Tiki Tam Tam
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Niaz Sahab,
Thank you for your comments and for the time that you devoted for the same.
I find them most educative and it gladdens me that I have had an intelligent and educated commentary on what I had written.
There is no doubt that one requires divergent views to understand an issue in its totality and hence value your comments.
I have given some views below.
My comments are based on what is written since the events took place when I was in the crib.
I have given links.
Take it for what its worth.
Thank you for your comments and for the time that you devoted for the same.
I find them most educative and it gladdens me that I have had an intelligent and educated commentary on what I had written.
There is no doubt that one requires divergent views to understand an issue in its totality and hence value your comments.
I have given some views below.
My comments are based on what is written since the events took place when I was in the crib.
I have given links.
Take it for what its worth.
Hon Salim,
Your letter to the Indian Telegraph as quoted has said something about Quadi- e- Azam. Let me clarify a few points.
This is correct that the Quaid dismissed Red Shirts government in the NWFP and appointed Abdul Qayyum Khan as the Provencial Chief Minister. This act may appear undemocratic but looking at it from a different perspective it is not.
There was a referendum is NWFP under the British and people overwhelmingly voted for Pakistan. Red Shirts or Khudai Khidmatgar government was " Unionist" and didnot support creation of Pakistan. Bacha Khan was even beaten up as being anti-Muslim and this was before the partition. Therefore the statement that Mohammed Ali Jinnah started the murder of democracy is not true.
Dr Khan Sahib, elder brother of Bacha Khan had been Chief Minister for NWFP for nearly twenty years by then and no election had taken place to indicate that they had a fresh mandate from the people of NWFP. Circumstances had changed after the independence. The main point to consider is:
Would a newly created country allow a gov't against Pakistan's ideology exist in one of the provinces, specially after only a short time earlier people of NWFP had voted to be part of Pakistan 9 to 1 in favour???
The Khudai Khidmatgar movement decline can be traced back to two decisions the first was the Congress decision in 1939 to resign from power in protest against British World War II policy. This move gave an opportunity to the Muslim League to develop and for the British authorities to alter their strategy.
In 1940, a split occurred within the Pakhtun Zalmey, the youth organisation affiliated with Bacha Khan's Khudai Khidmatgar movement. It occurred after Bacha Khan refused to accept the results of the internal party 1940 elections in which Salar Aslam Khan of Kohat won the contest as president of Pakhtun Zalmey with overwhelming majority. The refusal by Bacha Khan to accept Salaar Aslam caused a great damage to the party in southern districts of the province where Khudai Khidmatgars won all the seats of the provincial as well as national assemblies in the previous elections. Salar Aslam was also a member of the Forward Block and Bacha Khan's argument was that he could not trust anyone but his elder son, Ghani Khan, whom he wanted to lead Pakhtun Zalmey. "It was a mistake of Bacha Khan. He was not happy about his decision later, but had to argue that at that sensitive stage of the political struggle, he could only trust Ghani Khan."
An exception to the rule of non-violence occurred when Badshah Khan's son Ghani Khan on 26/27 April, 1947 founded the breakaway group Zalmai Pukhtoon (Pashtun Youth), a militant, organisation of Pukhtoon youth, carrying fire-arms, the aim of which was to protect the Khudai Khidmatgars (Servants of God) and members of the Congress Party from violence feared at the hands of Muslim League activists. It had no connection as such with the Khudai Khidmatgars. Nehru’s fateful visit to the Frontier in October, 1946, and its tragic aftermath in a gradual erosion of the popular base of the incumbent Khan Sahib Ministry. Despite this, the movement stayed true to its non-communal leanings, when the red shirts came out to protect thousands of sikhs and Hindus worried they would be attacked in the increasing pre-partition violence between Hindus and Muslims.[9]
Post Partition
Pakistan's Independence in August 1947 marked the beginning of the end of the Khudai Khidmatgar movement. While the Congress government remained in power briefly it was eventually dismissed by the Governor under the orders of Pakistan's founder Muhammad Ali Jinnah. Dr. Khan Sahib was replaced by former Congressite Abdul Qayyum Khan. He successfully stopped an attempted rapprochement between Ghaffar Khan and Muhammad Ali Jinnah by stopping a planned meeting between the two citing security threats (Korejo 1997). With that, Jinnah gave Qayyum Khan a free hand in dealing with the Congress and the Khudai Khidmatgars. The crackdown that followed culminated with the Babra Sharif massacre. As part of the crackdown the houses of Khudai Khidmatgar activists were ransacked and plundered. In some cases men were stripped naked in presence of their mothers and sisters and their beards shaven (all of which was seen as a great insult by Pashtuns). Despite the provocation and its obvious ambivalence over Pakistan's creation, the Khudai Khidmatgar leaders reconvened at Sardaryab on 3 and 4 September 1947 and passed a resolution[10] that accepted Pakistan's creation and they would leave in Pakistan as its bona fide citizens and would refrain from making any sort of disturbance and difficulty for the new state.
