Authored By: Sidra Zaman
University of Sindh, Jamshoro, Pakistan
INTRODUCTION
The State v/s Dosso was a landmark case in Pakistan’s history. Dosso, a tribal person from Loralai, Balochistan, committed murder and was convicted under the tribal justice system by a Loya Jirga (Council of Elders) under the Frontier Crimes Regulation (FCR), 1901. Dosso’s relatives challenged this conviction in the Lahore High Court, which repealed the Loya Jirga’s decision. However, upon appeal by the Federal Government, the Supreme Court of Pakistan reversed the High Court’s decision.
This case gained prominence as it indirectly legitimised the first martial law imposed by President Iskander Mirza on October 7, 1958, paving the way for future military interventions in politics and damaging Pakistan’s democratisation process. The Supreme Court’s decision referenced Hans Kelsen’s theory of legal positivism, also known as the doctrine of necessity.[1]
FACTS OF THE CASE:
The State v. Dosso case marked a significant judgement in Pakistan’s legal history. Dosso, a tribal individual from Balochistan, was convicted under Section 11 of the Frontier Crimes Regulation (FCR), 1901, and was handed over to a Loya Jirga, which also convicted him. Dosso’s relatives challenged the conviction in the Lahore High Court, arguing that the FCR provisions violated “equality before the law” and “equal protection of the law” as guaranteed by Articles 5 and 7 of the 1956 Constitution. The High Court ruled in their favor, declaring the FCR repugnant to the Constitution.
However, before the Supreme Court could hear the appeal, President Iskander Mirza abrogated the 1956 Constitution, imposed martial law, and appointed the Chief of Army Staff as Chief Martial Law Administrator. The Laws (Continuance in Force) Order, 1958, validated the laws in force before the Proclamation and redefined court jurisdictions.
The Supreme Court ultimately decided the appeals in light of the new Order, allowing them and holding that the proceedings for writs had abated, effectively recalling the High Court’s directions and writs. This judgement legitimized the martial law of 1958 as a bloodless coup and a form of peaceful revolution.[2]
SUPREME COURT HELD
- A successful revolution or coup d’etat is recognized internationally as a legal method to change a constitution.
- After such a change, the national legal order’s validity depends on the new law-creating organ.
- Even courts lose their existing jurisdictions and function according to the new constitution.
- If the territory and people remain the same, there’s no change in the state’s international entity.
- The revolutionary government and new constitution are legitimate under international law.
In 1958, President Iskandar Mirza declared martial law, dissolving the central and provincial legislatures and abrogating the 1956 Constitution. Ayub Khan was appointed Chief Martial Law Administrator and later exiled Mirza.
The Supreme Court case addressed the validity of the Frontier Crimes Regulation, 1901, and the impact of martial law on judicial decisions.
Justice Munir’s Ruling
- A successful revolution or coup d’etat changes the constitution.
- The new law-creating organ determines the national legal order’s validity.
- Courts function according to the new constitution.
Justice Cornelius’ Dissent
- Clause (7) of Article II didn’t abruptly end High Court proceedings.
- The Supreme Court couldn’t reverse the High Court’s judgement without reviewing its validity.
IMPACTS OF THE VERDICT
The 1958 judgement recognizing martial law had far-reaching consequences for Pakistan:
- It legitimised military interventions, weakening democracy and paving the way for dictatorship, ultimately contributing to the country’s division.
- Abrogating the 1956 Constitution, crafted after nine years of efforts, set a troubling precedent.
- The verdict encouraged future military interventions, disrupting the democratic process and causing economic and social losses.
- Unfortunately, it also compromised judicial independence, forcing judges to prioritise the new legal order over fundamental principles of justice.
CRITICAL ANALYSIS
- Recognition of ML:
The judgement of the Supreme Court recognized martial law as a legal and valid action; this had far-reaching effects on the political history of Pakistan. It opened the gates for future martial laws in the country; also, the recognition of martial law provided absolute powers to the martial law administrator, who generously used them for the next 10 to 11 years.
- Halt Democratic process:
The verdict of the Supreme Court halted the democratic process of Pakistan, which had recently been set in motion after the promulgation of the first Constitution of Pakistan on 23rd March 1956, and threw the country onto the path of dictatorship.
- Deprivation from Constitution:
As a result of the judgement, Pakistan was deprived of its first independent constitution, framed and promulgated after much effort and a long struggle of 11 years.
- Encouraged Military intervention:
The verdict of the Supreme Court encouraged subsequent military interventions in Pakistan’s politics, which occurred three times, namely under General Yahya Khan in 1969, General Zia-ul-Haq in 1977, and General Pervez Musharraf in 1999. These interventions severely damaged the democratisation process in Pakistan.
- FCR Revalidated:
The judgement of the Supreme Court revalidated the British imperial legacy, the curse known as the FCR, popularly referred to as “black law,” in the tribal areas of Frontier and Balochistan. Had it not been declared valid in 1958, the disturbances now existing in these regions might have been avoided if these people had been brought under the regular judicial system of Pakistan.
- Damaged Independence of Judiciary:
The verdict dealt a serious blow to the independence of the judiciary. The judiciary was bound to operate under the new legal order of the Laws (Continuance in Force) Order, 1958, even if the judges had to make decisions against the basic principles of justice.
- Curbing of Appellate Jurisdiction:
The decision also stripped the courts of the power to hear appeals against the actions or cases initiated by the Federal Government.
- Laughing stock for civilised world:
The judgement made Pakistan a laughing stock in the eyes of the civilized world because of the recognition of martial law based on Hans Kelsen’s outdated theory, which had become an irrelevant principle.
- Judiciary Bowed Down in Front of Executive:
Once again, the judiciary bowed down before a strong executive authority in this case.
- Disturbed ties between East and West Pakistan:
The abrogation of the 1956 Constitution also led to the disturbance of agreements between East and West Pakistan, which had been achieved after a long struggle under the 1956 consensus-based constitution, such as the incorporation of both Urdu and Bengali as national languages. Had martial law not been legalized at that time, the separation of East Pakistan might have been avoided.
CONCLUSION:
The State vs. Dosso case had a profoundly negative impact on Pakistan’s politics, legitimising the country’s first martial law and paving the way for military interference in government affairs. This led to a damaging of the judiciary’s independence, the legalisation of the first constitution’s abrogation by the chief martial law administrator, and ultimately, the division of the country.
The case’s repercussions were far-reaching, undermining democracy and encouraging military interventions. Fortunately, the Supreme Court later re-examined and overturned this decision in the landmark case of Miss Asma Jilani vs. Govt. Of The Punjab (PLD 1972 SC 139).[3]
REFERENCE(S)
- State v Dosso [1958] PLD SC 533
- State v Dosso [1958] PLD SC 533
- Asma Jilani v Government of the Punjab [1972] PLD SC 139
[1] State v Dosso [1958] PLD SC 533
[2] State v Dosso [1958] PLD SC 533
[3] Asma Jilani v Government of the Punjab [1972] PLD SC 139
