Judiciary Confronting Popular Democracy: 1968-1973
In the last chapter, we saw that a strong judiciary and rights discourse came as a response to a deficit in democracy under Ayub’s strong presidential system. What is the place of law in a political model where there is popular and representative democracy (though not even deeper and broader)? Do people rush to their representatives and not the courts for justice? Is the legislature a protector of fundamental rights and not courts? The early years of Bhutto’s regime, 1970-1973, give such an example.
But liberal, let alone ‘quasi-liberal’ Cornelius tradition, analyses have very controversial and differing opinions about Bhutto. They have found his regime to be Bonapartist, or patrimonial, but not popular. He has been variously described as fascist,[479] a two-faced man,[480] and patrimonial ruler,[481] while his socialism has been referred to as Fabian socialism,[482] or naive socialism.[483] For this latter tendency, Bhutto was a feudal, and he destroyed Ayub’s modernity, which could have made Pakistan an Asian Tiger.[484] For Musharraf, Bhutto was a despotic leader and the worst thing that had yet happened to Pakistan.[485] Mushahid and Akmal, meanwhile, saw populism, liberal democracy and feudal despotism in Bhutto.[486] It is perhaps not surprising that liberal intellectuals, like Newberg, also did not accept that the popularly elected government of Bhutto resembled democracy, even in its first years.[487] Hamid’s analysis of Bhutto and his legacy shows how the Cornelius tradition viewed Bhutto. While admiring Bhutto’s brilliance, he also found arrogance, impulsiveness and overarching ambitions.[488] Supreme Court Chief Justice Anwar-ul-Haq expressed these views clearly after his appointment as Chief Justice by Zia. He described a strain having been placed on the judiciary by the Bhutto regime.[489] Khalid M. Ishaque also hammered the “bureaucracy ridden welfare state” under Bhutto, which was causing greatest injustice under the cover of secrecy.[490] Chief Justice Sajjad Ali Shah evinces surprise that even being a barrister himself and with more than half of his ministers being lawyers, Bhutto could not help the judiciary in getting a better deal.These views may be justifiable if Bhutto’s regime is viewed in totality. However, if we break his period of governance into two, we can see that he had popular support at first. We will also see how Bhutto’s party and its program have a contrasting relation of law and political development with that of Cornelius’ tradition discussed in the previous chapter. With this established we can re-evaluate the case laws and legal struggles in Bhutto’s early years.
3.1.1 The Rising Class and National Liberation Struggles and Changing Place of Law in Political Development
In the autumn of 1968, workers joined students and unemployed in all major cities of Pakistan until Ayub was overthrown in February 1969.[491] From Ayub’s diary, which covers the period from the rise of Bhutto (1968-1970) till the 1971 liberation of Bangladesh, we can recognize the class forces of the time.[492] Ayub pointed out his fear of rising socialism as seen in fights between Suharto and Adam Malik; for him it meant a potential takeover by communism, even in a Muslim country.[493] He pointed out that the Red Shirts were creating problems in the Air Force,[494] and feared a communist takeover by Bashani,[495] who had reached the countryside. Students and unions were also on his mind, fear that they would take over.[496] The landed elite came to Ayub, as well as the industrialists Adamjees and Hyesons,[497] whom he noted were shaky.[498]
Even in East Pakistan, though the national question seemed dominant, yet the socialists struggle and ideas were playing a crucial role.
