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ok, so i have been working on another book titled 'Legal Evolution of the 1973 Constitution' and this is excerpt from that project in works. It is still undergoing shifts and shifts on how much should i include the previous constitutions and all that. I have included them but should i include them alot. Anyhow this is an excerpt of it from the viewpoint of the 7th amendment in the Constitution.
Seventh Amendment; By this time, the country had witnessed great protests and Zulfiqar Bhutto had announced early elections, which were to be conducted originally in later 1977, were now conducted on 7th March 1977. The reason for such early election calls were to give Bhutto the edge by not giving the PNA anytime to prepare for the election. The PNA was struggling already as the party was home to internal rifts and they were unable to present a proper solution to the problems faced by the country and were only able to criticize the Pakistan People’s Party. Bhutto also used political targeting and suppressive force, thanks to the above amendments as a means to secure the election. The extremely conflicted election resulted in the victory of Bhutto who decided to form the government however the country saw utter chaos as the PNA came on streets and violence grew, Bhutto knew that he might need the help of a popular referendum thus he enacted the seventh amendment on 16th May 1977, just three weeks before the announcement of Martial Law. The amendment empowered the Prime Minister of Pakistan to take a vote of confidence from the people of Pakistan as a referendum. This was meant to be used as a means to quell the protesting PNA workers and with the referendum favoring Bhutto, he could then crush the united opposition. He also amended that any place where the armed forces were deployed, the high courts could not use Article 199 which is the Article of Writs meaning that anywhere the army was deployed for aid to civil power, the Fundamental Rights could not be enforced through court orders and those rights could be violated without any recourse or consequences. This was followed by brutal crackdowns and in the end Bhutto, after hearing that the army was about to take over, tried to fast track a compromise but unfortunately it was too late and on 5th July 1977, the Constitution which had been abused so badly and weakened to such an extent for the security of the power of a single person, was abrogated by the military once more and Bhutto, the framer of the Constitution who had used it for his personal gain, was now jailed by General Zia Ul Haq.
The above period of 1973-1977 was another sad chapter in the history of Pakistan and the abuse of constitutional power has been displayed above and this was done to secure the position of power but what the good prime minister did not take into account was that the power he was trying to secure came, not from authoritarian amendments but from the constitution itself and it was the constitution that was his defense but he had weakened it to such an extent and used it for his personal gain and power, that it led to the most undemocratic of institutions, once again come and remove the constitution. The story was the same. The legal order was set aside, the political leaders were jailed, the excuse of the country being in precarious situation and needed saving and lastly that a promise of new elections was made. The same speech was made and the symbiotic relationship between the people of Pakistan and the constitution, weakened for securing of power, was now cut.
Despite all of that. Bhutto and the 1973 Constitution faced a broken country that was broken on ethnic lines and it was their strength that the country was able to survive such a dangerous situation and when Bhutto crushed all separatist movements by 1978, the country was healed through the 1973 Constitution. This cannot be ignored and it must be stated that had the Constitution not been used for personal gains, then perhaps the country would have seen exponential constitutional growth but unfortunately that didn’t come to pass and the country would see a long dark night that would last till 1988. The lesson would be repeated on 12th October 1999.
The case was relying mainly on the judgment in Asma Jilani Case of 1972 asking the court to declare the Martial Law to be unconstitutional and a treasonous act in accordance to Article 6 of the 1973 Constitution. The petitioner argued that Martial Laws have been declared illegal and such abrogation was now an act of treason and the doctrine of necessity was no longer applicable since it had been declared void in 1972. The defendant argued that since Bhutto had done massive rigging in the 1977 elections and was the reason behind the chaos that had engulfed Pakistan thus his government had lost all constitutional validity and the ensuing situation of a civil war was only brought under control thanks to the timely action of the army. The 9 bench court passed a judgment stating that the petition was not maintainable and with it brought forth a new version of Doctrine of Necessity. This version would plague Pakistan till the coming of the 18th amendment.
