when Justice Munir denied the existence of the assembly’s sovereignty, he destroyed the country’s existing constitutional basis. In essence, sovereign power in Pakistan would become a prize, to be seized by the strongest.
It started with the judiciary. Or, at least, what the judiciary was capable of.
Just a few months before they finalised the Constitution on September 21 — that is, 71 years ago this week — Pakistan’s first parliament introduced a safety valve in the system. It was called writ jurisdiction.
The change didn’t require a lawyer to understand: the superior courts could now issue special orders called writs. These would direct the executive to protect fundamental rights, or restrain it from abusing its powers.
And the House knew a thing or two about such abuse: the year was 1954, and the law — and who got to pass it — was at the heart of democracy’s future. Khwaja Nazimuddin’s ministry had just fallen to the deep state, with battle lines drawn between them: at times dubbed the Bengal and Punjab groups (reductive), or federalists and centralisers (misleading).
Yet the real fight was between the elected and unelected: a forum group versus a fortress group. In fairness, it could well be said that the first was quite capable of excesses, just as the second was of sound decisions. What can’t be said, however, is that both were legitimate.
Ultimately, however, the judiciary would decide that question, the new amendment having boosted its standing. Writs, as Justice M. R. Kayani told college kids in Lahore, “are flowers of paradise, and the whole length and breadth of Pakistan is not wide enough to contain their perfume”.
Provided, of course, parliament stood by the judges. “It is the force of opinion which makes good laws,” said Justice Kayani, “and in this particular case, you must pray for the long life of the Bengali members who made the necessary noise.”
Flowers of paradise: the First Amendment
Those noises were originally made in the summer of 1954, when that year’s first amendment to the Government of India Act — Pakistan’s makeshift constitution — brought in writs.
At the centre of attention was legal genius A. K. Brohi, whose own allegiances were a matter of season: too savvy for forum or fortress, Brohi would, at various points in that pitched battle, lean with whoever was ahead.
Writs enabled justice, he told the assembly, “far more speedily than by resort to the ordinary procedure”. The high courts would thus become “custodians of the rights of the people”.
Even the opposition’s Dhirendra Nath Datta, of the tragic Pakistan National Congress, agreed. “… The way in which indiscriminate arrests have been made in my province … the morale of the people has been completely broken.” One wonders what Datta would make of terrorism FIRs against protesting lawyers today.
He nonetheless concluded, “I cannot but congratulate the government for introducing a bill like this, which is aimed at safeguarding the interests of the people from the executive zulm.”
The first amendment was so passed. Zulm, it was hoped, would be made that much harder.
Open to abuse: ‘transferring’ judges
Interestingly, there were also heated debates, over a half-century before Lahore’s Justice Sarfraz Dogar showed up in the Islamabad High Court, on whether or not to pass a law providing for judges being transferred from high court to high court.
Murmurs came from the forum group’s Abdur Rab Nishtar and Mahmud Husain, recently purged from the cabinet in Pakistan’s first coup in 1953 (their removals informed, as cables in London revealed, by hatreds jointly felt by Iskander Mirza and British mandarins).
Nishtar hoped they could “avoid” such a law altogether: in a federal system, there had to be an autonomous judiciary in all provinces. Otherwise, the law would “give opportunity to a gentleman outside a particular judicial unit to exercise administrative powers”, which might hurt his adopted high court.
Mahmud Husain, too, thought a law meant to secure judicial independence could go wrong if the executive started ping-ponging judges: “It may be under certain circumstances that this power is abused.” He suggested such transfer happen only if “the initiative is to come from the judiciary itself”, and on the recommendation of the chief justice of Pakistan.
Left unsaid was what would happen if the chief justice, as well as his judges, were also chosen by the executive — as the 26th Amendment trainwreck now allows.
Reasons to fight
With the power to issue writs in place, the Long Parliament finally took aim at the governor-general, a relentless old man backed by Iskander Mirza’s bureaucrats and Ayub Khan’s generals.
To be sure, the forum group’s humiliations at the hands of the fortress group had been bitter and many: martial law in Lahore, coups in Karachi, and emergency in Dhaka, all within a year.
But the solution, the members knew, could only be through a permanent political settlement — one their departed boss Muhammad Ali Jinnah had promised they would get to write. In sum, democracy, to be delivered via a Fifth Amendment.