For Alavi, Mujib and Suhrawardy’s Nationalist parties had their basis in the ‘Sardari lineage’ of rich landlords who were capable of controlling the votes until the independence of Bangladesh in 1971.[499] The success of the Awami League in the 1970 election was due to the fact that the rural elite jumped on the party’s bandwagon.[500] But, since the early 1950s, there was another movement for the Bengali language led by grassroots Left cadre. The movement echoed with the ideology of social justice and was marked with consciousness of the demands of workers and peasants.[501] This second tradition also contained the rural populist tradition of Bengali peasants led by Maulana Bashani (the working-class Maoist leader from East Pakistan). Ayub himself, as observed through his diary entries, was less concerned with Mujib than Bashani. For Alavi, socialists were intertwined in the Bengali language movement but remained distinct.[502] After the crackdown by the Pakistani army, the populist Marxist cadre in the first tradition joined the armed liberation struggle. This led to an intervention by India, “to forestall the liberation of Bangladesh by popular forces and to instal the Awami League elitist leadership in power”.[503] The Marxist Left in East Bengal, according to Alavi, was on the forefront of an united armed liberation struggle in Bangladesh, along with sections of the Left in the Awami League.[504]Bhutto, riding on this tide of working class upsurge, won 1970 elections. Joined by J.A. Rahim, Bhutto wrote the founding document of a new party, the Pakistan People’s Party (PPP), in English in 1967.[505] Dr. Mubahsar Hassan and HanifRamay wrote the Urdu version wrote the Urdu version. The 1970s elections, the campaign and its results, are indicative of Bhutto’s wide popularity, where in people were approached directly during the campaigning process, which was unique. The supremacy of the people, not that of the constitution, was a recurring theme in Bhutto’s speeches.
Additionally, the election results brought into political positions little-known lawyers, engineers and other political novices. In Sindh, some large landowners were nominated on the condition that they would respect the PPP platform.[506] Horizontal solidarities among subordinate classes were struck based on class-consciousness. The party, furthermore, responded to regional issues, recognizing that in Punjab, class issues were dominant, whereas in Baluchistan, Sindh and East Pakistan, ethno-nationalist discrimination were serious concerns. Only in the NWFP did prior political regime hold sway.A brief review of Bhutto’s thought helps pinpoint his stance as clearly distinct from any of those who had preceded him, except possibly Jinnah. Bhutto found Western democracy to be responsible for considerable troubles left behind in decolonized countries. He argued that leaders of newly independent countries should have started with a clean slate and evolved a system from below. Against an elitist democracy, he believed that the right to vote should not be based on property or education.[507] He wanted a substantive democracy as opposed to a formal one and commented that democracy could not arise out of inequality, like that which existed in India.[508] Bhutto attacked the Basic Democracy system of juridico-bureaucratic Cornelius-Ayub nexus as having “nothing democratic in it”,[509] calling its supporters as “Brahmins of this country”.[510] For him, economic objectives could not be abandoned. Furthermore, he argued, “we want democracy as well as socialism”.[511] He wanted a socialist economy,[512] with socialist modernization as ‘objective sciences’ like mathematics.[513]
Bhutto also saw the importance of delinking centre-periphery relations for the countries of Asia and Africa[514]; and the importance of connecting with the other nations of the world including the communist, Islamic or emerging nations of Asia, Africa and Latin America.
Bhutto was opposed to Ayub’s closed western bloc, and the Islamic world of the Cornelius tradition. Even during his time with Ayub, he understood not to unnecessarily extend principles of attachment to the U.S. in lieu of China and the U.S.S.R.[515] Yet, he claimed that he also did not wish to delink from the West.[516] He noted that the economic successes of the U.S. were due to its vast resources and a small population. Pakistan has a large population and fewer resources, so the U.S. model could not work.[517]As far as ideas about law and judiciary are concerned, Bhutto, distancing himself from Cornelius, Munir and Ayub’s coup tradition, stated that the coup d’etats in Pakistan were not revolutions “as those who were ousted were brought back”.[518] Revolution and coup d ’etat are different for him, with revolution having a “motor of ideals in it”. A coup gave the impression that it has solved the problem, though it did not. So, instead of the status quo or coup, he argued that one should favour revolution,[519] that revolution could produce socialism, as in that age only two systems were possible, capitalism or socialism.[520]
Bhutto was of the opinion that in 1954, people were unaware of their rights, leadership was weak, and resistance came in the form of a writ petition (in the Moulvi Tamizzuddin case). However, dictatorship could not be destroyed filing writ petitions. Ayub was overthrown by the people, not a writ petition, which served as a warning for dictators of the future.[521] We learn from Bhutto’s speeches that he thought it was an inalienable and fundamental right of the people to participate in governing.[522] People can surrender some of their rights for a collective purpose. A regime can win the cooperation of the people if individual rights are protected, or, in an ideological state where civil liberties are suspended until the achievements of high ideological objectives/ends are met.
