1958—General Ayub’s Coup (Dosso Case)

After the dissolution of the 1954 assembly as explained above, the second con­stitutional assembly came with a constitution instituting a parliament in 1956, but with more powers to the president.

On 8 October 1958, President Mirza declared Martial Law. On 10 October 1958, the Law (Continuance in Force) Order was promulgated which was drafted by Snelson.^[262] It restored the jurisdiction of all courts (along with writs of Habeas Corpus, Mandamus and Certiorari, however, not against Chief Martial Law Administrator), and directed the government to adhere “as close as possible to the late constitution”.^[263] The above order was challenged in the Supreme Court of Pakistan and decided in the Dosso Case. The Supreme Court, headed by Chief Justice Munir, upheld the Martial Law and the Law (Continuance in Force) Order.^[264] The court, using Hans Kelsen’s General Theory of Law and State, declared that a successful coup d'etat or a victorious revolution is an internationally recognized method of regime and constitutional change. Chief Justice Munir’s position was that there can be a writ in the High Court on the basis of fraction of law but not on the basis of so called fundamental rights which are in the late Constitution of 1956.^[265] For Munir, Amir-ud-din, Shahab-ud-in JJ, due to the phrase in the Order “the country should be run as nearly as may be in accordance with the late Constitution of 1956”, means only structure and manner of govern­ment and not fundamental rights and the whole Constitution. How come, for them, an Order on one hand is abrogating a Constitution and on the other hand restoring it, that is, giving fundamental rights.

After few months in Mehdi Ali Khan case, though implicitly, Cornelius pushed fundamental rights as a substitute for the deficit of democracy caused in Dosso case. In the Dosso Case, Article II of the Order mandated the government to follow the late constitution, but not to restore fundamental rights. After nine months in Mehdi Ali Khan's case, the Dhaka High court issued a writ of Mandamus against the provincial government not to take Waqf properties as the right of communities to organize their religious institutions. In an appeal by the provincial government, the Supreme Court followed its previous decision in the Dosso case and reiterated that no law could be declared void merely because it came into conflict with fundamental rights.^[267] Shahab-ud-din and Rehman JJ kept their position in Dosso case. Cornelius once again emphasized that the words that the country “shall be governed as nearly as may be in accordance with the late Constitution (of 1956)” is ‘undervalued’ He based his opinion on the observation of the last nine months and found no threat posed by fundamental rights in writs, other than preventive detention, to the paramount authority of the new regime.^[268] In a way, Cornelius was trying to ease/minimize the anxiety of the military about fundamental rights. Cornelius wanted fundamental rights in the constitution to be present so that their existence could make them enforceable. For Munir, the Constitution is abrogated and not repealed. Sovereignty is not deriving its authority from the Constitution but from outside.^[269]

Who dissolved the assembly and why? What new role was given to the judiciary after this outright exertion of hegemonic power to kick start modernization so as to reshuffle the class formations in Pakistan? To understand this we are to dialectically connect these decisions with changes in the structures outside these decisions.

2.9.1 RevolutionzEvolutionorPreventing ‘Revolution'

The secondary literature suggests that President Mirza dissolved the 1958 assembly, and the courts justified it on the basis of doctrine of necessity.^[270] But, who advised the president to dissolve the assembly? According to Ayub’s diary (2007), CJ Munir was under the impression that General Ayub advised Iskander Mirza to do so. Later, during his exile, Mirza told Munir CJ (then retired) that Ayub was not consulted. Ayub was under the impression that Munir was responsible for that. Munir explained that he advised Mirza to allow elections to take place and let inevitable chaos develop so that he could declare emergency. Mirza was not sure he would be elected again and hence he abrogated the constitution.^[271] For Munir, Ayub was not only behind the 1954 dissolution of assembly but the 1958 coup as well.^[272] Mohammad Ali gave an interview to Shorish Kashmiri (that appeared in The Pakistan Times) wherein he said that Ayub was over-ambitious and conspired with Ghulam Muhammad and Mirza to diminish constituent assemblies. Of course, Ayub denied this in his diary.^[273] Apart from Ayub’s denial about any involvement, it is clear that Ayub was in the U.S. when the assemblies of 1954 were dissolved. Upon hearing the news, he wrote a full program of an alternative system.^[274] He did not like the constitution and political system as the 1956 Constitution was a “hotch-potch of alien concepts” and brought confusion by distributing power between the Prime Minister and President and having no focal point of authority.^[275] Even the Justice Shahab-ud-din Commission Report (Constitution Commission) ^[276] was against the dismissed legislature of 1958 as there was political interference in administrative matters rather than interference with the legislature. This caused failures of parliamentary democracy.^[277] We see the nexus of civil-military bureaucracy and judiciary throughout this case.

