Seattle University School of Law Digital Commons Faculty Scholarship 1-1-1993 Praetorianism & Common Law in Post-Colonial Settings: Judicial Responses to Constitutional Breakdowns in Pakistan Tayyab Mahmud Follow this and additional works at: https://digitalcommons.law.seattleu.edu/faculty Part of the Common Law Commons, Constitutional Law Commons, and the Judges Commons Recommended Citation Tayyab Mahmud, Praetorianism & Common Law in Post-Colonial Settings: Judicial Responses to Constitutional Breakdowns in Pakistan, 1993 UTAH L. REV. 1225 (1993). https://digitalcommons.law.seattleu.edu/faculty/673 This Article is brought to you for free and open access by Seattle University School of Law Digital Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Seattle University School of Law Digital Commons. For more information, please contact [email protected]. Praetorianism and Common Law in Post-Colonial Settings: Judicial Responses to Constitu- tional Breakdowns in Pakistan Tayyab Mahmud* I. INTRODUCTION ................................ 1226 II. THE FIRST REPUBLIC, 1947-55: POsT-COLONIAL TRANSITION ................................... 1231 A The ConstitutionalFramework ................. 1231 B. The PoliticalContext: Authoritarian Centralism v. Representative Federalism .................... 1231 C. The Constitutional Crisis ..................... 1233 D. The JudicialResponse: Doctrine of State Necessity 1234 III. THE SECOND REPUBLIC, 1956-58: UNWORKABLE COMPROMISE .................................. 1242 A The ConstitutionalFramework ................. 1242 B. The Constitutional Crisis ..................... 1243 C. The JudicialResponse: Doctrine of Revolutionary Legality .................................. 1244 IV. THE THIRD REPUBLIC, 1962-71: "GUIDED DEMOCRACY" ................................... 1252 A The Constitutional Order ..................... 1252 B. The Constitutional Crisis ..................... 1254 C. The JudicialResponse: Doctrine of Implied Mandate 1255 V. THE FOURTH REPUBLIC, 1973-77: THE DEMOCRATIC INTERLUDE ................................... 1260 A The Constitutional Order ..................... 1260 B. The Scope of JudicialReview: Missed Opportunity .. 1261 C. The Constitutional Crisis ..................... 1273 * Assistant Professor of Law, Cleveland-Marshall College of Law, Cleveland State University. B.A. 1973, University of Punjab; M.Sc. 1975, University of Islamabad; Ph.D. 1981, University of Hawaii; J.D. 1987, University of California, Hastings College of Law. The research for this Article was supported by a grant from the Cleveland-Marshall Fund. I would like to thank David F. Forte, Deborah A. Geier, Michael A. Middleton, Steven H. Steinglass, Victor L. Streib, Douglas N. Wells, and James G. Wilson for their helpful comments on earlier drafts. Any remaining errors are the author's. 1225 1226 UTAH LAW REVIEW [1993: 1225 D. The JudicialResponse: ConstitutionalDeviation Dictated by Necessity ........................ 1274 VI. THE FIFTH REPUBLIC, 1985-PRESENT: INSTITUTIONALIZED PRAETORIANISM ................................ 1282 A The Constitutional Order ..................... 1282 B. The Constitutional Crisis ..................... 1285 C. The JudicialResponse: Unfettered Executive Discretion ................................ 1286 D. Is the Fifth Republic Legal? ................... 1290 VII. ROADS NOT TAKEN: APPROPRIATE JUDICIAL RESPONSES TO CONSTITUTIONAL BREAKDOWNS ................ 1294 A. The Political Question Doctrine and the Validity of Extra-ConstitutionalUsurpation ....... 1295 B. Continuity of Law and the Scope of Extra- ConstitutionalLegislative Power ............... 1298 VIII. CONCLUSION ................................. 1303 "[Hlowever... effective the Government of a usurper may be, it does not within the National Legal Order acquire legitimacy un- less the courts recognize the Government as de jure."' "A judiciary's job is to interpret the law and administer justice, not to challenge the [martial law] administration."2 I. INTRODUCTION Over the last fifty years, many countries, having gained inde- pendence after external colonial rule, have searched for suitable constitutional frameworks to govern their societies. The search is frequently disrupted by the usurpation of political power by the military, engendering profound constitutional crises. Because mili- tary regimes usually take power in contravention of constitutional frameworks, what is the legal validity of such regimes? Can a con- stitutional order survive such a blatant disregard of its provisions? What is the scope of legislative power of such regimes? These ques- tions are not of mere academic interest. Quite often, in the wake of extra-constitutional assumptions of power, courts have had to pro- 1. Asma Jilani v. Punjab, 1972 P.L.D. (S.C.) 139, 229 (Pak.) (Yaqub Ali, J., concurring). 