Quis Custodiet Ispos Custodes? “Who Will Guard The Guards Themselves?”
Mr. Justice Yaqoob Ali Khan was the Chief Justice of Pakistan at the time of dismissal of Zulfiqar Ali Bhutto’s government by General Zia on 5th July 1977. General Zia in his first address to the nation stated that he had met Mr. Justice Yaqoob Ali in the morning and that he was grateful to him for the advice and guidance on legal matters. Thereafter, an important development took place; a petition was filed by Begum Nusrat Bhutto in the Supreme Court of Pakistan to challenge the detention of Mr. Bhutto by the Martial Law Authorities. The petition was admitted for regular hearing and Mr. Justice Yaqoob Ali Khan also ordered that Mr. Bhutto be shifted to Rawalpindi so that he could personally appear in the court. This raised the eye brow of concerned Authority as in an earlier decision the Supreme Court had declared General Yahya a usurper on 20th April 1972 and it was held that he was liable to be tried for high treason and suitable punishment. Mr. Justice Yaqoob Ali Khan had already subscribed to the view of the Chief Justice Hamood-ur-Rehman and in fact he went a step further by saying that “the trial of a usurper will serve as a deterrent to any would be adventurer.”
In order to avoid any unfavourable order, an amendment was brought in the Constitution by General Zia through a Martial Law Order and Mr. Justice Yaqoob Ali Khan was relieved of the office of the Chief Justice and instead Mr. Justice Anwar-ul-Haq was made the Chief Justice of Pakistan. The court headed by Mr. Justice Anwar-ul-Haq dismissed the petition filed by Begum Nusrat Bhutto and upheld the subversive actions of General Zia and proceeded further and even allowed the dictator to amend the Constitution.
It was held by Mr. Justice Anwar-ul-Haq that:-
“That the President of Pakistan and superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a fresh oath after the Proclamation of Martial Law does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions.”
“That the Chief Martial Law Administrator, having validly assumed power by means of an extra-Constitutional step, in the interest of the Sate and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely:-
- All acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it;
- All acts which tend to advance or promote the good of the people;
- All acts required to be done for the ordinary orderly running of the State.
The basic reason that prevailed upon Mr. Justice Anwar-ul-Haq in authorizing constitutional amendments through the apparatus of Martial Law was purely personal. He had no other choice but to legitimize the military take over because his own appointment as Chief Justice of Pakistan was made possible by an amendment effected in the constitution through Martial Law Order. The other members of the bench which heard this petition included Waheeduddin Ahmad, Muhammad Afzal Cheema, Muhammad Akram, Dorab Patel, Qaisar Khan, Muhammad Haleem , G. Safdar Shah and Nasim Hasan Shah, JJ. The other companion judges concurred with the judgment of Mr. Justice Anwar-ul-Haq and endorsed his views.
It has been alleged in different books that certain members of the bench afterwards disclosed that when the proposed judgment written by Mr. Justice Anwar-ul-Haq was circulated amongst the judges for signatures, the power to amend the Constitution of 1973 had not been assigned to General Zia. The disputed page only bears one signature of Mr. Justice Anwar-ul-Haq. The power to amend the Constitution, conferred on General Zia, does not find place anywhere in the judgment except at one place at page 716. It does not find place even in the concluding paragraph of the judgment of Mr. Justice Anwar-ul-Haq. A concluding paragraph of the judgment is the crux of finding. In order to establish this point the paragraph at page 716 giving General Zia the power to amend the Constitution and a similar paragraph in the concluding part of the judgment where no such power is given are reproduced below:-
“All acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it.” (This can be found at PLD1977 SC p.716)
“That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of law of necessity.” (This can be found at PLD 1977 SC p.722)
This act of deceiving fellow members of the bench and the whole nation, if true, are shameful. This was not the last time any such thing happened. We heard similar allegations relatively recently in respect of restraining order passed by Supreme Court of Pakistan on 3rd November 2007. The allegations were raised by one of the Judges of Peshawar High Court who took oath on Provisional Constitutional Order and as a result of Judgment passed by Honourable Supreme Court of Pakistan on 31st July 2009 is no longer a Judge of the High Court. It was alleged that some members of the seven members of the bench whose signatures are on the order dated 3rd November 2007 were not present in the Supreme Court on that day. It is alleged that they were not even in Islamabad on the said date. If this is true, then no matter how good the intention was of the person doing the said act, it is just not shameful but illegal as well. The thing about doing something illegal for a greater cause is that it is impossible to draw the line. If it can be done to prevent the acts subversive of Constitution then similarly next time it can be used to uphold the acts subversive of Constitution. The question remains Quis Custodiet Ispos custodes? “Who will guard the guards themselves? If the judgment in the case of Asma Jillani was not a deterrent to validate the Martial Law of 1977, I doubt if the Judgment of 31st July 2009 will be a deterrent in the future.
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