Shahid Batalvi Speaks

with apology to Black Elk for he speaks first

PLD 1972 SC 139 and the Pakistani Judiciary

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Before I begin to speak about this subject let me make the disclaimer that I have no academic background in the area of law and by association make no claim to fathom the nuances of judicial and legal interpretation and consequently make no claim to understand legal jurisprudence.

Having said that I do claim to assert better that average cognitive and analytical skills and thought process in understanding the basis of a causal chain, an idea, an argument, a logical deduction or the formulation of a concept. Years ago I asked my father what makes for a good lawyer and he replied, "You have to be able to squeeze the essence of a discussion or an argument."

PLD 1972 SC 139 refers to Asma Jilani vs The Government of Punjab which was a writ petition challenging the imposition of Martial Law in Pakistan by General Yahya Khan in 1969. The writ was filed by Ijaz Batalvi on behalf of Asma Jilani who was detained by the said Martial Law regime in 1971. The Lahore High Court applied State vs. Dosso, and held that the detention was valid under Martial Law regulations that allowed its authorities to detain anyone without trial for an indefinite period. In the appeal filed and litigated by Ijaz Batalvi, the full bench of the Supreme Court overruled the High Court’s decision as well as State vs. Dosso which is founded in Hans Kelsen’s Theory of Grundnorm as well as the Doctrine of Control Efficacy and declared the 1969 Martial Law as illegal.  General Yahya Khan was declared a usurper and his act of acquiring power from the then President Ayub Khan was declared as being unconstitutional.

Three precedents to this event need to be reviewed in order to clearly understand all this in true context. These are Hans Kelsen’s Theory of Grundnorm, his Doctrine of Control Efficacy and the Pakistani Supreme Court’s decision in State vs. Dosso. These three and their eventual negation led to the historical decision of PLD 1972 SC 139 that sits today in the judicial annals of Pakistan.

Let me first address the subject of Hans Kelsen and his Theory of Grundnorm. Hans Kelsen starts his book, The Pure Theory of Law by stating:

"It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified of all political ideology and all natural-scientific elements and conscious of its particular character because conscious of the particular laws governing its object. Right from the start, therefore, my aim was to raise jurisprudence, which openly or covertly was almost completely wrapped up in legal-political argumentation [Raisonnement], to the level of a genuine science, a science of mind [Geistes-Wissenschaft]."

One needs to understand that works of intellectual and academic advancement occur in human history for the purpose of developing human thought process and cognitive development and subsequently application of such ideas into society through rigors of empirical validation. Certain constructs that are purely in the abstract cannot be validated or challenged through empirical validation. In going towards the other direction, empirical data either readily available or collected through rigors of experimentation is used to develop a theoretical construct of the underlying idea or concept.  

Plato’s concept of the World of Forms presumed that the Form was a distinct singular thing but caused plural representations of itself in particular objects. These Forms are the essences of various objects: they are that without which a thing would not be the kind of thing it is. For example, there are countless tables in the world but the Form of tableness is at the core; it is the essence of all of them. Plato held that the world of Forms is separate from our own world (the world of substances) and also is the true basis of reality. Removed from matter, Forms are the most pure of all things. Furthermore, Plato believed that true knowledge/intelligence is the ability to grasp the world of Forms with one’s mind. Try validating that construct through empirical testing.

I can try and take the reader through the process of imaging an n-dimensional vector space where n approaches infinity. Then I could ask the reader to assume n=11 for the purposes of describing M-theory, one of the current frameworks of the superstring theories, which assumes 11 dimensions of space-time. The same theory can validate the four observable space-time dimensions. This includes substantive work done in pure mathematics, pure physics and subsequently applied physics to some extent. Can the reader visualize an n-dimensional vector space or does it stay in the realm of the abstract?

Kelsen’s pure theory of the law is fairly abstract. Its objective is knowledge of that which is essential to law; therefore, the theory does not deal with that which is changing and accidental, such as ideals of justice. Kelsen believed that law is a science that deals not with the actual events of the world (what is) but with norms (what ought to be). The legal relation contains the threat of a sanction from an authority in response to a certain act. The legal norm is a relation of condition and consequence: if a certain act is done, a certain consequence ought to follow. In this theory a legal system is made of a hierarchy of norms. Each norm is derived from its superior norm. The ultimate norm from which every legal norm deduces its validity is the Grundnorm, the highest basic norm. The Grundnorm is not deduced from anything else but is assumed as an initial hypothesis. A norm is a valid legal norm only because it has been created according to a definite rule. The theory is independent of morality. It does not matter which particular Grundnorm is adopted by a legal order. All that matters is that this basic norm has a minimum effectiveness: it must command a certain amount of obedience, since the effectiveness of the total legal order is necessary for the validity of its norms.