In summary the court decided that The Supreme Court said that the legal consequences of an abrupt political change, by imposition of martial law, have to be judged not by application of an abstract theory of law in vacuum but by consideration of the total milieu preceding the change. That the action of and motivation of the persons bringing the change and to the extent that the old legal order is being preserved. The judges highlighted that if the judges were taking oath based on the 1973 constitution post the Martial Law then this means the 1973 constitution was still the supreme law of the land apart from certain parts which were held in abeyance on account of state machinery. That the steps taken by the Chief Martial Law Administrator are an extra-constitutional step taken to protect the people of Pakistan and the integrity of the country and thus he is empowered to take all executive and legislative measures for the country.
The views of the judges were
Justice Nasim Hasan Shah; The situation that had happened between the four months and the condition of the country had repudiated the constitutional and moral authority of both the Federal and Provincial governments for which the 1973 Constitution had no solution provided in it. As the Constitution could not measure upto it, the Doctrine of Necessity becomes necessary and applicable, for where the safety of the state and the welfare of the people are in imminent danger, necessity justifies a departure from ordinary course of law.
Justice Qaiser Khan; The good justice declared that a constitution could be annulled, abrogated or destroyed through two methods. One by a constitutional act which would be the method provided in the constitution itself for changing or replacing it and the other by an unconstitutional act such as through a revolution or a coup d’état. In this case the constitution was put in abeyance which is to say that it was suppressed for the time being by an extra-constitutional act of issuing a proclamation of emergency. Now the validity of this act could not be tested on the basis of the constitution of 1973 as it was no longer there having been suppressed and there was no other superior norm on the basis of which it could be tested. Such an action is called as meta-legal by some jurists. By the case of Asma Jilani 1972, the legitimacy of the Dosso case of 1958 could not be applied here since it was overruled however the Asma Jilani case of 1972 could not be applied here in the present case as the facts and circumstances of the takeover are quite different from the facts and circumstances of the previous takeover. In the present case the takeover was quite justified and the Chief of Army staff could not be declared an usurper.
Justice Muhammad Afzal Cheema; The good justice utilized Islamic principles to justify the military takeover by stating that Islam is the ideological foundation of the country and any man-made legal system would be declared repugnant if it clashed with Islamic principles. He stated that the principles are subjectively centered around morality and are aimed at the establishment of an orderly and peaceful moral society by taking an equally pragmatic view in the matter of their application and placing the security, safety, and welfare of the people above everything else. Thus the doctrine of necessity is an inevitable outcome of this realistic approach and this has been recognized by Islam both in the individual as well as in the collective.
Justice Muhammad Akram; The good justice also utilized Islamic principles in his reasoning where he stated that Pakistan is an Islamic country and the basis of this is the Objectives Resolution with e4mphasis on Islam and morality thus we cannot divorce morality from law and the pure theory of law is not suited to the genesis of the state. It has no place in our politics and is unacceptable to judges charged with administration of justice in the country.
Justice Nasim Hasan Shah; The justice reasoned that despite the fact that the armed forces are in full control of the country. They have no intention to establish a new Legal Order and abrogate this the 1973 Constitution. The Constitution remains the supreme law and the judiciary and the president of Pakistan are functioning based on the powers of the Constitution. The change is only in the nature of Constitutional deviation rather than the destruction of one Legal Order and its replacement by another.
The justices above provided little more than excuses to give power to the dictator that would hold the 1973 Constitution hostage till 1988. The reasoning of the judges could be broken down to the following points.
That the 1973 Constitution was not abrogated but simply some of its Articles were held abeyance. The Constitution largely remained in power as the Supreme Law.
That the government had lost all moral and constitutional authority and the courts function on morals as well as law.
That Islam allows for such for the good of the welfare of the people and thus the takeover ws in line with Islamic principles and since Pakistan’s ideology was based on Islam thus the takeover was entirely legal.
The reasons were little more than excused that made Pakistan, a country formed through constitutionalism and law, a laughing stock in front of the world once again, The court tried to deviate from the 1958 Martial Law as much as they could but failed in their reasoning to justify a takeover and the courts abject surrender wrote a dark chapter in the history of Pakistan and brought all constitutional evolution to a screeching halt.