There was a strong decision by the hegemonic block (metropolitan bourgeoisie) under the leadership of U.S. imperialism to advance vigorously the modernization project in developing countries. The hegemonic class started bringing the frag­mented and weak reigning under its control. Ayub was in U.S. at that time and Muhammad Ali Bogra an ambassador in the U.S. for several years came with American aid as prime minister from 17 April 1953 to 11 August 1955. Ch Muhammad Ali as prime minister (11 August 1955 to September 1956) extended reliance on hegemonic class very fast. After this H.S. Suhrawardy (13 September 1956 to 18 October 1957) as the Prime Minister attached great importance to SEATO and the Baghdad Pact and lent unqualified support to the West’s policies in Hungary and Middle East.^[278]

But all these arrangements to use civil and military bureaucracy by the hege­monic bloc was due to the thin mass base of the reigning class. Waseem explains that the Muslim League split into many groups, the last one being the Republican Party, which was formed in 1957. The Republican Party (180 members) and the Awami League (120 members) were the ‘statist’ parties, which dominated the legislature, and gave legitimacy to the parliamentary arrangement, without having a mandate from the masses. Indeed, the dominant political parties were reluctant to go to the masses, and were instead, born and reborn within the legislature.^[279] The assembly was no more than a battlefield of the dominant parties. Between 1956 and 1957, 72 bills passed out of which 50 were ordinances.^[280] The class base of the legislature was the landed elite with almost no capitalist class, at least in West Pakistan.^[281] The main concerns of these parties were the control of the population and the discrediting of the Communist Party, rather than gaining legitimacy with voters.^[282] The bureaucracy had even less concern with legitimacy.

The reigning class, consisting dominantly of landlords from West Pakistan, were trying to unite under Liaqat Ali Khan and his assassination in 1951 deprived them of a leadership to bring other classes from East Pakistan under its hegemony and pose a challenge to imperialist hegemony or reach a better compromise. There had not been a majority party with a recognized leader in National Assembly.^[283] The government changed six times in seven years after Liaqat. The Republican Party of landlords existed only in 1956 National Assembly under the leadership of Malik Feroz Khan Noon’s government (December 1957 to October 1958). Under his leadership, the landed class justified the existence of landlordism and stopped land reforms.^[284]

According to Waseem, the 1958 coup was not a military but rather a civilian arrangement to stop the 1958 elections. However, it did not carry any ideological content.^[285] Newberg has also discussed the lack of serious ideological questions in Pakistan’s constitution. In her analysis, the conflict is between the vice-regal system and the liberal conflict within the elite.^[286] Chief Justice Munir, according to her, was secular but pro-establishment, whereas Cornelius was in favour of Islamic jurisprudence but was against the establishment. She concludes, “[a]lthough the regimes would change from civilian to military and from populist to authoritarian to dictatorship, the question they posed about democracy and equality were similar”. That is why each regime with each new constitution only puts forward a “slightly revised role for the superior courts”.^[287] Newberg did not provide any details of Munir being secular or that Cornelius was religious.

Departing from above analyses, the toppling of the 1958 election must be understood ‘ideologically’, as an attempt at the imposition of a controlled democracy. Key here is that the Communist Party of Pakistan (CPP), Progressive Writers Association (PWA) and Democratic Students Federation (DSF) had been banned; the communists had gone underground and taken refuge in the National Awami Party, and the NAP was definitely going to win the elections.^[288] As explained above, the reigning class was fragmented and dispersed, unable to combat that challenge. By preventing the elections, the hegemonic imperialist class placed the juridico-bureaucratic structure as its seat of power ensuring the smooth steering of political development. This ensured that the communist movement would have no space from which to emerge.