Lesser motives varied. The late cabinet’s Nazimuddin and Mahmud Husain, had neither forgiven nor forgotten the governor-general’s purge; they now had their sights on a federal future.
Their rivals in the present cabinet, mostly loath to poke the bear that had selected them, had outliers like Brohi, who saw the advantage of shutting out the gloved hand for good.
Meanwhile, members from East Bengal, like the brash and bold Fazlur Rahman (not to be confused with today’s maulana), were sick of the Punjab gentry’s plans to fuse West Pakistan’s seats into one bloc. If the Bengalis were a majority of the people, then they had to be a majority in parliament.
Self-preservation also played a part: more thuggish members, like Qaiyum Khan, feared PRODA, the anti-corruption law of the time, as a stick the governor-general would soon beat them over the heads with.
Finally, the prime minister and leader of the house, Bogra, hadn’t been told anything by the rebels until right before. He would go along anyway.
Because passing the Constitution, it was thought, could cure such afflictions. In the words of one bemused British cable from that month, “The motives which inspire Pakistani politicians are so mixed that it is almost impossible to predict in advance what line they will take”.
All that could be said is “the fact that the new Constitution is now very close”.
September rebels: the governor-general defanged
In the wee hours of September 21, 1954, that new Constitution was given its final touches. By then, the only Leaguers left in the assembly were the Bill’s 29 supporters, 28 of whom were from outside the Punjab.
Part of the reason this fightback would merit such little coverage was its stodgy authors: League conservatives from East Bengal, Sindh, and today’s Khyber Pakhtunkhwa, in direct opposition to Punjab one-uniters, Bengali nationalists, and the military establishment.
But their Bill was explosive: the Fifth Amendment, tabled by Sindh’s M. H. Gazdar, and hurried along by speaker Tamizuddin. The ayes rang out in 10 minutes: the establishment was rebuked, the governor-general’s powers to sack the centre scuppered, and the cabinet made dependent on the assembly’s confidence.
The draft Constitution of 1954 also raised Bengali to a national language, entrusted judicial appointments to the country’s chief justice, and buried One Unit out of hand.
“One can only say to the country that the best has been done,” closed Brohi, adding that “posterity alone can be the sole and competent judge.” The Constitution was sent to the printers, to cheers from the press.
“Democracy in Pakistan has come alive,” Dawn said, hailing the “zeal, speed, and determination” of the assembly. After years of heartache, it had fulfilled its mission.
Others weren’t so enthused: upon hearing the news, London sweated that the forum crew would ditch the Western alliance; that they might reject the Southeast Asia Treaty Organisation (Seato) and even step out of the Commonwealth. Punjab’s landed gentry wept at having to concede the Bengalis their majority. And future field marshal Ayub likened the whole session to a murder in the night.
Soon enough, it was hard to find a power centre that wasn’t offended by the assembly.
Nor did it help that the League, having repaired its fortunes, was now asking Fatima Jinnah to take over the party. By nearly all metrics, the fortress group was ending 1954 in the middle of its own personal nightmare.
But it woke up soon enough: the governor-general, resting in the north, rushed back. The memoirs of generals Ayub and Musa roughly corroborate each other as to the fortress group’s tailspin over the next few weeks: in one surreal meeting at Ghulam’s residence on 23 October, the governor-general — lying prone on hardboard — screamed abuse at his guests, ordered Ayub to take over, and refused to give Bogra another chance.
A happy medium was worked out the next night: Ayub moved his soldiers, Mirza padlocked the assembly, and the new Constitution was stillborn 72 hours before its scheduled passage.
To little pushback, prime minister Bogra caved almost immediately to the coup. East Bengal’s two biggest leaders buckled soon after — the price of Suhrawardy and Fazlul Huq’s acquiescence turned out to be a ministry each. The rest of the press was smacked with censorship.
Foreign journals were treated to Iskander Mirza, who told them the electorate was bound to act “foolish”; democracy having “run riot during seven years in Pakistan”.
Tamizuddin, 70 years on
If there was resistance, it came from the speaker — heavily surveilled Tamizuddin Khan — who left for court in a burqa, and whose London barrister, D. N. Pritt, flew into Karachi disguised as a surgeon. Tamizuddin couldn’t afford Pritt’s fees; they had to be covered by philanthropist and insurance magnate Roshan Ali Bhimjee.
