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Home , Ahsan Saleem Hayat, Akram Zaki, Chaudhry Muhammad Ali, Francis Mudie, Ghous Ali Shah, Hamid Ali Mirza

Functioning of Judiciary in : A Study of Musharraf Regime

Ph.D. Thesis

Submitted By

Khan Faqir

Supervised By

Dr. Shahid Hassan Rizvi

A Doctoral Thesis

Submitted in partial fulfillment of the requirement for the Degree of Doctor of Philosophyin

History and

Department of History The Islamia University of Session 2009-2012

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Table of Contents

Certificate ………………………………………………………………………….... i

Dedication ………………………………………………………………………….. ii

Acknowledgment ………………………………………………………………………. iii

List of Abbreviations…………………………………………………………………… iv

Abstract …………………………………………………………………………………. v

1 Introduction…………………………………………………….……………… 1

2 Judiciary during the British Rule in …………………………………… 24

3 Judiciary in Pakistan in Historical Perspective 1947-99………………………. 74

4 Military Takeover of 1999 and its Legitimacy ………………………………. 143

5 Musharraf and the Judiciary………………………………………...... ……... 179

6 The Lawyers Movement for Judicial Independence………………………..... 233

7 Conclusion…………………………………………………………………..….. 274

8 Selected Bibliography………………………………………………………….. 280

9 Appendices………………………………………………………………………… 296

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Dedication Dedicated to my parents who prayed for my success

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ACKNOWLEDGEMENT

First of all, I would like to thank Allah, The Cherisher, The Merciful and The Sustainer, who has granted me His mercy, love, and strength, and has enabled me to finish this thesis.

I am deeply indebted to my supervisor, Dr. Shahid Hassan Rizvi, for providing me the supervision, motivation and encouragement throughout the span of my work. His insight, breadth of knowledge, and enthusiasm has been invaluable. Without his care and able guidance, I would not have been able to complete my thesis. I am also thankful to The Islamia University of Bahawalpur, Pakistan for providing me an opportunity to carry out my research activities with good mind set.

I would like to thank Dr. M. Akbar Malikand respected faculty members of the Department of History and Pakistan StudyThe Islamia University of Bahawalpur for their valuable suggestions and for the many enjoyable discussions we had.

I am also thankful to all the staff members of Library of University of , Quaid-e-Azam University , Press Information Department Islamabad, and The Islamia University of Bahawalpur who extended their support in collection of material during the course of this study.

Contribution of my parents and brothers cannot be described in words in this regard. It was only their affection and inspiring encouragement which kept me proceeding in the direction of my goal. KhanFaqir

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List of Abbreviations

APDM: All Parties Democratic Movement

ARD: Alliance for the Restoration of Democracy

CCI: Council of Common Interest

CEC: Chief Election Commission

HRCP: Human Rights Commission of Pakistan

IJI: IslamiJamhoriIttehad

JI: Jumat-e-Islami

JUI: Jamiat-e-Ulma Islam

KPK:

LFO: Legal Frame Work Order

MMA: MutahidaMajlas-e-Ammal

MQM: MutahidaQaumi Movement

NWFP: North West Frontier Province

PCO: Provisional Constitutional Order

PMAP: PakhtunkhwaMilliAwami Party

PML (N): Pakistan (Nawaz)

PML (Q): (Quaid-e-Azam)

PPP: Pakistan People Party

PPPP: Pakistan People Party Parliamentarian

PSO: Pakistan State Oil

PTCL: Pakistan Tele Communication Ltd

PTI: Pakistan TehrekeInsaf

SCBA: Bar Association

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ABSTRACT

The objective of this study is to highlight the functioning of superior judiciary in Pakistan. Main focus has been given on Musharraf regime 1999-2008. After the independence of Pakistan in 1947, constitutional was inherited in legacy from the British. Not long after partition from India in 1947, Pakistan was thrown into a Constitutional crisis. In the constitutions of 1956, 1962 and the 1973, the Superior Courts have been granted the power to judicially reviewed legislation as well as executive actions to ensure the enforcement of fundamental rights. However, Pakistan‘s Superior Courts have been reluctant to challenge the executive, and has not invalidated any major legislation on account of inconformity with these rights and provisions. Rather, some of the basic principles of the 1973 Constitution, including federalism and judicial independence, have been compromised by the weakness of the judiciary. Successive governments played politics with the judiciary and denied it its rightful place as a pillar of the state. All governments retained coercive powers with the executive for reasons of administrative convenience. Civil and military governments make favourable amendments in the constitution to sustain their power. The courts gave successive civil and military authoritarian governments some kind of de facto and dejure validity. Due to such decisions of judiciary it became a very controversial and weak institution. The October 1999 coup of General and the suspension of the 1973 Constitution and the imposition of emergency were validated by the judiciary under the law of necessity. The military take over put the judiciary under pressure. Chief Justics, IftikharChaudhry, took some bold steps of public interest litigation which was seen as a threat to his military rule and as a result, he was deposed by Musharraf. But the judiciary tried to reverse the trend through judicial activism and challenged the extra-constitutional steps of the military dictator. This was a sensational episode in the judicial . A countrywide lawyers‘ movement was launched for the restoration of judiciary and the end of military rule. The movement succeeded in the restoration of the judiciary and the culmination of military rule. This can be termed as the re-emergence of judiciary in a military led political environment.

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Chapter No 1 Introduction

Judiciary is one of the three organs of the state, executive and legislature being the other two. It is the final orbit of the constitution and protector of fundamental rights and civil liberties of the citizens. Its role is vital for a healthy nation and a democratic society. With such a basic role in a constitutional set up, the judiciary‘s position as an independent institution cannot be overemphasized.1 Pakistan has its own judicial systems like other states of the world. The Constitutional provisions make it independent. It has wide powers and jurisdiction under the law and the constitution. The courts have been able to maintain their independence, prestige and dignity even in the most troubled periods of Pakistan‘s history. The development of the higher has been gradual, its basis being a legacy of British rule in the Indo- Pakistan sub-continent extending over a century and a half. 2 Pakistan‘s first ever constitution was the Government of India Act 1935 which was considerable to be more suitable to the needs of the new nation. The Act empowered the High Courts for the first time to issue the prerogative writs of mandamus, certiorari, habeas corpus, prohibition and quo warranto.3 The Act was federal in character and established Pakistan as a federal republic. The act established a parliamentary form of government with the Governor General as nominal head of the state and the Prime Minister as head of government with executive authority. 4 According to Khalid Javed, ―In a democratic society government by the rule of law, the judiciary acts as the custodian of the Constitution and the law. It functions at two different levels. At the lower level, the judiciary adjudicates disputes between litigants. Here the government and its different departments also appear as litigants but are no different from private litigants. At this level of adjudication all that is required of the judiciary is neutrality. The courts adjudicate cases on merit in accordance with the law

1 Hamid Khan, Constitutional and Political History of Pakistan, (: Oxford University Press, 2009), p.562 2 M.A. Manan, The Superior Courts of Pakistan the Development of Their Powers and Jurisdiction, (: Zafar law Associates, 1973) , p.1 3 Ibid, p.3 4 Mussarat Qadim, ―The Role of Judiciary in the Constitution Making of Pakistan”, Journal of Law and Society, Volume XII, No.21, Faculty of Law , (July 1993):11 1

without being influenced by any other consideration or factor. Our judiciary, particularly the superior courts have always been strongly independent and impartial in adjudicating such matters even while functioning under the darkest clouds of civilian or military dictatorship. It is at the other higher and constitutional level where the superior courts play an altogether different role. The litigation does not involve adjudication of private disputes. The role of the judiciary is somewhat anomalous as it requires demarcating the constitutional role and functions of other organs or functionaries of state. While playing a proactive role, it must nevertheless remain within its own constitutionally allocated jurisdiction. This occasionally brings the judiciary in conflict with the government. Despite the aura of its moral authority, the judiciary remains the weakest of state organs as it entirely depends upon other institutions of state and public opinion for implementation of its orders‖. 5 A strong independent and well organized judiciary is considered to be mandatory in every system of a democratic government. But it is all the more necessary in a federal State. A federation is based on an agreement about the distribution of the legislative, financial and executive powers between the federation and its federating units. Both the federal government and provincial governments have to function within their own spheres, as defined and bounded by the constitution. In spite of it, conflicts between the two sets of government are inevitable. Hence, it is essential for a federal policy to have a powerful and impartial judiciary to decide such disputes and to keep the different organs of the State within the fields prescribed for them by the constitution.6 In Pakistan constitution, ―judicial independence‖ has not been left to be assumed or implied. Its preamble declares that it is ―the will of the people of Pakistan to establish an order‖. Wherein, among others, ―the independence of judiciary shall be fully secured‖, and lest there be any doubt about it, the same words are repeated as a meaningful part of the constitution in Article 2A. Independence of judiciary is thus one of the basic general principles of the Pakistan Constitution, and the relevant constitutional provisions are to be constructed in the light of those principles and in a manner which indemnifies the

5 Khalid Javed Khan, Save the Judiciary, Dawn, December 8, 2007 6 Mazhar-ul-Haq, The 1973 , (Lahore: Book land, 2003), p.89. 2

independence of judiciary.7 Judicial independence has grown into a principle that now extends to all courts, not just the superior courts. In Pakistan, ―Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well.8 Since independence, there have been many ups and downs in the life of the nation. The process of political and legal evolution was not consistent. There were many obstacles on the road to political stability and constitutional autonomy. Several constitutions were formulated and abrogated. So far, we have practiced constitutions ranging from presidential to parliamentary model and parliaments from unicameral to bicameral legislature. And in the process, we witnessed nasty Generals, being dictators and corrupt politicians.9 During our history we saw several attempts on the constitution and many assaults on the political system. There occurred many successful coups detat, first in 1958, second in 1969 and the third one in 1977; each one resulting in the abrogation/suspension of the constitution, dissolution of parliament and dismissal of government. 10 After the military take over on 12 October 1999, by General Pervez Musharraf, the 1973 constitution was again suspended. The judiciary was not initially taken to the task. However, the Musharraf regime was exposed when the imposition of the military rule was challenged and petitions in this regard were filed in the Supreme Court. By this time, the regime had made inroads into the Supreme Court and had divided the court successfully. When the judges were forced to take oath under the Provisional Constitution Order (PCO) promulgated on 25 January, 2000. 11 General Pervez Musharaf remained as the for a term of five years on the basis of a Referendum held in 2002. General elections were also held in 2002 and the 1973 Constitution had been restored with numerous amendments including the re-introduction of Article 58(2) (b). The judiciary was completely dominated and subordinated to the will of the military ruler.12

7 Justice ® Fazal Karim. Access to Justice in Pakistan, (Karachi, Zaki sons, 2003), p.31 8 Ibid,p.32 9 Faqir Hussain, ―The judiciary and political developments in Pakistan‖, Journal of law and society, Volume X, No.17, Faculty of law University of Peshawar,( July 1991) :1 10 Ibid 11 (Khan 2009, 566) 12 Justice Javed Iqbal, ―The Independence of Judiciary‖ paper presented in international conference on judiciary in Pakistan, (2006) 3

Statement of the Problem

It has been established through historical experience that stratocracy and independent judiciary cannot co-exist and one has to give way to the other. Unfortunately, in Pakistan the judiciary has given way to arrogant dominance of the military and civilian governments. Judiciary in Pakistan has been in constant decline and decay for the last sixty years, primarily due to repeated imposition of military rule and abrogation of the constitution or undesired amendments to extend the self-imposed rule. This decline has been consistent though gradual. ―During the time of General and , the judiciary avoided from military rulers though it did little to confront them or save the constitution from abrogation and subversion at their hands. However the judiciary became an active partner during the time of Zia-ul-Haq initially but, after some struggle, the Zia regime dominated the judiciary and rendered it ineffective under the Provisional Constitutional Order (PCO) of 1981. General Musharraf commenced his rule with an onslaught on judiciary. After some initial struggle, in which half of the Supreme Court refused to submit to the oath of PCO imposed upon the judges by the Musharraf regime, the judiciary completely surrendered before them with the result that people of Pakistan are witnessing one of the most catastrophic times in the history of the judiciary which stands completely subjugated and subordinated to the will of the military rulers.‖ 13 The judicial system of Pakistan is not strong enough to tackle with the challenges facing the country. It remained defenseless to extra-military interventions. Judiciary has always been attacked unconstitutionally by dictators. Consequently, it remained a weak institution in the polity of Pakistan. Twice the country‘s constitution has been abrogated (1958 and 1969) and thrice suspended (1977, 1999 and 2007). Its track record represents a gloomy picture. During the military government of Musharraf, challenges and threats further aggravate the scene. In fact, the present study is an attempt to provide a comprehensive account of judiciary in Pakistan in general and from 1999 to 2008 in particular.

13 Hamid Khan, ―Role of independent judiciary in countries of South Asia, particularly Pakistan‖, paper presented in international conference on judiciary in Pakistan, (2006) 4

Significance and Scope of the Study The major significance of this study is to highlight the role of judiciary in Pakistan from 1999-2008. First of all, this study will be a source of information for the students who are interested in Pakistani politics. The present study is an attempt to provide a short history of judiciary in Pakistan since 1947. Secondly, it will be helpful in understanding the role of judiciary in the political system in Pakistan. Thirdly, it would be also helpful in understanding functions of judiciary during Musharaf regime. Finally, the study will seek to highlight extra-constitutional interference of civilian and military rulers and the adverse impact on politics, the Pakistani society, judiciary, parliament and democracy. Key Questions

The main questions of the study are; 1. How the judiciary transferred from the colonial to the post-colonial era? 2. Why political and military governments in Pakistan interfered in judiciary? 3. How the 1999 military coup disrupted the judicial evolutionary process? 4. What was the response of judiciary to the military take over? 5. Why frequent amendments have been made in the 1973 constitution? 6. What were the reasons of Musharraf‘s confrontation with the judiciary? 7. Why chief justice was dismissed by Musharraf? 8. Why the lawyers‘ movement was initiated in Musharraf regime? Objectives The following are the main objectives of the study. 1. To give a historical and evolutionary overview of the Constitutional frame work of Pakistan. 2. To discuss the judicial system of Pakistan in an academic perspective. 3. An analytical study of decisions of the government regarding the judiciary during Musharraf regime (1999-2008). 4. To bring into light the issues related to the problems of Pakistani judiciary. 5. To describe the role and functions of judiciary in Pakistan from 1999 to 2008. Hypothesis

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 The more Musharraf strived to weaken the judiciary the more the latter got stronger.  Musharraf regime was the era of institutional decay of judiciary in Pakistan. Motivation behind Research Judiciary in Pakistan has functioned under the command of authority and has allowed itself to be used to further the interest of the state against its citizens. The controversial role of judiciary in politics can be traced back to 1955 when Chief Justice Mohammad Munir supported Governor General Ghulam Mohammad. Interfering with the judiciary is a tradition in Pakistan. Every successive seems to keep the destruction of the judiciary high on its political agenda. The habit of meddling with the judiciary has been reinforced by the nature of Pakistan's governments. The present study is about discussing judiciary in Pakistan from 1999-2008. But why from 1999-2008? Because this was the most important period in which Pakistan entered a new phase of judicial crisis. But this was also a turning point in judicial history of Pakistan because judiciary played an active role and stood against military dictatorship. The 2007 martial law (emergency plus according to some government minister) was to demolish judiciary, which for the first time in the history of the country had the cheek to attempt to defy the executive. This was an entirely new phenomenon where the judiciary re-emerged. Now it is very important to that know how judiciary played an active role and during this period throughout the history of Pakistan. This is the real motive behind the present research. This research will go a long way in understanding the judicial system in Pakistan.

Justification of the Study

No research hitherto has strived to study functioning of judiciary in Pakistan with special reference to Musharraf regime from the standpoint that more Musharraf tried to weaken the judiciary the more the latter got stronger. The resistance to Gen Musharraf‘s second coup attempt, directed against the judiciary, has not come from the khaki-clad Corps 10 stationed in , but from hundreds of lawyers (and from a number of sitting judges who had chosen to resign) all over the country, who rose to the occasion to defend

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the head of the judiciary. They rose to defend the autonomy and independence of the institution, without which their profession could become dysfunctional. Although the judiciary had been under attack in the past, it was for the first time that its head refused to surrender despite being held incommunicado for hours in the general‘s camp office and kept in virtual detention at home.

Review of Literature

There is abundance of literature on judiciary, military and general politics in Pakistan. Scholars from Pakistan as well as abroad have written on the role of judiciary in Pakistan. However, an effort has been made to discuss all the major scholarly works on the subject. To begin with Lawrence Ziring 14 Pakistan in the Twentieth Century is focused on politics and discussing constitutions and elections. Other aspect of this book is turbulent history of Pakistan wars and military operations, provincial and local politics, economics, religious and ethnic identities. His approach is very high and it is very hard to distinguish interpretation from description, however, and his own prejudices are not always clear. According to Allen McGrath15 author of the Destruction of Pakistan's Democracy, ―when Munir denied the existence of the Assembly's sovereignty, he destroyed Pakistan's existing constitutional basis. He did further harm when he did not indicate where sovereignty resided. He thereby created a vacuum which was an opportunity for Ghulam Mohammed. The absence of a constitutional base is a harm which has lived in Pakistan since Ghulam Mohammad left office.‖ The work of Shuja Nawaz16 Crossed Swords Pakistan its army and the war within, says that Pakistan‘s history is the history of its army since its creation. Only Pakistan‘s Army is an institution which remained the centre of gravity of Pakistan. Shuja Nawaz‘s book throws light on the belief system and the internal rivalries, which affects this army‘s role as the main determinant of Pakistan‘s polity and policies. The conclusion from this

14 Lawrence Ziring, Pakistan in the twentieth century, A Political History, (Karachi: Oxford University Press, 2007) 15 Allen McGrath, The destruction of Democracy in Pakistan, (Karachi: Oxford press, 1996) 16 Shuja Nawaz, Crossed swords , Pakistan its army and the war within, (Karachi: Oxford university press, 2008) 7

remarkable book portrays the indispensability of the army to any political arrangement in Pakistan. Veteran politician in his book Generals in Politics: Pakistan 1958-1982,17 looks at the role of military rulers in politics from Ayub Khan's martial law through secession of East Pakistan under Yahya Khan to the early days of Zai-ul-Haq. Admitting the force of his argument, it internal factors should be kept in mind such as, socio- economic reforms, liberalization, and rule of law, institutional reforms, guarantee of fundamental rights, independence of judiciary etc. need to be dealt as precondition for democracy. Finally, one will fully agree with the author‘s observation that ‗the involvement of the armed forces in the political life of the country in any manner is fraught with grave dangers and must be avoided‖ Mazhar Aziz argues in Military Control in Pakistan, the parallel state18 that in 1999 the Musharraf coup was again provoked by personal considerations rather than institutional considerations. Many generals supported Musharraf because they had been fired by . After 2001 however Musharraf got a great opportunity to play the role of USA's best partner. The army is trying to sell itself to USA as its best bet but it appears that the USA has decided that some structural changes are needed in the . To conclude Aziz fails to present a comprehensive case for the Intuitional path theory although he makes many repetitions in the significant 100 pages of his book. Aysha Jalal19 in Democracy and authoritarianism in South Asia a comparative and historical perspective, says that both India and Pakistan inherited authoritarianism in legacy from the British. About the political system of Pakistan she says that Ayub Khan, Z.A. Bhutto and Zia were authoritarian rulers. Domestic regional and international factors established the fact of military dominance. It created institutional imbalances in Pakistan. Jan Muhammad Dawood20 in his book The Role of Superior Judiciary in the says that judiciary plays a vital role in the political system but in Pakistan the

