Juridico-Bureaucratic Cornelius Tradition Restored (1980s)
In the 1977 elections, the Pakistan People’s Party won four-fifths of the seats of the National Assembly, but there were allegations of rigging in the polls. A strong agitation against Bhutto arose on the streets and he declared a partial Martial Law in Karachi, Lahore and Hyderabad under Article 245 of the Constitution.
The Martial Law was challenged before Lahore High Court and a full bench declared the Martial Law unconstitutional.[667] Between 4 and 5 July 1977, the Chief of the Army Staff, General Zia-ul-Haq, imposed Martial Law in the country. He did not abrogate the constitution but held it in abeyance.[668] This was different than the previous two Martial Laws imposed by Ayub and Yahya wherein the constitutions of 1956 and 1962 were abrogated. The powers of the High Courts and Supreme Court to issue writs under Article 199 were taken away. Later, these courts were allowed to have writ jurisdiction except against the Chief Martial Law Administrators or Martial Law Administrators working under him.[669]The judiciary welcomed Zia without resistance, with the sole exception being Supreme Court Chief Justice Yakub, who had been given an extension in his job by Bhutto. Zia met with Chief Justice Yakub the same night of Bhutto’s overthrowing on 5 July 1977. The Fifth and Sixth Amendments by Bhutto had increased the age of retirement of judges so that Supreme Court Chief Justice Muhammad Yakub could be retained at his position. Zia, through his Chief Martial Law Administrators order, withdrew this extension because Yakub had admitted the case filed by Bhutto’s wife against the overthrow.[670] Consequently, the Supreme Court Chief Justice Muhammad Yakub stood retired. The next Supreme Court Chief Justice appointed was Anwar-ul-Haq, who had been denied this position for six months due to Bhutto’s amendment.
Four High Court Chief Justices were appointed governors of respected provinces and they happily moved. Writ jurisdiction of the High Courts and Supreme Court was restored within two days of taking a new Oath on Provisional Constitutional Order, which all the judges took. Two Chief Justices forced three judges of the Lahore High Court and two judges of the Supreme Court appointed by Bhutto to take the Oath using Supreme Judicial Council.While renowned jurists and advocate Hamid was ‘shocked’ by the way the judiciary fell into the lap of Martial Law,[671] I am not so surprised. It was a forceful and quick return of the quasi-liberal institutional setting under Ayub and Cornelius. This tendency and class formation stayed alive during Bhutto as pointed out above. The end of the 1970s was the height of the cold war and the hegemonic class backed this class formation to overthrow Bhutto. I find that the judiciary found it as an ideal period in terms of its centre-periphery relations (in the height of its relations with the U.S. in the Cold War) to establish the constitutional set up like the U. S. This model includes a strong president, judicial review to take care of fundamental rights, and the Objectives Resolution as the substantive part of the constitution, which had not even been available to Cornelius courts. This judicial period was different than Ayub’s only in the sense that Ayub tried modernization with a liberal face whereas Zia implemented capitalist modernization with an Islamic veneer. According to Ishrat Husssain, Zia’s period further continued with modernization and was a success.[672] Grafting of Islam was the only ‘shortcoming’ of the ‘Cornelius tradition’ under Ayub, which Zia did not hesitate to do. Judges sat on tribunals with Brigadiers to disqualify politicians. Supreme Court Chief Justice Anwar-ul-Haq acted as president during Zia’s absence on foreign tours. Judicial review was being used consciously and cautiously.
Relief was found in about 10% of the cases brought before the superior courts.[673]A full Supreme Court bench, consisting of nine judges, began hearing the Nusrat Bhutto case in 1977,[674] which challenged the coup. The position of the Federation presented by its counsel, A.K. Brohi, was that Martial Law is not imposed to displace the constitutional authority but to bridge and return the country to the constitutional path. Similarly, newly appointed Attorney General Sharifuddin Pirzada also explained that the Chief of the Army Staff had not usurped the state power but he had ousted the usurper, who was elected through massively rigged elections.[675] Apart from the sophistory of these arguments, these two jurists were against Martial Law and Yahya’s coup in the Asma Jilani case, giving theoretical basis to the then Chief Justice Hamood-ur-Rehman. As per justices Waheeduddin and Dorab Patel, not the judgment of Asma Jilani case but the findings of Reference of His Excellency the Governor-General of 1955 are applicable in this situation.[676] The crux of the judgment was that the new legal order is for a limited period and for a limited purpose. Only a few parts of the old order are held in abeyance on the ground of state necessity. When are the elections after this short period? The Supreme Court did not give a definite time but believed in the solemn pledge given by Zia to seek a mandate and have free elections.[677] Supreme Court justices Muhammad Afzal Cheema and Nasim Hassan Shah found the doctrine of necessity as Salispolulisupremalex (necessity makes prohibited things permissible) valid within Islamic jurisprudence.[678]
For Dieter Conrad, the judicial verdict will not significantly alter the course of events in revolutionary change cases. So the courts are to decide whether to resign or continue working under the regime. The Supreme Court has to look at these matters from the perspective of constitutional legitimacy but has a day-to-day administration of justice.
