Baluchistan
Balochistan ( ; bal, بلۏچستان; also romanised as Baluchistan and Baluchestan) is a historical region in Western and South Asia, located in the Iranian plateau's far southeast and bordering the Indian Plate and the Arabian Sea coastline. ...
Federal Government
A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
famously the
doctrine of necessity
The doctrine of necessity is the basis on which extra-constitutional actions by administrative authority, which are designed to restore order or attain power on the pretext of stability, are considered to be lawful even if such an action contrave ...
.
Case facts
Dosso a resident of tribal district
Loralai
Loralai ( ps, لورلايي, ur, ), also known as Bori ( ps, ), is the division headquarter of Loralai Division and district headquarter of Loralai District. It is in the northeast of Balochistan province in Pakistan. It is above sea level ...
committed a murder and got arrested by the Levis Forces which handed him over to the tribal authorities where he was trialed by Loya Jirga. He was charged for murder under the section 11 of the FCR 1901 and was convicted for it by Loya Jirga. Dosso's relatives challenged the decision of Loya Jirga in Lahore High Court. The High Court considered the case according to the 1956 constitution of Pakistan and ruled in favour of Dosso. The High Court declared that FCR is against the constitution and Dosso is entitled to equality before law under article 5 & 7 of the constitution. Loya Jirga's decision was declared null and void. Federal Government of Pakistan filed an appeal in Supreme Court of Pakistan against the verdict of High Court.
Hearing in High Court
Relatives of Dosso filed a petition against his conviction by Loya Jirga in West Pakistan High Court (Lahore High Court) that he is the citizen of
Pakistan
Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
and being a citizen of Pakistan he must be tried according to the Pakistani laws, not the FCR. Articles 5 of the Constitution of Pakistan of 1956 states that all citizens are equal before law and under article 7 enjoy equal protection of the constitution. Dosso's relatives also challenged the relevant provisions of FCR considering them against the article 5 and 7 of the constitution.
Judgement
High Court decided the case in favour of Dosso and declared that FCR is against the 1956 Constitution. The Constitution of Pakistan ensures the equality and protection of citizens and declared the proceedings of Loya Jirga as null and void.
Legal effects of the judgement
The effect of Lahore High Court's decision was that after declaring FCR against the constitution and proceedings of Loya Jirga as null and void, the cases which were decided since the promulgation of new constitution of 1956 were in question. It was said that if conviction of Loya Jirga in Dosso case is declared null and void then what about the previous convictions of Loya Jirga after promulgation of Constitution in 1956.
Commander-in-Chief of Pakistan Army
The Commander-in-Chief of the Pakistan Army (C-in-C of the Pakistan Army) was the professional head of the Pakistan Army from 1947 to 1972. The C-in-C was directly responsible for commanding the army. It was an administrative position and the a ...
General Ayub Khan
Muhammad Ayub Khan (Urdu: ; 14 May 1907 – 19 April 1974), was the second President of Pakistan. He was an army general who seized the presidency from Iskander Mirza in a coup in 1958, the first successful coup d'état in the country's h ...
as
Chief Martial Law Administrator
The office of the Chief Martial Law Administrator was a senior and authoritative post with Zonal Martial Law Administrators as deputies created in countries such as Pakistan, Bangladesh and Indonesia that gave considerable executive authority and p ...
(CMLA). All of the government machinery; legislatures, central and provincial were dissolved.
After three days of martial law, an order named Laws (Continuance in Force) Order 1958 was issued by CMLA
Ayub Khan
Ayub Khan is a compound masculine name; Ayub is the Arabic version of the name of the Biblical figure Job, while Khan or Khaan is taken from the title used first by the Mongol rulers and then, in particular, their Islamic and Persian-influenced s ...
. This order was a new legal order which replaced the old legal order i.e. The Constitution of Pakistan 1956. The legal order validated all the laws other than constitution of 1956 and restored the jurisdiction of all courts.
Impacts of Martial law on the case
Martial law impacted the case significantly and raised some technical points that if
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
maintains the decision of Lahore High Court, it meant that constitution was still in force because the Lahore High Court decided the case under article 5 and 7 of the Constitution of Pakistan 1956. Also if the constitution was still in force then what will be the status of martial law regulations and Laws (Continuance in Force) Order 1958 as it also challenged the martial law administration.