Firstly the act of arresting an elected prime minister and taking down his government was without a doubt an act of treason by the army since they are, by oath, tasked to defend the government and state and this was highlighted in the famous case of Asma Jilani 1972 and the courts back then had stated that the action of the armed forces did not help situation but only fed the chaos through their action. The army is no authority to set aside any Article of the constitution and the emergency powers, provided in the 1973 Constitution for such an act, are provided to the government. The army cannot claim that they have not attacked the Constitution by simply holding a few Articles in abeyance. This would provide justification for the army to hold in abeyance only Part II of the constitution out of 12 parts thus the action is legal since majority of the Constitution is still in power. Such reasoning weakens the constitution itself and while Bhutto damaged the 1973 Constitution by his authoritative amendments and usages of Articles, however it was this damage that dealt a fatal blow. Some of the best jurists in Pakistan shocked the entire world by this rash explanation. Even the holding in abeyance or to abrogate even a single Article is an act that deserved the punishment of treason.
Secondly it is not the duty of soldiers to decide when and how the government had or had not lost the moral authority to rule the country. That is for the people of Pakistan to decide and while the courts may highlight the failures of the government and punish them where they can for the excesses the government may have committed however what they can’t do is declare an entire elected government to be declared void due to moral reasoning. The courts were not authorized to decide whether a government is moral or not much less whether such immorality makes the government void or not. While the court may claim reasoners of morality according to some jurists however to dismantle an entire government which was elected just a few months ago is not amongst the powers of the court. The courts can find moral reasoning within law however what they can’t do is create their own morals as laws justifying unlawful acts and that is exactly what the courts did here. This also came as a huge blow to the constitution as the courts had to degrade the value of Law and the rule of law and bring forth concepts of morality and rule of morals as a justification. This was a concept worse than the Doctrine of Necessity since it provided infinite ammunition to the military to interfere in government and judicial administration by declaring the actions of both as immoral and against the welfare and interest of the people of Pakistan. The courts here weakened their own authority since they could wield the Law as a weapon or shield but when the courts threw this shield and sword to justify a hostile takeover by giving moral reasoning, they injured their own authority to such an extent that the country, to this day struggled to shake the talons of undemocratic forces. The courts also could not find reasoning even if morality was to be involved since the Martial Law had happened before the courts had declared the government of Bhutto as morally corrupt and void. Guns and tanks rolled before such a conviction was made and this act was similar to a policeman executing a person before his crime was adjudged. Would such an act be considered legal by any court or by any jurist? Then why was such considered legal here? This act brought upon the tyranny of a dictator and would do so again and even then, the Constitution would always be under siege by them.
There exist similarities between the 1958 takeover and the 1977 takeover since both overthrew governments formed and both of them brought the Army into politics. Both of them blamed the politicians for the chaos in the country and both of them promised to hold elections as soon as possible. The two Martial Law Administrators decreed that the provisions of their constitutions in hostage would remain in power till further notice and both of them claimed moral authority and justified their act as righteous since the act was committed for the sanctity of thr integrity of the state, to defend against the internal enemies attacking the state and for the welfare and betterment of the people. The two Martial Laws gained another similarity. Both of them were justified by the top judicial minds of the country through the infamous Doctrine of Necessity whether that doctrine stemmed from Kelson’s theory or from the Islamic principles or from the Objectives Resolution.
Lastly the court used Islamic reasoning however the honorable judges did not give take into consideration that Islam has always upheld rule of law to this extent that in Hadd, the act of rebellion or action against state is considered as a serious offence that is punished severely. The people laid siege to the house of Hazrat Usman (R.A) and martyred him and this act of rebellion and murder of a leader was condemned by all parties and by all jurists and that event was evidence that such arbitrary and rash actions can lead to civil war since post his martyrdom, the Rashidun Caliphate witnessed Fitnah that would engulf the empire till the rise of the Ummayad Caliphate. This is the strongest of evidence that the act of removing an elected leader through forceful and rash actions can only lead to more chaos and is condemned in Islam and Shariah. If the judgment truly took inspiration from the Islamic ideology of Pakistan and from the Objectives Resolution, then it would have condemned this hostile takeover and the court would not have feared from doing so. Unfortunately the courts did not do that and brought upon Pakistan a form of fitnah and civil strife that would continue till the end of 2008 with Pakistan being home to two Martial Laws, extreme political infighting and constant interference from undemocratic forces.