So arises a need of deliberate restraint or giving legitimacy to the regime. The path adopted by the courts was based on a principle of limited dictatorship (which included the doctrines of necessity, implied mandate, the principle of minimum recognition, etc.).[679] Using a liberal framework of ‘constitutional governance’, Tayyab Mahmud found this decision, along with other decisions like Dosso case, doctrinally inconsistent, judicially inappropriate and a politically timid response.[680] Yet this characterization is another form of looking at the judiciary as a ‘neutral’ and ‘autonomous’ institution facing events under pressure. It does not reveal how the courts themselves are the part of the juridico-bureaucratic structure. As already pointed out, the decision in the Asma Jillani case against the dictator did not stand on the shoulders of the judiciary, rather it was the mass support that led the way to a decision like this. Similarly, the decision in the Nusrat Bhutto case was one for state formation, which could handle the rising tide of the Cold War. Analysis in this book does not consider it sufficient to describe the courts as pragmatic by Conrad. Continuity of our ongoing analysis in its historical trajectory will show how this decision was the strong revival of state formation under Ayub-Cornelius with class formation discussed below.3.3.1 Rehabilitating the Old State Structure
General Zia resurrected the old juridico-bureaucratic structure, with the military leading it. He disengaged some of the landed elite from the PPP with little effort. Soon, the landed elite was evicting tenants. Zia’s economic and administrative policies and anti-nationalization stance pleased business. The family of Nawaz Sharif (who later became Prime Minister), which had suffered from nationalization in 1972 and had lost Ittefaq Steel Industries, now rose up again in the 1980s due to the patronage of Zia. Punjabi industrialists replaced Gujarati industrialists.[681] The Zia regime was also the first truly military regime in Pakistan with the military as his constituency, with many direct benefits to them.[682] Government officials made personal contacts with military officers and inducted many of them into the civil services.
The bureaucracy welcomed Zia and Chief Justice Anwar-ul-Haq headed a Civil Service Commission to recommend policy measures, his report was full of conservative measures.[683] This Martial Law regime was accompanied with the strongest ever hold by the metropolitan bourgeoisie (hegemonic class) on this military as seat of power in light of the Cold War, which was at its height after the invasion by the Soviet Union in Afghanistan.Even a short period of people’s aspirations under Bhutto had tremendous potential. There was a need to roll this back completely. There was no major change in labour law and economic policy by Zia but suppression unleashed against PPP was used to roll back the labour.[684] [685] [686] Whether the PPP wanted the Left behind it or not but the Left was behind PPP. The period from 1977 to 1985 was a period of exclusion, marginalization and exploitation of the subalterns. 3.3.2 Rolling Back Popular Democracy to the Extent of “Judicial Murder” of Bhutto The Zia regime suppressed the subordinate classes, ensured that popular forces could not influence state policy and hence eliminated their potential to capture the state. It went to the extent of committing the ‘judicial murder’ of Bhutto. Bhutto was charged with the murder of Nawab Muhammad Ahmad, father of Ahmad Raza Kasuri, on November 1974, he was implicated in this case under abetment. The case was directly moved to the Lahore High Court and a five-member bench headed by Maulvi Mushtaq conducted the trial. The other judges were Ziauddin Paul,[687] Aftab Hussain, who was very close to the Chief Justice and two other judges who were very weak.[688] The High Court, vide its judgment in this case dated 18 March 1978, convicted all the accused for criminal conspiracy and murder, sentencing them to death.[689] In an appeal against this conviction, a bench of nine judges of the Supreme Court, with an opinion of four to three, supported the High Court decision.[690] Bhutto was hanged by the military in spite of a plea for clemency by Kurt Waldheim (Secretary General of U.N.), President Jimmy Carter of the U.S., Prime Minister Pierre Trudeau of Canada, Chancellor Helmut Schmidt of West Germany, President Giscard d’Estainge of France and Prime Minister James Callaghan of the U.K. It is well known that it was not a fair trial from the beginning till the end.[691] An appeal against the order of the Lahore High Court was heard by a full bench of nine judges of the Supreme Court headed by Chief Justice Anwar-ul-Haq. Bhutto raised the issue of a biased trial, which was rejected by the Chief Justice.[692] The judgment was four to three. The review petition against this judgment was dismissed on 24 March 1979 unanimously by all the seven judges of the Supreme Court.[693] The role of the judiciary in this ‘judicial murder’ needs explanation to fully expose what occurred. After the premature retirement of the Chief Justice of Lahore High Court, Sardar Iqbal, Maulvi Mushtaq was supposed to be the next Chief Justice of the respective court. However, Bhutto had appointed Justice Aslam Riaz as Chief Justice, superseding seven other judges including Justice Maulvi Mushtaq. After Bhutto’s overthrow, Zia obliged Justice Maulvi Mushtaq by making him Chief Election Commissioner and Acting Governor of Punjab as well as acting Chief Justice of Lahore High Court. Bhutto called him “a man known to be after my blood”.