the Objectives Resolution as ‘grund norm’ for Pakistan in Asma Jilani’s case and {in this way held that it stood a Constitution or any Consttaion Wee framed in the future. The Court observed inet! be not sy thal the Objectives Resolution way ha 4 norm but thatthe grund norm being the dee legal sovereignty accepted by the people of page consequences would flow from it Kits, It was also argued before the Hi was not a valid document because it had framed by a competent body as the majority or members, 160 out of 300 elected from East Pak had not participated in its proceedings. Ie wee a contended that in view of the judgment ip ace Ilan’ case, the 1962 Constitution still hed the feat ‘These contentions were considered untenable fret held that the National Assembly had the fray the Constitution as its first purpose and it sad pettormed its first function in accordance with ty cen to it by the people. It was not forthe courts to question the mandate of the people. The court held that the National Assembly was validy constituted and that it had ratified the nteniz Jon and the assumption of power by the mandat. Constit Presiden The Supreme Court also considered the effect ofthe use under the Interim Constitutions écles 280 and 281. The government had taken the position that these Articles of the Consutuiian had ousted the jurisdiction ofthe cours and tise couk! not took into the orders made a2! proceedings taken that had been validated enter ticles of the Interim Constitution. The Coast accept tHhis blanket interpretation soughttoht nt and bed jc 281 of ported sartal Vati tard downs in Ar thos didn put on these provisions by the governme that the validity given by clause (2) of Art the Interiin Constitution to acts dane or pu bedone in exercise of the powers given by mar ME regulations and orders had since been Fepea that even in the purported exercise of those Pa the effect of validate their provisions did not have he acts done coram non judice or without juris malafide. sei The State v Ziaur Rahman case brought ee ie some of the findings and abservations panty Supreme Court in Asma Jilani’s ca! a the law within the limitations of the FeCOB is ment and constitutional confines. The judg? —_dlace the role and the constitutional po Mie Objectives Resolution and upheld Abe Tanai Constitution, thus saving the country from constitutional anarchy. I also placed a progres construction on the Validation Clause thus eperae the way for the courts to examine and review te orders and proceedings which were malafide non judice, or without jurisdiction and thus eh the scope of the judicial review, coram ridened Dismissal of the Provincial Government in Balochistan and Resignation of the Provincia] Government in NWFP Ithas been mentioned above that Bhutto reached an. accord with the NAP-JUI leaders in February 1952 under which he agreed to appoint NAP numinces, Arbab Sikandar Khalil and Ghaus Bakhsh Bizenjo, as Governors of NWEP and Balochistan respectively The accord also allawed NAP JU! yovernme: formed in these provinces. In return, NAP JUL agreed not only to the continuation st martial law until 14 August 1972 but also to vote in favour of a motion of confidence in Bhutto as President when the matter came up in the National Asscnibly, and apreed not to oppose the central government s emergency powers. This three-party agreement, as st was «lle, ran into trouble within days of its conclusion. I seems that Wali Khan and his colle: the NAP developed serious misgivings about the « cot Martial Law when Bhutto removed hurureds of public officials without giving them access to Courts Martial law had been used to restrict fundamental tights, judicial authority, and the due process of law: In so far as many of the dismissed civil servants belonged to the provincial governments. Bhutto's move could also be construed as an invasion of Provincial authority. In view of these considerations, Wali Khan announced that his party would not vote for the continuance of martial law in the National Assembly and that the NAP-JUI government scald teview the cases af provincial civil servants remove Under martial law regulation 114."° Wall Khan's change of stance. however well: intentioned, amounted to a violation of the es Party agreement. Bhutto treated it accordingly ‘The Interim Consuuaion of 1972 289 Withheld the appoint : Governors at eee ment of the NAP nominees as and Balochistan. melts Ninations were provided Bhutto ae yent to P war to confer with te NAP-JU leaders on 8 Apnl 1972. After amorning “sion, with the understanding that they would meet Rea ithe evening. Bhutto went to have lunch with Abdul Qayyum Khan and accepted his offer chy Alliance as a result of which his party. the Quyriny Mustim League (QML), a | agreed to support the PPP the National Assembly and the NWEP Asseniblvant NWEP Assembly and, in return, Bhutto agreed to take Qayyum Khan as minister for interior in his Cabinet.” Bhutto's Teeting with the NAP-JUE leaders in the evening failed to resolve their disagreement but it seems he had already decided to withdraw martial law. At the National Assembly session on 14 April, he announced this and, in return, received the assembly's approval of a provisional Constitution and a unanimous vote of confidence in his government, On 28 April 1972, the NAP nominees assumed office as Governors in NWEP and Balochistan and, on 1 May the NAP-JUL governments were sworn in.!