MILITARY LOYALTY
Zia-ul-Haq’s coup of 1977 allowed for the continuance of laws and for the functioning of the judiciary but put the Constitution in abeyance. When Zulfiqar Bhutto and a number of close associates were arrested by the martial law regime and Bhutto’s wife challenged this detention at the Supreme Court, the courts were in a bind given the formal restrictions placed on them.
When the courts contrived to exercise an inherent jurisdiction in this case, they also opened the door to a judicial validation of Zia’s extra-constitutional assumption of power.While Chief Justice Anwar-ul-Haq would later claim to have been betrayed by the endless deferrals of elections and other promises made by the dictator at the time that the Nusrat Bhutto case13 was being heard, Zia was bolstered by Haq’s judgment in manifold ways. Zia thereafter perpetrated more aggressive assaults on rights, political parties, civil society members and the judiciary itself. The Supreme Court judgment in Nusrat Bhutto cited the General’s promise to rule the country as ‘nearly as may be, in accordance with the Constitution’ as a reason to accord him latitude in returning the country to a ‘peaceful atmosphere for the holding of elections and restoration of democratic intuitions’.[327] Perhaps not anticipating this, the regime’s council argued at the outset that the Court’s jurisdiction had been ousted by way of the 1977 LCFO. The orders issued at the moment of the coup were presented as ‘supra-constitutional’. Against this contention, the Court retained for itself the powers vested through Article 199 of the Constitution as fundamental to the maintenance of the ‘legal order’ that would be reverted to and for which it would be the hinge. In addition to affirming that Zia’s assumption of power represented a limited ‘constitutional deviation’, the court also accepted that the conditions of unrest that prevailed at that time were such as to validate the proposition of salus lex populi.
In other words, the doctrine of state necessity was revived from the Governor-General’s reference 1955 to validate this takeover of power.[328]Powers of judicial review were discovered as untouched by the circumstances of the state of necessity that mandated martial law. For instance, Justice Haq writes that while the executive and legislature are combined in the office of the Chief Martial Law Administrator (CMLA) ‘for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances’, the judiciary remained unaffected.
The Nusrat Bhutto case gave wide-ranging powers to the CMLA, including the ability to amend the Constitution itself, but circumscribed by the doctrine of necessity as it applied to the factual scenario of unrest in the country, as well as subject to the retention of judicial review powers. However, early on, the structure of independence for the courts was already undermined insofar as the existing four Chief Justices of the Provincial High Courts had all agreed to act as Governors for their respective provinces. In addition, Post-Proclamation Order No 2 of 1977 allowed the President to appoint, on his discretion, acting Chief Justices to replace the permanent Chief Justices who had accepted executive office. Thus, Maulvi Mushtaq Hussain, made infamous in his role as the author of the initial order for Zulfiqar Bhutto’s execution, was so elevated. The same order enabled the President to transfer judges between High Courts. In spite of these formal assumptions of powers over the judiciary, provincial High Courts fought back against encroachments of rights, particularly in reference to the detention of political prisoners.
The Second Amendment Order of 1979 inserted Article 212A into the Constitution and allowed the CMLA to establish ‘one or more Military Courts or Tribunals for the trial of offences punishable under the Martial Law Regulations or Martial Law Orders’ or under any other special laws.
It maintained the Supreme Court as a court of appeal for cases tried by military courts but nullified any jurisdiction of the High Courts for cases taken to military courts. The following year a further alteration was made to the Constitution, now to Article 199 by the insertion of three sub-clauses.[329] If read strictly, the effect of these would have been to nullify altogether powers of judicial review that the Supreme Court had protected for itself in the Nusrat Bhutto case. The amended article indemnified all martial law orders or regulations, all orders or judgments of the military courts and declared all acts of the CMLA and his subordinates as valid with retrospective effect dating to Zia’s initial assumption of power. The much more expansive assault on the structure of judicial independence as well as of judicial review would come in 1981 with the re-swearing of an oath of allegiance by members of the superior judiciary under the Provisional Constitutional Order 1981. While a few judges chose at this juncture not to take the oath and thereby publicly alluded some fidelity to higher principles of independence or rule of law, others were simply not invited to do so by Zia. Thus, 19 judges were summarily dismissed and a pervasive fear established amongst members of the judiciary.The issue of the oath is one that judges have dilated upon in their memoirs, seemingly always to rectify the notion that they were somehow traitors to their office in having sworn it. One such account is given by Ajmal Mian (Chief Justice of the Supreme Court from December 1997 to June 1999), when he recounts a discussion had between himself and another member of the Sindh High Court, who were both offered the opportunity to continue in service on the condition of swearing Zia’s oath.[330] Acknowledging that he and his colleague were appointees after 1977, they both agreed that their initial judicial oath was sworn under the existing dispensation of ‘law’ and not the ‘Constitution’.