Judgement
The
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
after restoration decided the case against the decision of Lahore High Court with sole dissenting note by
Justice Cornelius
Alvin Robert Cornelius, HPk (8 May 1903 – 21 December 1991) was a Pakistani jurist, legal philosopher and judge, serving as the 4th Chief Justice of Pakistan from 1960 until 1968. In addition, he served as Law Minister in the cabinet of Yahy ...
. Supreme Court bench headed by
Justice Munir
Muhammad Munir (1895–1979) was the second Chief Justice of Pakistan serving from 1954 to 1960.
Background
Munir obtained his degree of master's in English Literature from Government College University Lahore, he joined Law College to earn his L. ...
based its decision on Hans Kelsen's ''General Theory of Law and State''.
bloodless coup
A nonviolent revolution is a revolution conducted primarily by unarmed civilians using tactics of civil resistance, including various forms of nonviolent protest, to bring about the departure of governments seen as entrenched and authoritarian ...
and a kind of peaceful revolution which was not resisted or opposed by the public implied that public is satisfied with this change or revolution, so therefore this martial law is legit. According to the Supreme Court, Laws (Continuance in Force) Order 1958 is the new legal order instead of Constitution of Pakistan 1956 which got abrogated and the validity of a law is determined by this new legal order. Furthermore, it was held that the constitution is abrogated, therefore FCR 1901 is in force according to the Laws (Continuance in Force) Order 1958 which validated the decision of Loya jirga.
theory
A theory is a rational type of abstract thinking about a phenomenon, or the results of such thinking. The process of contemplative and rational thinking is often associated with such processes as observational study or research. Theories may be s ...
which afterwards was applied in many other cases in
Pakistan
Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
as well as in the outer world.
Politics of Pakistan
Supreme Court's judgement in Dosso case greatly impacted the
politics in Pakistan
The Politics of Pakistan () takes place within the framework established by the constitution. The country is a federal parliamentary republic in which provincial governments enjoy a high degree of autonomy and residuary powers. Executive ...
and opened the doors for the future martial laws in the country. Legitimization of martial law given power to CMLA Ayub Khan who used it to rule the country for next 10–11 years. Democratic process in the country was crippled which had recently been on the road after the promulgation of 1st constitution in 1956 and made the country to run on the track of dictatorship. Military was encouraged by it for future interventions which occurred three times afterwards. The decision also deprived country of its first constitution just after two years of its promulgation after the struggle of 9 long years. Abrogation of the 1956 Constitution also disturbed the ties between East and
West Pakistan
West Pakistan ( ur, , translit=Mag̱ẖribī Pākistān, ; bn, পশ্চিম পাকিস্তান, translit=Pôścim Pakistan) was one of the two Provincial exclaves created during the One Unit Scheme in 1955 in Pakistan. It was d ...
which were recently settled by establishing parity between both wings and incorporating both
Bengali
Bengali or Bengalee, or Bengalese may refer to:
*something of, from, or related to Bengal, a large region in South Asia
* Bengalis, an ethnic and linguistic group of the region
* Bengali language, the language they speak
** Bengali alphabet, the w ...
as national language. The decision of the Supreme Court re-validated the British implied legacy of Frontier Crimes Regulation, which was known as the Black Law continued to be enforced in the tribal region till 2018.
Independence of Judiciary
The decision of the Supreme Court of Pakistan was a serious blow to the independence of judiciary and
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
was bound to render its service under new legal order. The decision also deprived the courts to hear appeals against the action of
government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
. The judiciary once again bowed down in front of executive in this case and concept of
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
further diminished.
See also
* ''
Federation of Pakistan v. Maulvi Tamizuddin Khan
''Federation of Pakistan v. Maulvi Tamizuddin Khan'' (1955) was a court case of the Dominion of Pakistan. The Federal Court of Pakistan (now the Supreme Court of Pakistan) ruled in favor of the Governor General of Pakistan's dismissal of the 1st ...
''
*
1958 Pakistani coup d'état
The 1958 Pakistani coup d'état began on October 7, when the first President of Pakistan Iskander Mirza abrogated the Constitution of Pakistan and declared martial law, and lasted until October 27, when Mirza himself was deposed by Gen. Ayub Kha ...
References
Bibliography
*
*{{Cite book, last=Azeem, first=Muhammad, url=https://books.google.com/books?id=t-AqDwAAQBAJ, title=Law, State and Inequality in Pakistan: Explaining the Rise of the Judiciary, date=2017-07-02, publisher=Springer, isbn=978-981-10-3845-7, language=en
Pakistani constitutional lawSupreme Court of Pakistan casesMartial lawPakistan Army