Law alter views
Martial law when legal or illegal
Justice Mohammad Gholam Rabbani
Though this note is the reaction to the judgement of the High Court Division delivered on 29 August declaring in effect the rules of Mushtaque, Sayem and Zia from 15 August to 9 April as illegal, but this is not the discussion on that Judgement at all. This judgement reminds me of a judgement delivered by a full bench of the Pakistan Supreme Court headed by the Chief Justice Hamoodur Rahman in the early part of 1975.
Earlier in 1958 Pakistan Supreme Court gave legal recognition to the then martial law regime in Pakistan in a case... State vs Dosso, reported in 1958 PID 533.
The Full bench headed by Chief Justice Rahman framed these issues for consideration: (i) Whether the doctrine in the case of State vs Dosso was correct? (ii) Whether the source of power assumed by Ayub Khan was legal and constitutional? and (iii) Whether power transferred to Yahya Khan by Ayub Khan was legal and constitutional?
Chief Justice Rahman in the judgement held," Looked at, therefore, either from the constitutional view or the martial law point of view whatever was done by Ayub Khan or Yahya Khan was entirely without legal foundation. It was not even a revolution or a military coup d'etat in any sense of its term. On the stepping aside of the constitutional President the constitutional machinery should have automatically come into effect and the speaker should have taken over as acting president until fresh election was held for the choice of a successor. The National and Provincial Assemblies would have taken steps to resolve the political disputes, if any, if the Military commander had not by illegal order dissolved them. The Military Commander did not allow the constitutional machinery to come into effect, but usurped the functions of the government and started issuing all kinds of Martial law regulations, Presidential Orders and even Ordinances."
The author is a retired Judge, Appellate Division, Supreme Court.