The judiciary agreed with this arrangement. For Anwar-ul-Haq CJ the founding father Jinnah also praised ‘evolution and not revolution’.^[289] According to Newberg, Chief Justice Munir’s persistent question during the hearing reflected serious worries about the prospect of violent upheavals in Pakistan. Interestingly, while mentioning the 1953 riots, Newberg ignores the Pindi Conspiracy case and the banning of CPP, PWA and DSF. Chief Justice Munir repeatedly pointed out that if there is no power of dissolution of the assembly, only revolution is left. In the Maulvi Tamizuddin Khan case, a concern was raised: what would be the position of the court if the assembly got inoculated by communist ideas? Chief Justice Munir’s prompt response was ‘Revolution with a capital R’. To this, the Advocate General responded ‘Dissolution with a capital D’.^[290] This clearly shows the concerns of the executive and judiciary in Pakistan.^[291] Bureaucracy, according to Braibanti (1999) was very clear that “all were united, self-preservation if for no other reason, in their belief that the Civil Services of Pakistan-CSP was an elite group whose destiny, inherited from the ICS, was to govern Pakistan. Virtually all were opposed to radical reform”.^[292]

Chief Justice Munir also expressed these feelings on his retirement in the 1960s, saying the country was on the brink of a revolution and hence the court had to decide between anarchy and order. The bias of the Pakistani judiciary against the prospect of revolution was so extreme that one of the justices, who later became Chief Justice of the Supreme Court, Anwar-ul-Haq, announced while addressing the world delegates in Ghana that there is nothing revolutionary in his paper as no judge has so far been awarded the Nobel Prize for his revolutionary ideas.^[293] For him, the changes in the existing laws in developing countries are an instrument of social revolution, “so as to forestall violent and abrupt changes”.^[294] The anti-communist ideas of Munir, Cornelius, S.A. Rahman CJs and other cold warrier jurists like A.K. Brohi, Sharifuddin Pirzada are discussed in the next chapter when they came strongly to the surface of intellectual combat seeing socialism as a successful political slogan in late 1960s and throughout 1970s.

The point made so far is that the ‘ideological content’ of the 1958 coup was to stop revolution,^[295] a desire for a deeper and broader democracy that had been unleashed by anti-colonial struggle. Here, Chief Justice Munir and Justice Cornelius both stood against ‘revolution’ (socialist modernization) in spite of dis­senting opinions. They stood for a state-formation of nation-building under capi­talist modernization and a consequent model of ‘political development’, not for democracy versus dictatorship. For this, one is to look beyond the legal decisions to their ideas and involvement with ‘modernization’.

Before we conclude this part, it is important to note here that other Commonwealth countries also ‘benefitted’ from the Dosso case as they were passing through similar problems in the nation-building project.^[296] Nigeria faced the same type of military coups and used the same justification through the doctrine of necessity as Pakistan.^[297] India used this justification during the emergency imposed by Indira Gandi.^[298] Munir clearly used it as a legal principle of common law countries.^[299] As far as the doctrine of necessity is concerned, Dieter Conrad notes that the political question was how the court should react to the suspension of the constitution and revolutionary changes in the constitution. For him, looking at cases in Commonwealth,^[300] there are two basic types of cases; first are ‘necessity’ cases^[301] and second are Kelsen cases.^[302] Historically, for the writer, the doctrine of necessity was not a novel doctrine in Anglo-American and Continental European jurisprudence. British courts recognized the 1976 Revolution and German Reichsgericht recognized the November Revolution of 1918 as both these estab­lished the valid order.

But there was a need to have an arrangement more than the doctrine of necessity. The Ayub and Cornelius nexus brought this in Pakistan in the form of 1962 Constitution as a local variant of U.S. constitutional model during the decade of modernization in Pakistan.

