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Abrogation of constitutions jeopardised democratic
set-up
Karachi
Constitutions in Pakistan were
condemned, abrogated and abolished by the successive governments –
both civilian and military that resulted in the decrease in will
power and actual power of the judiciary, which often gave judgments
that proved fatal to the democratic set-up of the country.
Justice (Retd) Dr Ghous Muhammad of
the Sindh High Court (SHC) spoke about the travails of judiciary in
Pakistan while delivering a lecture on “Development of
Constitutional Law in Pakistan Through Judicial Decisions” at the
Area Study Centre for Europe (ASCE), University of Karachi, on
Wednesday.
The judicial hiccups, according to Dr
Muhammad, began with the dissolving the Constituent Assembly of
Pakistan by Governor-General Ghulam Muhammad in 1953. His action was
challenged by the then Prime Minister Khawaja Nazimuddin in the
Sindh High Court that decided that Ghulam Muhammad’s action was
unlawful.
The Government of Pakistan appealed
to Federal Court of Pakistan (now Supreme Court) that upheld the
dismissal in a split decision, despite the dissenting opinion
written by the renowned Justice (later Chief Justice) A. R.
Cornelius.
The Chief Justice, Muhammad Munir, of
the “Federal Court of Pakistan” (now the Supreme Court of Pakistan),
did not rule on the legality of the dismissal, but instead forced
new elections calling it the ‘Doctrine of State Necessity’.
The Constitutions were abrogated in
1956, by Iskander Mirza, 1962 by General Ayub Khan, and Zulfiqar Ali
Bhutto in 1972 when he was the first Civilian Martial Law
Administrator after the secession of East Pakistan.
The period from 1958-62 was
especially tough for the judiciary because the judicial process was
not allowed. The judiciary struggled to regain its lost power during
62-69 and it fell again at the hands of General Agha Muhammad Yahya
Khan who followed General Ayub Khan. The judiciary again tried to
regain its power from 73-77. The military dictators General Ziaul
Haque and most recently General Pervez Musharraf continued to wreak
havoc on the Constitution.
Dr Muhammad
reminded the audience that “Judiciary can perform only if the
Constitution is allowed to develop and act without any control.
Military courts are a threat to Judicial Courts. Earlier, the
Director ASCE, Dr Naveed Ahmed Tahir, introduced the speaker to the
audience.
The News: Thursday,
May 21, 2009
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