Kelsen’s Doctrine of Control Efficacy is suggested in his work as follows:

Under what circumstances does a national legal order begin to be valid? The answer, given by international law, is that a national legal order begins to be valid as soon as it has become – on the whole – efficacious; and it ceases to be valid as it loses this efficacy…. The government brought into permanent power by a revolution or coup d’état is, according to international law, the legitimate government of the State, whose identity is not affected by these events. Hence, according to international law, victorious revolutions or successful coup d’état are to be interpreted as procedures by which a national legal order can be changed. Both events are, viewed in light of international law, law-creating facts.

Hence, and correctly so, Chief Justice Hamoodur Rahman in delivering Supreme Court appeal judgment in Asma Jilani vs The Government of Punjab PLD 1972 SC 139 states (179-180) that:

‘Kelsen …. still continues to be grievously misunderstood. He was only trying to lay down a pure theory of law as a rule of normative science consisting of "an aggregate or system of norms". He was propounding a theory of law as "a mere jurist’s proposition about law". He was not attempting to lay down any legal norm or norms that are the daily concerns of Judges, legal practitioners or administrators …". His purpose was to recognize that such things as revolutions do also happen and even when they are successful they do not acquire the authority to rule or annul the previous "Grundnorm" until they have themselves become a legal order by habitual obedience by the citizens of the country. It is not the success of the revolution, therefore, that gives it legal validity but the effectiveness it acquires by habitual submission to it from its citizens. The initial hypothesis, if a hypothesis is necessary, therefore, still remains, even under the theory of Kelsen, the ultimate will of the people as manifested by their habitual submission and not, as suggested in the Dosso’s case by the success of the revolution.’ 

Let us take a further step back and address the matter of State vs. Dosso PLD 1958 SC 533. On October 7, 1958 President Iskandar Mirza abrogated the nascent 1958 constitution and declared a nationwide state of Martial Law, dismissed the Central and Provincial Governments and abolished political parties. By the same proclamation, the President declared General Ayub Khan as the Martial Law administrator.  

Ironically, only three days later, on October 10, 1958 the promulgation of the Laws (Continuance in Force) Order, 1958, resulted in President Iskandar Mirza being forced into exile to London by the end of that month after spending a few miserable weeks in Quetta.

The case for the legitimacy of the abrogation of the 1956 constitution and implementation of the 1958 Martial Law was challenged in State vs. Dosso and eventually came before the full bench of the Supreme Court presided over by Chief Justice Mohammad Munir. The Chief Justice considered the Laws (Continuance in Force) Order, 1958 to be a "New Legal Order" and a three week old Martial Law to be a "successful revolution". Hence, using Hans Kelsen’s Doctrine of Control Efficacy and giving this so called new legal order the cover of a new Grundnorm, Chief Justice Mohammad Munir provided complete legitimacy to the 1958 Martial Law. This, ironically, was Chief Justice Mohammad Munir’s second endorsement of an unconstitutional action, the first one being the validation of the dismissal of Khawaja Nazimuddin’s government by Governor General Ghulam Muhammad in 1954.!5B9A9A05C4CED775!252.entry

There are theories and Laws that exist in natural sciences and perhaps some theories in social sciences. One cannot simply apply some social theory that relates to socio-political control of a society for the self-serving benefit of an individual or group within a social order without taking into account the collective will of the people as an embodiment of such a theory. It is for this reason and this reason alone that constitutional frameworks are developed. As far as such a theory in law is concerned, it requires the non-coercive submission to a social order by the people and its accompanying Laws for it to be become a norm or ascend to acquiring normative qualities. Kelsen argues that the new order is a valid order if, "the individuals whose behaviour the order regulates behave, by and large, in conformity with the new order".

Of course, if the behaviour is regulated overtly through the tank’s turret or covertly through military intelligence then, by and large, there will be some conformity to the new order. This may continue until the socio-political, socio-cultural and socio-economic conditions in the country through the judicial endorsement and subsequent law enforcement of the new legal order result in dispossessing or causing sufficient political disenfranchisement of those whose behaviour is being regulated. At that stage, the country will deal with either yet another so called "new legal order" through yet another martial law or perhaps a sustained popular uprising by a select group or the masses which may or may not force the causation of a yet new "legal order" in the form of an "Emergency Order" to curb dissent or democratic elections to curb lawlessness and so on and so forth. As long as the Pakistani Judiciary, either by choice or under duress, continues to legitimize unconstitutional activity, this cycle will continue, forever.

Hans Kelsen, take that to the bank, laughing all the way. Mr. Kelsen, if you were alive today, I would have said to you that if you had stayed in your native Czechoslovakia and observed the evolution of an ethnically challenged successor state of the Austro-Hungarian Empire go from ceding part of its land to Nazi Germany, to becoming a socialist republic, and then watched the dissident movement of the 1970s that sought greater political participation and expression you would have realised that it is the evolutionary and not the revolutionary aspect of it that holds far greater importance, as the undercurrent, than anything else.  I wonder which "legal order" in this sequence would have gotten your stamp of approval.

For those who may be interested in understanding this further read the following article that was written, in urdu, by Ijaz Batalvi almost thirty eight years ago.



Written by Shahid Batalvi

February 15, 2009 at 12:23 pm

Posted in Analysis

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