2.9.2 Ayub ‘the Modernizer' and Pakistan as the Experimental Lab

The late 1950s through the 1960s was the era of modernization theory taking root in Pakistan. It was led by Ayub politically and Cornelius judicially with the bureau­cracy implementing modernization. According to Ayub, in his design of political development, people and their opinion were irrelevant and a “responsible govern­ment” should not be “prisoner of wayward public opinion”.^[303] Pakistan needed a strong, not popular government, Ayub argued.^[304] His idea of ‘basic democracy’ (BD system) was to develop a controlled democracy with which the landed elite of Sindh and Punjab, as a reigning’ class could also be controlled. In entering rural politics, he had to contend with the issue of land reform. Ayub stated that big land holdings impeded the free exercise of political institutions and could not flourish in democracy as landlords enjoyed protected constituencies. So in fixing a ceiling of landownership, the target was to build a strong middle class and land reforms as the ⁱMagna Carta of Rights' for peasants. But private ownership was not to be destroyed.^[305] He thus connected the democratic content of the new Constitution with land reforms.^[306]

Munircalled it a ‘controlled democracy’.^[307] Ayesha Siddiqa argues that the threat of land reforms were a coercive tool to discipline the landlords.^[308] I agree with this position but its theoretical explanation is that through the threat of these reforms, the juridico-bureaucratic structure got the consent of the reigning class for the hegemony of the metropolitan bourgeoisie. That is why these land reforms were halfhearted. Capitalist agriculture was part of modernization, and the landed class greatly benefitted from it. The state also created an industrialist class that had no political power but relied entirely on state bureaucratic power.^[309] I argue that these three classes, plus the metropolitan bourgeoisie were the classes behind the state formation as led by Ayub. Ayub only targeted politicians who were part of the urban-based Jamat-e-Islami and the nationalist and communist alliance (National Awami Party).

How is the judiciary connected with this project of capitalist modernization in Pakistan? How were legal decisions, discourse, and the judiciary a crucial link in this project?

2.9.3 Judiciary's Modernization ‘Coalition'

Ralph Braibanti, a modernization theorist in the tradition of Huntington, met CJ Cornelius at a conference of the Southeast Asia Treaty Organization (SEATO) in 1958. He returned to Pakistan to become the Chief Advisor and Professor of the Civil Services Academy in 1960 in Lahore. At the time, he was on leave from Duke University and was on contract with United States Agency for International Development (USAID).^[310] In his memoirs, he mentions Kyani CJ of West Pakistan High Court, Cornelius CJ, Nasim Hassan CJ, Mahmud Ali Qasuri and Rabia Sultana Qari from the judicial side and Mian Aminuddin (the first local head of civil services after 13 years of independence) and Agha Hamid (who succeeded Amiruddin).

When Braibanti returned to the U.S. in 1964, he gathered 26 scholars and government officials interested to work on Pakistani issues and launched the American Institute of Indian Studies. His students included Craig Baxter, Charles Kennedy, Afak Hayder and Lawrence Ziring. S.M. Haider was Braibanti’s student and on his advice wrote a dissertation on the writ jurisdiction in Pakistan. He worked for the Law Reform Commission until his death. All above jurists and social scientists wrote extensively about judiciary and state of postcolonial Pakistan.^[311] From Braibanti’s account along with the speeches of A.R. Kayani and Cornelius CJ, one should not doubt the strong influence these jurists had on the civil and military bureaucracy leading modernization in Pakistan.

Chief Justice M.R. Kayani of Lahore High Court, who served as a judge from 1958 to 1962, headed the Civil Services Association for 7 years, which were crucial in terms of political and economic restructuring under modernization.^[312] After him, Chief Justices S.A. Rahman and Shahabuddin headed the association, both from ICS. The judiciary was in a marriage of convenience with the bureaucracy in the first two formative decades (1947-1967) of Pakistan. Chief Justice Anwarul Haq (1970), hailing from CSP himself, mentioned how civil services produced men of judicial acumen like Shahabuddin, Cornelius, Rahman and Kayani.^[313] The Chief Justice of the East Pakistan High Court, Amin Ahmad, also commented on the bureaucratic-judicial relation, explaining in 1970 that the Pakistani judiciary never interfered with the executive.^[314]