An authoritarian system can work, but the people must believe in the objectives so that they can sacrifice their rights.[523] He rejected the West’s criticisms of the leaders of poor countries in this regard.[524] He also warned lawyers to mend their ways, that one day they would have “to appear before the court of the people”.[525]Before the 1970 election, Bhutto gave a full departure of his constitutional scheme from the prevailing Cornelius tradition. His distancing from Cornelius was an indication of his disagreement with this juridico-bureaucratic structure and its institutional arrangements. Cornelius served in Yahya’s regime as the Minister of Law. When Yahya requested Cornelius and G.W. Chaudhry of East Pakistan to draft a new constitution in 1971, Bhutto, then Foreign Minister and President, objected to this assignment and called Cornelius a “Dhimmi”[526] who could not write the constitution of a Muslim State. After this, Cornelius refused to support Bhutto in seeking support from the Christian countries for the release of prisoners of war in India.[527] However, more important to understand is how do both, Cornelius and Bhutto, differ in their political and constitutional understanding.
In Bhutto’s constitutional scheme, presented before the 1970 election, the forthcoming constitution would have its particular bias, which is the expression of class forces by which it is fashioned.[528] Yet, the constitution and referendum cannot bring about ‘structural changes’.[529] Similarly, there is not a single thought about the judiciary acting as a check on restraint on legislature and executive. Rather, people not courts are the protectors of the Constitution here.[530] Bhutto’s constitutional scheme strongly rejected presidential system like in the U.S., declaring it a “militaristic state without being military dictatorship”.[531] Demand for a presidential system for him was a demand for dictatorship.[532] Whereas Ayub’s, as well as the Constitutional Commission report by Justice Shahabuddin, rejected the option of a parliamentary system on the grounds of there being too many political parties, Bhutto reasoned there were too many parties due to the democratic process.[533]
Bhutto also departed from Ayub and the Cornelius tradition in idea of the imposition of Islam. Bhutto argued that Ayub should not have suppressed indigenous cultures, rather, he should have “encouraged the flowering of a variety of cultures within our state to enrich the development of a synthesized national cul- ture”.[534] Bhutto emphasized the need of a synthesis of modernity and tradition[535] as opposed to the grafting of Islam on liberalism as done by the Cornelius tradition. In fact, his political style indigenized and nativized Pakistani politics through the participation of people for the first time in it.[536]
After Ayub, and before Bhutto, Cornelius joined Yahya as a law minister, S.M. Haider, as a true continuity of Braibanti and Cornelius, kept promoting Cornelius’ legal formation as a combination of Islam and U.S. liberal legal system.[537] He elaborated, in more detail, how judicial review was developed under Cornelius courts to curb and veto the majority [my emphasis].[538] He advocated the first articulated case of Cornelius’s position on rights vis-a-vis Munir. This extensive account tried to prove his position as being closer to the U.S. system.[539] This description uncritically became a trend within legal circles in Pakistan and was later continued by Justice Nasim Hassan Shah, Hamid Khan and current legal academics like Lombardi.[540] He strongly pushed the idea of administrative tribunals of Cornlius and wrote a full book.[541] He invited Cornelius for talks in influential circles.[542] After Cornelius, S.A. Rehman and Fazal-e-Akabar served as Chief Justices of Supreme Court for 96 and 166 days, respectively, and finally Hamood-ur-Rahman became Chief Justice of the Supreme Court and was intended to give a new level of ‘original thinking’ in 1969 to trend of Islamization initiated by Cornelius.[543]
The above trend had to stop on the face of Bhutto’s popular democracy. Bhutto’s perception of the role of politics and law was entirely different than that of Ayub and Cornelius. Whether Bhutto believed it or not, he was responding to people’s restlessness, the subaltern classes (a mix of class and ethno-nationalist groups[544]), who gradually rose beginning from mid-1960s.