2. Della Denman, Crackdown on the Courts, FAR E. ECON. REv., Apr. 3, 1981, at 13 (quoting General Zia ul-Haq, chief martial law administrator of Pakistan). No. 4 PRAETORIANISM AND COMMON LAW 1227 nounce upon these and related questions.3 Judicial review is the power of the courts to declare a govern- mental measure either contrary to, or in accordance with, the con- stitution or other governing law. Such a judicial pronouncement either renders the measure invalid and void or vindicates its validi- ty. An independent judiciary's review of governmental acts is an essential feature of democratic governance because such a review facilitates orderly functioning of different organs of the state and maintains the efficacy of constitutional guarantees of individual and collective rights. Judicial review of military usurpation thus brings into the sharpest possible focus the tension between law and force. In order to draw conclusions applicable to other post-colonial common-law settings, this Article will examine judicial responses to constitutional breakdowns in Pakistan. There are several reasons to make Pakistan a case study. During Pakistan's forty-six years of existence, the military has directly ruled the country for twenty- three years and has asserted dominant political control over Paki- stan for another twelve.4 These military interventions occurred at different stages of constitution-building, and adopted different means and varied objectives for assuming political power. As a 3. As recent events in Russia demonstrate, this phenomenon is not confined to post-colonial states. On March 23, 1993, the Russian Constitutional Court decided that President Yeltsin's assumption of "special powers" violated the Constitution. Serge Schmemann, Yeltsin and Rivals Are in a Standoff in Power Struggle, N.Y. TIMES, Mar. 24, 1993, at Al. On September 21, 1993, the President disbanded the Parliament and on October 7, 1993, suspended the Constitution Court. Peter Reddaway, DictatorialDrift, N.Y. TIMES, October 10, 1993, at A15. This Article, how- ever, deals with a post-colonial common-law setting. Extra-constitutional regimes in post-colonial civil-law settings, particularly in Latin America, do not consider their legitimacy open to either domestic or international question. This position is reflected by the Estrada Doctrine in Latin America. The Estrada Doctrine, named after Don Genaro Estrada, the Mexican secretary of foreign relation who pronounced it in 1930, posits that foreign nations cannot affect the legitimacy of an incumbent regime by withholding recognition, even if the regime is an extra-constitutional one. Jurispru- dentially, the doctrine embraces the principle of unfettered state sovereignty and implies that success is the only yardstick of the validity of extra-constitutional usur- pation. See BARRY E. CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 422-23 (1991); BuRNs H. WESTON ET AL., INTERNATIONAL LAW AND WORLD ORDER 854-55 (2d ed. 1990); Philip C. Jessup, Editorial Comment, The Estrada,Doctrine, 25 AM. J. INT'L L. 719, 719-23 (1931). 4. For a general introduction to the history and politics of Pakistan, see ANWAR HussAiN SYED, PAKISTAN: ISLAM, POLITICS, AND NATIONAL SOLIDARITY (1982); OALAR NOMAN, THE POLITICAL EcoNoMaY OF PAKISTAN, 1947-85 (1988); PAKISTAN: THE UNSTABLE STATE (Hassan Gardezi & Jamil Rashid eds., 1983); and MOHAMMAD WASEEM, POLITICS AND THE STATE IN PAKISTAN (1989). For the history, organizational structure, and political role of the military of Pakistan, see STEPHEN P. COHEN, THE PAKISTAN ARMY (1984); and HASAN-ASKARI RiZvi, THE MILITARY AND POLITICS IN PAISTAN, 1947-86 (3d ed. 1986). 1228 UTAH LAW REVIEW [1993: 1225 result, each intervention presented the Pakistani courts with a different set of constitutional issues and dilemmas. Judicial respons- es to these questions, while varied both in their doctrinal underpin- nings and in their impact, have been adopted by other post-colonial common-law jurisdictions. This Article will both describe and cri- tique these judicial responses, Scholarly literature dealing with the problem,' besides being scant, suffers from three shortcomings. First, this literature is dat- ed. The most recent article directly addressing the issue appeared in 1983; much has happened since then. Second, the existing literature is primarily focused on one particular doctrine of extra-constitution- al legality invoked by the courts of Pakistan, that of state necessity. Third, the literature is silent about the broader political and consti- tutional contexts within which the constitutional crises arose, con- texts which may well have influenced the judicial responses.