Braibanti found that the Civil Services Academy was divided in two groups, old-line conservatives (pre-partition Indian Civil Servants) and new entrants post-partition. Kayani CJ represented the old conservatives who considered them­selves as custodians of the ‘steel frame’ of this service and, and hence unsupportive of reforms. Cornelius CJ was with new entrants wanting reforms to accommodate the needs of modernization. Kayani CJ wanted more civil services officers to join the judiciary so as to make a liaison to correct the errors of administration. Administration here represents popular ministries and politicians/administration^{[315] [316] [317]} who were busy ‘reforming’ bureaucracy and Kayani resisting their undue transfers, appointments as officer on special duty—OSDs, and salaries in this process.^[318] He strongly defended bureaucracy and held contempt for ministers.^[319] For Kayani, the roots of political prejudices against civil services lies in the rivalry between bureaucracy as British period ‘frame of imperialism’ and political ambitions of politicians.^[320]

On the other hand, Cornelius CJ was of the view that the CSP had been com­partmentalized and was caste-structured.^[321] As a result, it was not advancing beyond a certain level. He wanted it to be restructured, in order to be attuned with the political philosophy of the new state. Cornelius was part of a group of new reform-minded young Civil Service students, looking to establish a national char­acter to the Service. He grafted Islam to the British-oriented structure as a way of bringing this national character. Kayani criticized, rather ridiculed, Government of Pakistan, Report of the Pay and Service Commission, 1962 written by Cornelius.^[322] He showed how there was a connection between Cornelius report and the Constitution of 1962 by Ayub.^[323]

How should the judiciary, being the dominant part of the bureaucracy, scrutinize the actions of the administration/politicians against bureaucracy? Justice Munir believed in judicial restraint. The writ jurisdiction of the superior courts introduced in 1954 was retained in the 1956 Constitution. The power to issue writs of habeas corpus, mandamus, prohibition, quo-warranto and certiorari were vested with High Courts.^[324] But the courts, even the Supreme Court, only used writ jurisdiction in those matters which were judicial in nature.^[325] The first case was Muhammad Saeed v Election Petitions Tribunal,^[326] where an effort is made to create a formula of judicial resistance by Munir. The Tariq Transport Company case^[327] is an example of said judicial restraint. Chief Justice Munir made clear that pure administrative actions do not come under the control of the judiciary with the power conferred by Article 70 of the 1956 Constitution. Only actions of ultra vires, refusal to exercise jurisdiction and deviation from prescribed procedure, can come under judicial control. From 1955 to August 1962, 14,000 writs were filed in two High Courts and many reached the Supreme Court. This made Pakistan “the most liti­gious society in the world” at that time.^[328]

Kayani wanted to develop writ jurisdiction in British tradition. He was aware of the power of writ jurisdiction and found it as the flowers of paradise.^[329] For him, after 1955 Tamizuddin Khan case, writ was taken away but we brought it back.^[330] These dynamics were commented upon in Snelson's case.^[331] Mr Snelson’s talk titled ‘The Transitional Constitution of 1958’ was distributed during his address to section officers in Secretariat Training Institute Karachi. He remarked that the High Courts, while exercising the prerogative writs, were interfering with the government and causing “chaos, disruption, friction, usurpation of function, uncertainty, and public confusion”. These remarks were found to be in contempt of court by the Lahore High Court of Chief Justice Kayani. The Supreme Court of Cornelius CJ upheld the decision. Snelson was fined, which was later suspended by the governor. For Kayani, Snelson gave poor advice to suspend writ jurisdiction.^[332] But Kayani’s advice was resisted by his colleagues also. Justice Syed Ikhlaque Hussain, Justice West Pakistan High Court, while reflecting on this controversy around writ juris­diction warned about restraints which judiciary should observe. He added that this power is discretionary not obligatory, it should be used judicially.^[333]