[694] Bhutto explained the roots of this enmity. Justice Maulvi Mushtaq met Bhutto after he became president in the early 1970s and revealed his ambition to become Chief Justice of Lahore High Court. Instead, after a few months, Justice Sardar Muhammad Iqbal was made Chief Justice of Lahore High Court by Bhutto. Maulvi Mushtaq expressed his resentment and suggested to the Punjab Chief Minister to put a “shot through the head” of Bhutto. Mushtaq Ahmad faced a second blow when Justice Aslam Riaz Hussain was made Chief Justice of Lahore High Court. After Zia’s coup, however, he was invited and made Chief Justice of Lahore High Court as well as Chief Election Commissioner during the trial of Bhutto.[695] Maulvi Mushtaq’s appointment as Chief Justice of Lahore High Court and as Chief Election Commissioner consolidated the “mockery of the separation between the executive and the judicial branches of the government”.[696] During the trial, Zia published a white paper and accused Bhutto for rigging the 1977 elections. He presented him as ‘modern Machiavelli’ and Bhutto in turn called his ‘White Paper’ a ‘white lie’.[697] Bhutto did not expect justice from courts but from the people of Pakistan,[698] not believing in this trial. The courts even criticized his lack of faith in Islam. In this regard the comments by Hamid (2009) are very important “they (comments of the judges) only reveal the mindset of the judges and betray their innate dislike for Bhutto and his style of governance”.[699] This statement is very peculiar to reducing the Bhutto regime to a style of governance. Rather than substantive differences in Bhutto’s economic reforms and agenda as explained in the first part of the chapter. All the accused were sentenced to death.[700] 3.3.3 Zia's Constitutional Engineering: Fine Tuning of the Juridico-Bureaucratic Structure The judiciary was careful not to use judicial review against Martial Law. A constitutional amendment, Article 212-A, was added in the constitution to establish military courts. This actually gave constitutional recognition to the already existing military courts and empowered them to the extent that no High Court could grant any injunction, and make an order against them. So, the Supreme Court was deprived of the fruits of judicial review, which it secured in Nusrat Bhutto case. The courts continued to use rights against the regime, for instance, the Mumtaz Bhutto case.[701] In this case, two members of the PPP were detained under Martial Orders no. 12, which excluded the jurisdictions of the High Courts and the Supreme Courts to challenge these detentions. Yahya Bakhtiar’s argument was that fundamental rights are available whereas Messrs A.K. Brohi and Sharifuddin Pirzada rejected the presence of fundamental rights. It is considered a sound judgment against the military. It challenged detention without trial as an arbitrary act of the executive. After that, courts started reviewing the decisions and actions of military courts.[702] Then, with consecutive constitutional amendments, the High Courts and the Supreme Court were completely deprived of any action against Martial Law authorities.[703] Nonetheless, this was not enough for Zia. He made wholesale constitutional amendments through a Provisional Constitutional Order (PCO) on 25 March 1981. It was like taking a hammer to the powers of Judiciary.[704] This Provisional Constitutional Order was challenged in the Lahore High Court and easily upheld by a divisional bench, without going into the details of the case.[705] [706] This Order was a humiliation or a restructuring of the judiciary, but according to Chief Justice Anwar-ul-Haq (he stood retired), this constitution did not hold support of the people as its character has changed, it was called a “coup within coup”. [707] Sajjad Ali Shah J (who later became CJ of the SC 1994-1997) took the Oath under Zia's Provisional Constitutional Order. His reasoning is similar to that of Nasim Hassan Shah J (who also later became CJ of the SC 1993-1994). Senior judges at that time, according to Sajjad J, thought that the Provisional Constitutional Order was using the word ‘law’ to defend everything under the purview of law. Another argument the conservative judiciary made was that the judiciary could be better protected from within and by not allowing the handpicked judges to fill the judiciary.[708] Yet, if someone does not consider the interplay of structural relations between the judiciary and the civil-military bureaucracy, he/she cannot stop him/herself from the shock, like that which Hamid had about “the way the judiciary fell into the lap and ultimately the trap of the Martial Law”.[709] Rodney W. Jones suggests that the new political leadership came from the lower and middle class who were more conservative and politically less sophisticated than president Ayub.[710] Analysis in this book has two alternate explanations of what was going on. One is that the intensified class struggle and close presence of the metropolitan bourgeoisie in the light of Afghan war and Iranian revolution (1979), made the dominant classes (the ‘historic bloc’) react strongly, as opposed to during Ayub’s regime. So this was not a matter, more or less, of the sophistication of the middle classes. In terms of class struggle, the climax was reached in the period from Bhutto’s overthrowing (1977 to 1981-1982). During this time, fragmented left forces, the PPP Left and the nationalist forces (the pro-Moscow National Awami Party) fought tooth and nail in a war against U.S. imperialism, but unfortunately under the leadership of Benazir Bhutto. When the class struggle was defeated, the period of 1985-1988 saw the restoration of a presidential system like that was formed under Ayub. Meanwhile Benazir Bhutto, unlike her father, accepted the hegemonic class and democracy was restored with a limited role of Benazir Bhutto, but, this changed the 1973 constitution altogether into a presidential system. 3.4