'A Judge Speaks Out' launched: some judgements resulted in destabilisation of polity, says Ajmal

Former Chief Justice of Pakistan Ajmal Mian has said that superior judiciary in Pakistan have given some judgements during the last 56 years that gave birth to doctrine of necessity and have adversely affected the growth of the democratic process in the country.
He was speaking at the launch of his book "A Judge Speaks Out" organised by the Oxford University Press, Pakistan, at a local hotel on Monday.
Justice Mian said, "These judgements have resulted in destabilisation of the polity in the country."
He specifically referred to the Federal Court (predecessor of the Supreme Court) and said it laid the foundation of the "unfortunate trend" of resorting to the doctrine of necessity.
The judgement of the Federal Court in Moulvi Tamizuddin Khan's case was the starting point of the decay.
He said that in this particular case the facts were that the then governor general, Ghulam Mohammed, had dissolved the Constituent Assembly of Pakistan and had dismissed its speaker by his office order, Aug 5, 1954, on the ground that it had failed to frame a constitution. Moulvi Tamizuddin Khan, as the speaker, had filed a petition before the Sindh Chief Court under section 223-A of the Government of India Act 1935, which was enacted by the Constituent Assembly of Pakistan conferring writ jurisdiction on the High Courts and the Chief Courts.
The Sindh Chief Court had allowed the petition and had declared the orders of the GG as illegal and unconstitutional.
Justice Mina said that the GG filed an appeal before the Federal Court of Pakistan, which upheld the appeal and set aside the Sindh Chief Court's judgement on the ground that section 223-A was not validly enacted as the GG's assent to it was not obtained.Justice Muhammad Munir, the then chief justice, spoke for the majority view. Justice Cornelius had recorded a dissenting note and had held that no assent of the GG was required as the assembly was not only the federal legislative body but was also a constituent assembly vested with the powers to frame a constitution for the newly created state of Pakistan and, therefore, section 223-a was validly enacted and the Sindh Chief Court had jurisdiction to declare the GG's order as illegal and unconstitutional.
Justice Mian said that if the minority view of Justice Cornelius would have been the majority view, the political history of Pakistan might have been different.
He said, "This might have averted adventurism and invocation of the Doctrine of Necessity."
Ajmal Mian said that this situation created a vacuum and forced the GG to find out a solution.
He said that Chief Justice Munir once again came to his rescue and suggested that to break the impasse a new constituent assembly should be constituted though there was no provision in the Government of India Act 1935, or in the Indian Independence Act 1947.
Ajmal Mian said that the doctrine of necessity provided protection to military take-over by General Ayub Khan, General Ziaul Haq and General Pervez Musharraf.
Referring to contradictions in following decisions of the courts and rulings of the superior judiciary he said that in 1972 in respect of imposition of martial law by General Yahya Khan the doctrine of necessity was not followed. However, the judgement in Asma Jilani case was announced when Yahya Khan was no longer in power.
Coming up with another case he said that before the military take-over on October 12, 1999 a few months earlier Mian Muhammad Nawaz Sharif's government pressed into service before the SC the doctrine of necessity to justify the establishment of the military courts in Sindh, particularly in Karachi but the same was rejected by a unanimous decision of a bench of seven judges headed by the then chief justice.
He said that it was held by the court that establishment of military courts under the impugned Ordinance is violation of the Constitution.
He said that doctrine of necessity was always there to suit the people in power.
Chief Justice Mian said that democracy has flourished in countries where political turmoil is less and where there is strong public opinion in support of democracy.
He said, "In a country where democratic process is not fully entrenched and is interrupted regularly by the imposition of military takeover or by other political turmoil, the work of judiciary becomes very difficult, particularly when the required public opinion to control and contain the martial law is lacking.
He said that out of 56 years, military rule remained in place for 18 years that adversely affected democratic process in the country.
"During these periods, security of tenure of judges, which is one of the most important guarantees for realisation of the ideal of an independent judiciary was practically non-existent. The judges were liable to removal by compulsory retirement at the whims of the martial law authorities. The Authorities were facilitated by both lack of public concern and absence of an entrenched tradition of upholding the independence of judiciary in Pakistan. A large number of judges were arbitrarily retired under the PCOs."
He said that the treatment of judiciary by the political governments has also not been commendable. "They did not like to have an independent and impartial judiciary."
Former Chief Justice Ajmal Mian said that temptations of out of turn promotion and fear of premature retirement also played its part.
He said for an independent judiciary we will have to inculcate culture for the acceptance of such a judiciary and create public opinion in this regard. "Without an independent and an impartial judiciary we cannot establish rule of law in the country."
In his keynote address Justice Dr Javed Iqbal paid tributes to the sense of proportion, integrity, honesty and steadfastness of Justice Mian and said that because of these qualities his book is less an autobiography and more a judgement on the state of affairs of different walks of life including the judiciary.
He recalled his association with him and said that Mian has left traditions and to get an introduction of him one would have to read chapter nine of the book which contain Justice Mian in full.
Justice Iqbal bitterly criticised some of the judges who had controversial credentials and said that because of them the judiciary in Pakistan "is still licking its wounds".
He said that The Judge Speaks Out is not a book that can be ignored. It is a storehouse of information and straightening of records.
Justice Fakhruddin G. Ebrahim, in his remarks said, "Our superior judiciary has failed to uphold and protect our basic law, the fundamental law and even the 1973 Constitution, mother of all institutions."
He narrated the incident when a military ruler asked him to inquire from the four chief justices of the four provinces to act as governor and to his utter surprise all of them agreed. "They remained acting governors until 16th September 1978."
He said, "Military always takes good care of its collaborators and have always duly rewarded them. General Zia by Presidential Order of October 1978 allowed the acting governors to the allowances and privileges available to regular governors.
He said that misfortune of the judiciary did not end at one stage in the past. "Again I say with deep regret that we have the misfortune of having Mr. Justice Irshad Hasan Khan and Mr., Justice Riaz as our Chief Justices. It is recent history. We appear to learn no lessons from history. Things were so bad that Pakistan Bar Council published a white paper on the role of judiciary. I have not come across even after the retirement of these two chief justices any statement contradicting the white paper."
He said that the book written by Ajmal contains material that would provide answers to many questions that had been created by some other publications.
He congratulated Justice Mian for his contribution towards the judicial history of Pakistan.
In her introductory remarks Managing Director, Oxford University Press Ameena Saiyed gave account of salient features of the book and said, "This biography is an eloquent record of a critical period in the judicial history of this country".
Attorney General Makhdoom Ali Khan also spoke on the occasion.
The launch was largely attended by the retired and serving judges of the superior judiciary, elite of the city and book lovers who treasured an autographed book.