Judgment which upheld dissolution of Constituent Assembly was a blow to democracy and invitation to authoritarianism
Most enlightened people in Pakistan know Chief Justice Muhammad Munir for his controversial decision in The State v Dosso which paved the way for martial laws, but few realise that it was far from his solitary mistake. Some mistakes are bigger than others. And then there are mistakes which are of historic proportion, and Dosso represents precisely such a mistake. Munir is not the only judge to have made a mistake of historical proportions. Chief Justice Roger Taney of the United States in Dred Scott v Sandford (1857) made a historical mistake when he justified slavery, segregation and denied basic rights to black African slaves, perpetuating the US Civil War (1961-1965).
But Munir and Taney are distinguishable, for Taney made a singular historical mistake, whereas Munir had a history of undermining the judicature. George Curtis, who argued before Taney on behalf of Dred Scott wrote: “He was indeed a great magistrate, and a man of singular purity of life and character. That there should have been one mistake in a judicial career so long, so exalted, and so useful is only proof of the imperfection of our nature”.
Munir, conversely, was not a one-time manipulator of the law. From the time he became chief justice of the Lahore High Court in 1949, Munir began to develop jurisprudence where he deferred to the executive even where it placed restrictions on the liberty, movement, free speech or expression of citizens such as in Ali Muhammad v the Crown (PLD 1952 Lahore 573), The Crown v Faiz (PLD 1952 Lahore 222), Mazhar Ali v Governor of the Punjab (PLD 1954 Lahore 14), Maududi v Government of Punjab (PLD 1954 Lahore 172).
Rather than view the relationship between the three pillars of state – executive, legislature and judicature – as providing checks and balances, Munir viewed the role of the judiciary as a facilitator of the executive.
When the first vacancy occurred in the Federal Court in 1951, Munir by virtue of his seniority was the obvious choice, but he declined elevation, choosing instead to remain the chief justice of the Lahore High Court, which in his view was far more prestigious and powerful. Justice Cornelius was elevated instead.
In 1954 as the retirement of Chief Justice Sir Abdul Rashid approached, the four senior judges of the Federal Court in order of seniority were Justices Akram, Shahabuddin, Cornelius and Sharif. However, Munir managed to bypass them all. He colluded with Governor General Ghulam Muhammad to entrap Justice Akram. A note was put up through the law ministry indicating the possibility of requesting the British government to appoint a Law Lord from the House of Lords as the chief justice.
When Justice Akram learnt of this, he reviled at the prospect, and approached the governor general not to tread down such a path, as it would reflect poorly of Pakistan, and offered to relinquish his own claim on the position so long as the appointee was a Judge from Pakistan. The conspiracy was executed to a tee, and it paved the way for Munir to be appointed.
When the case Federation of Pakistan v Maulvi Tamizuddin (PLD 1955 FC 240) reached the Federal Court, Munir stayed in constant touch with the governor general, to whom he was beholden, and told him, that to forge a majority Justice Shahabuddin had to be removed from the bench as he had the ability to influence other judges’ opinion.
Ghulam Muhammad impressed upon Shahabuddin to assume the position of the governor of East Bengol as a matter of national duty. While very reluctant, Shahabuddin eventually relented, and was replaced by Justice Rehman, who Munir had already calculated would side with him. The judgment which upheld the dissolution of the Constituent Assembly was a blow to democracy and invitation to authoritarianism.
Then came The State v Dosso (PLD 1958 SC 533) in which Munir employed Hans Kelsen’s theory of revolutionary legality to justify Pakistan’s first coup d’etat, an exercise which Kelsen reproached as according to him assuming the validity of the grundnorm was a political act, beyond the reach of legal science, and the ‘efficacy’ of coercive orders did not ipso-facto settled the question of their ‘legality’.
Dosso was not an isolated mistake of Munir, it was the culmination of a propensity to appease and manipulate which he had repeatedly brandished, evinced by his remark “the writs being enforceable, who was to enforce them, and was the Court itself in a position to punish the contempt”. .. 21 April 2025
The writer is a legal practitioner. He can be reached at:[email protected]
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One thought on “Justice or manipulation?”
During Britain’s darkest hours in world war II when it was at the brink of defeat, it’s Prime Minister Winston Churchill When informed of the devastation caused by bombings, asked, “Are the courts functioning?” Upon hearing that justice was still being dispensed, he replied, “Thank God. If the courts are working, nothing can go wrong” – the rest is history