BIHAR SYNDROME AND PAKISTAN Author - VT Joshi

As the Bihar conundrum draws to a close, it is interesting to find a remarkable coincidence in the judicial pronouncements in India and Pakistan in matters relating to arbitrary dissolution of elected legislatures by overweening dictators, presidents or governors in the two countries.

Even so one can hardly say, with the bard, “mighty minds jump the same heights” for the simple reason that the era of giants among the political leaders in the subcontinent is long past since the days of towering personalities and luminaries like Mahatma Gandhi, Jawaharlal Nehru, Sardar Patel or Mohammad Ali Jinnah. This is the age of Buta Singhs, Lalus, , Paswans and a host of their ilk.

The recent Supreme Court verdict in the Bihar Assembly Dissolution Case indicting Governor Buta Singh has a close parallel with similar cases on at least five different occasions when Pakistan’s Supreme court has had to intervene in the past 17 years, and gave varying operative parts of their judgments while unequivocally pronouncing against the unconstitutional acts of the military and political bosses of the day.

A scrutiny of the various cases is revealing. The most outstanding of them concerns the dismissal of the Federal government led by Mohammad Khan Junejo and dissolution of the Pak National and provincial Assemblies by the President, General Zia ul Haq, in May 1988. The other was the dismissal of the first Benazir Bhutto government by President Ghulam Ishaq Khan in 1990. Yet another was the ouster of the Nawaz Sharif government by the same president three years later (in 1993), and its legal and physical reinstatement by the court shortly thereafter. A little later in the same year both President Ishaq Khan and Prime Minister Nawaz Sharif were eased out of office through “persuasion” by a benign army chief, General Abdul Waheed Kakkar, to pave the way for fresh elections. The polls brought Benazir Bhutto back to power for her second stint as PM of Pakistan only to be dismissed again four years later by President Leghari, her own hand-picked crony for the august office. He sacked her government on charges of widespread corruption involving her husband Asif Zardari.

ZIA AND CAESAR

In its judgment in the Junejo dismissal case the Lahore High Court observed that “President Zia ul Haq could not act like Julius Caesar who declined to go to the Senate saying the cause is his will: ‘I will not come: that is enough to satisfy the Senate”. Caesar lost his life, the court commented. Adding sternly: “However powerful the person or office of the Pakistan President might be he was duty bound to act with prudence and take steps in life on solid foundations and reasons understandable by common people”.

The Court declared the dismissal of Junejo government “illegal and unconstitutional” but refused to restore it on the plea that democratic elections had already been announced after a long period of military dictatorship and the process must be allowed to run its course without interruption. Much like the Supreme court of India has done in its interim order in the case of Bihar Assembly dissolution while castigating Governor Buta Singh.

The Lahore High Court judgment delivered by the then Chief Justice Abdul Shakur ul Salam was a literary masterpiece, profusely quoting Shakespeare, and was a trend setter towards assertion of judicial independence in Pakistan.

In a significant observation the Court sarcastically pointed out: “From time immemorial, even before Moses, it was stated that standards of morality have gone down. Over the centuries 1,24,000 prophets came to bring them up when standards of public morality came down. God has given up sending prophets since 1,400 years and [has] let the people look after themselves.” The allusion was to one of the arguments advanced for the dismissal of the Junejo government that “the standards of public morality had come down”. The court’s admonition was a gentle reminder that Zia, with all his ardour for Islamisation, could not assume the role of a new messiah! The obiter dicta were a sly hint at the firm belief held among the faithful that Prophet Mohammad is the last prophet (PBUH). Anyone who does not accept it is ex-communicated (as for instance in the case of Qadianis or Ahmedias).

Significantly however, the judicial candour and bravado came only on a petition filed after the death in August 1988 in a suspicious air crash of Zia ul Haq, the longest ruling military ruler of Pakistan.(11 years)

“DOCTRINE OF NECESSITY”

The subsequent verdicts of Pak High Courts and Supreme Court were delivered while the incumbent Presidents were still in harness and had to bear the brunt of the judicial blows. However their conclusions were not uniformly consistent. A few of the pronouncements could even be regarded as aberrations if not perverse. The most pernicious of the principles enunciated to justify successive military regimes was the “doctrine of necessity” applied variedly at different times. The Pak judiciary has traversed a long and wayward path from the judicial murder of Pakistan’s first ever elected prime minister, Zulfiqar Ali Bhutto, (hanged in 1979), to the ouster in 1990 of his daughter Benazir who had to contend with the combined animosity of both President Ishaq Khan and the army chief Mirza Aslam Baig barely 20 months after she became the first ever woman prime minister of an Islamic country. Her dismissal was upheld. But later, in sharp contrast, the Nawaz Sharif government, dismissed by the same Ishaq Khan, was physically reinstated, as pointed out. In a minor variation the provincial ministry and legislature in Baluchistan, dismissed by the then military governor without the knowledge or approval of the then incumbent prime minister Benazir Bhutto in 1989, was restored by the Baluch High Court.

An ugly event in the annals of Pak Judiciary was the invasion of the Supreme Court precincts by hordes of his supporters when Nawaz Sharif was the prime minister a second time in the late 1990s.

Capture of power in yet another military coup by General Musharraf in 1999, followed by the imprisonment of PM Nawaz Sharif and his subsequent exile to Saudi Arabia together with the entire Sharif clan is recent history.

In India the misuse of Article 356 of the constitution began with the dismissal of the first elected communist government of Namboodripad in 1957. Ten years later, after the Congress debacle in 1967 elections in most of the northern and eastern parts of the country, the state assembly was placed under “suspended animation” to help Mohanlal Sukhadia to cobble up a majority and retain power in Rajasthan. The phenomenon of dismissal of elected governments in different parts under various regimes continued unabated in subsequent years and reached its acme in Bihar when the state assembly, which was never formally constituted, was first kept under suspended animation and then dissolved by the Central government of Manmohan Singh with the connivance of Governor Buta Singh. Only to be rebuffed by the Supreme Court recently.

Tailpiece: The 'doctrine of necessity' was invented to justify successive military regimes. When it was first propounded by the Pak Supreme Court to sustain Zia ul Haq's martial law, a Pakistani journalist commented: "Anything can be justified under the doctrine of necessity -- even molestation or rape"!

VT Joshi
20 October 2005

VT JOSHI (1925-2008) worked for more than fifty years as a journalist. He retired from THE TIMES OF INDIA in 1989. During 1985-89 he was the Special Correspondent of THE TIMES OF INDIA in Pakistan. His books "PAKISTAN: ZIA TO BENAZIR" and "INDIA AT CROSS ROADS" (co-author GG Puri) were widely reviewed in both India and Pakistan.

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