To conclude, the political developments since Ayub’s overthrowing in 1968, the policies of Yahya reflects how he tried to counter the imbalance created by capitalist modernization of Ayub. He promoted ‘social justice and egalitarianism’ to prevent concentration of wealth and hence, promulgated a Control and Prevention Ordinance 1970.[545] Yahya immediately gave a labour policy recognizing that workers had not received a ‘fair deal’ under the previous regime and passed an Industrial Relations Ordinance in 1969.[546] Yahya immediately purged 300 high level bureaucrats,[547] and also curtailed the powers of the judiciary through Jurisdiction of Courts (Removal of Doubts) Order, 1969?[548] Through a presidential order, Judges (Declaration of Assets) Order, 1969, judges of the superior courts were ordered to declare their assets before the Supreme Judicial Council on a prescribed form.[549] Justice Fazle Khan of Lahore High Court resigned and Justice Shaukat Ali was removed from the service on the recommendation of Supreme Judicial Council.[550] Yahya brought back the Cornelius Report of 1962 (which was critical of the old type of bureaucracy) and published it. Similarly, he appointed Cornelius to be in charge of the Pay Commission. He agreed to democratic institutions, political parties and elections.
Though Yahya’s coup was similar to Ayub’s in term of the continuity of the power structure, and though it was also bloodless,[551] it was not tolerated by the juridico-bureaucratic structure, which was quite comfortable with Ayub. Yahya instituted a parallel judicial structure, which the courts also vigorously opposed. Yahya established special and summary military courts and any appeal in High Courts and the Supreme Court could not override the orders of these courts.[552] Added to this was Pakistan’s defeat in the 1971 war under the leadership of Yahya, which led to the independence of Bangladesh.
In 1971, Bhutto inherited a smaller country (as Bangladesh had now seceded) and ‘a baffled people’.[553] He emphasized economic change more than political change so as to break with economic inequality.[554] Pakistan was forced to “squeeze centuries into decades” but not through a ‘pernicious doctrine’[555] of functional inequality,[556] rather through economic strength as there is no power without economic strength.[557] Within days of Bhutto assuming office, the passports of 22 business families were confiscated and two main industrialists, Ahmad Dawood and Fakhruddin Valika, were shown handcuffed on TV. According to Lawrence J. White, Bhutto ‘nationalized’ ten industries within weeks in January 1972 arrest two leading Pakistani industrialists.[558] The landed class now faced land reforms based on principles of rationalization and Bhutto’s labour, education and health reforms became directed by rational policies.[559] The labour policy was the continuity of Noor Khan’s policy. On 10 March,[560] and later on 12 March 1972, 1300 civil servants[561] were dismissed, retired or reduced in rank. These actions were not reviewed in any court of law. Bhutto retired 43 top rank officers from the three armed forces in four months. On 4 March 1972, Commander-in-Chief of the Army, Lt. General Gul Hasan and Air Marshal Rahim, the head of the Air Force, were dismissed. Bhutto brought the command structure of the military under the Prime Minister. Bhutto lifted Martial Law on 20 April 1972 after putting an interim constitution in place. This constitution was parliamentary in nature, with the president as supreme commander of the forces. The President could promulgate ordinances only when the National Assembly was not in session. In the first six months, between December 1971 and May 1972, Bhutto had controlled the potentially hostile centres of power.[562]
This situation of Yahya’s humiliated departure after the defeat in the 1971 war with India and Bhutto’s popularity gave birth to the Asma Jilani case and Zia-ur- Rahman case which showed the relation of judiciary with this transitional and unprecedented period of popular democracy in Pakistan.