However Qayyum Khan and the central government had already decided that there would be no accord with the movement. The Khudai Khidmatgar organisation was declared unlawful in mid-September 1948, mass arrests followed and the centre at Sardaryab (Markaz-e-Khudai Khidmatgaran), built in 1942, was destroyed by the Provincial Government. This crackdown ultimately led to the Babra Sharif massacre.
The movement was also hit by defections as party members switched sides out of fear or for benefit. Those members that wished to survive politically rallied behind a former ally, turned opponent of Qayyum Khan, the Pir of Manki Sharif. The Pir created a breakaway Muslim League, however, it proved no match for Qayyum who engineered his re-election in 1951.[11]
The movement lingered on till 1955 when it was again banned by the central government because of Ghaffar Khan's opposition to the One Unit. An aborted attempt was made to bring Ghaffar Khan into the government as a Minister as well as turning the KK movement into a national organization, however Ghaffar Khan turned down the offer.[12]
Although the ban on the movement was lifted in 1972, the Khudai Khidmatgar movement had been broken.
Even if there was a govt that was contrary in opinion, it should have been defeated in the polls is what I feel would have been correct.
This is no different to India's police action in Hyderabad, Junagadh and subsequently the Goa. Would you call India murdering democracy??
I would not call them murder of democracy.
Goa. Goa was under foreign rule. It would have occurred some time or the other. Pondicherry was under the French and they quit on their own.
JunagadhIn the independence and partition of India and Pakistan in 1947, the 565 princely states were given a choice of whether to join India or Pakistan. The Muslim Nawab of Junagadh, His Highness Nawab Mahabat Khanji, whose Muslim ancestors had ruled Junagadh and connected small principalities over the last seven hundred years, decided that Junagadh should become part of Pakistan, which was just across the Arabian Sea, approximately 300 km away. The unsettled conditions in Junagadh had led to a cessation of all trade with India and the food position became precarious: the region was in crisis. The Nawab was forced to flee to Karachi with his family and established a provisional government. Before leaving the Nawab had emptied the state treasury of its cash and securities.
The Dewan of Junagadh, Sir Shah Nawaz Bhutto, the father of the more famous Zulfiqar Ali Bhutto, now decided to invite the Government of India to intervene. Bhutto wrote a letter to Mr. Buch, the Regional Commissioner of Saurashtra in the Government of India:
Dear Mr. Buch,
After discussion with Mr. Samaldas Gandhi at Rajkot on October 1, Capt. Harvey Jones, senior member of Junagadh State Council, brought certain proposals for the consideration of the Council. The Council were prepared to accept them under protest but before a final decision could be communicated to Mr. Samaldas Gandhi it was thought necessary to ascertain the opinion of the leading members of the public. A meeting was therefore held this evening and the view of the leaders was unanimously expressed that instead of handing over the administration to the Indian Union through the so-called Provisional Government, it should be directly given over to the Indian Union, through the Regional Commissioner at Rajkot.
The Junagadh Government, therefore, has requested that in order to avoid bloodshed, hardship, loss of life and property and to preserve the dynasty, you should be approached to give your assistance to the administration particularly with a view to preserve law and order, which is threatened by aggressive elements from outside. This arrangement is sought pending an honourable settlement of the several issues involved in Junagadh's accession. We have already wired to His Excellency Lord Mountbatten, Mahatmaji, Prime and Deputy Prime Ministers of India, Hon'ble Abul Kalarn Azad and the Governor-General and Prime Minister of Pakistan.
I hope you will kindly respond to this request.
Yours sincerely, :
Sd/S.N. Bhutto,
Dewan, Junagadh.
India then assumed control over the entire state of Junagadh. Junagadh and the state was secured -- the ruler had already left with his family for the safer pastures in Pakistan. Officially, the action was taken on the request of the Dewan of Junagadh, who feared disorder and chaos in the state.
Hyderabad Owing to the geographical location and the activities of the Razaakar, the viability was suspect. Technically, a land locked Hyderabad could not survive. It was but axiomatic.