17 Asghar Khan, Generals in Politics: Pakistan 1958-1982, (New Delhi: Vikas Publishing House 1983)

18 Mazhar Aziz, Military control in Pakistan, the parallel state, (London and New York: Routledge, 2008) 19 Aysha Jalal, Democracy and Authoritarianism in South Asia a Comparative and Historical Perspective,(United Kigdom, Cambridge University press, 1995) 20 Jan Muhammad Dawood, The Role of Superior Judiciary in the Politics of Pakistan, (Karachi: Royal Book Company, 1994) 8

judiciary was made to intervene and rendered its opinion or judgment. He mentioned various cases decided by the Supreme Court of Pakistan in his book. Paula R. Newberg,21 in Judging the State Courts and Constitutional Politics in Pakistan, says that judicial role has never been appraised consistently in Pakistan. This book is a comprehensive study of Pakistan's of politics and jurisprudence, and particularly, the distinctive role that the superior judiciary and its judgments have played during the past years. Pakistani history - have provided the judiciary's most profound challenges. The superior courts have often dominated by the authoritarian rulers in Pakistan. Hamid Khan, Constitutional and Political History of Pakistan22 cover constitutional and political developments up to 2008. Pre-partition‘s constitutional history has been beautifully described. British introduced political and constitutional reforms. It covers the whole history of constitutional ups and downs from 1947 to 2008. Hamid Khan also describes prominent cases and amendments in the 1973 constitution. In conclusion it covers the whole history of the constitution but it is a descriptive study. G.W.Chaudhry, Constitutional Development in Pakistan,23 attempts to give detailed analytical account of the constitutional developments in Pakistan from 1947 to 1956. The main object of this study is to highlight those factors which made the process of the constitution making difficult. Those factors were the language issue, Quaid‘s death, nature of the state, parity and the distribution of powers. Delay in constitution making created frustration among the people. He also describes the act of the Governor General to dissolve the constitutional assembly as unconstitutional. He argues that no attempt was made to follow the verdict of the highest judicial authority of the country. This book is indispensable for the complicated constitutional history of Pakistan. Hassan Askari Rizvi, The Military and Politics in Pakistan24 says that military is the most formidable and autonomous political actor in Pakistan. This book undertakes a comprehensive and documental study of the role of military in Pakistan‘s politics and society with a view to explain why and how a professional military can acquire political

21 Paula R. Newberg, Judging the State Courts and Constitutional Politics in Pakistan, (United Kingdom: Cambridge University Press, 1995) 22 Hamid Khan, Constitutional and Political History of Pakistan, (Karachi: Oxford University Press, 2009) 23 G.W.Chaudhry, Constitutional Development in Pakistan, (London: Longman Group Ltd, 1959) 24 Hassan Askari Rizvi, The Military and Politics in Pakistan 1947-1999, (Lahore: Sang-e-Meel ublication, 2000) 9

disposition. The major theme discussed in the book includes the leading causes of the exposition of the role of military, military take- over, various military regimes and their policies. Rizvi argues that the weakness of the political institutions and their inability to cope with diverse demands on the political system makes it convenient for the seniors‘ commanders to expand their role and even assumed power. However, military intervention is not necessarily an enduring remedy but it is a part of the over all problem of weak civilian institution and political decay. Khalid Ahmad, Political Developments in Pakistan 1999-200825 says that when Musharraf came into power, he was acceptable to large portion of population because he was less threatening than the democratic interregnum of 1990s. He tended to divide the nation by his ambivalent posturing including the party he patronized the PML (Q). Now the judgment on him is more black and white after his exit. It should be useful to see how he impacted the politics of the country. After coming in to power in 1999, he approached the Supreme Court of Pakistan for an initial tenure of legitimating but the same court was brutalized in 2007 when he dismissed the Chief Justice. He argues in some ways that he was good for Pakistan because he was a liberal ruler but much he did wrong. Murtaza Rizvi, Musharraf the Years in Power 26 charts the rise and fall of Musharraf and says that he was the most controversial leader. The judiciary was kept in check by both Nawaz Sharif and Benazir in order to plunge the possibility of the wronged parties going to court against their respective governments. Musharraf‘s belated action against some sixty higher courts judges and chief justice Iftikhar Chaudhry after he imposed emergency rule was not exceptional in the judiciary‘s history in Pakistan. Musharraf‘s life was the hot seat of Pakistan‘s politics. There were many contradictions in his personality. His politics changed the fate of Pakistan. Brig, A.R. Siddiqi in the Military in Politics, Image and Reality27 argues that the generals at large became too sure that of their ability always to put the mess created by politicians‘ right. All the martial in the final analysis would appear to be the result of the generals‘ arrogant ambition and overconfidence in getting things done better than the

25 Khalid Ahmad, Political Developments in Pakistan 1999-2008, (Lahore: Vanguard Books pvt Ltd, 2010) 26 Murtaza Rizvi, Musharraf the Years in Power, (India: HarperCollins Publishers, 2009) 27 Brig,A.R. Siddiqi, The Military in Politics, Image and Reality, (Lahore: Vanguard Books pvt Ltd, 1996) 10

civilians. The book shows the destructive influence of highly eulogistic possibility and flattering image building on the professional soundness of a military establishment. Safder Mahmood, Pakistan Political Roots and Developments,28 focus of the book is on Pakistan‘s political history. One of the chapters is chasing the constitution. The book examines constitution making and the features of various constitutions and explores that how and why those did not work effectively. He says that Pakistan‘s political history is marked with unnecessary delay in formulating the constitution. Breakdowns of the constitutions order, political instability, military rule and extra parliamentary pressure agitate political change. Hassan Abbas in Pakistan Drifts into Extremism, Allah, Army and America’s War on Terror29 says that the three main characters of Pakistan, the army, Jehadi actors and the US are the story of Pakistan‘s politics. It is an inside account that how these players have shaped the development of Pakistan. One of the chapters is Musharraf the season of hope. The writer argues that Musharraf‘s take over was validated by the Supreme court of Pakistan under the doctrine of the state necessity. Judiciary allowed a military ruler to amend the constitution and thus Musharraf became an absolute ruler. Justice Fazal Karim in Access to Justice in Pakistan30 discussed an introduction to the constitution, the constitutional status of the judiciary in Pakistan and the judicial structure in Pakistan. M.V. Pylee argues in Constitutional History of India 1600-1950 31 that the history of the constitution making in India is rooted in the history of India by the British. He describes different Acts introduced by the British government till the . M.A. Mannan in his book Superior Courts in Pakistan 32 argues that Pakistan has a proper judiciary in the world. He narrates the judicial history of the sub-continent and also the development and evolution of the powers and jurisdiction of the various superior courts ever since the establishments of the British rule in India.

28 Safder Mahmood, Pakistan Political Roots and Developments, (Karachi: Oxford university Press, 2003) 29 Hassan Abbas, Pakistan Drifts into Extremism, Allah, Army and America’s , ( New Delhi: Pentagon Press, 2005) 30 Justice ® Fazal Karim, Access to Justice in Pakistan, (Karachi: Zaki Sons, 2003) 31 M.V. Pylee, Constitutional History of India 1600-1950, (London: Asian Publication House,1986) 32 M.A.Mannan, Superior Courts in Pakistan, the Development of Their Power and Jurisdiction, (Lahore: Zafar Law Associates, 1973) 11

Hamin Hussain Talpur in The Legal System of Pakistan33 describes the whole structure of judicial system of Pakistan. He also highlighted the powers and functions of judiciary in Pakistan. Leslie Wolf-Phillips Constitutional Legitimacy, a Study of the Doctrine of Necessity34 examines the nature of judicial response to the constitutional breakdown in the third world countries. He also narrates different judicial cases in Pakistan. He argues that mostly martial laws in Pakistan were validated under the doctrine of necessity. Iftikhar Khalid Maluka‘s book The Myth of Constitution in Pakistan35 ―identifies obstacles in the country's quest for constitutionalism, federalism and political legitimacy through meticulous research. The ruling elite's inclination for authoritarian devices to the detriment of democratic institutions is incisively examined.‖ Mian, Ajmal book‘s ―A Judge Speaks Out36 covers some highly important events in the history of the judiciary in Pakistan, significantly the development of the conflict between Chief Justice Sajjad Ali Shah and Prime Minister Nawaz Sharif followed by the storming of the Supreme Court of Pakistan. It also discusses some of the landmark judgments rendered by the author, including the Separation of the Judiciary from the Executive; Eighth Constitutional Amendment; the Judges' Case etc.‖ Rabbani, Mian Raza, LFO-A Fraud on the Constitution,37 a leading opposition figure and presently a senator, presents a scathing critique of the Legal Framework Order (LFO) enacted by General Pervaiz Musharaf in 2002. S.M. Zafar, Dialogue on Political Chess Board38 a readable, albeit controversial book, by a noted jurist on dialogues between the government and Mutaheda Majlase Amal to solve the constitutional deadlock by way of the 17th constitutional amendment. The book of Syed Sami Ahmed Government and Politics in Pakistan39 traces the constitutional roots of Pakistan and sheds light on early developments in constitutional

33 Hamin Hussain Talpur, The Legal System of Pakistan, (Lahore: Pakistan Law House, 2010) 34 Leslie wolf-Phillips, Constitutional Legitimacy, a Study of the Doctrine of Necessity, (Lahore: Pakistan Law House, 1986) 35 Zulftikhar Khalid Maluka, The Myth of Constitution in Pakistan. (Karachi: Oxford University Press,1995) 36 Mian, Ajmal, A Judge Speaks Out, (Karachi: Oxford University Press, 2004) 37 Mian Raza Rabbani, LFO-A Fraud on the Constitution, (Karachi: Q.A Publishers, 2003) 38 S.M. Zafar, Dialogue on Political Chess Board, (Lahore: Brite Books, 2004) 39 Syed Sami Ahmed, Government and Politics in Pakistan, (Karachi: Pakistan Publishing House, 1959) 12

law. Sajjad Ali Shah describes in his book Law Courts in a Glass House40 that ―Supreme Court Justice Sajjad Ali Shah was about to reach a major constitutional decision when Legislators of the ruling Muslim League Party stormed the Supreme Court in Pakistan, physically preventing him from delivering judgment. Here, Shah provides the judiciary's version of this bizarre episode, shedding new light on Pakistani history, law, and politics. The Chief Justice's legal battle with the former Prime Minister Nawaz Sharif has been documented in detail and makes engrossing reading.‖

Theoretical Frame Work

Authoritarianism is a form of social organization characterized by submission to authority as well as the administration of said authority. ―In politics, an authoritarian government is one in which political authority is concentrated in a small group of politicians. Authoritarianism is characterized by highly concentrated and centralized power maintained by political repression and the exclusion of potential challengers.‖ It uses political parties and mass organizations to mobilize people around the goals of the regime.41 ―Authoritarianism emphasizes arbitrary law rather than the rule of law, it often includes election rigging, political decisions being made by a select group of officials behind closed doors, a bureaucracy that sometimes operates independently of rules, which does not properly supervise elected officials, and fails to serve the concerns of the constituencies they purportedly serve. Authoritarianism also tends to embrace the informal and unregulated exercise of political power, a leadership that is self-appointed and even if elected cannot be displaced by citizens' free choice among competitors, the arbitrary deprivation of civil liberties, and little tolerance for meaningful opposition.‖ 42

Authoritarianism in Pakistan

40 Sajjad Ali Shah, Law Courts in a Glass House: An Autobiography, (Karachi: Oxford University Press, 2001)

41 Wikipedia The Free Encyclopedia, http://en.wikipedia.org/wiki/Authoritarianism 42 Ibid 13

Authoritarianism had inherited to both Pakistan and India in colonial legacy. It was incorporated in the political system of both the countries. After independence in India, ―the rule of law was ever bent to subserve either executive action in the administration or the will of dominant elements of society.‖ But from the very beginning India tried to democratize itself – and has been quite successful – on the other hand Pakistan failed to make a worthwhile change to democratic rule after emerging from the debris of British colonialism. The colonial state was quickly replaced by authoritarians, whether civilian or military. This was because the Muslim elite of Pakistan comprised of opportunists who only joined the after it was apparent that a new Muslim state was going to emerge soon.43 The founder of Pakistan, Jinnah himself has been accused of being authoritarian. ―Notwithstanding the differential administrative legacies, both India and Pakistan drew heavily on the colonial state‘s bureaucratic control and centralisation [after partition]. The government of India act of 1935, strengthening the very bureaucratic system ‗steel frame‘ of the that had been the bête noire of Indian nationalists, was adapted to serve as the constitutional framework in both countries. In principle, the ideal of democracy based on the Westminster model of parliamentary government system ensured a formal separation between the bureaucracy and a representative political executive. But in actual practice the bureaucratic authoritarianism inherent in the colonial state structure remained largely intact.‖44 After putting his name forward as the Governor-General, Jinnah‘s first act ―was to apply for powers under the 9th Schedule rather than Part II of the 1935 Act which gave him at once dictatorial powers unknown to any constitutional Governor-General representing the King.‖45 The powers of the Ninth Schedule can be gauged from this: ―The Ninth Schedule gave even greater powers to the Governor-General than available in Part II of the [1935] Act. For example, under Section 67(b), if Legislature failed to pass a Bill in the form recommended by the Governor-General, he might certify that the passage of a

43 B.B, Misra, Government and Bureaucracy in India, 1947-1976, (New Delhi: Oxford University Press), p. 90. 44 (Jalal 1995, 18) 45 Johnson Campbell, Alan, Mission with Mountbatten, (London: Robert Hale), p. 156. 14

Bill was essential for the safety, tranquility, or interests of British India, or any part thereof.‖46 Judiciary can perform its democratic role in a democratic society. The judiciary grows within the constitutional framework. In authoritarian states the independence of judiciary is partial subject to the impression of the executive.47 Pakistan's history has been defined by uneasy relationships between state institutions and civil society. In its executive-dominated state, the superior courts in particular have played unusually important roles in determining the country's political fate. When constitutions have not accomplished their tasks - when they have not adequately constituted the state in terms meaningful to its citizens - judges and lawyers have reconstituted the state anew. Courts engage in rituals of recreation: they interpret the constitution of the day, and read political history and constitutional language to establish new understandings of political community. Judicial proceedings thus embrace an autonomy only partly written into the constitutions that create them and lend to their judgments a crucial importance in the development of the state.48 Courts everywhere live in a delicate balance between upholding and challenging the distribution of power, but courts in authoritarian states carry extra burdens. If constitutions and executives allow them to function, they must in some way heed them. Courts can limit some executive power, but executives possess the power to legitimate the capacity to judge; in turn, the polity must, however distantly in some instances, legitimize them both. Whenever this equation was broken in Pakistan, only the blunt force of military rule and martial law kept the polity within bounds. Thus, limits on judicial independence have always influenced the force of judicial judgments, and they in turn have determined the strategic calculations that underscore judicial doctrine. In this sense, political and jurisprudence acceptance occasionally - the fact that they function on

46 Khalid Bin Sayeed, Pakistan: The Formative Phase: 1857-1948, (Karachi: Oxford University Press), p. 236. 47 Arshad Rizvi, The Political System of Pakistan, (Karachi: Hamdard Institute of Education and Social Sciences, Hamderd University, 2003), p. 19 48 Paula R. Newberg, Judging the State Courts and Constitutional Politics in Pakistan, (United Kingdom: Cambridge University Press, 1995) , p. 2 15

the basis of privilege as much as right, courts have both reflected and determined the ways that power works.49 These challenges, and the institutional bargains they represent, deeply influence politics. Since the first decade of the country‘s existence, Pakistan's judges have tried to match their constitutional ideals and legal language to the exigencies of current politics. Their judgments have often supported the government of the day, presumably to retain a degree of future institutional autonomy. This was their chosen path through the 1950s when there was no constitution; during the martial law period of the 1960s, when the constitution was a moving target; and under the mixed constitutional rule of in the 1970s, when hopes for democracy outweighed its reality. To remain open for business, courts accepted limits on their practice that were not always consonant with the conceptual foundations of their rulings - a disjunction that operates today. At the same time, when superior courts have felt vitalized by stronger constitutional instruments - as they did under the amended 1962 Constitution - or have annoyed under political parameters that allowed them little constitutional ground - as they did under the early martial law of General Zia ul Haq - they have challenged the state on behalf of civil society. In both of these cases, however, they provoked the executive sufficiently to have their powers checked.50 Being an authoritarian by nature, Bhutto strengthened the military apparatus, which led to his own downfall. ―Bhutto‘s attempt to establish an authoritarian rule led him to rely more and more on the coercive apparatus of the state and the intelligence agencies. Bhutto did little to strengthen the democratic institutions and to make the process of democratic reforms irreversible. Instead, his entire efforts were aimed at promoting a personalised rule. He did not trust anyone. The collapse of democratic institutions and the Constitution‘s loss of sanctity created a vacuum of authority that provided a favourable condition for the Bonapartist generals.‖51 Nawaz Sharif formed his government in 1991. President , a dictatorial president who wanted the political process to move according to his wishes,

49 Ibid, p. 5 50 Ibid 51 Zahid Hussain, Frontline Pakistan: The Struggle with Militant Islam, (Columbia: Columbia University Press 2007), p. 14 16

was not very happy with the Nawaz government. ―Ishaq Khan saw in the increasing independence of Nawaz Sharif a threat to his own ambitions for power. The two leaders developed serious differences over appointment of the chief of army staff, posting of ambassadors abroad, economic liberalisation, and relationship with other parties.‖52 General Pervez Musharraf responded in the traditional manner. He forced Sharif out of office at gunpoint. Their self-styled missionary zeal, the post-coup political problems and their political goals and ambition, impel them to expand their goals and hang on to power. However, the military rulers are not able to overcome the crisis of legitimacy and they cannot continue ruling for an indefinite period under martial law and emergency.53 Military rulers are inherently authoritative. ―The recent history of Pakistan, in the wake of General Musharraf‘s coup of 1999, demonstrates just how difficult it is to reverse the phenomenon of military authoritarianism. In the post-Cold War era, despite halting steps towards democracy and civilian rule, the military in Pakistan remains the most formidable and autonomous political actor, capable of influencing the nature and direction of change in Pakistan‘s half-century-old search for a viable political system.‖54

Judiciary in Authoritarian Context

In Pakistan, the declining level of the judiciary is normally traced back to the judgment of the federal court in the Moulvi Tamizuddin Khan case. (What is loosely referred to as the Tamizuddin Khan Case in fact consists of a triad of three decisions. The first was the judgment in the Tamizuddin Khan case itself, the second was the judgment in the Usif Patel case and the third was the decision in the governor-general‘s Reference of 1955.55 Justice Munir justified the unconstitutional act of Ghulam Muhammad under the doctrine of necessity. Consequently, dictators like Iskandar Mirza, Ayub Khan, Yahya Khan,

52 Safdar Mahmood, Pakistan: Political Roots and Development 1947-1999, (New York, Oxford University Press), p. 393 53 Hassan Askari Rizvi, The Military & Politics in Pakistan: 1947-1997, (Lahore: Sang-e-Meel Publications), p. 273. 54 Kukreja, Veena and Singh, M.P (edited), Pakistan: Democracy, Development and Security Issues, (New Delhi: Sage), pp. 17-18. 55 Khalid Anwar, “The State and Judicial Idealism Under the Shadow of ‗Doctrine of Necessity‖ Dawn, May 7, 2006 17

Ziaul Haq and Pervez Musharraf became intricately involved in the politics of the country which appears now as a history of shame and despair.56 The principles which guided the Supreme Court‘s verdict in 1955 were later used to lend legitimacy to the first direct military intervention in Pakistan. For now, judicial sanction gave legal cover to the military intervention in Pakistan‘s politics.57 ―A few weeks earlier on October 7, 1958, President had abrogated the constitution of 1956 and dissolved the national and provincial assemblies. During the course of hearing of these routine appeals the court validated the military takeover by holding that a successful coup d‘état is a valid method of changing a constitution. The leading judgment runs to a mere six pages fold. The court did not consider it necessary to seek the assistance of senior counsel as amicus curiae.‖ 58 The Begum Nusrat Bhutto case which validated the seizure of power by General Ziaul Haq was based on the judgment of the federal court in the governor-general‘s reference of 1955. Once again, there was no dissenting judgment. General Zia cited his confidence in the freedom and impartiality of the judiciary, its familiarity "with the demands of justice and with the conditions within the country and dictates of democracy." The court's decision supported the martial law government on the basis of the necessity.59 General Zia's death in August 1988 and the unobstructed transfer of power to Acting President Ghulam Ishaq Khan, who allowed party-based elections the following November, abruptly changed the political landscape although it did not transform the structure of constitutional politics. Nonetheless, the administrative powers of the state required clarification, and the courts were asked to pave the way for a smooth bureaucratic transition. Adding political insult to constitutional injury, President Ghulam Ishaq Khan implicated the judiciary in its efforts to eliminate opposition in the references filed against the former People's Party government – in the words of one commentator, "hammering a few more nails into the judiciary's coffin."60