In 1960, after the retirement of three of the five judges of Munir’s Court and with the new Constitution of 1962, the old terminology was abandoned and judicial review jurisdiction was re-defined in clear and precise terms in Article 98 which has continued in Article 199 of the present Constitution.^[334] Cornelius gave a summary of development of writ jurisdiction in the Merajuddin case.^[335] Elsewhere he stated that the British did not grant writ jurisdiction to the Indians, which was there for seven centuries. Rather, they used Confucian paternalism to rule through local rulers with uncontrolled power to “put up people right”.^[336] He acknowledged how superior courts in Pakistan developed it, particularly late CJ Kayani. But Cornelius was also in favour of droit administerat if with its Conseil d' Etat (administrative tribunals of French Administrative Law). Kayani ridiculed the concept of Conseil d' etat of Cornelius.^[337] Furthermore, these disputes generally do not merely involve a question of fact or of law, but one of policy as well. Cornelius put forth such a proposal in the 1959 convocation of Punjab University Law College and then in 1960 at a Rotary Club function in Lahore, and finally in the form of a full analysis addressing the All Pakistan Lawyer’s Association. He expressed appreciation for such a system in the Farid Sons Ltd. Case. It is pertinent that Cornelius did not find Supreme Court prerogative powers to confine public officials inappropriate as it had been found in Great Britain.^[338]

S.M. Haider explained this scheme of A.R. Cornelius towards the administration tribunals in Ayub’s era. According to Cornelius, the state’s involvement in social development projects made doctrines and precedents of ordinary law inappropriate. If disputes arising from an increase in the role of the state were to go through ordinary courts, they would be chocked full. Whereas, S.M. Haider continued developing this concept of administrative tribunals, and succeeded to convince Bhutto. Nasim Hassan Shah was also a great admirer of this scheme.^[339]

It is not irrelevant to know Haider’s position on this development of writ jurisdiction to judicial review to administrative tribunals in relation to the requirements of modernization, nation-building and institutional restructuring in Pakistan. Quite in line with the functionalist position of Parson, influenced by Lucian Pye, Haider is very clear that Max Weber is applicable with vigour on Pakistan bureaucracy.^[340] Being an instrumentalist, he thought that public admin­istration as an instrument- and most important is how “it is used and for what purposes”.^[341] CSP needed technocrats for modernization, but they were looked down upon by the general cadre of civil services officers.^[342] To pacify Kayani’s resistance, he argued that the administrative law emphasizes on function and not on the structure of the bureaucracy.^[343] Cornelius’ report for him is well known all over the world for its ‘realistic and pragmatic recommendations’.^[344] Though Cornelius’ report seems to be against ‘colonial rule’ legacy in civil service, but showing its immediate connection with modernization exposes its neo-colonial nature. Other comments about his anti-colonial nature are just opposition to ‘western’ as a cul­tural instant of social formation and not the economic and political ones. To sum up, the judiciary has induced administrative reforms very effectively through a number of cases.^[345]

The positions of both these justices, Cornelius and Kayani CJs leading and resisting reforms in civil services, respectively, in the era of modernization, were related to the place of bureaucracy in their respective model or understanding of political development. In Kayani’s formation, bureaucracy was trusted as a colonial perception as well as the U.K. tradition where bureaucracy was dominantly from landed aristocracy and respectable. As opposed to this, Cornelius’ formation seemed to be the pressure of modernization with his own grafting of ‘Islam’ and ‘national’ character on it. This distrust of state and bureaucracy and the so-called ‘constitu­tional limitations’ are very particular to U.S. model of political development.

So far book discussed the close relation of the judiciary with civil and military bureaucracy. The difference in Kayani and Cornelius CJs understanding was the reflection of how they wanted to address the demands for reforms under modern­ization. What is the place of democracy and in favour of fundamental rights in their models of political development? In the following section we are going to challenge the common liberal understanding that Cornelius CJ was pro-democracy and fun­damental rights as compared to Munir CJ based on the Tamizuddin case and the Dosso case of 1950s and later Cornelius’ rights cases like the Moudoodi case etc. against Ayub. Similarly, Kayani is portrayed as pro-democracy, as opposed to Ayub. We will see that all of them were against the legislature and people and their opposition to dictators was only to the ‘degree of dictatorship’. They all wanted controlled democracy. Above all, rights in this formation by Cornelius were a substitute for democratic deficit.

2.10