In Pakistan, it happened 65 years ago, a short while after independence, the Pakistan army took over the country, The sequence of events that made General Ayub Khan the first military ruler is as follows:
The sequence was triggered by the governor-general, a man named Ghulam Muhammad. He was a clever man, a chartered accountant by training, who was named to run the finance ministry. After the death of Jinnah the first PM in 1948, and the assassination of Jinnah’s deputy L.A. Khan in 1951, the Pakistan Muslim League was leaderless and in this space, Muhammad became governor-general.
In 1954, he unlawfully dismissed the Pakistan Constituent Assembly which was taking much longer than India to frame its constitution. Those who were dismissed went to court where it was determined that G. Muhammad’s actions were unlawful. However, he and the new ministers who had taken power with him went into appeal.
Here the Supreme Court backed Muhammad, justifying his illegal action. The judgment reads: "Thus the issue raised refers to the extraordinary powers of the Governor-General during the emergency period and not to powers which vest in the Governor-General during normal times when the vital organ of the Constitution, namely the legislature, is functioning, and the question that we have to consider is whether there is any provision in the Constitution governing such a situation or any other legal principle within, outside or above the Constitution Acts which entitles the Governor-General to act in case of necessity of such a nature.”
Basically, since there was an emergency (and it didn’t matter that the emergency was a creation of the Governor-General), he had to be allowed to do whatever he wanted.
The court added: “If nothing should be done but what is according to law, the throat of the nation might be cut while we send for someone to make the law.” This is a quote from Oliver Cromwell, winner of the English civil war.
The court added that it "found that the Governor-General's actions prevented the breakdown of the political and constitutional institutions of Pakistan.” And so the court overlooked wrongdoing and justified it.
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Pakistani court’s actions had long term repercussions.
The form of law that we have in India and Pakistan relies on precedent. A few years later, by when G. Muhammad had died, the court used the same reasoning to validate the military takeover of the government by Gen Ayub Khan.
And then again when Gen Yahya Khan took over.
Again when Gen Zia ul Haq hanged prime minister Zulfikar Ali Bhutto and became president, the courts were fine with it because there had already been a precedent.
Closer to our time, Gen Musharraf was validated in the same fashion. All the dictators have operated under legal cover, and their actions have been seen as legitimate.
Edited by
jaish
on Sun 11/10/19 04:30 AM