56 Iqbal S. Hussain, Pakistan: A Proud Nation but a Failing State, (Lahore: Humanity international Publishers and Promoters, 2007),p.132 57 (Jalal 1995, 53) 58 (Anwar, May 7, 2006) 59 Ibid 60 (Newberg 1995, 229) 18

Immediately after the military‘s takeover of power in 1999, Pakistan began to experience the unfolding of a blueprint developed by the earlier military regimes and ratified by the superior courts. ―A Proclamation of Emergency was declared, the constitution was put in abeyance, a Provisional Constitutional Order (PCO) was issued to provide a temporary governing framework, and the general assumed the office of the Chief Executive. In January 2000, when the Supreme Court entertained a challenge to the military coup, the judges of the superior courts were compelled to take a new oath of office pledging to serve under the PCO. Six out of a total of thirteen judges of the Supreme Court refused to take the oath and resigned from the , including then Chief Justice Saeduzzaman Siddiqui and Justice (R) Wajih-ud-Din Ahmad, who was a candidate in the 2007 presidential elections. A reconstituted Supreme Court decided the case of Zafar Ali Shah v Pervez Musharraf (2000) and validated the coup on the grounds of the doctrine of state necessity. The court granted virtually unlimited powers to the military regime, including the power to amend the constitution.‖ The court, however, required the military regime to hold general elections for the national parliament and provincial legislatures no later than three years from the date of the coup.61 Ghias Ahmad Saddiqi explained the judiciary in authoritarian context in these words, ―Public law scholars have argued long that courts are agents of political regimes. Even when the courts are considered independent, the regime maintains significant control through judicial appointments, tenures, patronage and legal and constitutional change. So how do we explain the global expansion of judicial power vis a vis the political regime? In democratic and democratizing regimes, scholars have focused on the role of political parties, hegemonic interests and fragmented power coupled with long time horizons. In authoritarian context, scholars have focused on the functions of courts that expand judicial power and independence.‖ 62 He further says: ―Five basic functions of courts in authoritarian regimes are noteworthy. First, authoritarian regimes need administrative control of bureaucratic agents for removing low level corruption. The hierarchical structure of courts allows judges to investigate

61 Dr. Richard Blue and Richard Hoffman, Esq., Pakistan Rule of Law Assessment – Final Report, Management Systems International Corporate Offices (Washington, DC 20024, 2008) , p.3 62 Shoaib A. Ghias, ―Miscarriages of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf‖, Law and Social inquiry, Journal of the American Bar Foundation, Volume 35, Issue 4, 985-1022, Fall 2010 19

bureaucratic misdeeds that regimes cannot discover. Second, authoritarian regimes, as well as democratic governments, sometimes need to implement controversial policy matters, particularly in the economic domain. In order to avoid allegations for such measures, regimes often delegate the issues to the courts, for example, courts in Egypt were responsible for dismantling rent controls and streamlining privatization. Third, authoritarian regimes need foreign and domestic investments for economic survival, but the instability of property rights derives investors away. In order to provide credible commitments to investors, authoritarian regimes emphasize declaration of property rights and judicial institutions to enforce them. For instance, courts in Egypt and Singapore have been responsible for ensuring investors‘ confidence. Fourth, authoritarian regimes use courts to exercise social control over political opponents. In this regards courts close down opposition groups and imprison dissidents under the pretext of neutral law. Fifth, authoritarian regimes employ courts to provide legal cover for the extra-legal activities of the regime. Courts develop doctrinal and ideological justification for constitutional deviations in order to lend national and international legitimacy to the regime.‖ 63 This research explains how the Chief Justice Iftikhar Chaudhry followed these functions and the extent to which the court diverged from them while expanding judicial power. ―While the basic political functions of the bench (often reconstituted) in Pakistan‘s military regimes had been legal legitimation of regime conduct, the Chaudhry court expanded power by defying expectations about judicial functions. As the public interest litigation to address low level corruption in urban development became popular, the court cancelled privatization contracts instead of enforcing sweetheart deals, exposed the regime for unpopular deregulation instead of accepting blame; investigated illegal detentions instead of upholding them‖ and once empowered, threatened the regime‘s legitimacy instead of reinforcing it.

Methodology and Organization The methodology adopted in the research work is qualitative. Though complete objectivity in history is neither possible nor desirable but an effort is made to remain objective and to set aside the prejudices. The study has been conducted in historical

63 Ibid 20

method because this method an attempt has made to discover the facts about judiciary in Pakistan generally since independence and particularly from 1999-2008. The validity of this approach in academia is well established. This study has tried to dig out the material and sources that have remained unknown till now. In order to accomplish a sound research work, hunt for the relevant material and documents has been made. An important aspect of the study was the extensive use of the electronic media and internet sources and even a more significant aspect is the conduct of interviews from the experts on the topic added to the credibility of the study. It is hoped that this study has provided a new dimension to the students, researchers and teachers in the future research work on Pakistan‘s judiciary. The sources of the study were primary and secondary. The primary sources for this study were official documents, statements, regional and international surveys, reports, major newspapers, and other official documents issued by governments. While secondary sources were books, journals, and newspapers to explain and analyze the functions of judiciary in military and civilian governments in Pakistan respectively. Press coverage and published literature on Pakistani judiciary and military have been produced over the decades. The researcher has also studied various constitutions, books of the constitution history, law magazines, official notifications of the government of Pakistan and decisions of high courts and Supreme Court of Pakistan (PLDs). The Dissertation has been organized into six chapters. Each chapter contains sections and sub-sections. Chapterisation of the whole study is as follows. The first chapter of this study is an introduction. In this chapter statement of problem, objectives and the significance of the study have been discussed. The theoretical frame work, methodology of the research and organization of the study have also been detailed. The second chapter explains the Judiciary during the British rule in India. It explains the Colonial Legacy of Judiciary and the evolutionary process of judiciary to the present judicial set up in Pakistan. In this chapter various judicial systems of have been explained. These are the Hindu judicial system, the advent of the in sub- continent and their judicial system, judiciary during the Mughal rule in India and judiciary during the British rule in India has been discussed. In this regard the most important role was played by the British who entered in India like traders but slowly and

21

gradually they became the masters of India. They introduced various reforms from time to time. Ultimately they introduced their own judicial system and all other laws were declared null and void. They also established a Federal Court under the Indian Act of 1935. After the partition of India this act became the first constitution of Pakistan with some amendments. So a transition from the British judicial system in India to the Pakistan‘s judicial system has been discussed. The third Chapter deals with Judiciary in Pakistan in Historical Perspective 1947-1999. It explains the historical analysis of judiciary in the political system of Pakistan. This chapter also emphasizes the military‘s direct and indirect role in Pakistani politics. Evolutionary process of judiciary and constitution making has also been discussed. The problem of constitution making with special reference to the Governor General‘s role has been discussed. The abrogation and suspension of the constitutions and the imposition of martial laws have been carefully examined. After the disintegration of Pakistan in 1971, Zulfiqar Ali Bhutto came into power. He was the architect of the 1973 constitution. Although it provided fundamental rights a proper judicial system and the rule of law. In 1977 Zia-ul- Haq a military dictator imposed Martial Law and suspended the 1973 constitution and various amendments were made in the 1973 constitution. During the civilian rule of Nawaz Sharif and Benazir judiciary was also not free in the real sense. So judiciary as the most important pillar of the government faced many problems and remained under military dictator and corrupt civilian governments. Chapter four explains ―Military takeover of 1999 and its legitimacy‖. Military intervention has been discussed in detail in this chapter. The dismissal of civilian government of Nawaz Sharif, the role of Pakistan military, agenda of military, PCO, presidential referendum and general elections has been discussed in detail. The process in which military dictators legitimizes their rule has also been discussed. It also deals with the transition of military government to civilian and the policies and its implications on Pakistani parliamentary democracy. Chapter five explains ―Musharraf and the Judiciary‖. In this chapter confrontation of the military government and the judiciary has been discussed. Chief Justice Iftikhar Muhammad Chaudhry took sou moto actions keeping in view the situation of the country. Some of these actions were a direct threat to the military government of Pervez

22

Musharraf. As a result Chief Justice was deposed. Ups and down of the judiciary and the Musharraf government has been discussed in detail. Chapter six is a detail account of ―The Lawyers‘ Movement for the Restoration of Judiciary.‖ When the chief justice of Pakistan was removed by General Pervez Musharraf a country wide movement was started by the lawyers‘ community. Aim and objective of this movement was the restoration of the Chief Justice Iftikhar Muhammad Chaudhry. They also demanded the rule of law and the removal of military dictator General Pervez Musharraf. Ultimately this movement resulted in the ultimately restoration of Chief Justice and created problems in the way of military government under Pervez Musharraf which culminated his ouster from rule.

23

Chapter 2 Judiciary during the British Rule in India

The history of judiciary can be traced back to the human society on earth. India is one of the oldest civilizations of the world. The people of India developed their own system of judiciary. 1 The roots of the current judicial system of Pakistan go back to the medieval period and even before. It has evolved over a long period of time, ranging over a millennium. This system has passed through several stages, like Hindu era, Muslim period including Mughal, British colonial period and post-independence period. Because of the steady changes in socio-economic and political situation, the judicial system grew and developed gradually without any rapid and abrupt changes. However, the development of the judiciary can be categorized into three different stages namely, Hindu Kingdom, Muslim rule and British colonial administration. During this process of development, the judicial system in India inspired from foreign notions, norms, values and practices. Thus the present judicial system had acquired the color and flavor of both the national and foreign factors. Whereas the system did not meet the requirements and demands of the people fully, however its continued and gradual policies and practices had made it suitable for the common man. The people in the past and present resorted to the judiciary in settlement of their disputes, differences and it showed that judiciary has had a degree of legitimacy and acceptance in the people. 2

Hindu Period

The Hindu period existed roughly between 1500 BC and 1500 AD. The information in the judicial system in this period had been collected from various sources, such as ancient books like Dharamshastra, Smiritis and Arthashastra, and commentaries on the historians, jurists and . These sources constituted a well-defined administration of justice during the Hindu period. The King was considered as the sole head of the judicial system assisted by his ministers, councilors, independent judges in discharging his judicial

1Edward, C. Sachau, Alberuni’s India, (New Delhi: Rapua and Co, 2002) p. 570 2 Dr.Faqir Hussain, The judicial system of Pakistan, (Islamabad: The Supreme Court of Pakistan, 2011), p.1 also see www.supremecourt.gov.pk 24

functions. The King was the final authority in making judicial decisions and the court of ultimate appeal. The next lower level in the judiciary‘s hierarchy was the court of chief justice, situated at the capital city. Appeals against the decisions of the chief justice were laid to the king‘s court-ultimate authority. The judges were appointed usually and mostly from the upper caste in Brahmins on the basis of qualification and scholarship. The next lover level in the hierarchy was the Magistrate who was the head of the village or town responsible for making judicial decisions with the consent of tribunal members. The decisions were usually made through conciliation. Any appeal against the Magistrate‘s decision was subject to the chief justice and then to the King. Besides the courts judgments and decisions, the arbitration was also invoked and active during the Hindus period.3 As for as the procedure followed by the courts there was no formal rules existed. The determination of right and wrong was considered a religious, cultural, customary and moral duty by the members of the tribunal. Any person could claim charges against other persons in the tribunal. The opposite party used to be defended against the charges by itself. Both the parties‘ were allowed to defend itself by providing witnesses. Once the decision was made, it used to be acceptable to both the parties. So the procedure and method of provision and dissemination of justice in the ancient India was roughly the same as that in the current time. And thus the current system of judiciary can rightly be called the continuation of the ancient Indian system of justice provision.4

Muslim Period

An Arab young General Muhammad Bin Qasim succeeded in an attack on -a region of India and thus Islam reached there in 712 AD.5 The religion prevailed in India before 712 AD was Hinduism.6 The Muslim period in India sub-continent started roughly in 11 century. That period could have been divided into two distinct phases. The period of the early Muslim rulers who ruled Delhi and some other parts of India. This was the

3 (Ibid, 2) 4 Ibid 5 Ishtiaq Hussain Qureshi, A Short History of Pakistan, (Karachi: , 1992), p.11 6 Hassan Abbas, Pakistan drift into extremism, Allah the Army and America’s war on terror, (New Delhi: Pentagon Press, 2007), p.3 25

period of Muhammad Bin Qasim, in which laws of ‗‘ (Islamic law) prevailed in the conquered areas.7 The second phase was the Mughal period, ranging from 1526 Ad to roughly the mid of the 19th century. During both these Muslim periods, the ‗Sharia‘ i.e. Islamic laws were held as the laws of the land in settlement of disputes. However common customs and traditions were also in action in settlement of secular matters. These Islamic rulers did not confine the dissemination of justice to the Islamic laws, but let the cultural and customary actors perform their functions. There were courts at the central, provincial, district and Tehsil (Pargana) level, headed by judges and working under the authority of the King. The King was the head of the whole judicial hierarchy, whose will was much important in appointment of people on various jobs. The appointment of persons on various posts in the judicial system depended upon the scholarship, competence and integrity of the candidates as well as the will of the King.8

Hierarchy of the Mughal Courts

The Mughals had a well organized system of administration of justice and local panchayat9 on the Hindu system of justice to settle disputes of petty nature in the villages. Panchayat decisions were challenged in Qazi Courts. But the court system was not organized. These decisions were arrived at by way of conciliation and compromise and people were mostly satisfied with the decisions.10 In towns there were regular courts presided over by a Qazi known as Qazi-e-Parganah. Pargana was a small unit of administration corresponds to the present tehsil sub-division. Appeal to both civil and criminal against the decision of Qazi-e-Parganah lay to the Qazi-e-Sarkar (District Qazi) in term of modern administration unit. In towns there were kotwals who besides acting as police officers, also discharged judicial functions in deciding petty criminal cases. In other words, they functioned as Police Magistrate. He, essentially a police , had to detect, punish and prevent crimes, to trace out whereabouts of all offenders and to look

7 Hafeez Malik, Muslim Nationalism in India and Pakistan, (Lahore: People‘s Publishing House, 1980), p.3 8 (Hussain 2011, 3) 9 Panchayat mean the group of elders which decided disputes. 10 Rama M. Jois, Legal and Constitutional History of India, Vol II, (Bombay: N.M. Tarapathi 1984), p. 19 26

after the life and property of the people. He had also to perform patrol duties at night for preventing thefts and robberies, watch movements of the strangers and to examine weights and measures. Appeals against the decisions of kotwals lay to the district Amalguzar. On the revenue side there was yet another judicial officer known as ‗Amin‘ in the towns who used to dispose of revenue cases and appeals against his decisions could be submitted to the Qazi-e-Suhah.11 The next unit of administration of district was known as Sarkar. In each district, there used to be a Qazi appointed by the ‗Qazi-ul-Qadat’ who used to deal with civil and criminal cases and appeals against his decisions were to lie with the ‗Adalat-Nazim-e- Subah’. Besides the Qazi‘s courts there were two other functionaries known as Faujdar and kotwal in a district who exercised jurisdiction in the disposal of petty criminal cases and also possessed power to take preventive measures. Appeals against decision of Foujdar were submitted to Adalat-Nizam-e-Suba while the District Qazi acted as appellate court against the decisions of the kotwal. At the district level appeals in revenue cases were heard and dealt with by the Amalguzar and appeals against his decisions be filed with to the provincial Diwan.12 On the provincial level in each province, which was called Suba, there was a Governor who presided over the Adalat-Nizam-e-Suba which had original, appellate and provisional jurisdiction. There was another court known as Governor‘s own court. It was also presided over by the Governor, who exercised only original jurisdiction. Appeals from the decisions of these two courts would be onward submitted to the Emperor‘s Court and the chief Justice court. The Qazi-e-Nizame Suba possessed original as well as appellate jurisdiction and appeals from his decisions were preceded by the Governor‘s Bench, Adalat-e-Nizame Suba and the Qazi-ul-Quzat. Like the imperial Diwan there used to be revenue court in each province presided over by the provincial Diwan who possessed both appellate as well as original jurisdiction. Appeals against his decisions were submitted to the Imperial Diwan. From the reign of Akbar, incharge of the Subah was Subadar officially known as Sipahsalar or Nizam-e-Suba who enjoyed unlimited powers so long as he was in the office. The civil as well as military departments were

11 Muhammad Ayub Khan, The Evolution of Judicial Systems and Law in the Sub-Continent,( Peshawar: Universal Printers, 1987),p.31 12 (Ibid, 32) 27

headed by him. He could appoint and dismiss officers under his jurisdiction except declaration of war or making of treaty with any other country and interference in religious matters. He had staff such as the Diwan, the Bakhshi, and the Sadr, the Aamil, the Faujdar, the Bitikchi, the Kotwal, the Poddar, the Waqa-i-Navis and the Qazi. 13

Functions of the Courts

The Mughal judges were not only judicial officers; they were also officers of police department. The duty of the court was not only to decide the case on the basis of the record or evidence produced before it, but to make enquiries and investigations; find the facts, do justice and not discuss cases merely on technical grounds. When the complaints were lodged against the administrators, high or low, judicial or executive, the provincial and royal Qazis, the Governors and the Emperor himself used to hear such complaints. In such cases the record of the lower courts also used to be presented before the court.14

Procedure

When a complaint was filed before a court, the rival party was summoned to the court by a writ order called distak. In the presence of both the parties issues were framed and the onus of proofs was distributed between the contending parties. It would then be time to call for evidence from both the sides. After both sides had closed their cases, the presiding officer could stop the proceedings in order to make his own investigations into the matter before giving a judgment. A judgment would usually be accompanied by a mahzarnama, that is, the declaration from the complaint that he was satisfied with the judgment in the case.15 Litigants were allowed to prosecute their cases in person or by their agents or vakils. These vakils were not like modern lawyers. They simply acted as representatives of the parties and were conversant with the procedure. They apparently were not allowed to

13 Ibid 14 M.A. Manan, The Superior Courts of Pakistan the Development of Their Powers and Jurisdiction, (Lahore: Zafar law Associates, 1973) ,pp.14-15 15 Ibid 28

discuss the case with the court or interpret either the facts or the law for the benefit of the presiding officer. The exposition of the law was usually performed by the Muftis16 attached to the courts. Besides, other minor officials the higher courts had attached superintendents, personal assistants, readers and recorders with them.17 The Chief Qazi was the highest judicial officer and was responsible for the proper and efficient administration of justice. As the Khalifa of that time, it was the duty of the emperor to administer justice to the people, but as he used to be busy, the work was given to the Chief Qazi. He was judge in the religious suits only and used to precede the cases according to Muslim law. The Qazi of the cities, districts and provinces were appointed by him. Those Qazis were assisted by the Muftis. Most of the Qazis were corrupt, according to Sir Jadunath Sarkar ―all the Qazis of the Mughal period with a few honorable exceptions, were notorious for taking bribes.18

Advent of the Europeans in India

The immense rich natural resources of Indo-Pakistan sub-continent had attracted the attention of the foreigners in the past and it proved to be the cause of this continent‘s misery and misfortune. Like other foreigners the Europeans were also attracted to the sacred soil of Indo-Pakistan. The main object of the Europeans of coming to this land was to initiate trade activities with the East.19 But in course of time the European merchants became the master of the land. Since very ancient times Indo-Pakistan sub-continent had commercial contacts with the countries of the West. The trade between the East and the West was carried through the land as well as the sea routes. It was commercial necessity that inspired many a European to discover a new route to India.20 Rangith singh stated the arrival of Europeans ―Sab Lal Ho Ja-e-ga‖ (the whole of India would become red colored).21 The geographical discoveries of the British with different

16 Muftis were the law officers of the government. 17 (Mannan 1973,15) 18 V.D. Mahajan, History of Medieval India, Sultanate Period and the Mughal Period, (New Delhi: S.Chand and Co; 2009), p. 675