The Government of Pakistan protested, saying that since the accession of the state to Pakistan (September 15, 1947), the Dewan had no authority to negotiate a settlement with India. Junagadh became a part of the Indian state of Saurashtra until November 1, 1956, when Saurashtra became part of Bombay state. Bombay state was split into the linguistic states of Gujarat and Maharashtra in 1960.
With the ruler scampering off with the treasury along with his family, it fell on the next in line i.e. the Diwan to take necessary action. I would commend him that he did not follow the path of the cowardly ruler and bolt the State.
IMO; Quaid's action was a must for Pakistan to survive as a State. Only on one account criticism of the Quaid is justified. That is the imposition of Urdu language on the whole of Pakistan. The intention was noble; to unify the two wings. However, this was cause of great resentment in East Pakistan (Bangla Desh) and resulted in language riots a little later. This only proves that the great Quaid was a man and therefore not infallible.
As per the written history, he removed a democratic govt and foisted his own man. It is for you to accept or reject if the action was democratic or otherwise. I don't think I have written about Urdu being made the national language. Actually, I find nothing wrong in Urdu being a national language. The way it was thrust was possibly the cause for it to be abhorred by some section of Pakistani people. India has taken Hindi as the national language, even though technically it is not the language of the majority when viewed in an all India matrix. Initially, it was thrust on the people and that led to the rise of the Dravia Munnetra Kazagham in Tamilnadu. The Central govt realised the folly and then through sops and persuasion got it to be accepted by and large amongst the population. The Hindi movies and their mindless fantasies choking with songs and dances played the major role in changing the mindset of the non Hindi speaking people.
Secondly, to say that Pakistan didnot have constitution until 1956 has no bearing on democracy. Britain does not have any written constitution to this day, yet there exists the mother of all parliaments.
One cannot compare Britain with newly born democratic states if i may say so. BTW Democracy was not a British concept. It was a Greek concept, though the Sumerian city states of Mesopotamia (Iraq) are believed to have had some form of democratic setup initially.
If Pakistan was to follow the British system of not having a constitution, then why have it later?
This is not strictly true, however. There are written documents that establish the constitutional make-up of the State, and the earliest is Magna Carta. They also include:
* The Habeas Corpus Act of 1679, which enshrines the principle that nobody may be arbitrarily detained without having their case heard in a court of law.
* The Bill of Rights of 1689, which followed the deposing of James II.
* The European human rights provisions that were incorporated into UK law in 1998.
Other than that, though, it is true to say that most of the way the State actually works, in terms of the making and enforcing of laws, is subject to centuries-old conventions that have never been formally codified – or, as constitutionalists put it, entrenched – in the form of written guarantees.
The main features are:
Statute law
Laws are proposed and enacted by the two houses of Parliament, the Commons and the Lords. A bill is put before Parliament, debated and voted on, goes through committee stages, where its workings and its potential effects are scrutinised, and once it receives its third and final reading, it enters the statute books and becomes the law of the land. The accumulated body of all such laws enacted in this way is known as statute law.
Common law
Also known as case law, common law is made up of the legal principles that emerge from individual court cases. Not every apparent infringement of the law is clear-cut, and it is up to a court of law to hear the evidence on all sides before arriving at a verdict based on the interpretation of existing law. Certain rulings by judges go on to create legal precedents, which are then cited in future cases, so that a particular test of the law helps to shape it as much as what is actually written down in the statute books.
The supremacy of Parliament
All executive power resides ultimately with Parliament. No other body is capable in practice of overruling the decisions of Parliament. Laws flow from Parliament, and the House of Lords, as well as being a legislative chamber, is also the highest court in the land. If your case has failed in a normal court of law, and then in the Appeal Court, you have the right finally to have it heard in the upper chamber of Parliament. Parliament has the right to summon anybody to appear before its committees, and acting in contempt of Parliament is a serious offence.
Division of powers between the executive and the monarch
Although the monarch retains certain constitutional powers, such as the ability to declare war on another territory, to dissolve Parliament and to appoint archbishops, these powers are never exercised in practice. Even appointments to the clergy are made by the Prime Minister, who seeks the monarch’s consent to a decision effectively made at governmental level. These arrangements flow from the turbulent 17th century, when England became a Commonwealth, before a monarchy with severely curtailed political power was restored in 1660.
Actual executive power flows from whichever party has a majority in the House of Commons. As each law passes on to the statute, it must receive royal assent, which means that the monarch must agree to it and sign it. The last time a bill failed to receive royal assent was in 1708, when Queen Anne declined to assent to the Scottish Militia Act.