With the enforcement of a new Doctrine of Necessity, the country plunged into absolute chaos as Zia Ul Haq focused on creating a friendly judiciary for the trial of the incarcerated prime minister and through that post the ending of the presidential term of Fazal elahi, Zia became president and revived the 1973 Constitution partially where he kept most of the powers in his own control. The Constitutional evolution of the country was no in regression and in 1979, the new president banned all political parties and called the parliamentary system, a system of disorder and preferred the presidential system however it must be stated that no country, where rule of law exists, allows an all-powerful president. Such countries are considered a joke by the international world. The US system is a very good example of a presidential system and the United States President is both powerful and constrained by the Congress and the Judiciary. He is neither supreme nor omnipotent. Whether the system if parliamentary or presidential, it does not matter as long as the country has separation of powers and balance so that a tyrant may not rule the country. Unfortunately the dictators of Pakistan have focused entirely on a system that was little different than a monarch ruling a kingdom. The 1973 Constitution revival was only to allow him to exert his power to Pakistan more easily and without any administrative difficulties. In 1981, he disbanded the defunct parliament and created a Shura which was a board of advisors to help his Islamization of the country.
To delay the elections and hold his power more, he utilized the 7th amendment to hold a popular referendum where he won by 97.6% on the question whether he should continue as President of Pakistan or not? Needless to say such high victories are only witnessed by dictators in dictatorial regimes and through that he used the excuse that the people supported his regime and his ideals and were no longer interested in a parliamentary system nor were they interested in the 1973 Constitution. However Zia was not confident that he could keep the Constitution nor the parliament under control no matter how much control he had. He had seen how Ayub and Yahya had struggled and even the Constitution made for Ayub Khan and by Ayub Khan, could not save him. Thus on 2nd March 1985, he introduced the Presidential Ordinance No. 14 which revived the 1973 Constitution with great amendments. The order had amended many articles in the Constitution of 1973 effectively making the country a presidential system where the president held major powers. It was also through this order that the Constitution underwent Islamization where the Parliament was changed to ‘Majlis e Shoora’ and Article 2A was added which annexed the Objectives Resolution into the Constitution of 1973. The order also provided for the addition of qualification and disqualification of Parliamentary members. It also added Article 239 which empowers the parliament to amend any article in the constitution. Previously the parliament was empowered to act as such however such power was not mentioned before but now such power was explicitly mentioned so that the President could use the power to make changes anywhere in the Constitution of 1973 and this created an obstacle in the evolution of the 1973 Constitution.
The Articles of the Constitution are meant to empower the other Articles and not act as an impediment to the others. They draw their strength by being pieces of a grand puzzle put together. Even a single misshape would ruin the puzzle and that was exactly what this dictatorial amendment did. Article 239 empowers the parliament to make any amendment they see fit however Article 8 states that any law which contravenes the Fundamental Rights shall be considered void. So if the parliament is empowered under Article 239 to remove the Fundamental Rights when is it void due to Article 8 or valid due to the power allotted under Article 239 and then to make sure such question never comes to pass the Order added that such cannot be challenged in court which meant that if parliament passed an amendment or passes any law then the courts have no locus standi thus breaking the concept of Trichotomy of Power which was the cornerstone of the 1973 Constitution. One can argue that this was Zia’s attempt to make the Constitution of 1973 more like the Constitution of 1962 and lastly it gave credence to all the orders passed by him.
The order was a severe blow to the constitutional evolution of the country and the fact that such amendments remained in the constitution leading the political turmoil of the 1990s and the ultimate Martial Law of 1999.