19 A-Smith Vincent, The Oxford History of India, (London: Oxford University Press, 1958), p. 327 20 K.Ali, A New History of Indo-Pakistan Since 1526, (Lahore: Emporium Publisher, 1970), p.201 21 B.D. Basu, Rise of Christian Power in India,(Calcutta: R. Chatterjee, 1931), p.17 29

countries of the world had far reaching consequences. The Mughals did not pay any attention to the sea route. As a result they failed to save their country from the foreign invaders and thus they had paid the price for this error.22 The credit must go to the Portuguese who for the first time discovered the sea route to Indo-Pakistan sub-continent. Bartholomew Diaz rounded the Cape of Good Hope in 1487 and after a few years Vascode Gama started on his expedition under the patronage of King Emmanuel of Portagal. With the help of an Arabian pilot, he reached Calicut on the Western coast of Indo-Pakistan sub-continent on 27 May, 1498. This discovery had long lasting effects on India. The Portuguese were the first nation of Europe who came to India. They got political power and introduce the policy of ―Divide et Impera‖ (divide and rule).23 They took part in the political affairs as well as the trade after some time. They established founded Portuguese rule in India. They tried to impose their religion by force and they were intolerant in their affairs and that was the reason that they were not popular.24 As a result of this discovery, a direct contact between the Indo-Pak subcontinent and the Europe was established. De Alameda was the first viceroy of the Portuguese possessions in Indo-Pakistan. He was against the idea of establishing a Portuguese Empire in the East. He was followed by Alfanso de Albuquerque in 1509 A.D. he was the greatest of the viceroys and the real founder of Portuguese power in the subcontinent.25 The Dutch were the first among the European nations to challenge the monopoly of the Portuguese in the East. They had long been under the political and religious tyranny of the Hapsburg rulers of Spain. Like the Dutch, the Danish started their settlement in Indo- Pakistan subcontinent. The victory of the English over the Spanish Armada and the report of the immense natural wealth of Indo-Pakistan sub-continent spread the English travelers like Ralph Fitch and Mildenhall aroused the minds of the Englishmen with a strong desire to establish trade with the East.26

22 Mehmood Khalid Arif, Khaki Shadows, (Karachi: Oxford University Press, 2001), p. 319 23 G. Allana, Our Freedom Fighters 1562-1947, (Islamabad: Ministry of Education Government of Pakistan 1969), p. 13 24 C.S. Sarkar and K.K. Dutta, Modern Indian History, (Patna: Bihar Publication house, 1932), p. 2 25 (K. Ali, 206) 26 Ibid, p. 210 30

The East India Company

Attracted by the stories of the fabulous wealth of India and the growing prosperity of the land, English adventures set out on hazardous expeditions to find a new sea route to this country. They suffered terrible hardships and enormous losses. Some of them lost their lives and ships in the attempt. Some were forced to land elsewhere and to open trade relationships with other people. But they preserved: they did not give up the attempts until they were convinced that rounding the cape was the best way of getting to India until they were sure of getting a footing there. 27 In 1600 Queen Elizabeth granted the monopoly of trade in East to some London merchants. By the twenties of the seventeenth century the English came to be accepted in India as co-shares in her trade with the West. Warehouses, offices, agencies and houses then sprang up in various parts of India mostly in coastal towns as visible symbol of England‘s eastern trade. Early in the eighteen century the traders became finally established as a joint stocks company enjoying the English monopoly of trade with the East.28 The company gained further strength from its possession of centralized direction, through a 24 member board of directors, the stability of an archive, and a staff recruited on the basis of specialized skills.29 In England the shareholders of the company met in a ‗Court of Proprietors‘. Every year they elect a board of directors to conduct the day to day affairs of the company. Both the court and the Board used to meet under a chairman who was the chief executive officer of the company. As in most business concerns, the registers of the company remained open till the last moment before the annual meeting for recording the sales and transfers of the shares. Every shareholder, irrespective of the number of shares he held, had only one vote. This democratic provision was out of place in business and could be misused. The holders of a large number of shares used to distribute them temporarily among their loyal dependents at the time of the annual elections in order to maneuver their votes.30

27 Gurmukh Nihal Singh, Landmarks in Indian Constitutional and National Development, volume I 160 to 1919, (New Delhi: The Caxton press, 1950), p. 1 28 Sari Ram Sharma, A constitutional History of India 1765 to 1954, (Bombay: Macmillan and co., 1955), p. 7 29 Barbara D.Metcalf and Thomas R. Metcalf, A Concise History of Modern India,(second edition) (New York: Cambridge University press, 2006), p.44 30 (Sharma 1955, 7) 31

The Charter of 1600

It is a unique event of history that a trading company should have laid the foundation for creation of an Indian Empire for the British. Queen Elizabeth I, after much hesitation granted a charter of incorporation on December 31, 1600, to certain merchants of London to form the East India Company for trading in the East Indies. The aim of the company was essentially commercial. Trade with the East was essential in order to obtain those spices necessary to tender the limited foodstuffs available under the primitive agricultural conditions of the day as well as other products prized for their utility or beauty in the West.31 The charter of 1600 settled the constitution, powers and privileges of the company. The company was to have a life of fifteen years in the first instance but the charter could be revoked earlier by the crown and the company could be wound up on two years notice, if the trade carried on by it did not appear to be profitable to the realm, the company was also given the powers of minor legislation as was necessary for management and good government. It had power to impose certain punishments for the breach of its laws. For each voyage the Crown granted to the ‗General‘ in command of the vessel the right to inflict punishment for capital offences, such as murder or mutiny and to put into force Martial Law.32 As to the nature of the laws made by virtue of this authority, Sir Courtney Ilbert observes: ―The powers of the making laws and ordinances granted by the charter of Elizabeth did not differ in their general provision from, and were dently modeled on, the powers of making by-laws commonly exercised by ordinary municipal and commercial corporations. No copies of any laws made under the early charters are known to exist. They would doubtless have consisted mainly of regulations for the guidance of the company‘s factors and apprentices. Unless supplemented by judicial and punitive powers, the early legislative powers of the company could hardly have been made effectual for any other purpose. But they are of historical

31 (Manan 1973, 19) 32 (Ibid, 20) 32

interest, as the germs out of which the Anglo-Indian codes were ultimately developed.‖ 33

Growth of the Company

A fresh charter was issued on May 31, 1609, by King James I. It placed the company on a perpetual footing, subject however, to the overall right of the crown to withdraw the charter on three years notice on proof of damage to the British nation. The powers given to the company by the charter of 1609 were intended to ensure the maintenance of discipline on board ship but, as soon as the company established trading settlements on the Indian coast, the question of maintaining discipline there inevitably arose.34 The company was formed for trade purposes only and not for any other territorial attainment of India. The merchants immediately came to India to establish their business. In 1609, they reached the court of emperor Jehangir and expressed their desire for settlement.35 All the first trading posts and settlements of the company were along the coast of India. The very first of these was at Surat (1613) which was established as a result of a Shahi Firman from the Mughal Emperor Jehangir. This was soon followed by Masulipatam (1616) and later by Hariharpur in the Mahanadi delta (1633), Fort St. George, Madras (1640), Bombay (1669) and Calcutta (1686). Unlike their European rivals, the Portuguese and the Dutch, the English followed a strict commercial policy and avoided every possibility of coming in collision with native powers.36 In 1615, the company was authorized to issue commissions to its captains. But it was specifically laid down that in capital cases a verdict must be found by a jury. Its object was to maintain discipline on the ships. In 1623, the company was authorized to grant commissions to its president and chief officers for the punishment of offences committed by the servants of the company on land. In capital cases, the trail was to be by jury. It will be seen that the company came to have the power to control its servants both on the high

33 Chuni Lal Chand, The Government of India Being a Survey of the Constitutional Development During the British Period Including the Reforms of 1935,(Lahore: The University book agency, 1936), p.3 34 (Manan 1973, 20) 35 H.H. Dodwell, The Cambridge History of India, Vol. V (New Delhi: S. Chand, 1963), p. 78 36 M.V. Pylee, Constitutional History of India 1600-1950, (London: Asian Publishing House, 1960), pp.1-2 33

seas and in India.37 In 1624, King James I, on the request of East India Company granted the judicial powers to punish military and civil personals of the company in India by martial as well as municipal laws. The company was given the powers to oversee justice within their own settlements. The company got unlimited powers on the fate of their employees.38 In 1634, the sultan of Golkunda granted the English a ―Golden farman‖ in which they were allowed to trade freely in the ports belonging to the kingdom of Golkunda on the payment of duties worth 500 pogodas a year. Inspite of this the Golden Farman, the English traders were facing difficulties from the demands of local officers and they continuously looked for the more beneficial place.39 The London Company had to face a lot of difficulties at the hands of the interlopers and rivals. In this connection, reference would be made to the Assada Company. This company was also known as the Courteen Association after the name of Sir William Courteen, its founder. Sir William got a license to trade with the East Indies in 1635. The company founded a settlement at Assada in Madagascar and carried on trade vigorously. It inflected great losses to the London Company. As a result of compromise, the Assada Company was merged into the London Company. The London Company also got a set back on account of the civil war in England. The company, however, gained much at the hands of Cromwell. The treaty of Westminster of 1654 gave the London Company 85000 pound as compensation for the Massacre of Amboyana in 1623 and for its illegal exclusion from the trade with the Spice Islands. The charter of the 19 October 1657 required the company to have ―one continuous joint-stock‖, with the result that it ―was transformed from a feeble relic of the medieval trade guild into a vigorous forerunner of the modern joint stock company.‖ Under the charter of 1657, any one could become a member of the company by paying an entrance fee of 5 pound and by subscribing at least 100 pound to the stock of the company. A member could vote in the general meeting only if he had stock worth of 500 pounds. Those who had stock worth 1000 pounds or more

37 Vidya Dhar Mahajan, Constitutional History of India, (Delhi: S.Chand and Co., 1960), p.2 38 Ramkrishana Mukerjee, The Rise and Fall of the East India Company, (Lahore: Book Traders, 1976), p. 71 39 Powell Price, A History of India, (London: Thomas, Nelson and sons, 1958), p.409 34

could be elected as members of the committees. The term of the office of the governor and the deputy governor was reduced to two years.40 A new charter was issued in 1661 by Charles II. It was recognized that the factory had effective authority in India. The company had not merely trading factories but also fortresses. It was authorized to send ships of war, men and ammunition for the security of its factories. It could also erect forts. It could choose commanders and officers and give them commission under its seal. It could exercise power and command over its fortresses. It appointed governors and other officers. The governors and his council were given general judicial authority ―to judge all persons belonging to the said governor and company or that shall live under them, in all cases, whether civil or criminal according to the laws of this kingdom, and to execute judgment accordingly.‖ Where there was no governor, the Chief factor and council were empowered to send offenders for punishment either to a place where there was a governor and a council or to England.41 Charles II had sought the Island of Bombay from Portugal by the marriage treaty of 1661. By the charter of 1668, he transferred the Island to the London Company on an annual payment of 10 pounds. The company was authorized to make laws, orders and ordinances for the good governance of the port and Island of Bombay. The company was given judicial authority. It was also given military powers. The charter of 1876 gave the company the power of minting coin money at Bombay.42 The company from the very beginning tried to get free trade privileges in India. In this regard they succeeded in gaining a ―Farman‖ from Shaista Khan, the Governor of Bengal. Aurangzeb the then emperor also issued the same Farman in 1680, that the company is exempted from any tax except the fixed tax. This was a great weakness of the local administration. The company also established institutions for administering their settlements. In 1684 a court of admiralty was created at Bombay and two years later in Madras, both under letters patent obtained from the King in 1683. Later on in 1688 a municipality was established in Madras in which several Portuguese and Indians were included with a mayor and 12 elder men to reconcile the inhabitants to system of local taxation.43 It is strange that the Indian

40 (Mahajan, 2-3) 41 (Ibid, 3) 42 Ibid 43 R.C. Majumdar, An Advance History of India, (Lahore: Famous Books, 1992), p. 640 35

rulers could not understand the intentions of the British. The British took timely decisions and they protect their interest in India.44 The Mughal created a new state within the state. The company was also authorized to coined rupees and it used throughout the imperial dominion. The company was further reorganized and due to its sovereign capacity it could wage war within non- Christian people.45 The Governor of Bengal, Murshad Quli Khan was not in the favor of increasing the powers of the company. He hated the Europeans and their interference in trade but he could not stop them because of internal situation of India. However the English made their space in the courts of the weak rule of Mughals. 46 The charter of 1683 gave the company full powers to declare and make peace and war with any other power. The company was also given powers to raise, arm, train and muster a sufficiently strong army. The charter also provided option for establishment of a court consisting of one person learned in and two assistants to be appointed by the company. The charter of 1686 authorized the company to appoint admirals and other navy officers. The company was given a general power to coin any species of money. The charter of 1693 added 744,000 pound to the capital of the company. No individual member was allowed to subscribe more than 10000 pounds. For every one thousand pounds, the subscriber was given one vote, but no one could exercise more than 10 votes. The salaries of the governors and the deputy governors were fixed. The charter of 1694 made the principle of rotation of offices compulsory. Neither the governor nor the deputy governor could remain in office for more than two years. Eight committees out of twenty four were to be elected every year.47

Administration of Justice in Calcutta from 1690 to 1726

Calcutta was founded in 1690 when a few Englishmen under the leadership of Job Charnock landed at Sutanti on the banks of river Hugli. They constructed a fortified factory at this site, which was called Fort William. In Calcutta, no court of Admiralty was

44 Muhammad Yaseen and Tariq Banuri, The Despensation of Justice in Pakistan,(Karachi: Oxford University Press, 2004), p. 77 45 J.A.W. Archbold, Outline of Indian Constitutional History, (London: Curzon Press, 1973), p.15 46 K. Antonnova, The History of India,(Mascow: Progressive Publishers, 1978), p. 77 47 (Mahajan, 4) 36

set up during this period and no other regular court of judicature was established. What happened was that in 1693, owing to piracies in the red sea that were attributed to Europeans, Epmror Aurangzeb suspended the privileges of the company and their trade could only carry on secretly. All idea of establishing a court of judicature was therefore, postponed for the time being.48 In 1698, the company secured the Zamindari of three villages, namely Sutanti, Govindpur and Calcutta with the consent of the Nawab, for an annual rent of Rs. 1195. This acquisition raised the company to the status of local Zamindar (feudal Lord), who, due to the fading power of the Mughal Empire, exercised administrative and judicial powers with in its own territorial limits. The company‘s Zamindari functions were liked by an English officer known as the Collector, who used to be a member of the governor‘s council. He discharged judicial powers in all cases, civil, criminal and revenue, criminal cases were tried similarly without a jury. The usual methods of punishment were whipping, fines, work in chains of the roads, imprisonment, banishment from the settlement and death. The death sentence was only executed after confirmation by the governor and council in the case of Englishmen; serious offences were tried by the governor and council with the help of a jury. Against the decision of the collector appeals lay to the governor and council but were, in fact, rarely brought before them. This system, such as it was, continued to operate till 1727, when it was replaced by a new system under the charter of 1726, in common with the other presidency towns.49

Administration of Justice in Madras from 1639 to 1726

Madras was founded in 1639 by Francis Day, who acquired a piece of land on the Eastern coast from a Hindu Raja. Here the company built a fortified factory called Fort St. George. Sometime after making the grant, the Raja was overthrown by the Nawab of

48 (Manan 1973, 25-26) 49 Ibid 37

Golconda. In 1672, the British and the Nawab agreed that the Madras town would ‗wholly remain for ever under the English, where they accordingly act all command, government and justice of the said town as they shall think necessary and most convenient to be done‘. In 1687, Golconda was conquered by Emperor Aurangzeb but the status of Madras remained unaffected. The Madras settlement was under the main control of the Bombay settlement.50 In the early days of the settlement there was no regular court. Petty cases were tried by the agent of the company and serious cases used to be referred to the local authorities. In 1665 the agent was raised to the status of Governor and under the charter of 1661, the court of the governor and council was constituted for the first time in 1666 but functioning of the court remained unsatisfactory until it came under the reforming hands of Streynsham Master, who had been on Aungier‘s council at Surat and became governor of Madras in 1678. He was aware of the arrangements in Bombay and naturally followed them as far as he could. By a resolution of the council on March 18, 1678, the governor and the council constituted a high court of judicature, which was to set twice a week for the trail of all civil and criminal cases (except petty cases which were decided by the Choultry court) by juries in accordance with the laws of England. This court continued till July 10, 1686, when a court of Admiralty first sat in Madras and suspended it.51

Reorganization of the Company

While the company was consolidating and expanding its commercial activities in the East, developments at home made its position weak. The revolution of 1694 marks an important stage in the career of the company. It brought the company face to face with parliament which resolved in the same year that ―all subjects of England have equal rights for trade to the East Indies unless prohibited by the act of parliament‖. Thus begins the influence and control of parliament over the affairs of the East India Company.52 To

50 Ibid 51 (Ibid, 27) 52 (Pylee 1960, 2) 38

quote Macaulay ―no power but of the whole legislature can give to any person or to any society an exclusive privilege of trading to any part of the world‖.53 By the resolution of 1694 the power of granting trade monopoly was shifted from the crown to the parliament and both the old and the new companies began to approach the legislature, through the Rt. Hon‘ble Mr. Montague the then chancellor of the exchequer was in great need of monopoly Act. Mantagu was in great need of money and the monopoly of the trade ―was virtually put up to be cautioned between the contending bodies‖.54 In 1698, a new company was established on the lines of the Regulated Company. This new company came to be known as the ‗General Society‘. About the same time a large number of subscribers were incorporated into another Joint Stock company under the title of the English company of Merchants. This new company became a serious rival of the old company. In 1702 the decision of amalgamation between the two companies was resolved and it came into effect under the award of Godolphin in 1708-9. The two companies were henceforth united under the title of ―the united company of merchants of England trading to the East Indies‖. The internecine quarrels of the company stopped for ever. The united company continued its corporate existence down to the revolt of 1857.55 In spite of the political disorders of the country, the expansion of the East India Company‘s trade and influence in the Indo-Pakistan sub-continent during the first forty years of the eighteenth century was quiet and gradual. In 1715 an embassy under the John Surman and Edward Stephenson was sent to the Mughal court with a view to securing privileges throughout Mughal India. William Hamilton accompanied the Embassy as a surgeon and he cured the emperor Farrukhsyar of a painful disease. The emperor being pleased with the English issued a Farman by which certain villages near Calcutta and Madras were handed over to the company and formal recognition was given to the residence of its servants in India. The privilege enjoyed by the English in Bengal, free of all duties but subject to the payment of Rs. 3000 per annum was also recognized. They were allowed other concessions, including exemption from payment of custom duties at Surat in return for an annual sum of Rs. 10,000 and the right of coming and issuing

53 (Singh 1950, 5) 54 Ibid 55 (Ali 1970, 16) 39

money from the Bombay mint. The Farman granted by the Mughal Emperor greatly enhanced the interest of the company and it has been described by Orme as the ‗Magna Carta of the Company‘. The trade of the Company in Bengal gradually prospered and with it the importance of Calcutta increased. The company‘s shipping at the port during the ten years ‗following the embassy of 1715 amounted to ten thousand tons a year‘.56 The new united company had to be on good terms with the ministers of the King in order their privileges to get extended. This they did by resorting to systematic and constant bribery.57

The Charter of 1726

The charter of 1726 was granted to the company by King George I, the judicial system in the three presidency towns had developed independently. The charter aimed at uniformity of judicial institutions in all three settlements and thus a new phase began in the evolution of the judicial system, which subsequently followed a more or less similar course in all the three places.58 The charter of 1726 was granted to reconstitute Municipalities at Madras, Bombay and Calcutta and to remodel the Mayor‘s and other courts of each of these places. Each presidency town was to have a corporation consisting of a Mayor and nine Aldermen. The Mayor and Aldermen also constituted the Mayor‘s court which had jurisdiction in all civil matters, subject to an appeal to the governor or president in council and further appeal in more important cases, usually involving a subject-matter of the value of the 1000 pagodas or more, to the king-in-council. The Mayor‘s court was a court of record and this could impose punishments for contempt. It also granted probation and exercised testamentary jurisdiction.59 Criminal jurisdiction in each presidency town was vested in the governor and five senior members of the council. Each one of them was to be justice of the peace, and, collectively three justices of the peace would form a court of record and had the powers