This would be in stark contrast to the state’s treasure chest: Ghulam’s lawyer, Sir Ivor Jennings, would be paid seven times the chief justice’s annual compensation. Of course, Jennings’s case was also much tougher: the governor-general, acting as the shadow of an alien queen, had dissolved a sovereign assembly, seized power, and installed a regime of his own.
And while Ghulam had declared that the constitutional machinery had “broken down”, the opposite was true — it had whirred to life. The reason for sacking the assembly wasn’t that it had failed to come up with a Constitution. It was that it had succeeded.
So the deep state tried another tack: that parliament had lost its representative character, having chugged on for so many years. Yet this would have been believable had it been shuttered after the ruling party’s thrashing at the polls in East Bengal in 1954. That it was left alive only proved the assembly was meant to finish its task.
Not least, whatever the sins of parliament, nothing in the law allowed for the governor-general to handpick a cabinet of his own — hence ministers Ayub and Mirza named as respondents in Tamizuddin’s petition.
Up against such strongmen, Tamizuddin hoped the court’s writs would act as no less than flowers from heaven. And they did: after several packed hearings, with citizens sitting on prayer mats in front of the domed Sindh Chief Court, the judges found for Tamizuddin by unanimous decision.
Not only was parliament sovereign, “I am unshaken in my belief,” held Justice M. Bukhsh Memon, “that the Governor-General had no power of any kind to dissolve the Constituent Assembly.”
The Munir court
Beaten on all fronts, Jennings switched strategies: in an unwinnable case, best to dodge the merits altogether. In its appeal before the Federal Court (now the Supreme Court), the state argued that the Sindh Chief Court never had the power to issue writs, because the law providing for such powers had never been assented to by the governor-general.
And the governor-general’s assent was very much required, given Pakistan was still a dominion under the queen. It was a lawyer’s loophole; one that Justice Muhammad Munir had already closed in Khuhro vs Federation in 1950, holding that no such assent was required.
We now know Munir was all set to change his mind, and that he was in constant touch with Ghulam through coded messages, relayed via secretary.
Less discussed, however, is just how blatantly Ghulam and his lawyers signalled that an adverse verdict would never be honoured. Silky threats were framed in polite legalese: the governor-general felt it undesirable, his senior lawyer Diplock told Munir in open court, “to abrogate that other essential feature of the democratic constitution: the rule of force, to prevent the matter coming before the courts”.
Translation: The governor-general could have used naked coercion to stop you judges from hearing this case — but he hasn’t yet.
“My Lords,” Diplock carried on, “it may be, indeed it would have been his duty, had circumstances so necessitated, to take those steps without regard to the writ which had been issued, because salus populi suprema lex: to go as far as that fortunately it has not been necessary at present.”
Translation: The people’s safety comes first (salus populi suprema lex). That means he can ignore your orders, as and when you make that necessary.
And Ghulam’s continued control over the coercive apparatus weighed heavy on the chief justice, as he himself would admit years later.
Hence, in contravention of all law, precedent, and basic sense, the Munir court axed the assembly — Jinnah’s greatest hope. Most incredible of all, it never decided the core question: whether the assembly was dissolved rightly or wrongly.
In his farewell speech, Justice Munir said that had he gone another way in Tamizuddin, “I am quite sure that there would have been chaos in the country and a revolution would have been formally enacted, possibly by bloodshed.”
Yet such a decision only sped up the ‘revolution’ when it came — in 1958, led by Ayub — which the judge blessed at once. Brute strength is its own excuse.
Even so, it’s hard to overemphasise just how much Munir’s verdict in Tamizuddin altered Pakistan’s destiny. As scholar Allen McGrath writes, “One of the most important differences between Ghulam Muhammad’s Pakistan and the nation as it was under Jinnah, Liaquat, and Nazimuddin was that the Constituent Assembly no longer possessed the sovereign power of the state.”
And when Munir denied the existence of the assembly’s sovereignty, he destroyed the country’s existing constitutional basis. In essence, sovereign power in Pakistan would become a prize, to be seized by the strongest.
It still is.
Final frontiers
A smidge over 70 years to the day, the elected continue their struggle for legitimacy. The Supreme Court, too, finds itself having to face, in full view, the high courts’ ‘demolition’, to quote from the plea moved by five Islamabad judges.
“This petition,” they submit, “is a desperate measure of the last resort.”
And the choice is a stark one: that their fidelity to the Constitution either demands hanging up their robes, “or to beseech the Supreme Court to answer some hard truths”.
Will that Court answer the call to its conscience the way it did the first time?