@VCheng @Joe Shearer @Kaptaan @T-123456 @Saithan @Yankeestani
Seventh Amendment; By this time, the country had witnessed great protests and Zulfiqar Bhutto had announced early elections, which were to be conducted originally in later 1977, were now conducted on 7th March 1977. The reason for such early election calls were to give Bhutto the edge by not giving the PNA anytime to prepare for the election. The PNA was struggling already as the party was home to internal rifts and they were unable to present a proper solution to the problems faced by the country and were only able to criticize the Pakistan People’s Party. Bhutto also used political targeting and suppressive force, thanks to the above amendments as a means to secure the election. The extremely conflicted election resulted in the victory of Bhutto who decided to form the government however the country saw utter chaos as the PNA came on streets and violence grew, Bhutto knew that he might need the help of a popular referendum thus he enacted the seventh amendment on 16th May 1977, just three weeks before the announcement of Martial Law. The amendment empowered the Prime Minister of Pakistan to take a vote of confidence from the people of Pakistan as a referendum. This was meant to be used as a means to quell the protesting PNA workers and with the referendum favoring Bhutto, he could then crush the united opposition. He also amended that any place where the armed forces were deployed, the high courts could not use Article 199 which is the Article of Writs meaning that anywhere the army was deployed for aid to civil power, the Fundamental Rights could not be enforced through court orders and those rights could be violated without any recourse or consequences. This was followed by brutal crackdowns and in the end Bhutto, after hearing that the army was about to take over, tried to fast track a compromise but unfortunately it was too late and on 5th July 1977, the Constitution which had been abused so badly and weakened to such an extent for the security of the power of a single person, was abrogated by the military once more and Bhutto, the framer of the Constitution who had used it for his personal gain, was now jailed by General Zia Ul Haq.
The above period of 1973-1977 was another sad chapter in the history of Pakistan and the abuse of constitutional power has been displayed above and this was done to secure the position of power but what the good prime minister did not take into account was that the power he was trying to secure came, not from authoritarian amendments but from the constitution itself and it was the constitution that was his defense but he had weakened it to such an extent and used it for his personal gain and power, that it led to the most undemocratic of institutions, once again come and remove the constitution. The story was the same. The legal order was set aside, the political leaders were jailed, the excuse of the country being in precarious situation and needed saving and lastly that a promise of new elections was made. The same speech was made and the symbiotic relationship between the people of Pakistan and the constitution, weakened for securing of power, was now cut.
Despite all of that. Bhutto and the 1973 Constitution faced a broken country that was broken on ethnic lines and it was their strength that the country was able to survive such a dangerous situation and when Bhutto crushed all separatist movements by 1978, the country was healed through the 1973 Constitution. This cannot be ignored and it must be stated that had the Constitution not been used for personal gains, then perhaps the country would have seen exponential constitutional growth but unfortunately that didn’t come to pass and the country would see a long dark night that would last till 1988. The lesson would be repeated on 12th October 1999.
Begum Nusrat Bhutto Vs. Chief of Army staff
The case was relying mainly on the judgment in Asma Jilani Case of 1972 asking the court to declare the Martial Law to be unconstitutional and a treasonous act in accordance to Article 6 of the 1973 Constitution. The petitioner argued that Martial Laws have been declared illegal and such abrogation was now an act of treason and the doctrine of necessity was no longer applicable since it had been declared void in 1972. The defendant argued that since Bhutto had done massive rigging in the 1977 elections and was the reason behind the chaos that had engulfed Pakistan thus his government had lost all constitutional validity and the ensuing situation of a civil war was only brought under control thanks to the timely action of the army. The 9 bench court passed a judgment stating that the petition was not maintainable and with it brought forth a new version of Doctrine of Necessity. This version would plague Pakistan till the coming of the 18th amendment.