56 (Ibid, 16-17) 57 (Pylee 1960, 2) 58 (Manan 1973, 30) 59 Ibid 40

of the court of oyer and terminer and goal delivery, holding Quarter sessions four times in the year, with jurisdiction overall offences except high treason. The governor and council were thus a criminal court and also a court of appeal in civil matters decided by the Mayor‘s court.60 The judicial system provided by the 1726 charter did not work smoothly, due to frequent conflict between the government and the mayor‘s court. However, the system lingered on until, in September 1746, the French occupied Madras. It was again restored to the British three years later in August 1749. The French occupation destroyed the continuity of the Municipal Corporation at Madras. The company was advised that the foreign occupation had put an end to the charter of 1726 in so as it applied to Madras and that a fresh charter was necessary to revive the old institutions. The charter of 1726 was surrendered and King George II granted a new charter in 1753. The fresh charter was made applicable not only to Madras but also to Bombay and Calcutta and the company seized the opportunities of having flaws, which it had experienced in the working of the old charter removed. 61

The Charter of 1753

The charter of 1753 was only a modified version of the charter of 1726, as it continued the existing judicial system continued in the presidencies. It was designed to remove the defects of the earlier charter. The significant alterations made by it were as follows: (i) Previously the Mayor and the Aldermen were elected without any reference to the government, under the new charter, Aldermen were appointed by the governor and council and the Mayor was also selected by the Governor and council out of two names submitted by the Aldermen. This arrangement no doubt put an end to the independence of the court, but it removed the friction between the court and the government. (ii) The charter expressively accepted from the jurisdiction of the Mayor‘s court all suits and actions in cases in which all parties were Indians and directed that

60 Ibid 61 (Ibid, 31) 41

such suits and actions should be determined among themselves, unless both parties submitted to the jurisdiction of the Mayor‘s court. But according to Morley, it does not appear that the native inhabitants of Bombay were ever actually exempted from the jurisdiction of the Mayor‘s court. (iii) A few conditions were laid down in the charter to make the administration of justice impartial and effective. The Mayor‘s court was immediately authorized to entertain an action against the Mayor; no person could judge a matter in which he was himself interested and the court was specifically empowered to hear suits against the company. (iv) The charter created a new court, called the court of Requests, in each presidency town. It decided cases summarily not exceeding 5 Pagodas or fifteen rupees in value. This court sat once a week and was presided over by commissioners, between 8 to 24 in number. They were initially appointed by the government from amongst the company‘s servants. Half the commissioners retired every year and their places were filled by ballot of the remaining commissioners. Three commissioners sat in rotation on every court day. This court could heart petty cases of Indians as well. Thus, under the charter of 1753 each presidency town had the following courts: A court of Requests, a Mayor‘s court which was a court of civil jurisdiction, the court of the governor and council to hear appeals from the Mayor‘s court, justices of the peace and the court of Quarter sessions consisting of the governor and members of the council to decide criminal cases. Finally, there was a privy council which acted as the ultimate court of appeal in civil cases.62

The English East India Company 1709-1757

The English East India Company after 1709 had not to face any rivals at home, but it was called upon to meet many difficulties in the sub-continent of India. The Portuguese and the Dutch were not the serious rivals. The English East India Company could simply

62 (Ibid, 31-32) 42

ignore them with contempt. But it met serious opposition at the hands of the French East India Company and the Indian princes. As regards the French East India Company, it had started in 1664 in the time of Louis XIV under the patronage of Colbert. The company did not make much progress upon 1720. In 1725 it acquired Mahe into Malabar. 1n 1739, it got Karikal on the Coromandal coast. In 1735, Dumas was appointed, the governor of Ponddichery. In 1741, he was succeeded by Dupleix as the governor.63 Dupleix was a great dreamer and he dreamt the dream of founding the French Empire in India on the ruins of the Mughal Empire. The disunity prevailing in the country was helpful in the accomplishment of his im. He could easily play one Indian prince against the other. Moreover the military system of the West was superior to that of the Indians. While Dupleix was dreaming and planning to found a French Empire in India, a struggle was going for supremacy between the English and the French both in Europe and North America. In the war of Austrian Succession, the English backed Maria Theresa and the French supported Fredricick, the Great, of Prussia. This opportunity was availed of by the French and English Companies in India to match their strength with each other. In 1744, the English besieged Pondicherry and would have taken it if Anwaruddin the Nawab of Karnatik, had not intervened on behalf of the French. The English were made to raise the siege. In 1746, the French besieged Madras. When the British requested the Nawab of Karnatik to intervene on their behalf, the later was attracted by the French with a promise that Madras would be handed over to him after his fall. However, the French refused to hand over Madras to the Nawab after capturing it. This led to the conflict between the French and the Nawab, but the later was defeated in the battle of St. Thomas in 1746. The French had to return Madras to the English in 1748 according to the terms of treaty of Aix la Chapelle. This is known as the first Carnatic war.64 During the second Carnatic war, Dupleix supported Muzaffar Jang against Nasir Jung for the Deccan throne. Nasir Jung was defeated, but when Muzaffar Jung was killed, he put Salabat Jung on the Deccan throne in 1751 and sent Bussy to safeguard the French interests. Dupleix also put forward Chanda Sahib as a candidate to the Carnatic throne in opposition to Anwar-u-ddin. Anwar-u-ddin was killed in 1749 in the battle of Ambers

63 ( Mahajan 2009, 6) 64 Ibid 43

and Chanda Sahib was put on the Carnatic throne. However, that success was short lived on account of the emergence of Clive on the scene. It was the capture of Arcot in 1751 by Clive that forced Chanda Sahib to raise the siege of Trichnopoly where Muhammad Ali, the son of Anwaru-d-ddin, was taking refuge. Chanda Sahib was himself defeated and lost his life. Thus the English came to have their hold over Carnatic. Dupleix was called back because he could not recover his lost position. The treaty of Pond cherry of 1755 ended the second Carnatic war.65 The third Carnatic war coincided with the seven years war in Europe and North America. Count Lally could not accomplish anything substantial. He was defeated in the battle of Wand wash in 1761. According to Malleson, this defeat ―shattered to the ground the mighty fabric which Martin. Dumas and Dupleix had contributed to erect; it dissipated all the hopes of Lally; it sealed the fate of Pondicherry.‖ It is true that the French got back Pondicherry, Chandarnagar and Mahe by the treaty of Paris in 1763, but they were never in a position later on to challenge the position of the English East India Company in India.66

The Conquest of Bengal

Since the early eighteen century onwards, the trade of Bengal had grown ever more profitable to the East India Company. By 1750, this rich deltaic province, the outlet for the trade of the entire Ganges valley, accounted for 75 per cent of the company‘s procurement of Indian goods. Dean Mahomet, an Indian company employ who later immigrated to Britain, described Dacca, in these terms; ―Dacca is considered to be the first manufactory in India and produces the richest embroideries in gold, silver and silk provisions of all sorts are exceedingly cheaper and plentiful in Dacca: the fertility of its soil, and the advantages of its situation have, long since, made it the centre of an extensive commerce. Here is also the residence of a grand Nabob, who, at his accession to the throne, conformable to an old custom,

65 Ibid, p.7 66 Ibid 44

something similar to that of the Doge of Venice on the Adriatic, enjoys a day‘s pleasure on the river [in a barge] sheathed with silver.‖ 67

Bengal‘s wealth was thus made to appear nearly boundless and made familiar by evoking Italy‘s canal laced ‗mistress of the seas‘. It was not by accident that the figure representing Calcutta in The East Offering its Riches was placed at the centre of the painting with the richest gift, that of a basket of jewels and pearls. With such images came an enduring picture of India for the British.68 Bengal was a province under the Mughal Empire. It was ruled by a Governor. But under the weak succession of Aurangzeb it became independent under Murshid Quli Khan who founded a new dynasty of Nawabs in Bengal. On the death of Murshid Quli Khan in 1727, his son in law Shuja-ud-Din became the Nawab of Bengal and Orissa. Bihar was also added to his viceroyalty. He was thus succeeded by his son, Sarfaraz Khan in 1739. During this period Ali Wardi Khan who was the deputy governor of Bihar revolted against his master in 1740 and after defeating him at Gheria became the Nawab of Bengal. He proved himself a strong and capable ruler. His regime was almost spent in an unceasing warfare with the Maratha raiders whose repeated invasions caused untold sufferings to the people of Bengal. At last he had to purchase peace by the conceding of the province of Orissa and an annual payment of twelve lacks of rupees as chauth to them. Alivardi Khan allowed the English to later on trade in Bengal; but he did not allow them to fortify their possessions.69 Alivardi Khan had no male issue. So Siraj-ud-daulah, the son of his youngest daughter Amena, ascended the throne of Bengal after his death.70 Determined to extend their profits, the British in Bengal had by mid century begun systematically abusing the right to free trade awarded to them by the Emperor. ―Free trade passes were sold to Indian favorites, and extended illegally from participation in the internal trade in grains and other commodities. In 1756, on the outbreak of war, to deter French attack, the British began extending the fortifications of Calcutta. All this the young Nawab, Siraj-ud-daulah, who had recently come to the throne of Bengal, rightly saw as a challenge to his authority. Hence in June 1756 he marched to Calcutta, defeated

67 (Metcalf and Thomas R. 2006, 51) 68 Ibid 69 (Ali 1970, 27) 70 Ibid 45

the garrison, and imprisoned those who were unable to flee. Some forty or more of those imprisoned, confined in a small airless room, died overnight of suffocation. Although the Nawab had not ordered this mistreatment of his English prisoners, which was an act of negligence on the part of his officers, nevertheless the incident, exaggerated as the ‗Black Hole‘ of Calcutta, reverberated down the years as evidence for the British of Indian cruelty and barbarism. To avenge this humiliation, the British turned to Colonel Robert Clive, who had already distinguished himself in the wars in the south. In expedition mounted from Madras retook Calcutta in February 1757, and secured restoration of the company‘s trading privileges. Not content with this viceroy, Clive entered into a conspiracy with a group of merchants, bankers headed by Jagat Seth, at odds with the new Nawab over his financial exactions from them, to overturn Siraj in favour of a more pliable ruler.‖ Together they fixed upon the disaffected general Mir Jafar, who promised the British lavish payments in return for their help in placing on the throne. The result was the famous battle of Plassey, on 23 June 1757. Militarily the battle was a farce, Mir Jaffar‘s troops standing aloof as Clive routed Siraj‘s forces. The consequences of the encounter however, were to be momentous.71 ―Although Mir Jafar was made Nawab after Plassey, he was, and was visible seen to be, a puppet maintained in power by Clive and his army. The cash payment alone was staggering. The British received some 28 million rupees, equivalent to 3 million pounds sterling, of which nearly half went to private individuals, including Clive himself. The Company secured the revenue collecting rights over several districts, and an unimpeded trading access to the countryside. To be sure Clive did not intend conquest, nor did the Company‘s directors at home. The company‘s servants in India, determined to amass fortunes for themselves, refused any check on their rapacious activities. In the process, as they lived over more extravagantly, they became known as nabobs from the Mughal term Nawab (governor). For its part, the Company too sought over more funds for its trading operations. Significantly, after 1757 the Company ceased the shipment of bullion to Bengal. Instead, in a dramatic turn in Britain‘s economic relationship with India, it used the province‘s internal tax revenue to finance the purchase of the goods annually shipped

71 (Metcalf and Thomas R. 2006, 51-52) 46

to England. Bengal was, Clive assured the governor of Madras, an inexhaustible fund of riches‖.72 Nawabi sovereignty was most visibly demanded as the British took over for themselves the trade in a range of valuable commodities, notably salt, betel nut, tobacco and saltpeter. These as Sudipta Sen points out, were the ―Nawab‘s prestige goods endowed with the signs of the ruler‘s authority. In 1760 the helpless Mir Jafar was replaced, following another round of presents, by Mir Kasim. Unwilling to countenance the continuing British plunder of his kingdom, Mir Kasim sought to retrieve his authority over at least the northern part of Bengal and adjacent Bihar. In doing so they provoked what was to be the final confrontation, for the British, either appetite for wealth and power whetted, would accept no constraints. By 1764 the battle lines were drawn, between Mir Kasim, allied with the Nawab of Awadh and the Mughal Emperor on one side, and the East India Company on the other. On 23 October of that year, at Buxar, in a hard fought contest unlike that of Plassey, the British made themselves the master of Eastern India. No longer able to keep up the pretence that they were mere traders, in 1765, by treaty with the Mughal emperor, in return for an annual tribute the company secured the diwani or revenue collecting rights, for the province of Bengal, Bihar and Orissa. Legally, this made the company the emperor‘s deputy, as revenue minister, a position they retained until 1858. The administration of justice, or nizamat, was left to the Nawab. In terms of its existence Bengal remained a Mughal province. In fact, however, it was wholly under the control of the East India Company, for neither the emperor in Delhi nor the figurehead Nawab exercised any independent authority over the region still however the British vacillated. Reluctant to the abundant of profitable trade for the uncertain advantages of rule, Clive as governor determined to leave the actual collection of the revenues in the hands of the Nawab officials, combined with the company‘s insatiable need for funds, above all for fast growing army , led the British in 1772 to ‗stand forth‘ as diwan. A new era was about to begin.‖73 As it moved into Bengal, the company took advantage of those strategies of ‗military fascism‘ that were key to success in the political system of eighteenth-century India.

72 Ibid 73 Ibid, p. 53 47

―Among these were a titular obedience to the Mughal emperor in Delhi, utilization of trade monopolies in such goods as saltpeter that local Nawabs had developed, the deployment of a disciplined professional infantry (which Europeans pioneered in India), and close ties with newly powerful banking and financial groups, such as the Jagat Seths, whose autonomous position gave them an unprecedented importance within the political system. More generally, one might argue, with David Washbrook, that the mid of the eighteen century witnessed a ‗conjuncture‘ of two thriving commercial worlds, that of India and that of Western Europe. India and England as part of the ‗Early Modern‘ world had been simultaneously shaped by an interconnected trading system. Far from juxtaposing a ‗progressive‘ Europe with declining ‗traditional‘ India ripe for conquest, such an argument find the key to the European penetration of India precisely in its accessibility and its flourishing economy. But why did the English East India Company succeed so spectacularly in India when other Europeans and India, did not? Much of the answer lies in Europe. An island nation from whom overseas trade was vital; Britain was committed to securing its Indian interests at all costs. Control of the seas, in the era in which export trade brought the greatest profit, gave Britain an edge over all rivals. For India, the eighteenth century thus offers a dramatic contrast with the Mughal agrarian order of the seventeenth, when overseas commerce was of secondary importance. Furthermore, although the industrial revolution was not yet underway, the British economy had already become suffused with a dynamic commercial ethos sustained by secure private property rights. In India the British could hold out to indigenous mercantile classes, first in the presidency capitals and then in the countryside, as local rulers did not, the attractive prospect of freedom from arbitrary exaction. Part of the reason for Britain‘s success too lies, quite simply, in the fact that after 1757, with its conquest of Bengal, the East India Company had gained control of India‘s richest province. This gave it the resources to dominate the other players in the continuing contests among India‘s regional states. With a larger revenue base, the Company could field a larger army than its Indian rivals, and organize a more efficient state structure.‖ As a result, even though the British state in Bengal was forged, in larger part, from the same elements of ‗military fascism‘ as

48

other states throughout the subcontinent, it could over a time period subdue them all one by one.74

Dual Government of Bengal (1765-72)

The system of double government of Bengal which was set up by Clive is not so easy to be explained as it might appear at first sight. It was not the simple division of control over the administration of Bengal between the English East India Company and the Nawab of Bengal. The position was somewhat as follows: The Nawab of Subedar of Bengal as Viceroy of the Mughal Emperor exercised two functions: (I) the Diwani, i.e. revenue and civil justice and (ii) the Nizamat i.e. the military power and criminal justice. As Sir James Stephen points out, the Nawab granted practically the Nizamat to the Company in February 1765.75 Mir Jafar who was once again proclaimed Nawab in 1763 ruled till his death early in 1765. He was succeeded by his son Najm-u-daulah who was as helpless against the English as his father had been. In May 1765 Clive returned to Calcutta as governor for second time. He put the affairs of the company in Bengal on a somewhat orderly basis. He first dealt with Emperor Shah Alam II and the Nwab of Awadh, who had been defeated at Buxar as allies of Mir Qasim. By the treaty of Allahabad (1765), he restored the territory of Awadh to Shuja-ud-daulah on payment of fifty lakhs of rupees. The English governor gave over to the Emperor the districts of Allahabad and Kara and in return obtained from him a Farman granting the dewani of Bengal, Bihar and Orissa to the Company on 12 August 1765. The Company agreed to pay to the Emperor an annual tribute of 26 lackhs of rupees. The treaty of Allahabad and the grant of diwani by the Emperor gave legal status to the Company and confirmed its political power. Clive also made a defensive alliance with Shuja-ud-daulah and agreed to help the Nawab with troops to defend his frontier. The coast of the maintenance of such troops was thus turned into a friendly buffer state between the English dominion in Bengal, Bihar and Orissa and Maratha Empire. On the strength of the farman, Clive took over the revenue administration of Bengal for the Company which

74 Ibid, pp. 54-55 75 (Mahajan, op,cit,p.7 49

had already assumed military control of the province. The Nawab was left only with the responsibility of maintaining law and order. The company would collect the revenue and pay 53 lakhs of rupees (later reduced to 32 lakhs) to the Nawab to meet the cost of his administration. Clive appointed Muhammad Raza Khan and Shitab Rai as agents of the company to collect revenues in Bengal and Bihar respectively. This bifurcation of the administration of Bengal by Clive is known as Dual system or Double Government. This strange system resulted in bad governance and confusion. The company had power, army and money but no responsibility. The Nawab bore the responsibility for administration, but had no army, no money and not even the initiative in policy making. The dual system, according to Kay, ―made confusion more confounded and corruption more corrupt‖. In the great famine of 1770 that carried away nearly one third of the population of Bengal, neither the Nawab nor the Company gave any relief to the famine-stricken people. Warren Hastings who was appointed governor in 1772 saw the anomalies of the dual system. He relieved the titular Nawab of his administrative responsibilities and made him a pensioner of the company. The Company thus assumed the entire responsibility for the civil government and clearly stood forth as the ruler of Bengal, Bihar and Orissa.76 Clive retired in February 1767 and left for England. Helped by an abundance of native courage and shrewdness and an inborn capacity for intrigue, he founded the British Empire in Bengal, Bihar and Orissa. Describing of the job accomplished by Clive, Macaulay observes, ―Our Island has scarcely produced a man more truly great either in arms or in council‖. Clive was succeeded first by Verelst (1767-69) and then by Cartier (1770-72).77

The Judicial system of 1772 and the Beginning of the Adalat System

76 I.H. Qureshi, A Short History of Pakistan,(book one to four) (Karachi: University of Karachi, 1992), pp.724-25 77 (Ibid, 726) 50

In 1756, Nawab Siraj-ud-Daulah of Bengal attacked and captured Calcutta which was taken aback by Clive in 1757, in the battle of Plassey. The Company did not annex Bengal for political reasons but was the virtual sovereign in Bengal and made and unmade the Nawab therein. Eventually, in 1765, the nominal Mughal Emperor, Shah Alam granted to the company the Diwani of Bengal, Bihar and Orissa. The company agreed to pay annually two and half million rupees as rent, to the Emperor. The grant of Diwani gave to the Company a de jure status of an official of the Mughal Emperor. It was merely a fiction adopted to conceal the de facto position of the company, which had the real power in Bengal at the time.78 Criminal jurisdiction in the provinces was still left with the puppet Nawab, who was maintained at Murshadabad, while the company received the revenues and maintained the army. But the actual collection of the revenues still remained in the hands of the native officials until 1772 when the company took upon itself the management of the revenues according to the direction of the court of directors, the treasury was removed from Murshadabad to Calcutta; a Board of Revenue was created consisting of the governor or president and members of the council. The administrative plan of 1772, organized by Warren Hastings, was devised with the district as the principal administrative unit. The three provinces were divided into a number of districts and each district was headed by an English officer, called the collector. His main responsibility was the collection of revenue. With him were associated local officers established ‗Diwans‘. Courts were established in each collectorship (the district) ‗the diwani’ that is, a civil court and the other ‗the faujdari’ that is, a criminal court. The collector presided over the Diwani AdalatI ( the civil court) in the capacity of the Emperor‘s Diwan, and was authorized to decide such civil cases and disputes relating to real and personal property, inheritance, marriage, caste, debts, rents, and partnerships. In the Faujdari Adalat (the criminal courts) the Qazi and Mufti of the district sat to expound the Muslim law which still was the law of the land.79

