This 'unrepresentative government' theory is pure
bakwaas. The judiciary, of which the present CJI was an important member at that time, recognized his 'takeover' and gave him two years time to conduct elections.
On 12 May 2000, the Supreme Court unanimously rejected a petition (Union Vs. Syed Zafar Ali Shah - PLD 2000 SC 869) challenging the
coup and endorsed the coup's legitimacy under the doctrine of State necessity. The Court went on to describe the military take over as an, "extra-constitutional... (step taken by)... the Armed Forces for a transitional period to prevent any further destabilisation" and gave Gen. Musharraf time until Oct. 2002 to restore democracy.
The judiciary similarly justified al the previous military
coups. Quranic verses were quoted by one of the learned judges to justify the seizure of power by Gen. Zia, in the case of Begum Nusrat Bhutto Vs. The State. The Court, led by Chief Justice Anwar-ul-Haq, opined that the military regime was a 'phase of constitutional deviation dictated by necessity' . It further said,with reference to Article 6 of the 1973 Constitution that imposed death for high treason such as seizure of power, that “
...the impugned action has not been taken under any constitutional provision, but it is the result of an extra-constitutional measure and, therefore, reference to the above constitutional provision is of no consequence.” !! There was no dissenting judgement from a bench of twelve judges. This reasoning really takes the cake.
In fact, the judiciary opined when asked to judge the validity of Ayub Khan’s martial law thus: “
where revolution is successful, it satisfies the test of efficacy and becomes a basic law creating fact “. Chief Justice Munir termed the coup as “
legalized illegality” and stated, “
…victorious revolution or a successful coup d'etat is an internationally recognized legal method of changing a Constitution.” The entire judgement on such an important case ran to a mere six pages. It is possibly not a coincidence that Chief Justice Munir became Pakistan’s ambassador to Japan and then even got a ministership in Ayub’s cabinet.
A similar judgement was delivered by Chief Justice Irshad Hasan Khan to legally uphold the coup of Gen. Pervez Musharraf later on. On the coup within a coup, as it was referred to of the Nov. 3, 2007 proclamation of Emergency by President Gen. Musharraf, the newly constituted Supreme Court {after the dismissal of Chief Justice Iftikhar Chaudhry and other judges who refused to take a new oath under Emergency but had taken oath under the PCO in
c. 1999} declared that the PCO and the Oath of Office(Judges) orders “
have been validly made by the chief of army staff/ president subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution”. The the Supreme Court, headed by Chief Justice Abdul Hameed Dogar, held that the extra-constitutional measures of November 3, 2007, were taken by the chief of the Army staff in the larger interest of the State necessity and for the welfare of the people under the doctrine of
salus populi est suprema lex (Let the welfare of the people be the supreme law).
How can such governments be unrepresentative governments ? Above all, even the mighty US recognized these
coups and stood solidly behind all these military rulers. Can there be any appeal after that ?
or damaged.