This thereby accorded consistency to their acts if they were to take the further oath, which they did. However, the same memoir also records an unending spiral of executive meddling through the mechanisms of transfer, reappointment, and so forth, all of which are impliedly decried. The retrospective turn has also been taken by authors of the Nusrat Bhutto judgment. Dorab Patel would lament having granted the right to constitutional amendment, although the power was circumscribed and subject further to the condition that Zia wouldact in matters in order to ‘advance or promote the good of the people’. Dorab Patel later wrote that this was also a ‘very vague concept’.[331]
The evidence of constitutional mutilation largely suggests that the Zia regime would not brook ‘legalistic procedural rules and rights above the rapid achievement of desired substantive outcomes’.[332] While not extensive, there is some evidence that the retention of the powers to structure and channel social conflict amongst independent actors and between them and the state would lend the judiciary some support in the future authoritarian heavy-handedness. In Yaqoob Ali, the Sindh High Court stated explicitly that military orders under the doctrine of necessity could be held to be justiciable.[333] It was not an untrammelled right for the CMLA to exercise an arbitrary will of one.
Nonetheless, in its everyday functioning the judiciary was exceptionally constrained during this period. Until the formal passage of the RCO in 1985, fundamental rights had been unavailable for legal enforcement. Additionally, there were two realms of contest that Zia defined for the coming years as of continuing relevance to the constitutional landscape of the country. Both of them bear heavily upon the structure and jurisprudence of the courts in the country. The first was the establishment of the Federal Shariat Court, discussed further in Chapter 8. The second was the passage of the Eighth Amendment to the Constitution, discussed extensively in Chapters 3 and 4.
A. Bhutto Murder Trial
In spite of the exertions of some judges to maintain autonomy during Zia’s reign, the institution as a whole was cloaked with ignominy for the events that led to Zulfiqar Bhutto’s execution. Following upon the declaration of martial law, an allegation of murder made against Bhutto in 1974 was opened up and formal charges laid. This would lead to a lengthy and secret trial, a finding of guilt and Bhutto’s eventual hanging. Bhutto was initially found guilty by a unanimous verdict of five judges of the Lahore High Court. On appeal, his conviction and sentence were upheld by the Supreme Court, with three of the seven judges dissenting.
It has been remarked that simply reading the judgments for this case ‘can give the wrong impression that the evidence was bulky and voluminous, “in reality the trial was based mainly on the testimony of Masood Mahmood, the Director-General of the Federal Security Force (FSF), who turned approver”’.[334] An approver is, in the tradition of colonial justice, usually a co-accused who turns state witness. In this case, other members of the FSF had been arrested and a range of charges about their extra-legal activity were being framed. The over-heavy reliance upon Mahmood’s testimony was not the only irregularity in the trials: the acting Chief Justice of the Lahore High Court, Maulvi Mushtaq Hussein, was at the time of the trial known to have locked horns with Bhutto on numerous previous occasions. On appeal, Bhutto faced a Chief Justice whom he had denied promotion a year earlier.
Benazir Bhutto termed the whole episode a ‘judicial murder’ of her father, even as blame for Bhutto’s displacement from power extended in many directions, including towards the US and other Western powers who found some of Bhutto’s allegiances with the Soviet bloc unpalatable.[335] Amongst the judges on the bench of the Supreme Court who denied Bhutto’s appeal was the future Chief Justice Nasim Hassan Shah. Seen as someone who had ‘obeyed’ martial law, after his retirement from service he gave an interview on live television hinting both that there had been higher direction given to hang Bhutto and that, in fact, the punishment could have been mitigated given that the charge was of abetment.[336] This led to a filing of a reference to reopen the case during the 1990s and it has been pending at the Supreme Court since then, with only periodic hearings taking place.[337]
III.