3.1.2 Asma Jilani Case: For Democracy or Just Against a Dictator?
Asma Jilani case is celebrated by liberal and quasi-liberal doctrinal analyses as a victory of the judiciary against a dictator, in favour of democracy. The ‘Cornelius tradition’ under the leadership of Supreme Court Chief Justice Hamood-ur-Rehman was facing a new political situation. Newberg’s claim is that the courts were ‘unprepared’ for Bhutto.[563] I disagree. They were fully ready to confront Bhutto but the Asma Jilani and Zia-ur-Rahman cases were indicative of the transitory nature of politics, which was marked with popular democracy. Trained under the juridico-bureaucratic mindset of ‘controlled democracy’ and ‘constitutional limits’ courts were cautious, reluctant and could not understand the changing politics and what legal tools were required.
The facts of the case were that Malik Ghulam Jilani was detained under the Defence of Pakistan Rules, 1971 which was rescinded and substituted by Martial Law Regulation No. 78. Asma Jilani, the daughter of the detenu, challenged this order. The government maintained the position that the court has no jurisdiction to entertain the petition under Jurisdiction of Courts (Removal of Doubts) Order, 1969 by Yahya. Through this Order, the jurisdiction of the courts was ousted. The Sindh High Court gave similar a decision in a case challenging the detention of Altaf Gohar. Both cases came before the Supreme Court in an appeal. The Supreme Court had a chance to reflect on the doctrine of necessity and Kelsen ’s theory and found it to be an inappropriate law. The Court also declared that as Ayub had no power to hand over power to Yahya under the Constitution of 1962, Yahya had illegally usurped the power, Provisional Constitutional Order 1969[564] was illegal, and hence the jurisdiction of the courts was not ousted.[565]
What was the actual target of Hamood-ur-Rehman CJ; Yahya, doctrine of necessity in Dosso case, or Jurisdiction of Courts (Removal of Doubts) Order, 1969 by Yahya? To know this, we are to transcend this liberal analyses’ dichotomy of democracy versus dictatorship particularly around this case. Calling Yahya ‘a usurper’ by the CJ seems a simple reflection of the general hatred people had for Yahya after losing the 1971 war against India. But particular to this hatred in Hamood-ur-Rahman CJSC is his exposure to the criminal role of Yahya and his military generals in the war of 1971 because Hamood-ur-Rahman headed the commission to inquire in this matter, which was declassified after 40 years. If we look into the timeline of the Commission’s Report, it is clear that recording of the evidence started from February 1, 1972 and it finished on 26 April 1972. Hamoord-ur-Rahman wrote this Report till 8 July 1972, whereas the Asma Jilani case was decided on 20 April 1972. So, clearly the decision of Asma Jilani case was made based on the report by CJ Hamoor-ur-Rehman, Anwar-ul-Haq CJLHC and Tufail Ali Abd-ur-Rahman CJSHC. The decision was not the tip of the anger which the verdict of the Commission Report had, that is, to publicly try Gen. Yahya, Gen. Hamid, Gen. Pirzada, Gen. Umar, Let-Gen. Hussan, Maj-Gen. Mitta for being a party to a criminal conspiracy to illegally ‘usurp power’.[566]
Now coming to the validity of Kelsen’s theory and doctrine of necessity, Sharifuddin Pirzada objected that the decision in Dosso case was against the principles of natural justice theory. This pitted Munir’s positivist reliance on Kelsen’s theory against Cornelius’ tradition of natural law. CJ objected the very positivist nature of Hans Kelsen’s theory which was made universal by Munir CJ. In that sense, according to the court, CJ Munir made two errors, he thought that Kelsen’s theory was universal (though it was hypothetical in the words of A.K. Brohi in this case). Second, Munir CJ misapplied this theory on Pakistan.[567] For Hamood-ur-Rehamn CJ, positive theory places authority in the political sovereign. Similarly legal realism, like positivism, is the will of state made through courts. As opposed to this, natural law finds its authority in moral principles, which the Cornelius tradition had replaced by Islam and hence ‘sovereignty belongs to Allah’ (Objectives Resolution). Hamood-ur-Rahman, while attacking Kelsen’s doctrine of necessity as a grundnorm, placed the controversial Objectives Resolution as the new grundnorm, which, according to him, was never abrogated and he warned, “it cannot be”.