* ‘The NAP-JUT leaders spoke of traditional democratic values. They were interested in stability, tranquility, respect for individual rights, and the rule of law. They said they would treat all citizens equally well and work for complete harmony hetween the provinctal and the central gavernments Mufti Mahmood, the new Chiel Minister of WEP, appealed to all citizens, to remain within the bounds of law: He called upan landlords to stop ejecting tenants forthwith and asked the latter to pay the landlord his share af the crop. The NAP JUL governments invited investment in their provinces and assured prospective investors, that their properties would be fully protected ‘Ataullah Mengal, the Chief Minister of Balochistan, told newsmen that he and bis colleagues were working ‘dav and might’ to make his province a ‘shining example of good government” None of the NAPorIUtleader had bel hugh pth oie before rked upon their new carcers wi hey. emparked pen thls tee ses continue for long. noe 0 encouraged rival political forces in NWEP tu Balochistan to disrupt the NAP JU governments He did not really need Qayyum Khan's supportcoup d'etat, which can by no stretch of the imagination be described as a ‘revolution’, He used the term ‘revolution’ even in his later writ defend his reasoning* by posing a question: any court having a discretion in the matter, issue an enforceable writ an the 8, 9, oF 10 October against the government that had been brought inte existence by the Proclamation of President Iskandar Mirza?” This argument also justified his verdict in Tamieuddin Khan's case. It was not for him to see if the verdiet would be accepted. His sole duty was to stand for what was right and to decide each case on that basis alone, regardless of the enforceability of writs, A wrong verdict is not given only because a correct one might not be enforced. Had he risen above these evidently irrelevant considerations, the constitutional history of Pakistan might have been very different” Mehdi Ali Khan's Case In the Mehdi Ali Khan case* which came up a few months later, the Supreme Court got an apportunity to review its decision in Dosso’s case. The Dhaka High Court had issued writs mandamus ditecting the provincial government to withdraw the notifications by which they had acquired the wayf praperties ‘The decision of the High Court was based an the fundamental right to manage one’s religious institutions. The provincial government appeated to the Supreme Court but when the appeal came up tor hearing. the Laws (Continuance in Force) Order, 1958 was in operation, Article 2(7) of which provided. ‘no writ or order for a writ issued or made atter the Proclamation shall have effect unless it 1s provided for by this Order and all applications and proceedings In respect of any writ which is not so provided for shall abate forthwith’, The Supreme Court was faced with its previous decisions in Dosso’s case wherein it had declared that fundamental rights ‘are not a of the law of the land and no writ can issue on their basis’. Itwas, however, contended that by reason of Article 4 ofthe late Constitution, all laws inconsistent with the fundamental rights stood struck down when the Constitution came into force on 23 March 1956 and thus were not in force at the time of Proclamation of the Laws (Continuance in Force) Order, 1958. The Supreme Court followed its previous decision in Ayutve Baia Demooracina = 1223, Dosso’s case and, by majority judgment, allowed the appeal. Itheld that the writ petitions giving rise to the appeals bad all abated under Article 2(7) of the Laws (Continuance in Force) Order, 1958, In keeping with Dosso's judgment, the Supreme Court relterated that after the abrogation of the Constitution, no law could be declared to be void merely because it came inta conflict with a fundamental right and that all pending applications for writs in which a faw by teavon of ftindamental rights had to be found to be void had abated. ‘The laws which were in conflict with the fundamental rights but were ‘in force’ Immediately and had nut been struck down before being taken away, regained full efficiency, Justice A.R. Cornelius wrote a dissenting opinion in which he held that the proceedings in the writs did not abate by the operation of Article 2(7) of the Laws. (Continuance in Force) Order, 1958, The basic rights, according to him, remain valid not only within the tramework of natural justice but also because they existed in the current legal order—modifying but not necessarily cancelling the 1956 Constitution. The difference was one of justiciability, not existence. Justice Cornelins once again tried to secure funda imental rights in the military state to demonstrate the close relationship between justiciable rights and judicial powers,” The Supreme Court, led by Chief Justice Munir, let go the opportunity to undo or even nuadify its judgment in Dosso's case. Action against Government Servants Pakistan had always suffered at the hands of corrupt and incompetent public servants. Ayub’s government embarked upon a drive against inefficiency and corruption. A thorough screening process was adopted against all government servants by conducting a close scrutiny of their service records. “Misconduct included bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, and wilful misapplication or diversion of public funds. Tribunals consisting of incumbent or retired judges of the Supreme Court or High Courts were created to try cases of misconduct against public servants.° The enquiries under this law were wide enough toinclude public servants or holders of public office on o after 15 August 1947, In addition to disciplinary actions