In summary the court decided that The Supreme Court said that the legal consequences of an abrupt political change, by imposition of martial law, have to be judged not by application of an abstract theory of law in vacuum but by consideration of the total milieu preceding the change. That the action of and motivation of the persons bringing the change and to the extent that the old legal order is being preserved. The judges highlighted that if the judges were taking oath based on the 1973 constitution post the Martial Law then this means the 1973 constitution was still the supreme law of the land apart from certain parts which were held in abeyance on account of state machinery. That the steps taken by the Chief Martial Law Administrator are an extra-constitutional step taken to protect the people of Pakistan and the integrity of the country and thus he is empowered to take all executive and legislative measures for the country.
The views of the judges were
Justice Nasim Hasan Shah; The situation that had happened between the four months and the condition of the country had repudiated the constitutional and moral authority of both the Federal and Provincial governments for which the 1973 Constitution had no solution provided in it. As the Constitution could not measure upto it, the Doctrine of Necessity becomes necessary and applicable, for where the safety of the state and the welfare of the people are in imminent danger, necessity justifies a departure from ordinary course of law.
Justice Qaiser Khan; The good justice declared that a constitution could be annulled, abrogated or destroyed through two methods. One by a constitutional act which would be the method provided in the constitution itself for changing or replacing it and the other by an unconstitutional act such as through a revolution or a coup d’état. In this case the constitution was put in abeyance which is to say that it was suppressed for the time being by an extra-constitutional act of issuing a proclamation of emergency. Now the validity of this act could not be tested on the basis of the constitution of 1973 as it was no longer there having been suppressed and there was no other superior norm on the basis of which it could be tested. Such an action is called as meta-legal by some jurists. By the case of Asma Jilani 1972, the legitimacy of the Dosso case of 1958 could not be applied here since it was overruled however the Asma Jilani case of 1972 could not be applied here in the present case as the facts and circumstances of the takeover are quite different from the facts and circumstances of the previous takeover. In the present case the takeover was quite justified and the Chief of Army staff could not be declared an usurper.
Justice Muhammad Afzal Cheema; The good justice utilized Islamic principles to justify the military takeover by stating that Islam is the ideological foundation of the country and any man-made legal system would be declared repugnant if it clashed with Islamic principles. He stated that the principles are subjectively centered around morality and are aimed at the establishment of an orderly and peaceful moral society by taking an equally pragmatic view in the matter of their application and placing the security, safety, and welfare of the people above everything else. Thus the doctrine of necessity is an inevitable outcome of this realistic approach and this has been recognized by Islam both in the individual as well as in the collective.
Justice Muhammad Akram; The good justice also utilized Islamic principles in his reasoning where he stated that Pakistan is an Islamic country and the basis of this is the Objectives Resolution with e4mphasis on Islam and morality thus we cannot divorce morality from law and the pure theory of law is not suited to the genesis of the state. It has no place in our politics and is unacceptable to judges charged with administration of justice in the country.
Justice Nasim Hasan Shah; The justice reasoned that despite the fact that the armed forces are in full control of the country. They have no intention to establish a new Legal Order and abrogate this the 1973 Constitution. The Constitution remains the supreme law and the judiciary and the president of Pakistan are functioning based on the powers of the Constitution. The change is only in the nature of Constitutional deviation rather than the destruction of one Legal Order and its replacement by another.
The justices above provided little more than excuses to give power to the dictator that would hold the 1973 Constitution hostage till 1988. The reasoning of the judges could be broken down to the following points.
That the 1973 Constitution was not abrogated but simply some of its Articles were held abeyance. The Constitution largely remained in power as the Supreme Law.
That the government had lost all moral and constitutional authority and the courts function on morals as well as law.
That Islam allows for such for the good of the welfare of the people and thus the takeover ws in line with Islamic principles and since Pakistan’s ideology was based on Islam thus the takeover was entirely legal.
The reasons were little more than excused that made Pakistan, a country formed through constitutionalism and law, a laughing stock in front of the world once again, The court tried to deviate from the 1958 Martial Law as much as they could but failed in their reasoning to justify a takeover and the courts abject surrender wrote a dark chapter in the history of Pakistan and brought all constitutional evolution to a screeching halt.