Sadar Adalats

78 (Manna 1973, 32-33) 79 (Ibid, 33-34) 51

Superior courts were established at the chief seat of the government. They were called Sadar Diwani Adalats (superior civil court) and the Sadar Nizamat Adalat (superior criminal court). These courts theoretically marked their jurisdiction and authority, not by the British crown but by the government of the emperor, in whose name the company acted as administrator of revenue. They were company‘s courts, not King‘s courts. The Sadar Diwani Adalat consisted of the governor and members of the council and heard appeals from the District Diwani Adalat in cases of over 500 rupees. A fee of 5 per cent was charged against an appeal. The Sadar Nizamat Adalat consisting of an Indian judge known as the Darogha-i-Adalat was assisted by the chief Qazi, Chief Mufti and three Maulvis. Those officers were formally appointed by the Nawab on the advice of the governor. The court revised the proceedings of the district Faujdari Adalats and approved finally sentences of death and forfeiture of property. The governor and the council exercised a general supervision over the Sadar Nizamat Adalat.80

The Regulating Act (1773)

The company‘s acquisition of political power in some parts of India was not looked upon with favour in England. It bribed the British people into acquiescence by promising to pay a handsome amount every year to the British treasury. The shareholders were appeased by raising the dividend to at least ten per cent. But the acquisition of political power soon failed to prove the gold mine it had promised to be. The company was in financial difficulties. It needed money. To raise it in the open market would have proved burdensome. The only other alternative was to approach the British government to make an advance to the company at a reasonable rate of interest. When the request for a loan was made, the British government used the opportunity to regulate the exercise of political power of the company.81 The working of diarchy in Bengal was doing havoc to the people. The servants of the Company did all that they could to add to the miseries and sufferings of the people. The famine of 1770 added to their deprivations. Leeky describes the position of the people in

80 Ibid 81 (Sharma 1955, 19) 52

these words: ―Never before had the natives experienced a tyranny which was at once so skilful, so searching and so strong all districts which had been populous and flourishing at last utterly depopulated, and it was noticed that on the appearance of a party in English merchants the villagers were at once deserted and their shops were closed, and the roads thronged with panic-stricken fugitives‖. According to Horace Walpole, ―Such scene of tyranny and plunder has been opened up so as to make one shudder, we are Spaniards in our lust for gold and Dutch in our delicacy of obtaining it‖. According to Chatham, ―India teems with iniquities so rank as to smell to earth and heaven‖. It was decided to pass legislation to regulate the affairs of the English East India Company. As the objective of the Act was to regulate the affairs of the East India Company in India, it came to be known as the Regulating act.82 Provisions of the regulating act (1) ―The Regulating act gave the rights of vote for the election of directors of the company to shareholders holding stock worth 1000 pounds for 12 months preceding the date of election. Formerly, Directors were elected for one year but the act provided that in future they were to be elected for 4 years. However, one fourth of them were to retire every year. The directors were required to submit copies of letters and advices received from the governor general in council. Copies of letters relating to revenue were to be sent to the treasury and those relating to civil and military affairs were to be sent to one of the Secretaries of state. The governor general of Bengal in council and the governors of Bombay and Madras were required to pay due obedience to the orders of the Directors and also keep them constantly informed of all the matters affecting the interests of the Company. (2) Provisions were made for a Governor General of Bengal and his council of 4 members. They were vested with the whole civil and military government to the said presidency, and also the order, management and government of territorial acquisitions and revenues in the kingdom of Bihar, Bengal and Orissa. Warren Hastings was appointed the first governor general of Bengal and Clavering Monson, Philip Francis and Bar Well were appointed the members of his council.

82 (Mahajan 2009, 12) 53

Members of the council were to hold office for five years and they could not be removed except by His Majesty on the representation of the directors. Governor General of Bengal was required to carry on the work according to the majority opinion of the council. He could not overrule the majority view of his council. However, he was given a casting vote in the case of a tie. Governor General was also given the power of superintending and controlling the presidencies of Madras and Bombay. However, in the case of emergency and direct order from the directors in London, presidencies of Madras and Bombay were not to act according to the order of the governor general of Bengal.83 (3) Government council of Bombay and Madras were required to pay due obedience to the orders of Governor General of Bengal. They were required to submit to Governor General Advice and intelligence on transactions and matters relating to the government revenues and trust of the company in council. They were required to forward all the rules and regulation framed by them to governor General in council. If they failed to carry out the orders of the governor General in council or did not perform their duties properly they could be suspended by the governor General in council. (4) Governor General in council was given the power to make rules ordinances and regulation for board and civil Government or company‘s settlements at Fort William and factories and places subordinate to it. These rules and regulation were not to be against the law of England and were required to be registered with the Supreme Court. These could be resolved by the king in council with in two years. (5) The Regulating Act was provided for a Supreme Court with a chief justice and three puisne judges. Sir Elijah Impey was appointed the chief justice. The Supreme Court was given the power to try civil, criminal, admiralty and ecclesiastical cases. It was to be a court of Record and court of Oyre and Terminer and Goal delivery in and for the town of Calcutta, factory and Fort William and other factory sub ordinate to it. The jurisdiction of the Supreme Court was to extend to the entire British subject residing in Bengal, Bihar and Orissa. The court

83 (Mahajan 2009, 13) 54

was empowered to try all cases of complaints against any of His Majesty‘s subjects for crimes or oppression. (6) The Regulating Act prohibited the receiving of presents and bribes by the servants of the company. No person holding or exercising any civil or military office under the crown, shall accept, receive or take directly or indirectly any present, gift, donation or reward Pecuniary or otherwise. It was made clear that the offenders were to make double payment and were liable to be sent back to England. (7) No British subject was to charge interest at a rate higher than twelve per cent. If the governor general, governor, member of council, a judge of Supreme Court or any other servant of the company committed any offence, he was liable to be tried and punished by the King‘s Bench in England. The Act also settled the salaries of the governor general, governor, chief justice and other judges.‖ 84 The Regulating Act was full of defects. It did not clearly define the jurisdiction of the governor general in council and the judge of the Supreme Court, or their relation with one and other. It is maintained that this was a deliberate omission because parliament was suspension of the extensive powers of the executive. But this resulted in a lot of trouble. Secondly, the powers of the Supreme Court were not clearly defined and that led to a conflict of jurisdictions between the Supreme Court of Calcutta and the courts of the company.85 The Supreme Court also claimed to have jurisdiction over the revenue collectors of the Company for the wrongs done by them in their official capacity. The Supreme Court refused to recognize the jurisdiction of the provincial or contrary courts.86 According to Bouten Rouse, ―The object of the Act was good, but the system that it established was imperfect.‖ According to Roberts, the Regulating Act, ―had neither given the state a definite over the Company, nor the Directors a, definite control over their servants, nor the Governor General a definite control over their servant, nor the governor general a definite control over his council, nor the Calcutta Presidency a definite control

84 (Ibid, 14) 85 Ibid 86 (Ibid, 15) 55

over his council, nor the Calcutta Presidency a definite control over Madras and Bombay.‖ 87 The Regulating Act was the first of a long series of Acts passed by parliament to change and regulate the Government in India. It was formed to begin the system of a written constitution for British India. The right of the parliament to interfere into the affairs of the company and to legislate for its possessions was recognized. It is a land mark in the transfer of power from the Company to parliament. The Act established a collegiate rule in place of ―one-man-rule‖. The Act recognized the political functions of the company. According to Lyall, ―The system of administration set up by the Act of 1773 embodied the first attempt at giving some definite and recognizable form to the vague and arbitrary ruler ship that had devolved the Company. From that time onward, the outline of Anglo- Indian Government was gradually filled in.‖88 In this way the Regulating Act made a bold attempt at securing good governance in the company‘s territory in India without the Crown‘s directly assuming the responsibility for governing territories acquired by it outside Europe and inhabited by a civilized people. No other European nation had so for made any such attempt. For the English too it was the first measure of its kind. The Act was passed at a time when controversy with colonial America was about the flare up into the war of American independence. British political philosophy at the time was dominated by Adam Smith‘s Wealth of Nations on the one hand and the struggle between George III and the Whings on the other. The Act had been bearing the impress of all these stresses and strains. Its most praiseworthy features were the setting up of the Supreme Court as a guarantor of good government in Bengal for all. It introduced the thin end of the wedge of direct administration from the Company about its affairs in India. It recognized the Board of Directors for another sixty years in India; it translated the director demand for honest administrators in India into a parliamentary mandate when it prohibited private trade and acceptance of gifts by the Company‘s public servants. Its principle of collegiate authority in the Governor General

87( Ibid, 18) 88 Ibid 56

and council of Bengal remained substantially unmodified till 1861. It made an amateurish attempt at setting up of supreme authority for the company‘s dominions in India.89

Judicial Scheme of 1790 and Control-Over Criminal Justice

Control of the Governor General and Council over the criminal justice prior to 1790 was very feeble and till then the Mofassil Adalat manned by the Qazis, Muftis and Maulvis pressed into service the Muslim law like- wise the Sardar Nizamat Adalat was presided over by the Nawab/Nazim or Naib Nazim who used to hold his court at Murshidabad but the scheme of criminal justice introduced in 1790 divested the Nawab of his control over Sardar Nizamat Adalat which was henceforth to be presided over by the Governor General and Council like the Sardar Diwani Adalat (the highest civil court).Seat of the Sardar Nizamat Adalat was also transferred from Murshidabad to Calcutta. However, the Governor of the Province and the members of his council were assisted by the Chief Qazi of the Province and two Maulvis who expounded the law-applicable in the matter. It was for the first time the Governor General and Council took responsibility of the criminal justice and the Sardar Nizamat Adalat, which used to meet once a week, met for the first time on 10th January, 1791.Another change but rather the third one was amendment in the Muslim law in certain respects by the Governor General and council. The Fatwas, recorded by the Qazi/Mufti if found consonant with Principle of natural justice were accepted and acted upon.90

Establishment of Circuit Courts

The scheme abolished the Mofassil Faujdari Adalats and on the other hand established four circuits one each at Patna, Calcutta, Murshidabad and Dacca. All the districts of Bengal, Bihar and Orissa were divided into the aforesaid four divisions and each division was having a circuit court consisting of three servants of the Company and three Indian expounders of law i.e., the Qazi, the Muftis and Pandit.The judges heard the disposed of

89 (Sharma Ram, 25) 90 Ibid 57

appeal in civil cases and tried criminals committed to them by the Magistrates in their respective circuits. These worked, at the bottom .courts of Magistrates who used to decide petty offences in which the punishment did not exceed 15 days imprisonment. In case of serious offences the criminals, whether in custody or released on ball, were committed for trial to the circuit court but in all such like cases the final orders were passed by the Sardar Nizamat Adalat .in each district the collector was a Magistrate.91

Judicial Scheme of 1793

It has already been noted earlier that under judicial scheme, 1787, the collector of a district wielded greater powers and combined in his person the revenue, judicial and executive functions which gave rise to many evils and in order to curb this state of affairs Lord Cornwallis, then Governor General, introduced in 1793 the following radicals judicial reforms: It produced the separation between the executive and judiciary .The collector was deprived of his judicial powers and he was made a responsible for collection of revenue. The administration of civil justice was transferred to the Diwani Adalats.The Mal Adalats (revenue courts )were also abolished .The collectors and the executive officers were made amenable to the Diwani Adalats for their official acts .They were also liable for violation of provisions of Regulations and could further be required to pay damages to the injured party. In each district a Diwani Adalat was established which exercised jurisdiction over all persons except British subjects .The judge of this court, a servant of a company was to be under the oath as per regulation III of 1793 .Regulation IV of the same year enacted detailed rules of procedure to be followed by the Diwani Adalats while receiving, trying and deciding cases following under their jurisdiction.92

91 (Basu, 275) 92 Ibid 58

Creation of provincial courts of Appeals

The next important step was creation of the provincial courts of appeal on each at Patna, Calcutta, Dacca and Murshidabad consisting of three servants of the company out of whom two formed a quorum and heard appeals against decisions of the Diwani Adalats. Until 1793 appeals from the Divani Adalats used to refer to the Sadar Diwani Adalats in matters involving valuation of RS 1000/- or more. The provincial court of appeal besides superintending the Diwani Adalats also performed the following functions:- A: Trial of suits referred to it by the government or Sadar Diwani Adalat; B: Hearing of original suits or complaints which the Diwani Adalat had refused to hear; C: To hear cases of charges of corruption against the judges of the Divani Adalats, to forward them to the Sadar Diwani Adalat and also to report to the Sadar Divani Adalat cases of neglect of duty by the Diwani Adalats ; and D: To hear appeals if filed within three months of decisions of the Diwani Adalats. All cases decided by the Diwani Adalat irrespective of valuation were made appeal able to the provincial courts of appeals.93

Sadar Diwani Adalat

In the judicial hierarchy it was the highest court of appeal and presided over by the Governor General and members of his council. It heard appeals against decisions of the provincial court of appeal when the subject matter was RS 1000/- or more in value. It also supervised all the lower courts. An appeal against its decision could lie to the king in council provided value of the subject matter in dispute was RS 5000/- or more. Munsifs, in order to provide relief in the district Diwani Adalat and expediting the disposal of cases, were appointed from amongst the Zamindars, land lords and farmers or their agents as judges on honorary bases and without payments of salaries to them. they were authorized to decide cases up to RS 50/-in value and further required to submit their proceedings and files to the district Diwani Adalat which alone was competent to execute these decrees and decision .and appeal could lie against these decision to the

93 (Ibid, 53-54) 59

district Diwani Adalat .In addition to these Munsifs each district Diwani Adalat had a registrar who had competency to decide a suit up to RS 200/- in value but his decree required countersignature by judge of the district DIWANI Adalat. Lord Cornwallis also abolished in 1793 the court fees levied earlier under the judicial scheme of 1772 which was realized at varying rates between 2% to 5%. (vii)The judicial scheme of 1793 also brought about merger of the circuit courts and the Provincial Courts of Appeals in the form of four courts of Appeal and circuit which used to go on circuit to the districts for trial of criminal matters and disposal of appeals from the Diwani Adalats. Organization of the Legal Profession, Hitherto Wakils and agents used to appear on behalf of their clients in courts but the legal profession was not properly organized and hence the need. Regulation VII of 1793 provided the requisite cover on the regular basis and according to it the Sardar Diwani Adalat could appoint as many pleaders as were necessary for proper representation of the parties in courts. They were also granted Sanads (certificates). Rules of conduct were also made for observance by lawyers. Each pleader was to take an oath to execute his duties faithfully. He was also to receive a moderate fee from his client as per the schedule of fees laid down under the law. Regulation XII of 1793 made provisions for the appointment of the local law officers such as Qazis, Muftis and Pandits attached with the courts. These appointments were made by the Governor General in council who could also remove them from office by talking disciplinary action against them. 94

Establishment of Recorder's Courts at Bombay and Madras

With the expansion in the activities of the company it was necessary to implement judicial reforms which were effected as time and situation warranted and in line with the policy the Parliament by way of Act passed in 1797 authorized the crown to issue a charter for establishing the Recorder's courts at Bombay and Madras and accordingly King George III issued a charter on 1st February 1798 establishing these courts in the two towns. The Recorder's court consisted of a Mayor, three eldermen and a Recorder who was a not less than five year's standing. He was appointed by the crown and also

94 A. Yousaf Ali, The Making of India,(London: Aand C, Black, 1925), p. 256 60

acted as President of the court. Its jurisdiction extended to all the British subjects, over all civil, criminal, ecclesiastical and admiralty matters. It acted as restrictions as imposed on the Supreme Court of Calcutta by Settlement Act 1781, earlier referred to. Appeals against decision of this court lay directly to the Privy Council on the same grounds as to the Supreme Court of Calcutta. The Governor General and Council had no appellate powers over the Recorder's Court. Its decision involving valuation of about Rs. 1000/- was final and above that value the appeal was to be made direct to the King -in-Supreme Court on pattern of the one already established at Calcutta was set up by patent letters issued by King George III on 4th September, 1801 according to which all powers of the Recorder's Court were transferred. However the Recorder's Court at Bombay continued its functions till it was replaced by a Supreme Court on 8th December, 1823.95

Judicial Reforms 1794 to 1814

The reforms introduced by Lord Cornwallis in 1793 enabled the judicial float to sail smoothly. However, it increased expenditure on the administration of justice on the one hand pilling up of cases on the other due to the technical and cumbersome procedure of law. In the Diwani Adalat of Burdwan district there was a huge pendency of thirty thousand cases .In order to speed up expenditure disposal of cases and afford some relief to the judges of the Diwani Adalts, countersigning of Registrar's decrees by Judge of the Diwani Adalat was done away with and his decree up to value of Rs.25/-was made final and above that the appeal was to lie with the Provincial Court of Appeal instead of the Diwani Adalat .These reforms, however could not achieve the desired results, so in 1795 it was enacted that the appeals from the decisions of the Registrar would lie to Diwani Adalt instead of the Provincial Court of Appeal and that decision of the former was to be final. The system of two appeals from the Court of Munsif first to the Diwani Adalt and then to the Provincial Court of Appeal was also abolished and is such cases the decision of the Diwani Adalat was made final. Another step taken was re-imposition of court fees on civil suits under Regulation XXXVIII of 1795.In 1797 a law was passed according to which decree of the Provincial Court of Appeal not exceeding Rs.1000/- in valuation was

95 (Ibid , 256-57) 61

made final. Another most important reform made in 1801 was creation and separation of executive and legislative functions from the judicial Power as a result of which three Judges were appointed to provide over the Sardar Diwani Adalat instead of the Governor General and council. However, the Chief Justice of the Sardar Diwani Adalat was to be appointed from amongst the Members of the Governor General's Council and that Governor General or the Command-in-Chief could not be appointed as the Chief Justice which was the only restriction. The three Judges were to preside over both the highest civil and criminal courts i.e., the Sardar Diwani Adalat and the Sardar Nizamat Adalat.96 The restriction that the Chief Justice was to be amongst the Members of the Governor General and the Council was done away with in 1805.He was, like the other two Judges, to be covenanted servant of the company but this practice was revived in 1807 when number of Judges was increased from three to four. Again given up in 1811 when the number of Judges was further increased. The Government prescribed qualifications in 1814 for the appointment as Judges of the Sardar Diwani and Nizamat Adalats and only Judges of the Provincial Courts of the Appeal or Circuit Court who held the office for a period not less than three years and those persons who discharged judicial functions for a period of not less than nine years. Despite all these measures the quality of work deteriorated along with the quantity which did not dwindle down appreciably. Hence to clear the back-log Asstt: /addl: Judges were appointed to assist the Judge of the Diwani Adalat on temporary basis. Besides, the Registrar were authorized to hear cases up to five hundred rupees as against their previous competency of Rs.200/-.A court of Sardar Ameen, Presided over by the local person was set up with jurisdiction up to Rs.100/-.He was not to be paid any salary for his job but was entitled to get a fee of one Anna per rupee for deciding cases. His appointment was made by the Sardar Diwani Adalat on the nomination of the Diwani Adalat. In this way the local people were associated with the administration of justice. The provincial courts of Appeal for giving relief to the Diwani Adalts were empowered to decide appeals of the value of five thousands rupees or above.97

96 (B.D Basu, 276) 97 Ibid 62

Radical Judicial Reforms of 1831 Certain reforms were introduced in accordance with the principle of trial and error/experience in 1831 judicial reforms. Courts of the district and session judge were established. It was really a burdensome job for one man to exercise revenue and judicial function at the same time and for meeting this situation adequately the government enacted regulation VII of 1831 under which of the Diwani Adalat were also entrusted with the session duties. The commissioner, initially, reformed these cases to the judges for trial when the pendency before them was too heavy to be easily handled but in course of time the commissioners entrusted all the session cases to judges of the Diwani Adalat and in this way the present courts of district and sessions judges came into being.98 Better status for munsifs and Sadar Ameens: Participation of the local people in the administration of justice was almost negligible for the reason that the Diwani Adalat, Sadar Diwani Adalat, provincial courts of Appeal and Sadar Nizamat Adalat all were presided over by the Englishmen or Europeans. The Munsifs and Sadar Ammens, the only natives, were associated in the administration of justice with payment of salary to them in the beginning but in life of their better and record performance due to the ready knowledge of the local problems, customs, usages and affairs of the people as compared to the performance of the foreign judges they, in view of their commendable disposal of cases, were adequately paid, Munsifs were authorized to try suits up to the value of three hundred rupees and the suits falling within their authority were to be instituted directly in their courts .Similarly jurisdiction of the Sadar Ameen were also enlarged. A new court known as Principal Sadar Ameen with higher status, power and manned by the local people was also created by a Regulation in 1831 with power to try cases up to five thousand rupees. It was further decided that appeals against decision of the Munsifs and Sadar Ameen were to lie to the Diwani Adalat whose decision was to be final except the cases decided by the principal Sadar Ameen where a special appeal could lie to Sadar Diwani Adalat. Three categories of people namely the British, Europeans and foreigners were exempted from jurisdiction of the courts presided over by the local people. The cases hitherto referred for trial to the Registrar were made triable by the Sadar Ameen or the principal Sadar Ameen. Abolition of the Provincial Courts of Appeals and

