Revival of the Constitution of 1973 Order, 1985-RCO: A Perfection of the U.S. Type Presidential System and Islam of Cornelius Tradition (1985-1988)
From 1973-77, Bhutto made seven amendments but Zia promulgated 26 constitutional amendments by 1985, when Martial Law was withdrawn and democracy was restored. Out of those amendments, the 8th amendment, that is, Revival of the Constitution of 1973 Order-RCO of 1985 made as many as 65 amendments in the constitution.
Furthermore, the insertion of the Objectives Resolution 1949 as a substantive part of the constitution (Article 2-A) amended 60 Articles of the constitution, and added five new Articles and six new clauses. After that, the quasi-democratic regime of Juneju (1985-1988) made the 8th amendment, which was followed by the 10th and 12th amendment.According to A.G. Chaudhry, this total of 36 Amendment Acts and orders hardly left any Article of the constitution untouched.[711] These amendments made the constitution the creator of the worst kind of presidential system. Now, the cabinet had to work to advise the president and not the other way around. The president could promulgate emergency ordinances, and was the supreme commander of the Armed Forces; he also had full authority on financial and political matters. Above all, the president could dissolve parliament in instances of national interest.[712] Zia’s amendments were found valid in the Yaqoob Ali case[713]; with the dissenting opinion of Justice Hussian Mirza was a cry in the desert.
After the extreme act of Bhutto’s ‘judicial murder’, Zia imposed Islam as the final nail in the coffin of popular will. Women were reduced to ‘half’ status through the Hadood Ordinance and very suppressive punishments were included in the criminal code. It terrorized the poor, who were the victims of these harsh punishments.[714] According to Waseem, Islam was helpful for the manipulation of power, to claim a right to rule, and was not a new factor indicating a change in politics.[715]
The Objectives Resolution[716] was part of the preamble of the 1973 constitution but in 1985, Zia made it a substantive part of the constitution by adding Article 2-A (Revival of the Constitution of 1973 Order, 1985).
All of this was not an accident or the creation of one person, Zia, but was the continuity of political developments in 1950-1960s under the juridico-bureaucratic structure of Ayub-Cornelius and were perfected under Zia. Below is the brief of the decisive role played by all the jurists of Cornelius tradition.After Bhutto was overthrown, new Chief Justice, S. Anwar-ul-Haq in his speech mentioned that Bhutto’s period was one of extraordinary stress and strain on judiciary. The attitude of the executive was “aggressive, judges were insecure”.[717] Mushtaq Hussain, newly selected Chief Justice Lahore High Court, while addressing the full court reference to welcome his appointment, endorsed the above statement.[718] A known jurist Aamir Raza A. Khan, being the president of LHC bar Association, called Bhutto’s period as a “constitutional and legal tyranny”. He did not hesitate to thank Mushtaq Hussain for guidance and counselling in the troubling time of the later half of 1976.[719] This simply means there was full coordination among all these ‘legal’ actors against Bhutto during the last years of his troubled rule.
Retired Chief Justice of Supreme Court, Hamood-ur-Rahman, being Zia’s advisor for constitutional and parliamentary affaires, announced that from merely talking about Islamic system, we had started taking some preliminary steps. To guide this process, he gave a full concept of state in Islam having sovereignty, liberty, justice, fraternity, democracy and accountability.[720] Anwar-ul-Haq CJSC sitting there also thanked ‘Khauda’ for Sharia and Sunnah coming in Pakistan, but he was worried that its fruits were not seen in the society. Then he moved to the trend of that time, citing verses of the Holy Quran and giving their references.[721] Next year Chief Justice Anwar-ul-Haq also assured that all the justices of SC are ‘whole heartedly’ in favour of the enforcement of Sharia laws in Pakistan.[722] The same year Sharifuddin Pirzada announced that the British tradition of calling judges ‘My Lord’ would be stopped and judges of Lahore High Court decided to wear Sherwani ’s and Arabic Choogha.[723] He found all this Islamization as a continuity from Jinnah to Zia, establishing an Islamic state in Pakistan.[724] Under this intellectual umbrella, Zia changed substantive areas of laws with Islamic provisions, established Shariat Courts, Shariat Faculty, Law Commission and Council of Islamic Ideology of Pakistan, and enacted Huddood Law, Zakat and Ushr Order, Zakat and Tax Concessions.[725] New CJ Haleem not only welcomed Zia’s Islamization, but pointed out how external (probably western and communists) un-Islamic elements were present and their hazardous effects were to be eliminated at the same time.[726] Chief Justice of Lahore High Court, the son of Pakistan’s national poet Allama Iqbal, made clear that Zia’s Islamization was not advancement in a new direction but a conscious attempt to realize the hopes of the Muslim of the sub-continent.
For him it is connected with Islamic resurgence (the idea of Islamic renaissance given by his father) after the disillusionment of Muslims from capitalist democratic order as well as Marxism (my emphasize).[727] A.K. Brohi, as Rector of Islamic University,[728] started service training of judges, prosecutors and legal practitioners to implement Huddood and Sharia laws.[729] The point which needs to be stressed is that all this submission of the judiciary and jurists to Zia was not an accidental or mishap, but the continuity and perfection of the political design advanced by Cornelius and his colleagues. What discontinued was a desire of the subalterns for a deeper and broader democracy. To address that deficit of democracy quasi-liberal Cornelius tradition had a louder rights discourse.3.5