Firstly the act of arresting an elected prime minister and taking down his government was without a doubt an act of treason by the army since they are, by oath, tasked to defend the government and state and this was highlighted in the famous case of Asma Jilani 1972 and the courts back then had stated that the action of the armed forces did not help situation but only fed the chaos through their action. The army is no authority to set aside any Article of the constitution and the emergency powers, provided in the 1973 Constitution for such an act, are provided to the government. The army cannot claim that they have not attacked the Constitution by simply holding a few Articles in abeyance. This would provide justification for the army to hold in abeyance only Part II of the constitution out of 12 parts thus the action is legal since majority of the Constitution is still in power. Such reasoning weakens the constitution itself and while Bhutto damaged the 1973 Constitution by his authoritative amendments and usages of Articles, however it was this damage that dealt a fatal blow. Some of the best jurists in Pakistan shocked the entire world by this rash explanation. Even the holding in abeyance or to abrogate even a single Article is an act that deserved the punishment of treason.
Secondly it is not the duty of soldiers to decide when and how the government had or had not lost the moral authority to rule the country. That is for the people of Pakistan to decide and while the courts may highlight the failures of the government and punish them where they can for the excesses the government may have committed however what they can’t do is declare an entire elected government to be declared void due to moral reasoning. The courts were not authorized to decide whether a government is moral or not much less whether such immorality makes the government void or not. While the court may claim reasoners of morality according to some jurists however to dismantle an entire government which was elected just a few months ago is not amongst the powers of the court. The courts can find moral reasoning within law however what they can’t do is create their own morals as laws justifying unlawful acts and that is exactly what the courts did here. This also came as a huge blow to the constitution as the courts had to degrade the value of Law and the rule of law and bring forth concepts of morality and rule of morals as a justification. This was a concept worse than the Doctrine of Necessity since it provided infinite ammunition to the military to interfere in government and judicial administration by declaring the actions of both as immoral and against the welfare and interest of the people of Pakistan. The courts here weakened their own authority since they could wield the Law as a weapon or shield but when the courts threw this shield and sword to justify a hostile takeover by giving moral reasoning, they injured their own authority to such an extent that the country, to this day struggled to shake the talons of undemocratic forces. The courts also could not find reasoning even if morality was to be involved since the Martial Law had happened before the courts had declared the government of Bhutto as morally corrupt and void. Guns and tanks rolled before such a conviction was made and this act was similar to a policeman executing a person before his crime was adjudged. Would such an act be considered legal by any court or by any jurist? Then why was such considered legal here? This act brought upon the tyranny of a dictator and would do so again and even then, the Constitution would always be under siege by them.
There exist similarities between the 1958 takeover and the 1977 takeover since both overthrew governments formed and both of them brought the Army into politics. Both of them blamed the politicians for the chaos in the country and both of them promised to hold elections as soon as possible. The two Martial Law Administrators decreed that the provisions of their constitutions in hostage would remain in power till further notice and both of them claimed moral authority and justified their act as righteous since the act was committed for the sanctity of thr integrity of the state, to defend against the internal enemies attacking the state and for the welfare and betterment of the people. The two Martial Laws gained another similarity. Both of them were justified by the top judicial minds of the country through the infamous Doctrine of Necessity whether that doctrine stemmed from Kelson’s theory or from the Islamic principles or from the Objectives Resolution.
Lastly the court used Islamic reasoning however the honorable judges did not give take into consideration that Islam has always upheld rule of law to this extent that in Hadd, the act of rebellion or action against state is considered as a serious offence that is punished severely. The people laid siege to the house of Hazrat Usman (R.A) and martyred him and this act of rebellion and murder of a leader was condemned by all parties and by all jurists and that event was evidence that such arbitrary and rash actions can lead to civil war since post his martyrdom, the Rashidun Caliphate witnessed Fitnah that would engulf the empire till the rise of the Ummayad Caliphate. This is the strongest of evidence that the act of removing an elected leader through forceful and rash actions can only lead to more chaos and is condemned in Islam and Shariah. If the judgment truly took inspiration from the Islamic ideology of Pakistan and from the Objectives Resolution, then it would have condemned this hostile takeover and the court would not have feared from doing so. Unfortunately the courts did not do that and brought upon Pakistan a form of fitnah and civil strife that would continue till the end of 2008 with Pakistan being home to two Martial Laws, extreme political infighting and constant interference from undemocratic forces.