Independence of the judiciary
The workings of the courts are theoretically free from all political interference. Politicians cannot intervene to direct the verdicts of juries or the rulings of judges, which are bound only by the body of preceding statute and common law. In recent years, there have been attempts by governments of both the principal political parties to exercise influence over such matters as sentencing policy, so this aspect of the constitution may currently be seen as being in a state of flux.
Conventions that do not have the force of law
There is a strong element in British constitutional affairs of things happening just because this is the way they have always been done, or at least have been for a very long time. Tradition dictates that the State Opening of Parliament must begin with Black Rod, the monarch’s messenger, having the door to the Commons chamber slammed in his face when he comes to summon members to the House of Lords. This symbolises the constitutional supremacy of the elected house, which is able to defy the wishes of peers.
The conventions also cover the code of conduct for ministers of the Crown, who are expected to conform to certain standards of behaviour. A secretary of state who has lost the confidence of the House, particularly of those on his or her own side, is expected to do the decent thing and resign. Similarly, a minister who is found to have told a deliberate untruth has to go. The conventions are not legally enforceable, but have been almost invariably observed throughout history.
Authoritative works
From time to time, writers on Britain’s constitutional affairs have sought to summarise and codify the arrangements by which the nation is governed. The more authoritative of these works themselves then acquire the status of constitutional documents. The 19th century was the great era of such writers, producing Walter Bagehot’s The English Constitution (1867), AV Dicey’s An Introduction To The Study Of The Law Of The Constitution (1885) and Thomas Erskine May’s A Practical Treatise On The Law, Privileges, Proceedings And Usage Of Parliament (1844). The last became the bible of parliamentary procedure, has been regularly updated ever since its first appearance, and is always consulted in the event of a procedural dispute.
International treaties and agreements
The UK is also bound, like all countries, by whatever international treaties and accords it has signed up to. These include various treaties of the United Nations and the Treaty of Rome, by which we entered what was then known as the European Economic Community. Rulings of the European Union now theoretically have precedence over the national Parliament, although so far there has been no major constitutional clash between the two. The so far troubled attempt by the EU to produce its own written constitution, which all member states will be invited to ratify, may well result in a shift in the nation’s constitutional centre of gravity in years to come.
The media?
Some would argue that the investigative role of the news media has, in recent times, begun to exert a decisive influence over the way the country is run. Revelations about the private indiscretions of ministers, together with the pursuit of a sustained campaign to unseat them from office, often succeeds in ending a career. Although the executive may resent this as representing an encroachment on the supremacy of Parliament, governments nonetheless increasingly court the support of media proprietors when a general election is in the offing. For their part, news journalists argue that they are only performing the time-honoured role – guaranteed by the freedom of the press – of questioning the actions of the executive authorities.
Resistance to change
While aspects of the way constitutional authority is applied have grown increasingly contentious in the era since 9/11, there is still a sense that any unwarranted encroachment on its spirit will be stiffly resisted by the people, the more so since there is comparatively little letter to encroach on.
A 19th century American judge, Justice Bradley, put the point well in the course of delivering his opinion in a case heard in Louisiana in 1873:
“England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour.”
The British Constitution - Magna Carta - Icons of England
Thirdly, the case you are referring to with Ghaulam Mohammed concerned the dissolution of Parliament. The Speaker, Maulvi Tamizudding Khan appealed to the Supreme Court and then Chief Justice Mohammad Munir ( second Chief Justice of Pakistan) dismissed the petition due to the "law of necessity".
The controversial role of judiciary in politics can be traced back to 1955 when Chief Justice Mohammad Munir backed Governor General Ghulam Mohammad's action to dissolve the first Constitutional Assembly of Pakistan that curtailed the Governor General's powers. On 21 September 1954, the Constituent Assembly amended the Government of India Act. The amendments precluded the Governor General from acting except on the advice of his ministers. All ministers were to be members of the Assembly at the time of their selection and continue to hold office only so long as they retained the confidence of the legislature.
Justice Munir, in Molvi Tamizuddin Khan's case, declared that the Assembly was not a sovereign body. Munir declared that the Constitutional Assembly had 'lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body of the state.'
Munir was not able to find in the dominion constitution any empowerment of the Governor General which allowed his dissolution of the Constitutional Assembly. But this he dismissed as a 'lacuna' in the Independence Act. He insisted that to understand the role of Pakistan's Governor-General it was necessary to go 'far back in the history and to trace the origin and development of the British Empire itself.'
