Position of constitution and fundamental rights during the martial law regime, 1958-1962: a case study

Abstract

In this thesis an attempt has been made, mainly, to examine and assess the position of the Constitution of 1956 and the fundamental rights incorporated in that Constitution in view of the Presidential Proclamation of the 7th October, 1958, and the Presidential Laws (Continuance in Force) Order, issued on the 10th October, 1958. questions relating to their status and position were raised in contentious cases before the Supreme Court and High Courts of Pakistan involving them in a legal dilemma. The relevant cases have, therefore, been discussed and analysed. Though the work is concerned, mainly, with the period between the 7th October, 1958, and the 8th June, 1962, during which period Martial Law prevailed in the country, it was necessary that constitutional and socio-economic and political conditions of Pakistan before the Proclamation of the 7th October, 1958, should be discussed. This was necessary not only as description of the background over the topic and period, but also because prior to this, Pakistan had another constitutional crisis in October, 1954, when Ghulam Mohammad, the then Governor-General of Pakistan, dissolved the first Constituent Assembly. On that occasion also the superior courts of Pakistan had to tackle the situation, amounting virtually to a constitutional vacuum. In order to provide a link between the Martial Law period and the period preceding it the important constitutional cases and political and constitutional developments have been discussed in some length. The main object of this thesis is introduced in Chapter I, followed by Chapter II which contains a brief survey of attempts for promulgating a constitution and fundamental rights preceding the Proclamation of Martial Law.

In Chapter III, the working of the Constitution of 1956 since its inauguration, its position in the light of the Presidential Proclamation and the Presidential Laws (Continuance in Force) Order, the legitimacy of the regime as pronounced by the Supreme Court of Pakistan and justifia- bility of Martial Law in Pakistan in accordance with the traditions maintained in the Commonwealth are discussed and analysed. Chapter IV has dealt with the organisation and jurisdiction of the Military Courts as established by the Martial Law Authority, and the attempt of the regime to turn itself into a constitutional Government through the system of the Basic Democracies and the Constitution of 1962. In Chapter V, the position of the fundamental rights contained in the Constitution of 1956 and the writ jurisdiction of the superior courts contained in the Constitution and recognised by the Laws (Continuance in Force) Order, 1958, is focussed in some length. In this Chapter we can see the liberal attitude of the courts which tried to avoid confrontation with the Martial Law Authority but at the same time attempted to enforce fundamental rights on the plea of basic rights recognised by every civilised legal system, and the principle of natural justice. Chapter VI has drawn a reflection on the position of the Constitution of 1956 which was restored in structure and outline only, the role of judiciary which by legitimising the regime became a part of the Government, and the fundamental rights which were enforced in indirect way; and has made an attempt to analyse the real nature of the Martial Law regime.