Important to understand is that Hamood-ur-Rahman did not reject the doctrine of necessity but the way it was understood and applied by CJ Munir using the tradition of common law. Rather, Hamood-ur-Rahman CJ followed the role of the American courts when they adjudicated upon the validity of the acts after suppression of the rebellion in the Southern States. Courts did not undo the acts of the usurper necessary to peace and order and affecting property and contractual rights because it could result in disastrous consequences. Ignoring the doctrine of necessity in that could have disastrous consequences. The method employed by the CJ was that courts should first conclude whether the acts of the usurper were illegal, then courts should bring doctrine of necessity to aid this situation to help the public. So, the principle will be principle of condonation and not legitimation.[568] This means that all businesses be closed, not to be opened, and the order should be restored according to the objectives mentioned in the Objectives Resolution. What the court should not do is to help the usurper entrench its power further and violate the rights of the citizens.[569] However, this decision sent two wrong messages to the legislature as well as to the subordinate courts; one that courts are to decide all the acts of the usurper under the principle of condonation and that the controversial Objectives Resolution is the grundnorm. This misunderstanding gave birth to the Zia-ur- Rahman case.
3.1.3 Zia-ur-Rahman Case: A Judicial Retreat
on the Face of Popular Democracy
The decision in the Asma Jilani case left a doubt in the minds of the legislature that each and every act by Martial Law would be ‘condoned’ by the courts. Bhutto’s civilian Martial law government did not challenge this decision but it nullified the judgment by bringing Article 281 in the constitution, which validated all Martial Law Orders and Regulations and debarred the court from adjudicating upon them. Bhutto arrested his political opponents—Mukhtar Rana (a member of National Assembly and a very popular mass leader), Altaf Hussain Qureshi and Dr. Ijaz Hussain Qureshi (editors and publishers of Urdu Digest, respectively), and Majib-ur-Rahman Shami (editor of the weekly Zindigi).[570] The arrests were challenged through several writs filed by the relatives of the arrested in the Lahore High Court a hearing was held on 6 July 1972. The Lahore High Court, specially Justice Afzal Zullah (who later became Chief Justice of Supreme Court in early 1990s extending Cornelius tradition around Public Interest Litigation), ‘correctly’ understood the message of the Supreme Court in the Asma Jilani case. The court declared the Objectives Resolution as supra-constitutional, wherein sovereignty belongs to Allah. But instead of declaring the legislature exercising this sovereignty as trustee, the court went further and declared itself as the trustees of the people and Almighty, having the power to judicially review. The court then made clear that the legislature is not allowed ‘tinkering’ regarding this judicial power.[571] All the judges struck down Article 281 of the Interim Constitution.