According to Munir, the independence Jinnah gained for his country was restricted by the prerogative rights of the English Crown. He adopted the argument made to the court by Lord Diplock (a government attorney) that Pakistan did not become independent in 1947. It had attained a status like the senior dominions, 'virtually indistinguishable from independence.
The conclusion reached by Justice Cornelius in his dissenting opinion was entirely different. He answered Munir's interpretation of Commonwealth history with his own understanding of the meaning of a dominion. He maintained that the historical fact was that Pakistan had been created with complete independence, and he pointed to what he believed to be clear differences in the status of the senior dominions and the new dominion of Pakistan. Cornelius stressed that Pakistan was not just a dominion but an independent dominion.
According to Allen McGrath, author of the Destruction of Pakistan's Democracy, when Munir denied the existence of the Assembly's sovereignty, he destroyed Pakistan's existing constitutional basis. He did further harm when he did not indicate where sovereignty resided. He thereby created a vacuum which was an opportunity for Ghulam Mohammed. The absence of a constitutional foundation is a harm which has lived on in Pakistan since Ghulam Mohammad left office.
SPECIAL REFERENCE NO. 1 OF 1955
Special Reference No. 1 of 1955, decided after Tamizuddin, furnished a further example of how Munir's court could accommodate Ghulam Mohammad in his consolidation of power. In the reference, Ghulam Mohammad asked the court for an advisory ruling.
To support Ghulam Mohammad's use of non-constitutional emergency powers, Munir found it necessary to move beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton's maxim 'that which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by Jennings, 'the well-being of the people is the supreme law.'
In dealing with the principle of state necessity, Chief Justice Munir observed: “Subject to the condition of absoluteness, extremeness, and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under stress of necessity, the necessity being referable to an intention to preserve the Constitution, the state, or the society, and to prevent it from dissolution, and affirms...that necessity knows no law...necessity makes lawful which otherwise is not lawful."
Ghulam Mohammad had seized the power of the state, and because the Constituent Assembly was denied a judicial remedy, the Governor General's position was the ultimate power of the state was not confirmed. The new Constituent Assembly, which the court required Ghulam Mohammad to call, were not a sovereign body, and the Governor General now enjoying virtual veto power over all its legislation. It also followed from the court's decision on sovereignty that the Assembly could be dissolved by the Governor General for political purposes.
Three years later, in 1958, the same Chief Justice placed a judicial stamp of approval on President Iskandar Mirza's action to dissolve the parliament and abrogate the 1956 constitution. Chief Justice Munir's decision in Dosso v. Federation of Pakistan, case set the constitutional stage for General Ayub Khan's 1958 military takeover of the government, which took place one day after the court's decision was announced.
1958 MARTIAL LAW SANCTIONED BY MUNIR
When Iskandar Mirza dissolved the parliament in 1958 and placed the country under martial law, Munir and his court were readily available to place a judicial stamp of approval on what had taken place. In Dosso v. Federation of Pakistan, Munir found:
'It sometimes happens, however, that the Constitution and the national legal order under it are disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order…For the purpose of the doctrine here explained, a change is, in law, a revolution if it annuls the constitution and the annulment is effective…Thus the essential condition to determine whether a constitution has been annulled is the efficacy of the change…Thus a victorious revolution, or a successful coup d'etat is an internally recognized legal method of changing a constitution. After a change of constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity, depend upon the new law-creating organ. Even courts lose their existing jurisdiction and can function only to the extent and in the manner determined by the new constitution.
…If what I have already stated is correct, then the revolution having been successful, it satisfies the test of efficacy and becomes a basic law-creating factor.
Munir attempted to garner respectability for his legal theory of revolution by claiming it was based on Hans Kelsen's The Pure Theory of Law, but Kelsen subsequently took pans to deny his work could serve as a basis for Munir's theory of revolution, and Kelsen's theory was later itself later repudiated by the Pakistan Supreme Court. Munir's decision in Dosso set the constitutional stage for Ayub Khan's 1958 military takeover of the government, which took place one day after the court's decision was announced.
Finally, CJ Iftikhar Chaudhry had no hesitation in taking oath under the PCO in 1999 as Chief Justice of the Baluchistan High Court. The new assembly elected Musharraf as President in uniform for 5 years in 2002 and Justice Chaudhry as a justice of the Supreme Court had no hesitation in validating this. It was not until the Steel Mill case when Justice Chaudhry, now CJ went against the government. The accolade he received in the media must have gone to his head because since then we see the Judicial Activism gone berserk.
Pakistan Think Tank
Once again, thank you for your considered comments and for your time.