98 Meadow Tyalor, Manual of the Indian History, (London: Spotswood and co, 1935), p.622 63

Entrustment of their functions to the Diwani Adalat: It was another most important reform of 1831 where under the provincial courts of Appeals were abolished and their function entrusted to the Diwani Adalat which hitherto exercised primarily original jurisdiction but this reform empowered it to sit as an appellate court as well. Jurisdictional powers of the principal Sadar Ameens: Later on another change made in the judicial system in 1837 related to enlargement of jurisdiction of the principal Sadar Ameen from five thousand rupees up to any value and resultantly appeals against its decisions lay to the Diwani Adalat in cases of value of five thousand rupees and to the Sadar Diwani Adalat exceeding five thousand rupees.99 Under the charter of 1853, a commission was appointed to create the High courts in India on the pattern of British judicial system. Its aim was the compilation of uniform code of law valid for the whole judicial system irrespective of religion and creed. It submitted plan for the creation of high courts by the amalgamation of the Supreme Court, Sadar Foujdari Adalat and Sadar Dewani Adalat. Its aim was also to uniform civil and criminal procedure appropriate to these High courts and inferior courts of British India. The jurisdiction of these courts according to the charter of 1853 was limited to (a) British born subjects (b) persons residing in the limits of three cities of Bombay, Madras and Calcutta or having any dwelling house and servants therein and (c) all persons who were directly or indirectly in the service of the East India Company.100

India under the Direct Control of the British

The revolt of 1857 was an important landmark in the history of the sub-continent. It marked the beginning of the country‘s struggle for independence after a century of foreign domination. The country witnessed a popular upsurge of deep-rooted and widespread discontent against the alien rulers. The revolt of the Sepoys accompanied by the civil population was so ferment that the very foundation of the British rule in Indo- Pakistan was shaken. It appeared for sometime that the Company‘s Raj had disappeared from the land. As regards the cause of this great convulsion, some historians attribute it to

99 (Ibid, 623-24) 100 Majumdar, R.C, An Advance History of India, (Lahore: Famous Books, 1992), p.803 64

the greased cartridge used in the freedom war of 1857. But it is unbelievable that such a vast and popular uprising could have been brought about merely by the new cartridge. It was the immediate cause and the basic causes of the revolt were many, embracing all aspects of the impact of British rule on Indian policy and society. For the convenience of study it may be discussed under different heads political, economic, religious, social and military. Ever since the battle of Plassey, the territorial power of the Company had been growing very fast and the Indian States began to feel the weight of it. By 1818, when the last Peshwa was dethroned, practically all Indian States had either been annexed or had entered into treaty with the Company on humiliating conditions.101 The expansion policy of the British did not stop there. They also annexed some of the independent principalities on the frontiers. In 1843, they attacked Sindh and added it to their dominion. It was an act of wanton aggression to cover the terrible disaster which the British armies had suffered in the Afghan war. The rebellion of Diwan Moolraj of Multan was used as a pretext for the annexation of the Punjab in 1849. The rights of the minor Maharaja, Dilip Singh who was under protection of the British were thrown to the winds. Lord Dalhousie adopted a new policy of annexation. He annexed states after states often in disregard of feelings of Indian people and susceptibilities. Under the ‗doctrine of lapse‘ the princes were denied the long-cherished right of adoption and in this way Dalhousie annexed the Maratha States of Satra, Nagpur and Jhansi and several minor principalities. On the death of Baji Rao II, the pension granted to him was abolished and his adopted son, Nana Shaheb was deprived of this right. In1856, the Kingdom of Oudh was annexed. The Nawabs of Oudh had been the faithful allies of the Company for a long time. But this step of the British gave a rude shock to Muslim sentiments.The result of Dalhousie‘s policy was such that no Indian prince felt secure and there was widespread resentment. The annexations also caused discontent among the subjects of the dispossessed princes as they were bound to them by old ties of tradition. They might prefer the old tyranny to the oppression of the new rulers.102 As the time went on, the Company also became cautions and cruel in dealing with the Indians. The administrative reforms of Cornwallis, introduced at the close of the 18th

101 (Ali 1970, 129) 102 Ibid 65

century, meant the virtual exclusion of Indians, specially the Muslims from high posts. The English believed that the Muslims were sorely aggrieved at the loss of their empire and so they were not put in any important post of the State. There was perhaps no other case of foreign rule in which the people were ―so completely excluded from all shares of the government of the country as in British India‖. To make matters even worse, the English administrators gradually become arrogant and there was a wide gulf of difference between the rulers and the ruled. The land-holding classes become much aggrieved at the agrarian policy of the Company. Many land owners were deprived of their lands as they failed to establish their proprietary rights by documentary proof. Investigation was even made into the titles of those who had held estates for many generations before the advent of the Company‘s rule. At the same time, enquiries were held in regard to rent free tenures. Many failed to satisfy the authorities regarding the original validity of their titles and their tenures were resumed to augment the government‘s revenue.103

Government of India Act 1858

The government of India Act 1858, transferred the territories and government of the east India Company to the Crown, and provided that ―India shall be governed by and in the name of Her Majesty‖. The powers and duties relating to government and revenue of India exercised by the commissioners for the affairs of India, or the court of Directors or the Court of properties of the East India Company alone or with the approbation of the Board of control, were to be exercised by one of the secretaries of state of her Majesty. The salaries of the secretaries of the state for India and his under secretaries were to be paid out of the revenues of India. The secretary of state was to be assisted by a council consisting of fifteen members with the title of ―The council of India‖. All the territorial and other revenue of India were to be received for and in the name of Her Majesty, and applied and disposed of for the purpose of Government of India alone. The appointments of Governor General, Governors and advocate General were to be made by the Crown and appointments of Lieutenant Governors of provinces by the Governor General of

103 (Ibid, 129-30) 66

India. All appointments of cadetship navel and military and all admissions to service not otherwise provided for were to be vested in by Her Majesty.104

The India High Courts Act, 1861

The British Parliament passed an Act known as the Indian High Court Act, 1861 Section 10 of the Act empowered Her Majesty to establish by letter parent High Courts of judicature at Calcutta, Madras and Bombay and pursuant this power a charter was issued on 14-5-1862 to create the High Court at Calcutta. With passing of the Indian High Courts Act, 1861, the Sadar Diwani Adalat and Nizamat Adalat, presided by the same judges, and the judicature of the Supreme Court at Calcutta were merged and resultantly a new High Court at Calcutta was established which consisted of a Chief justice and puisne judges not exceeding fifteen in number at a time. Judges of the Nizamat Adalat were covenanted servants of the company as against, Judges of the Supreme Court who were professional lawyers. In the new set up one third of the judges including the chief Justus were to be barristers of not less than five years standing and like wise not less than one third of the judges were to be from among civil servants having not less than ten years standing and who had served for at least three years as district judges provided that principal Sadar Ameen or Judges of the small cause court having at least five years experience as such were also eligible for appointment as High Court judges. Pleaders of the Sadar courts or the High court with ten years standing was another category of persons eligible for appointment as High Court Judges. The new High Court had civil, criminal, admiralty, testamentary, intestate, original and appellate jurisdiction besides any other power and authority which her Majesty might grant by Letters Patent.105

The Privy Council

104 (Chand 1936, 47) 105(Archbold, 146) 67

Like the Mughal King in England is also regarded as the fountain of justice concept equally applied to the Kings Dominions and Colonies. The King-in –council always enjoyed the right of entertaining appeals. This term later on came to mean the House of Lords which acted as the Highest Court of appeal in relation to the courts of England and the King –in –council or popularly known as Privy Council, also known, in course of time, as judicial committee of Privy Council, acted as the highest court of appeal for the courts of the British dominions and Colonies. The right of appeal to the King-in-Council against judgments of the Indian courts was granted for first time in 1726 pursuant to establishment of Mayors Courts at Calcutta, Bombay and Madras. The fist appeal was to be filed before the Governor General and Council but where value of the subject matter exceeded five thousands pagodas, the appeal could be referred to the king-in-council. After replacement of the Mayors Courts by the Supreme Court judicature, appeal to the king-in-council could be made only in certain circumstances. However, under Regulation XVI of 1797, governing appeals to the Privy Council one as a matter of right and the other by special leave of the Privy Council. The Government in 1833, passed an Act which constituted a committee of the Privy Council called judicial committee for exercising the entire appellate functions of the Sovereign-in-council. The act besides determining constitution of the committee also contained provisions for framing of rules regarding procedure and disposal of cases by the committee. The judicial committee of the Privy Council, after enactment of the Indian High Courts Act, 1861 used to entertain appeals involving valuation up to ten thousand rupees or more. In criminal matter it was provided in the charters creating the High Courts, that appeals from decisions of the high court would lie to the judicial committee of the Privy council provided the high court tried the matter in its original jurisdiction and in other cases on a point of law and secondly the high court declared it a fit case for appeal. However, in course of time, appeals could lie in criminal matters from the high courts before judicial committee of the Privy Council by special leave granted by the committee.106 In 1866 a directive, which was amended in later years, established a chief court for the Punjab. This was on the pattern of the high courts. Judges were to be appointed by the

106 (Chand 1936, 64-65) 68

governor general in council. In 1872 a court was established in Burma which was headed by judicial commissioner. After the annexation of British territory in Burma a chief court in Burma. A clear lead to the demand for greater share in the government and administration was given even in the first session of (1885) by passing a resolution expressing grave dissatisfaction at the existing system of government and asking for ―the reforms and expansion of the Viceroy council by the admission of a considerable proportion of the elected members‖ as well as enlarging the scope of their powers.107

Constitutional Developments 1892-1919 From 1861 onwards the legislatures were progressively enlarged and representation of the people was sought on an increasing scale. Under the Morley Minto Reforms in 1909 communal representation for the Muslims was introduced for the first time, and it was further enlarged under the Government of India Acts of 1919 and 1935. The practice of communal representation for more than thirsty years, along with the other forces it generated, aroused a demand for, and finally resulted in, the actual partition of the country.108 Towards the end of 1906, the all India Muslim League was formed in Dacca to protect political and other rights of the Indian Muslims. The invitation to this historical meeting of Muslim leaders was issued by Nawab Salimullah Khan of Dacca. The Aga Khan was elected president of the League. Other Muslim associations had been formed in the past, but the All India Muslim League assumed an importance far greater than those earlier organizations and was, in due course, reorganized as the political body representing Indian Muslim.109 Till 1919, the executive remained supreme and independent both of the legislature and of the people of India and there was no element of Government responsible for the people as a result of the First World War during which India made demanded for self for Government the British Government made a declaration on August 20,1917, that the

107 (Pylee 1960, 39) 108 G.N. Joshi, The Constitution of India, (London: Macmillan and Co; 1952), pp.5 109 , The Emergence of Pakistan, (Lahore: Research Society of Pakistan University of Punjab, 2003), pp.12-13 69

policy of is Majesty‘s Government was that of increasing association of Indians in every Branch of the administration and the gradual development of self – governing institutions with a view to the progressive realization of responsible Government British India as on integral part of the British Empire-the Government of India Act, 1919, enacted as a result of the recommendations of the Mont ford Report to give effect to the declaration of August 20, 1917, entrusted the elected representatives of the people of India with a definite share in Government provinces, with out introducing any element of responsible Government at the Centre, and pointed the way to full responsible government. India was not satisfied with these reforms.110 Government of India Act 1935 and the establishment of Federal Court Political agitation was set on foot which ultimately resulted in the passing of the Government of India Act, 1935, on August 2, 1935. This Act created a federal polity of whole of India. The Constitution embodied in the Government of India Act, 1935, was evolved by the British parliament to meet the definite objectives which it had in mind to grant the people of India responsibility which could not only be withheld having regard to the political conditions in India, but at the same time to retain a general control and supervision over the governance of India and to keep a certain hold over princely states by preserving the sphere of paramount intact over subjects not ceded by the State to the Indian Federation. The Federal polity embedded in the Act of 1935, was not a natural inevitable outcome of the political evolution of India, but was a measure evolved by the British parliament to achieve certain objects which could only be secured by a political system which also contained checks and balances. The central part of this Constitution did not come into operation. The reforms were found inadequate and there was an intense and persistent demand on the part of India for complete independence.111An essential element in a Federal constitution is a Federal Court. The Act makes provision for the establishment of such a Court, to consist of a Chief Justice of India and such number of other Judges as His Majesty may deem necessary. The Federal Court was in fact constituted as from 1st October 1937 under the terms of the Government of India (Federal Court) Order 1936 (S.R & O, 1936 No 1323). Rules governing the practice and procedure

110 (Joshi 1952, 5-6) 111 Ibid 70

of the Court were published in the Gazette of India on 2nd December 1937. The inaugural sitting of the Court was held at Delhi on 6th December 1937. 112 The Federal Court was to consist of a Chief Justice and not more than six judges who were to be appointed by the King to remain in office till the age of sixty five. The King could increase the number of judges on presentation of an address by the Federal Legislature to the Governor General for submission to the King. For appointment as a judge, one had to be either a judge of a High Court in British India or in a federated state for at least five years, a Barrister of England or Northern Ireland of at least ten years standing, a member of the faculty of advocates in Scotland of at least ten years standing or had to be for at least ten years a pleader of a High Court in British India or in a federal state or of two or more such courts in succession. For appointment as Chief Justice of India, it was necessary that one should be a Barrister or pleader of at least fifteen years standing. A judge could be removed from his office by His Majesty on the ground of misbehavior or infirmity of mind or body, if the judicial committee of the Privy Council, on a reference made to them by His Majesty, recommended his removal.113 The courts jurisdiction was three fold; original jurisdiction, appellate jurisdiction in appeals from High Courts in British India, and advisory jurisdiction. The court exercise original jurisdiction in any dispute between any two or more of the following parties; the federation, any of the provinces, or any of the federated states, if and in so for as the dispute involved any question (whether of law or fact) on which the existence or extent of a legal right depended, provided that the side jurisdiction did not extend to a dispute to which the state was a party.114 The appellate jurisdiction of the federal court extended to appeals from any judgment or decree or final order of a high court in British India, if the high court certified that the case involved a substantial question of law as to the interpretation of the act of 1935, or any order in council made there under. An appeal also rested in the federal court from a high court in a federated state on the ground that a question of law had been wrongly decided, which concerned the interpretation of the Act of 1935, or of an order in council

112 J.P. Eddy and F.H. Lawton, India’s New Constitution, a survey of the government of India Act 1935, (London: Macmillan and Co; 1938), pp.11-12 113 Hamid Khan, Constitutional and Political history of Pakistan, (Karachi: Oxford University press, 2010), p.26 114 (Ibid, 27) 71

made thereunder or the extent of the legislative or executive authority vested in the federation by virtue of the instrument of accession of that state, or a rose under an agreement made under part VI (the administrative relation between federation and state) in relation to the administration in that state of a law of the federal legislature. The appellate jurisdiction of the federal court was extended to some civil cases also by an act of the federal legislature provided that no appeal lay unless the amount of the claim of subject matter in dispute was not less than 50,000 rupees or such other sum not less than 15,000 rupees as was specified in the Act, or special exemption of the federal court had been obtained. The federal court was also invested with advisory jurisdiction. The governor general could, at his discretion, referred to the federal court any question of law of special public importance for consideration and report.115

Partition of India, Source and Sanction of the Constitution India‘s demand for the setting up of a constitution assembly to formulate her own constitution was concerned by the British parliament in the cabinet Mission plan of May 16, 1946. Under this plan a legislative assembly was formed, consisting of 381 members representing all the provinces and Indian states, on the basis of approximately one member to every million of the population. Its task was to frame a constitution providing for a union of the whole of India. It was convened in December 1946, but the proceedings were not attended by the members of the Muslim League Party, who demanded the partition of India.116 On June 3, 1947, the British Prime Minister, Mr. Clement Attlee, announced in the House of Commons the final decision of His Majesty‘s government to transfer power to the people of India at the earliest possible moment and in accordance with their wishes. This decision led to the passing by the British parliament of the Indian independence Act 1947. This Act, which come into force on August 15, 1947 and divided India and setup two independent Dominions of India and Pakistan, and provided for consequential matters. The Act also made a division of the constituent assembly; the members representing the areas included in Pakistan formed the constituent assembly for Pakistan,

115 Ibid 116 (Joshi 1952, 11) 72

and the remaining members formed the constituent assembly of India. With the creation of two states India and Pakistan British rule in India came to an end. 117

117 Ibid 73

Chapter 3 Judiciary in Pakistan in Historical Perspective 1947-1999

Pakistan came into being on August 14, 1947 as an independent sovereign state. It was among the first of the new countries to be born after the World War II. Of the then independent Muslim states, it was the largest in population and destined to play a significant role in Islamic world as well as in the changing international order.1 Quaid-e- Azam became the first Governor General of Pakistan by a decision of the Constituent Assembly taken even before the passage of the Indian independent Act.2 Quaid-e-Azam appointed Nawabzada as the Prime Minister. He was also given the charge of two ministries, foreign Affairs, and defence. The cabinet, members chosen by Quaid-e-Azam, included political stalwarts like Abdul Rab Nishtar from the North-West Frontier Province who was placed in charge of the ministry of communications; Fazlul Rehman, a leading politician from East Bengal was given the ministry of interior, information; I.I. Chundrigar, a lawyer who had distinguished himself at Delhi, was given commerce and industries; Ghazanfar Ali Khan, from the Punjab, agriculture and health. Ghulam Muhammad, a bureaucrat called by Quaid-Azam as, ―my financial wizard,‖ though no Leaguer was given the finance portfolio on account of his expertise in finance. Outside the cabinet Sir Muhammad Zafarulla who later become the foreign minister, had an outstanding record of judicial service, was deputed to represent Pakistan at the United Nations. Sir Feroze Khan Noon was appointed as Pakistan‘s envoy to the Middle East. The cabinet and other appointment to high political office reflected a paucity of talent among the politicians. However, the politicians commanded the political heights. Above them all stood the towering and magnetic figure of the Quaid, the creator of Pakistan. Quaid-Azam‘s position as Governor General was unique. He could not

1 Lawrence Ziring Pakistan in the Twentieth Century, A Political History, (Karachi: Oxford University press, 2007), p. 64 2 Mushtaq Ahmad, Government and politics in Pakistan, (Karachi: Royal Book Company, 1988), p. 19 74

obviously fit into traditional pattern of a ceremonial head of state. As the creator of Pakistan he occupied, a position reserved only for the father of the nation. He was indeed above any office, which the country could offer. As a leader who had successfully led the Muslim‘s nationalist movement to achieve a homeland, he personified the new state and was a symbol of its identity.3 The difficulties in the midst of which Pakistan steered its early course are too familiar to need a long account. Freedom, so it seems, had exacted its price. ―About seven million people, uprooted from their homes in India, trekked down to Pakistan to seek refuge and resettlement. The problems of reprisals and the safety of Hindus and Sikhs moving eastward weighed down on a skeleton administration, already strained to breaking point in dealing with vast influx of refugees. The partition of the subcontinent cut across the two major provinces of Pakistan, namely, the Punjab in the West and Bengal in the East, which moved Jinnah to remark about a ‗truncated‘ and a ‗moth-eaten‘ Pakistan. Unlike the case with India where these provinces lay on the periphery and the system of government was already established and functioning, in Pakistan a major dislocation of population and disruption of economic life and administration had been caused.‖ A consequence of Sir Cyril Radcliff‘s award was the fatal demarcation of the Punjab boundary whereby overland access was allowed to India to the princely Muslim majority state of Jammu and Kashmir. Its significance became apparent when fighting with India broke out in Kashmir in October 1947, barely two months after independence.4 The financial position of the government was extremely precarious. Soon after the outbreak of the with India in October, 1947, the Indian government decided to withhold the payment of Pakistan of Rs.550 million which represented Pakistan‘s unpaid share of the cash balances under the partition agreement. Pakistan was also denied its share of the large stock of reserve arms, equipment, store etc, belonging to the former .5 Experienced administrators were needed most of all. Some of the British officers were appointed to fill the gap. The

