Dosso v. Federation of Pakistan
Hamdan
University Law College, Quetta
This Case Commentary is written by Hamdan, a Fourth Year Law Student of University Law College, Quetta
Details of the case
Case title: DOSSO V. FEDERATION OF PAKISTAN
Citation: P.L.D 1958 S.C. 533.
Forum: Supreme Court of Pakistan.
Bench: 4 Judges Bench.
Decided: December 27, 1958.
Laws applied: Laws Order 1958, Doctrine of Necessity.
Abstract:
This case documentary explores a landmark case (Dosso V. Federation of Pakistan) in Pakistan's political and constitutional history. Dosso was a resident of Lorlai, Balochistan, and was convicted of Frontier Crimes Regulation 1901 (FCR). He challenged his conviction in the West Pakistan High Court and the Lahore High Court. The Court declared FCR inconsistent with the provisions of the Constitution of Pakistan, 1956. It raised questions about the legitimacy and validity of the martial law of 1958.
The Supreme Court of Pakistan, led by Chief Justice Muhammad Munir, made a very controversial decision. Using the Doctrine of Necessity, and Hans Kelson's theory, the court validated the first martial law in Pakistan by reversing the decision of the High Court. The long-lasting implications and effects of the "Dosso case" are discussed in this documentary. Furthermore, It argues that the verdict in this case not only weakened democratic institutions and undermined parliamentary supremacy, but also opened the way for future martial laws.
Introduction
Dosso V. Federation of Pakistan is an instrumental case in the constitutional and political history of Pakistan. It was the first constitutional case after the promulgation of the Constitution of Pakistan, in 1956. Iskandar Mirza, the president of Pakistan (back then), abrogated the constitution of Pakistan of 1956 on the 7th of October in 1958 and imposed Martial Law throughout the country. This case questioned the legitimacy of the very first Martial Law.
Facts of the case
Frontier Crime Regulation (FCR) 1901 was applicable in special areas (tribal areas) of West Pakistan (current Pakistan).
Under FCR, the Deputy Commissioner (DC) was authorized to convict a person (who he finds guilty).
Dosso, a resident of Lorlai, Balochistan, was convicted by DC under FCR for the charge of murder.
LOYA JIRGA: Loya Jirga was a council of elders. Ordinarily, they would inquire into the matter, but in Dosso's case, no such inquiry was made. It failed to follow the parameters of justice.
Dosso's appeal to the High Court
Dosso challenged the order of his conviction under FCR, 1901. He filed an appeal to the High Court of West Pakistan, Lahore High Court, against the decision of the DC.
Plea
That Frontier Crime Regulation is a Draconian Law (an unjust law), and it is inconsistent with the provisions of the Constitution of Pakistan of 1956. Therefore, it may be declared void.
Article 4 of the 1956 Constitution: any law or custom that is inconsistent with the provisions of the 1956 Constitution shall be declared null and void.
Article 5 of the 1956 Constitution: equality of citizens before the law. All the citizens of Pakistan are equal before the law.
Article 7 of the 1956 Constitution: right to legal practitioner (counsel). Everyone should have the right to hire an advocate or attorney of his choice to defend himself.
Decision of Lahore High Court
Lahore High Court, in its decision, declared FCR a draconian law. Furthermore, the Lahore High Court found FCR inconsistent with the provisions of the Constitution of Pakistan of 1956. Hence, the court declared it void. This decision of the court was in favour of parliamentary sovereignty.
Appeal to the Supreme Court of Pakistan
The Federation of Pakistan challenged the decision of the Lahore High Court by filing an appeal to the Supreme Court of Pakistan. Hearings in the Supreme Court of Pakistan were held on the 13th and 14th of October 1958, just six (6) days after the imposition of martial law in the country.
Complicated Scenario
Lahore High Court in its decision declared Frontier Crime Regulation (FCR), 1901 void on the threshold of the Constitution of Pakistan of 1956. It showed that the constitution was still intact and was the supreme law in the state of Pakistan.
State's Stance
The stance of the state was that martial law was imposed in the country, and the constitution had already been abrogated by the imposition of martial law. Lahore High Court declared FCR void on the threshold of a constitution that had been abrogated. Therefore, the decision of the Lahore High Court may be reversed in the favor of the federation.
Question Before Supreme Court
Whether the martial law is valid or invalid, legitimate, or illegitimate? Such abrogation of the constitution is legal or not?
Decision of the Supreme Court
The chief justice of Pakistan, Justice Muhammad Munir, took the stance of Hans Kelson's theory. As per Hans Kelson's theory, a successful revolution is a valid law. Since, the martial law of 1958 was bloodless, and people did not revolt against the military coup, therefore, the court declared it a successful revolution. Considering the political instability and incompetency of the civilian leadership, the Doctrine of Necessity validates such martial law. Hence, the martial law of 1958 is valid. The Supreme Court of Pakistan reversed the decision of the Lahore High Court and legitimized the first martial law in the country.
Critical analysis of the decision of the Supreme Court
This was a disaster of a decision for civilian supremacy in Pakistan. Finally, after 9 long years, Pakistan succeeded in making its first constitution. The constitution of Pakistan was adopted and enforced in 1956, but it lasted hardly for 2 and half a years. Iskandar Mirza abrogated the constitution in 1958, and the first constitutional case was brought to the Supreme Court of Pakistan. The decision of the Supreme Court shaped the political and constitutional history of Pakistan. It recognized the first martial law, and consequently, opened doors for future martial laws of Pakistan. This decision undermined and weakened the democratic system in Pakistan. Chief Justice, Justice Muhammad Munir, had malafide motives as he decided the case just in two days. He had already decided cases in favour of the state before, for example in "the Federation of Pakistan v. Maulvi Tamizuddin Khan" case Justice Muhammad Munir gave a biased decision.
Pakistan has faced multiple military coups and legitimate governments have been toppled thanks to this decision of the Supreme Court. It undermined the parliamentary sovereignty in Pakistan and enhanced military interventions. It is one of the reasons for the failure of democracy in the country.
References:
· https://thelex.live/archives/8266?v=27889b81b317
· https://dbpedia.org/page/Dosso_case
· https://www.thelawstudies.com/2022/08/the-state-versus-dosso.html?m=1