Before considering the legality of the action taken by Sheikh Mujibur
Rahman and the Awami League in March, 1971, it may be useful to consider
the legal basis of the military regime headed by President Yahya Khan,
and of his Legal Framework Order.
Martial law was first proclaimed in Pakistan on October 7, 1958, by
President Iskander Mirza, when he appointed Ayub Khan as Chief Martial
Law Administrator. Although the 1956 Constitution had acknowledged, in
Article 196, the possibility of martial law, the President did not
purport to act under that Constitution. Indeed he abrogated the 1956
Constitution at the same time as proclaiming martial law.
Only 10 days later, Ayub Khan deposed Mirza and assumed the powers of
President of Pakistan. The revolutionary nature of this seizure of power
was recognised at the time by the Chief Justice of Pakistan, Muhammed
Munir:
'If the revolution is
victorious in the sense that the persons assuming power under the change
can successfully require the inhabitants of the country to conform to
the new regime, then the revolution itself becomes a law-creating fact
because thereafter its own legality is judged not by
reference to the old
Constitution but by reference to its own success ... The essential
condition to determine whether a constitution has been annulled is the
efficacy of the change. If the territory and the people remain
essentially the same. ..the revolutionary government and the new
constitution are, according to international law, the legitimate
government and the valid constitution of the State. Thus a victorious
revolution or a successful coup d'etat is an internationally recognised
legal method of changing a Constitution.'1
Ayub Khan's presidency derived further authority from the elections held
in 1962, when the martial law administration was replaced by the new
1962 Constitution with a National Assembly.
With the breakdown of his administration in March, 1969, Ayub Khan
dissolved the Assembly and called on General Yahya Khan to take over the
power and authority of the government. The 1962 Constitution, from which
Ayub Khan then derived his authority, empowered him to appoint Yahya
Khan as Chief Martial Law Administrator, but it did not authorise him to
transfer to him the presidency. On his resignation the Speaker of the
National Assembly should have become Acting President, but the Speaker
was an East
Pakistani.
On
taking power, General Yahya Khan issued a Proclamation purporting to
abrogate the 1962 Constitution and appointing himself President with
absolute powers under martial law. A few days later he
issued the Provisional Constitution Order, under which he purported to
bring back the 1962 Constitution subject to his own overriding
powers. Section 29 of the Constitution provides that:
'(1) If at a time when
the National Assembly stands dissolved or is not in session, the
President is satisfied that circumstances exist which render immediate
legislation necessary, he may, subject to this Article, make and
promulgate such ordinances as the circumstances appear to him to
require, and such ordinance shall, subject to this Article, have the
same force of law as an act of the Central Legislature.'
The
Section stipulates that the National Assembly must approve the ordinance
either within a period of 42 days after the first meeting of the
National Assembly or within the period of 180 days of the promulgation
of the ordinance.This provision was not followed, as Yahya Khan
continued to legislate by order without submitting his ordinances to the
Assembly in accordance with Section 29 of the Constitution. That he was
aware of this deficiency appears from Section 2 of the Legal Framework
Order, 1970, which says 'This Order shall have effect notwithstanding
anything to the contrary in the Provisional Constitution Order, the
Constitution of 1962 of the Islamic Republic of Pakistan or any other
law for the time being in force.
It
follows that if the Constitution of 1962 is to be regarded as still
being in force, the Legal Framework Order, 1970, was invalid. If the
Order is to be regarded as valid, it can only be on the basis that
President Yahya Khan had assumed absolute legislative as well as
executive powers. This again was an unconstitutional and illegal act,
and has since, been declared to be such by the Supreme Court of
Pakistan.2
As
has been seen, Sheikh Mujibur Rahman responded to President Yahya Khan's
postponement on March 1, 1971, of the Constituent Assembly by calling a
hartal (general strike) throughout East Pakistan. This was the very
action which Mr. Bhutto had threatened in West Pakistan on February 28,
if the Assembly were allowed to proceed.The general strike and the
directives issued by Sheikh Mujibur which had the effect of setting up a
provisional Awami League government in East Pakistan, were clearly
illegal in terms of President Yahya
Khan's martial law regime and under that' law' justified the use of such
force as was necessary to restore the authority of the military
government. On the other hand, if the army authorities had not
intervened, it is clear that all the organs of government in East
Pakistan, including the judiciary, the civil service and the East
Pakistan units of the armed forces were prepared to accept the authority
and directions of the Awami League. Applying the test of Chief Justice
Muhammed Munir, if the legality of the new regime were to be judged not
by reference to the old Constitution but by reference to its own
success, it had a powerful claim to be recognised, at least in East
Pakistan, as a validly constituted government. Moreover, unlike General
Yahya Khan's access to power, it had the added authority of an
overwhelming victory at a fair and free election. If the ursurpation of
power by General Yahya Khan is accepted to be illegal, in the
constitutional vacuum which resulted Sheikh Mujibur Rahman and the Awami
League, following their electoral victory, would seem to have had a
better title to constitute a provisional government of Pakistan than
anyone else.
Footnotes:
1State v. Dosso, PLD SC (Pak) 533 ff. The Supreme Court of Pakistan
overruled this decision on April 20, 1972, in the case of Malik Ghulam Jilani and Altaf Gauhar v. Province of Sind and others, Dawn Newspaper,
Karachi, April 23, 1972.
2'There can be no question that the military rule sought to be imposed
upon the country by General Agha Muhammed Yahya Khan was entirely
illegal', per Chief Justice Hamoodur Rahman, ibid.