With the enforcement of a new Doctrine of Necessity, the country plunged into absolute chaos as Zia Ul Haq focused on creating a friendly judiciary for the trial of the incarcerated prime minister and through that post the ending of the presidential term of Fazal elahi, Zia became president and revived the 1973 Constitution partially where he kept most of the powers in his own control. The Constitutional evolution of the country was no in regression and in 1979, the new president banned all political parties and called the parliamentary system, a system of disorder and preferred the presidential system however it must be stated that no country, where rule of law exists, allows an all-powerful president. Such countries are considered a joke by the international world. The US system is a very good example of a presidential system and the United States President is both powerful and constrained by the Congress and the Judiciary. He is neither supreme nor omnipotent. Whether the system if parliamentary or presidential, it does not matter as long as the country has separation of powers and balance so that a tyrant may not rule the country. Unfortunately the dictators of Pakistan have focused entirely on a system that was little different than a monarch ruling a kingdom. The 1973 Constitution revival was only to allow him to exert his power to Pakistan more easily and without any administrative difficulties. In 1981, he disbanded the defunct parliament and created a Shura which was a board of advisors to help his Islamization of the country.
To delay the elections and hold his power more, he utilized the 7th amendment to hold a popular referendum where he won by 97.6% on the question whether he should continue as President of Pakistan or not? Needless to say such high victories are only witnessed by dictators in dictatorial regimes and through that he used the excuse that the people supported his regime and his ideals and were no longer interested in a parliamentary system nor were they interested in the 1973 Constitution. However Zia was not confident that he could keep the Constitution nor the parliament under control no matter how much control he had. He had seen how Ayub and Yahya had struggled and even the Constitution made for Ayub Khan and by Ayub Khan, could not save him. Thus on 2nd March 1985, he introduced the Presidential Ordinance No. 14 which revived the 1973 Constitution with great amendments. The order had amended many articles in the Constitution of 1973 effectively making the country a presidential system where the president held major powers. It was also through this order that the Constitution underwent Islamization where the Parliament was changed to ‘Majlis e Shoora’ and Article 2A was added which annexed the Objectives Resolution into the Constitution of 1973. The order also provided for the addition of qualification and disqualification of Parliamentary members. It also added Article 239 which empowers the parliament to amend any article in the constitution. Previously the parliament was empowered to act as such however such power was not mentioned before but now such power was explicitly mentioned so that the President could use the power to make changes anywhere in the Constitution of 1973 and this created an obstacle in the evolution of the 1973 Constitution.
The Articles of the Constitution are meant to empower the other Articles and not act as an impediment to the others. They draw their strength by being pieces of a grand puzzle put together. Even a single misshape would ruin the puzzle and that was exactly what this dictatorial amendment did. Article 239 empowers the parliament to make any amendment they see fit however Article 8 states that any law which contravenes the Fundamental Rights shall be considered void. So if the parliament is empowered under Article 239 to remove the Fundamental Rights when is it void due to Article 8 or valid due to the power allotted under Article 239 and then to make sure such question never comes to pass the Order added that such cannot be challenged in court which meant that if parliament passed an amendment or passes any law then the courts have no locus standi thus breaking the concept of Trichotomy of Power which was the cornerstone of the 1973 Constitution. One can argue that this was Zia’s attempt to make the Constitution of 1973 more like the Constitution of 1962 and lastly it gave credence to all the orders passed by him.
The order was a severe blow to the constitutional evolution of the country and the fact that such amendments remained in the constitution leading the political turmoil of the 1990s and the ultimate Martial Law of 1999.
@VCheng @Joe Shearer @Kaptaan @T-123456 @Saithan @Yankeestani
