ISLAMABAD: The Supreme Court has intervened several times during constitutional crises throughout the country’s 75-year history.
There have been instances when the courts were made to put their seal on the most controversial executive actions, including abrogation or suspension of the Constitution. Other times, judges refused to succumb to pressure from the executive.
The direction of judiciary-executive relations was set by the 1955 verdict of the federal court, now the Supreme Court, in The Federation of Pakistan versus Moulvi Tamizuddin.
In 1954, governor-general Ghulam Mohammad dismissed the first Constituent Assembly and the dismissal was challenged by its president Moulvi Tamizuddin in the chief court, now the Sindh High Court.
Direction of judiciary-executive relations was set by the 1955 verdict of the federal court in Moulvi Tamizuddin case
The chief court declared the dismissal of the assembly invalid. However, headed by Justice Mohammad Munir, the federal court reversed the chief court’s decision on technical grounds.
Special report: Parliament in Chaos 1951-1958
The second test of the independence of the judiciary came when the apex court was called upon to adjudicate on the legitimacy of the 1958 martial law regime in The State versus Dosso and Others.
The court, again headed by Justice Munir and drawing inspiration from Hans Kelsen’s doctrine of necessity, held that a successful revolution or coup d’etat was an internationally recognised method of changing a constitution.
Therefore, the Laws (Continuation in Force) Order 1958 promulgated by Gen Ayub constituted the new legal regime from which all legal instruments and institutions, including courts, derived their validity and legitimacy.
The court’s decision was seen as an invitation to future military adventurers to step in.
The decision in the Dosso case came in for sharp criticism from the apex court itself in Asma Jilani versus Government of Punjab in 1972. The Supreme Court bench headed by Justice Hamoodur Rehman declared martial law imposed by Gen Yahya Khan as unconstitutional and incapable of being validated.
The court observed that it was difficult to appreciate under what authority martial law could be proclaimed. A military coup or a legal regime put in place by a military ruler was not legitimate by itself, and instead it acquired legitimacy only when courts recognised them as de jure.
The judgement created the hope that in future the judiciary would not put its seal on unconstitutional actions of the executive.
However, the hope was short-lived. In Begum Nusrat Bhutto versus Chief of Army Staff and Federation of Pakistan, the apex court in 1977 again declared a military coup, this time by Gen Ziaul Haq, legitimate on the basis of state necessity and welfare of the people.
In the Haji Saifullah vs Federation of Pakistan case of 1989, the apex court declared that the dissolution of the assembly and removal of prime minister Mohammad Khan Junejo in 1987 was illegal. However, since a new government had been elected by the time the judgement was pronounced, the court did not reinstate the dissolved assembly.
The Supreme Court upheld the dissolution of the assemblies and ouster of the then prime minister Benazir Bhutto under Article 58(2b) of the Constitution in 1990 and 1996.
However, in 1993, the Supreme Court reinstated Nawaz Sharif, striking down the dissolution order.
The 1999 coup, which brought Gen Pervez Musharraf at the helm, was also indemnified by the judiciary, again under the doctrine of necessity. One of the judges who sat on the Supreme Court bench that validated the coup was Justice Iftikhar Muhammad Chaudhry, who later became the chief justice of Pakistan.
On Nov 3, 2007, Mr Musharraf declared an emergency in Pakistan and suspended the Constitution. However, in one of the boldest judicial decisions in Pakistan, a seven-member bench of the Supreme Court issued a unanimous two-page order, declaring the action illegal. The bench was headed by Justice Iftikhar Muhammad Chaudhry.
The judges who delivered that verdict, along with more than 50 other members of the superior judiciary, were deposed by the military ruler, who imposed a provisional constitutional order (PCO).
A few days later, on Nov 24, a seven-member bench of the newly constituted Supreme Court validated the imposition of emergency and the promulgation of the PCO. The bench was headed by Chief Justice Abdul Hameed Dogar.
On July 31, 2009, the Supreme Court declared the steps taken on Nov 3, 2007 by Mr Musharraf as illegal and unconstitutional under Article 279 of the Constitution.
Published in Dawn, April 8th, 2022