THE EVENTS IN EAST PAKISTAN, 1971
 


Preface
Part I:  Introduction
Part II: Outline of Events in East Pakistan
           1-25 March, 1971
           25-March-18 December, 1971
Part III: Legal Position under Pakistan Law
Part IV: Legal Position under International Penal Law
Part V: Right of Self-determination in International Law
Part VI: The Role of the United Nations
Part VII: The Role of India
Summary of Conclusions

Legal Position under Pakistani Law


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.


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