Prof Dr Irfan Hyder

DoN godfathers Political Engineering of the SC Bench to Obtain Doctrine of Necessity Judgement

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How SC Bench was engineered in 1955 to get the judgement of choice notorious as Doctrine of Necessity (DoN). Sindh High Court had decided against the decision of Governor General in 1954 to dissolve the Constituent Assembly, and had restored Maulvi Tamizuddin Khan to his office of the President of the Constituent Assembly. The following excerpt from Hamid Khan’s book “A History of Judiciary of Pakistan” [1], describes the doctoring or political engineering of the bench in 1955 that was sitting on the appeal which was filed by the Governor General against the SHC decision. There were five judges on the bench. CJ Munir knew that getting the judgement of choice was not easy in the presence of upright Justice AR Cornelieus and Justice Shahabuddin who would not only stand up but would also persuade another judge to side with them leaving CJ Munir and the 5th judge in minority. Hence, it was decided to some how remove Justice Shahabduddin from the bench and elevate in his place an ad-hoc compliant judge from Lahore High Court. This was done through Governor General Ghulam Muhammad’s machinations and scheming and obtained the notorious Doctrine of Necessity judgement [To understand the context of this post, please read At What Cost! Why Compute Economic Costs of Faulty Political Decisions]

“The Federal Government decided to file an appeal, against the judgement of the Sindh Chief Court (SHC) before the Federal Court (SC) of Pakistan which had five judges including CJ Munir. Ghulam Muhammad (Governor General) did not want to take any chances and, therefore called on his old fried and beneficiary to help get him off the hook. It is reported that there was constant contact between Ghulam Muhammad and Munir, directly or indirectly [2]. Munir knew well that it was not going to be easy to deliver a verdict a verdict favorable to the Federal Government, if not unanimous then even by a majority. He knew that he could not prevail over Justice Shahabuddin and Cornelius. He Feared that if the two of them joined hands, then Justice A.S.M. Akram may be inclined to join them, and he would be left in a minority with Sharif. Therefore, he asked Ghulam Muhammad to somehow remove Shahabuddin from the Bench, which would leave Corenelius alone. Munir would not have been worried about Corenelius’ dissent because Corenelius alone may not be able to sway Akram; Munir would then be able to prevail over Akram. In any case, if Shahabuddin was off the Bench, it would give Ghulam Muhammad the opportunity to appoint the Cheif Justice of the Lahore High Court, S. A. Rahman, as Ad hoc Judge with him, thus constituting the a majority; Akram, in this situation, would be compelled to go along with the majority.

Ghulam Muhammad had to play a vital role in this well thought out plan ___ which he did successfully. He prevailed upon Shahbuddin to accept , as national duty, the office of Governor of East Bengal. In the general elections of 1954, a coalition of political parties, called the Jugtu Front, had won an overwhelming majority of the seats in East Bengal, and the Muslim League was badly defeated. Ghulam Muhammad told Shahabuddin that in this difficult political situation, the country needed a non-political governor in East Bengal and that, in his opinion, Shahabuddin was the right person to discharge this responsibility, Shahabuddin was taken aback by this unexpected offer of temporarily becoming the governor of East Bengal. He reportedly said that he was no politician but a straightforward judge, and the office of governor was not suitable for him. Ghulam Muhammad insisted that he was requesting him to take over this responsibility in the national interest __ as Shahabuddin appreciated the imperatives of national interest better than most. Shahabuddin, being a well intentioned person, did not understand the deception behind the move and reportedly said that he had no reason to doubt the judgement of the Governor General in such a matter and accepted the office. In this way, another conspiracy succeeded. When the Maulvi Tamizuddin Khan case came up for hearing before the Federal Court, Shahbuddin was out of the Federal Court (i.e SC); S.A.Rahman, Chief Justice of the Lahore High Court at the time was appointed in his place as an Ad-hoc judge of the Federal Court for hearing the case. Thus, Ghulam Muhammad and Munir had succeeded in their design to form a majority of the courtin favor of the Federal Government. [3]”

The Federal Court Judgement is the notorious Doctrine of Necessity Judgement that has been responsible for the continuous destabilization of the political process since the 1950s and gave us four martial laws and over 35 years of direct dictatorial rule and the remaining rule through indirect machinations and scheming by the establishment.

Narratives to Support Dictatorial Interventions and Continuous Series of Destabilizations 

A deeper look at the dictatorial interventions and a continuous series of destabilization efforts during civilian rules indicate that this kind of destabilization is present in all the developing countries and is part of post-colonialism exploitation by the world superpowers, this has been named as neo-colonialism. My post on narratives designed to dishonor popular choice and support neocolonialism explains how neocolonialism spreads destructive narratives in developing countries which are taken up by vested interests and un-elected elites. These narratives are used to dishonor the will of the people, and justify the takeover by un-elected elites. This seems to be the history of post-colonialism in developing countries such as Egypt, Saudi Arabia, Syria, Iraq, Sudan, Yemen, Pakistan, Afghanistan, and on and on through out all the old colonies of the imperial powers. This is how they are kept perpetually destabilized and hence “perpetually developing”.

Neo-colonialism

[begin Wikipedia excerpt]
Neo-colonialism or neo-imperialism is the practice of using capitalism, globalization and cultural imperialism to influence a developing country in lieu of direct military control (imperialism) or indirect political control (hegemony). It was coined by Kwame Nkrumah in the context of African countries undergoing decolonization in the 1960s.
In Neo-Colonialism, the Last Stage of Imperialism, Kwame Nkrumah wrote:
In place of colonialism, as the main instrument of imperialism, we have today neo-colonialism . . . [which] like colonialism, is an attempt to export the social conflicts of the capitalist countries. . . .
The result of neo-colonialism is that foreign capital is used for the exploitation rather than for the development of the less developed parts of the world. Investment, under neo-colonialism, increases, rather than decreases, the gap between the rich and the poor countries of the world. The struggle against neo-colonialism is not aimed at excluding the capital of the developed world from operating in less developed countries. It is aimed at preventing the financial power of the developed countries being used in such a way as to impoverish the less developed.
[End excerpts from Wikipedia]

References:

[1] Hamid Khan, A History of Judiciary of Pakistan, Oxford University Pakistan, 2016, pp. 34-35.
[2] Hamid Khan quotes Qudratullah Shahab’s book Shahabnama
[3] Hamid Khan quotes his own personal interaction with Justice AR Cornelius

See also:

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