An elected assembly found this judgment to be a clever attempt to undermine the Legislature. The debate included the view that the judiciary cannot question the policy of the government nor could it strike down the constitution. Substantive provisions of the constitution could not be controlled by its preamble or even by the Objectives Resolution. The purpose of appeal by the state in Zia-ur-Rahman case in the Supreme Court was to make clear the boundaries and limits of courts. The Advocate General emphasized the omnipotence of the Legislature, like the British Parliament, where courts do not have authority to challenge it. The entire Ziu-ur- Rahman judgment by the Supreme Court was a retreat by the judiciary. After defining the scheme of separation of power under a written constitution, Hamood-ur-Rehman CJ made clear that “a Legislature, under written constitution, possesses the same power as “omnipotence” as the British Parliament”.[572] The Chief Justice further made clear that the Supreme Court is not above the constitution, rather a creature of the constitution and the constitution gives it a right to interpret the constitution, which is a judicial power different than jurisdiction which is territorial and hierarchy to adjudication.[573] Coming back to the Objectives Resolutions, the Chief Justice made clear that Objectives Resolution is not a supra-Constitutional document, not enforceable as such, and Asma Jilani case did not declare Objectives Resolution as grundnorm?[574]
Because the Chief Justice was obsessed with Yahya in the Asma Jilani case, political questions regarding current regime were missing, that is, resumption of power by an elected, representative and popular leader. In this appeal, while describing how the political situation is changed, Hamood-ur-Rahman CJ gave legitimacy to the Legal Framework Order-LFO and to the regime. For him, Bhutto was the “elected representative of the people”, the National Assembly was validly constituted, and the “Interim Constitution is a valid constitutional document”.[575] All liberals Hamid, Newberg did not like this aspect of the decision, meant to give legitimacy to Bhutto. Munir CJSC (ret. as he then was) not only pointed out the mis-statements by Hamood-ur-Rehman CJSC, but also defended his reliance on Kelson’s theory in his decision of Tamizuddin Khan case.[576] Munir, very correctly, was doubtful about the ‘legality’ of Bhutto but was very sure of Bhutto’s ‘popularity’. Here, one can add that apart from the legal theoretical adventure of Hamood-ur-Rehman, this was the ‘popularity’ that gave legitimacy to Bhutto, which the court simply reiterated.
Does this really mean that Hamood-ur-Rahman believed in democracy, supremacy of the legislature by not considering Objectives’ Resolution as the grundnorm and, above all, was he a democrat? For this, we are to consider his model of political development from his writings and speeches.
In his model of state formation, Hamood-ur-Rahman CJSC wanted Khalafit with a body of persons (Turkish Grand Assembly after the regime of last Khalifa), which could elect a Council of Regency which would later elect the Khalifa. The Majlis-e- Shoora (parliament) could become a modern legislature but cannot legislate about what already is decided in Quran and Sunnah [my emphasis].[577] These legislators, for him, were not to be tied to any political party or their programs and were not beat the mercy of the head of the state. They were to be of special qualification with knowledge of the teachings of Islam and technocrats. He made clearer that this model was not like Anglo-Saxon parliamentary model of U.K. but close to the presidential system of the U.S. He was in favour of giving a constitutional role to the military.[578]
While serving as a judge of the Supreme Court under Cornelius’ justiceship in the 1960s, he dreamed of the “Kingdom of God on Earth”.[579] He did not hesitate to join Zia as his constitutional advisor after the overthrowing of Bhutto. Relating his speeches of this period with Zia’s Islamization gives us a clear indication that he was one of the important minds behind these controversial Islamic law amendments, which violated the human rights of minorities and women.[580] Anyhow, freedom of individual, for him, was limited to ‘orderly’ or ‘controlled freedom’.[581] A.K. Brohi, while addressing the inaugural ceremony of the annual governing body meeting of All Pakistan Women’s Association in 1966, had regretted that the role of women taking care of children is given up.[582] Hamood-ur-Rahman also reminded women of their ‘primary responsibility’, as explained by Brohi, above.[583]
To sum up this part, Hamood-ur-Rahman and his model of political development was quite in line with Cornelius’ tradition of ‘controlled democracy’, with a strong president and the judiciary as a restraint on his powers as protectors of human rights. The decision in the Asma Jilani case was the reluctance and caution of the proponents of this tradition in the face of popular democracy. The announcement of democracy as an ‘institutional change’ from the courts was not necessary because peoples’ mobilization and structural changes underway were louder than courts. Cornelius’ tradition in judicial office, as well in the bar, waited for the Bhutto to lose support to come up with their model of political development.
3.2