3 Hamid Yousaf, Pakistan: A Study of Political Developments 1947-99, (Lahore, Sang-e-Meel publication, 1999), pp33-34. 4 (Ibid pp.34-35) 5 Khalid Bin Sayeed, The Political System of Pakistan , (Boston: Houghton Mifflin Company,1967), p.61 75

governors of the three provinces were also British; Frederick Bourne was the Governor of Bengal (East Pakistan), Sir Francis Mudie, of Punjab and Sir George Cunningham, of the North West Frontier Province. Only in Sind there was a Pakistani Governor, Ghulam Hussain Hidayatullah. In the armed forces of Pakistan the number of the British officers was much larger than in the civil administration. All the three commanders in chief were British. General Sir Frank Messervey was the first commander in chief of the Pakistan army, after some months he was succeeded by General sir . Air vice Marshal Perry keane was the commander in chief of the and Admiral Jeffords Commander in chief of the . For the technical service, British ―other ranks‖ were also employed. The initial difficulties arose mostly from deficiencies in staff, accommodation, records, office employment and communication.6 The task of protecting and caring for the émigrés hence fell to Pakistani bureaucrats and young army officers. They performed their impossible task with valor, and the experience profiled them to the new state‘s centre stage.7 The First Constitutional Assembly Under section 8 of the Indian independent Act, 1947, the Government of India Act, 1935 became, with certain adjudications, the working constitution of Pakistan. The first constitution Assembly of Pakistan was formed which held its first meeting on August 11, 1947, in Karachi. Addressing to the new constitutional assembly of Pakistan Quaide-e- Azam said, ―Now, I think we should keep that in front of us as our ideal and you will find that in course time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual but, in the political sense, as citizens of the state.‖ 8 According to the Indian independent Act, the constitution Assembly was given two separate functions: (a) to prepare a constitution and (b) to act as a federal legislative

6 Chaudhri Muhammad Ali, The Emergence of Pakistan, (Lahore: Research society of Pakistan University of Punjab, 1973), p.247. 7 Stephen Philip Cohen, The idea of Pakistan, (Lahore: Vanguard Books, 2005), p.47. 8 Quaid-e-Azam Address to the Constitutional Assembly on August 11, 1947 76

Assembly or parliament until the constitution came into effect. The powers and functions of the central legislature under the Government of India Act, 1935, were conferred on the constitution Assembly. It originally consisted of 69 members: subsequently the number of members increased to seventy four. The states of Bahawalpur, Khairpur, Baluchistan and the tribal areas were given additional seats on their accession to Pakistan.9 Under the Act of 1935, powers heavily weighed in favor of the central government. The Act also empowered the Governor General with special powers, which included the power to proclaim an emergency. In that event laws could be passed with respect to any matter enumerated in the provincial legislative list. The scope of these powers was extended to cover circumstances arising out of any mass movement of population from or into Pakistan. The Governor General also exercised control over the selection and dismissal of ministries in the provinces, and under the newly inserted Section 92-A he could place the administration of a province under the rule of the governor who was directly under him. The Quaid presided over the cabinet meetings and formulated policies. The ministers and secretaries turned to him for advice and he kept in touch with the provincial Governors by fortnightly letters. He overshadowed and dwarfed the prime Minister. 10 Objective Resolution 1949 Quaid-Azam‘s death at the age of seventy-one on September 11, 1948 shocked the nation and marked the passing of an epoch of Indian Muslims history. The day after the Quaid‘s burial, India invaded the Muslim-ruled princely state of Hyderabad, heaping yet another problem on his successors. The post of governor-General fell to the East Bengal chief Minister, Khwaja Nazimuddin. Liaquat Ali Khan continued as Prime Minister. 11.The new governor general had a clear conception of the functions he was called upon to perform. Governor General was acting on the advice of the cabinet and not in his own right. Nazimuddin was the first truly constitutional governor general of Pakistan. He set a precedent of neutrality and non interference, faithful observance of which was essential

9 G.W Choudhury, Constitutional Development in Pakistan, (London: Longman Group Ltd, 1969), p. 27. 10 I.H. Qureshi, A Short History of Pakistan, Book one, (Karachi: University of Karachi, 1992), p.230 11 (Yousaf 1999, 42) 77

to the working of responsible government in the country.12 A notable act of the government was the objective resolution which was introduced by Liaqat Ali Khan in the Constitutional Assembly on March 12, 1949.13 The resolution was the first major step towards the framing of the constitution. (It expressed the ―will‖ of historically the first constitution body of Pakistan. It was later enshrined as a preamble in the in the constitutions of 1956, 1962 and 1973. The resolution laid down the concept of government as a sacred trust to be exercised by the chosen representatives of the people. It laid down the objectives of democracy, freedom, equality, tolerance and social justice as enunciated by Islam. It also expressed the resolve to enable the Muslims to lead their lives in accordance with the teaching of Islam, while permitting full liberty to the minorities to profess their own religion and develop their culture. The is one of the most important and illuminating documents in the constitutional history of Pakistan. At the time it was passed, Mr. Liaquat Ali Khan called it "the most important occasion in the life of this country, next in importance only to the achievement of independence". 14 The constitution Assembly also framed the Basic principles committee it task was to report in accordance with Objective Resolution on the main principles on by which the constitution of Pakistan was to be framed. It consisted of twenty four members. The basic principles committee set up three sub-committees:  Sub committee on federal and provincial constitutions and distribution of powers.  Sub committee on franchise.  Sub committee on the judiciary.

12 (Ahmad 1988, 26-27) 13 ―The Objectives Resolution, which is considered to be the Magna Carta of Pakistan's constitutional history, proclaimed the following principles: 1. Sovereignty belongs to Allah alone but He has delegated it to the State of Pakistan through its people for being exercised within the limits prescribed by Him as a sacred trust. 2. The State shall exercise its powers and authority through the chosen representatives of the people. 3. The principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed. 4. Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings of Islam as set out in the Holy and . 5. Adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures. 6. Pakistan shall be a federation. 7. Fundamental rights shall be guaranteed. 8. Judiciary shall be independent.‖ (Chaudhry 1969, 50) 14 (Yousaf 1999, 44) 78

The Basic Principles committee set up special committee known as Talimate-i-Islamia which consisted of scholars of repute well versed in Islam to advise on matters arising out of the Objective Resolution and such matters as might be referred to it by the various sub- committees. The basic principles committee empowered the sub-committees to co-opt technical experts as advisors who would not however have the right to vote. The number of experts was limited to two or three. The sub committee was further allowed to tour the various parts of Pakistan to collect information and take evidence if and when necessary. The Basic Principles Committee submitted its interim report on September 1950 and the final report in December in 1952. 15 The basic principle committee had to face the basic issue of the structure of federal legislature. It had to find out a viable method of representation of units without dominating each other. The committee presented an interim report to the Constitutional Assembly on 28 September 1950. Its proposals were as under, 1. The objective resolution was to form a part of the constitution as the ―Directive principles of state policy‖ 2. The state of Pakistan was to be a federation of the provinces. 3. There was a central legislature consisting of House of Units and House of people. 4. The house of units was to be represented by the existence provinces including Baluchistan. It was elected for five years by the legislature of the provinces on the basis of equality. 5. The house of the people was to be elected by the people on the basis of adult franchise for the term of five years. 6. Both houses had equal powers in the case of any dispute; a joint session of both the houses was to be summoned. 7. The head of the state was to be elected by a joint session of the both houses for the term of five years. 8. Each province had its own legislature elected on the basis of adult franchise for five years.

15 (Choudhury 1969, 29-30) 79

9. The head of the province was to be appointed by the head of the state for the term of five years, who would act upon the advice of the chief minister. 10. Regarding the distribution of powers there were three lists; Federal, Provincial and Concurrent. The federal list to be consisted of 67 subjects, the provincial list of 35 subjects and the concurrent list of 37 items. 11. Any amendment of the constitution required the approval by a majority vote of the central as well as provincial legislatures. If a majority of the provinces supported the amendment, it was to be placed before the originating house which was to be deciding by the two third majorities of members present and voting. A similar approval was required by the other house. If approved the amendment deemed to have passed. 12. was to be made official language of Pakistan.16 The interim report was subjected to an adverse criticism by the opposition members led by S.C. Chattppadhyaya. No doubt there was criticism from too, but the East Pakistani was more vocal. They mainly criticized the proposal for strong centre with vast powers in financial matters. They also assumed, if it was adopted, would reduce the East Pakistan majority into minority. In West Pakistan, the press also attacked the report fort ―over centralization‖, and considered the bicameral principle as reactionary. Keeping in view of the criticism, Liaqat Ali Khan, the then prime minister postponed the consideration of the report in the constitution assembly, and invited suggestions from various jurists, constitutionalists, and as well as from public.17 The weakness of the government was shown when it brought on the status book. The Public Representative Office Disqualification Act (PRODA) 18 to bring under check

16 Dr. Sultan Khan, Pakistan Past, Present and Future, (Lahore: Alameen Publication press, 1998), p. 274 17 (Ibid, 275) 18 Public representative office disqualification Act, It laid down a penalty of ten years disqualification from public office for such offences as nepotism, bribery and corruption. Charges could be initiated against ministers and ordinary Assembly members not only by the Governor-General and provincial Governors, but also by a citizen who could afford up to R. 5,000 security. By creating categories of political crimes which would be tried by tribunals whose judges would be appointed by the Governor-General‘s or provincial governor‘s discretion, the PRODA statute contributed to the Pakistan state‘s creeping 80

erring, dissident or assertive politicians. Public safety Acts were passed to add to the powers of preventive detention inherited from pre independence law. Liaqat Ali Khan‘s political limitation was betrayed by his frequent tendency to equate the Muslim League with the nation. 19 Muhammad Ayub Khan had been promoted as a General by Liaqat and was sent to East Bengal as commanding. General Ayub Khan had been away from the emotional climate prevailing in the army high command attending the hostilities in Kashmir. He had taken no part during the army action in 1947-48. This fact had probably weighed with Liaqat Ali, apart for Ayub‘s Aligarh background, as appointing him as the first Pakistani commander in chief of the army, suspending several more senior officers. It fell to Ayub Khan‘s lot almost immediately he had assumed his new office to crush dissidence within the army which came to be known as the ―Rawalpindi Conspiracy‖.20 It is worthy of notice that the political authority of the country , so early in its career , had felt the need of army support and that it happened to be general Muhammad Ayub Khan who was called upon to provide it.21 Liaqat Ali did, however, manage cohesion at the centre by dint of his prestige and moderation, by choosing his ministers with tact and by balancing the regional pressures. But he failed to give to the Muslim League a forward looking social and economic programme to build the foundation of political power rooted in public support, linking the two parts of the country in common aspirations. Liaqat had probably sought to strengthen the Muslim League in the provinces before holding a general election. His plans for a general election, if any, remained abortive for he fell to an assassin‘s bullet while

authoritarianism.(Hassan Askari Rizvi, Military State and Society in Pakistan, (Lahore: Sang-e-Meel publication), p.71 19 Prof. Syed Muhammad Rafiq, Pakistan Since 1947, (Lahore: Stander Books, 2000), p.93 20 An important incident of the country‘s internal politics during the Liaqat era was the unsuccessful attempt by some civil and military elements to overthrow the government. The conspiracy was in fact a part of the plan to bring about communist revolution. It involved the chief of staff Akbar Khan, Group captain M.K. Janjua, Brigadier Sadiq Khan, Birgidier M.A. Latif, Major Ziauddin Captain Niaz Muhammad and the famous communist poet Faiz Ahmad Faiz. All the plotters received different prison sentences. ( Rafiq 2000, 86 ) 21 (Yousaf 1999, 45) 81

addressing a public meeting at Rawalpindi on October 16, 1951. With his death a chapter closed in Pakistan‘s history. 22 During his rule of four and half years, he even failed to prepare the basic framework of the future constitution. On Liaqat Ali Khan‘s assassination Khwaja Nazimuddin was asked to assume the responsibilities of premiership which he did while he was still the Governor General – a situation without parallel in parliamentary history. As Prime Minister Nazimuddin recommended the appointment of a new Governor General in the vacancy created by his own resignation and that is why the entire cabinet with his exception ha to be sworn in again on October 24, 1951, nearly a week after Liaqat was assassinated. Ghulam Muhammad owed his elevation to the office of the Head of State to Nazimuddin just as the latter did to Liaqat Ali Khan. 23 The task of the constitution making left incomplete by Liaqat Ali Khan was taken up by Khwaja Nazimuddin on his assumption of the office of Prime Minister. He presented the consolidated report of the basic principle committee (also called the second report of the constitution assembly) on 22 December 1952.24 The central legislature was to consist of two houses; the house of units consisting of 120 members and the house of people consisting of 400 members. The members of both houses were equally divided between the two wings of Pakistan. The main recommendations of the report were: 1. The house of people was to enjoy the real authority, while the house of units could recommend revision in legislation. All money bills were to be originated in house of people. In the case of conflict a joint session was proposed. to resolve the matter. The cabinet was also responsible to the house of people. 2. The head of the state was to be elected for five years by a joint session of both houses. He was to be a Muslim. 3. The heads of provinces was to be appointed by the head of state and the unicameral provincial assemblies were to be elected by people for five years.

22 (Ibid, 46) 23 (Ahmad 1988, 27) 24 Dr.Safder Mehmood, Pakistan Political Roots and Development 1947-99, (Karachi: Oxford University Press, 2003),p.39 82

4. The head of state was to constitute a board of ulema well-versed in Islamic law. It was to give to head of the state its views on the bill within seven days of the receipt of such reference. 5. The amendments of the constitution were to be made as follows: one third members of any house of central legislature were to give notice of a proposed amendment. If other house s favoured it, it was to be sent to the provincial legislatures. If the majority of the provincial legislatures agreed to the proposal it was again placed before the originating house. . When passed by two third , it was then sent to other house. If passed by two third majority it deemed to be part of constitution. Thus the procedure of amending the constitution was made rigid. 6. Every citizen of Pakistan, who attain the age of 21 years was entitled to vote at elections of federal as well as provincial legislature. 7. There were three lists of subjects; namely the federal, provincial and concurrent lists. The residency powers were to be given to the center. 8. The higher court was to be the supreme court of Pakistan. Then, there were to be high courts, for East Pakistan, Punjab, Sindh, and NWFP. The chief justice was to be appointed by the head of the state. The Supreme Court was made responsible for the interpretation of constitution.25 The report remained silent on the issue of state language of Pakistan. The framers of the report wanted to avoid the recurrence of a controversy in this respect. The report was decidedly an improvement over the previous one. There were some defects no doubt, but it recommended measure to solve amicably controversial issue between East and West Pakistan. But the politicians avoided agreeing on a constitution, due to known persons. It received mixed feelings. East Pakistani was in favour of accepting the report. Ulema and leaders of minority groups also supported the report. But critics of the report out- numbered its supporters. They criticized its controversial Islamic character, as it was ―hotch potch of Islamic and unislamic principles‖. Some of the non-Muslims criticized its Islamic aspect of constitutional proposals. The principle of parity was also criticized by

25 (Sultan 1998, 276) 83

the West Pakistan, as they thought the report violated the universal principles of democracy.Hussain Shheed Suharwardi, Autau Rehaman Khan and Shiekh Mujuib-u- Rehman were against the bicameral legislature at centre. Allama Mashriqi and Akbar Bugti condemned the principle of parity. Some Punjabi leaders also rejected this principle.26 Despite of the defects inherent in the report, Khwaja Nazimuddin commended it to the nation as a document representing the ―maximum agreement‖. He describes it as ―the first golden ray of the sun which illumines the sky‖.27 The regional conflicts between the two wings of the country came to the surface and presented an extra ordinary dilemma in the framing of the constitution. With the rise of Ghulam Muhammad to the office of the Governor General, the clash between the bureaucracy and the politicians crystallized into a conflict between the Governor General and the Prime Minister. The conflicts of regions and personalities found the constitution Assembly as the natural arena. It was the supreme body that the struggle for the supremacy of the politicians was lost.28 Ghulam Muhammad was thus able to cite the Nazimuddin ministry‘s inadequacy in grappling ‗with the difficulties facing the country‘ when he summarily dismissed his Premier on 17 April 1953. Just a few days earlier Nazimuddin had confirmed that he still commanded a majority in the legislature by successfully steering the budget through the Constituent Assemble. In 1953 the military has become a major force in the body politic. Some of the major decisions taken by the Governor General were only possible with the support of the military. In the realm of security and defence, the military ruled supreme. General Ayub Khan the commander-in-chief, who had devoted himself to the modernization of the army, was the architect of Pakistan‘s military alliance with the US. Faced with a hostile large neighbor, especially in the aftermath of the war in Kashmir in 1948, Pakistan had turned to the US for aid and military assistance though initial efforts were not successful. In the fifties the US adopted a policy of containment and of building a ‗cordon sanitaria‘ around the Soviet Union, China and Eastern Europe. Although the

26 (Ibid, 277 ) 27 ( Mehmood 1999, 42) 28 (Yousaf 1999, 46-47) 84

US had its own objectives, Pakistan viewed its admission to the US sponsored military pacts, SEATO and CENTO 29 as a guarantee of a US role in the preservation of its independence and security. The negotiations of military alliances were conducted by Ayub instead of civil government. ―The price of the governor-generals‘ coup against Nazimuddin was high‖. Three major conventions of cabinet government were destroyed or gravely weakened. First, the tradition of the impartiality of the Governor General was demolished. Second, the convention of cabinet and party solidarity was disregarded. Third, the role of the Legislature as the maker and sustainer of government was discarded. The action was aimed as much against the Assembly as against the Prime Minister.30

Bogra Formula Muhammad Ali Bogra was the next Prime Minister. He had served as finance minister in the government of undivided Bengal and filled ambassadorial appointments in Rangoon, 31 Ottawa and Washington. The constitution Assembly had been indirectly elected in 1947 by the members of the various provincial assemblies. By 1953, it was apparent that a large number of them had lost gross-roots support. They were trying to formulate a constitution, but the regional conflicts and practically the Punjabi-Bengali conflict was such that no solution had emerged.32 Debates in the constituent Assembly showed that two problems were proving particularly difficult to tackle and were eluding compromise: the issue of parity and the question of division of powers. Negotiation resulted in a stalemate and the work of constitution

29 SEATO stands for south East Asian treaty organization and CENTO stands for central treaty organization. Pakistan joined SEATO in 1954 and Cento in 1955 for her defence needs and to maintain territorial integrity. India regarded it as against the national interest of India .But later on Pakistan withdrew from these pacts.(Dr Syed Salahuddin, Foreign Policy Of Pakistan, (Karachi: Comprehensive Publisher, 1998), p. 47 30 (Yousaf 1999, 53-54) 31 (Qureshi 1992, 247-48) 32 (Sayeed 1967, 61) 85

making had to be suspended. This deadlock was resolved by Prime Minister Muhammad Ali Bogra on 7 October 1953, when he announced that all the parties had reached an agreement on the problem of the composition of the federal legislature. According to this formula, the upper chamber was to consist of 52 members, out of which 2 seats were to be reserved for women and the rest divided equally among the five regions into which Pakistan was divided for this purpose, viz., (1) East Pakistan, (2) the Punjab (3) the North-West Frontier Province, Frontier states and the Tribal Areas,(4) Sindh and Khairpur, and(5) Baluchistan states union, Bahawalpur and Karachi. The lower chamber was to have 314 members; 14 to be special women seats and 300 to be distributed among the above mentioned five regions on population basis. Government was now made responsible to both houses; in case of conflict a joint session was to be held in which the controversial measure had to be passed by a majority vote provided that the affirmative majority included at least 30 per cent of the members present and voting from each zone. If this majority was not available and the measure was considered to be exceptionally important, the Head of the state could dissolve the legislature. The Head of the state was to be elected from a zone different from that to which the Prime Minister belonged; this was meant a substitute for parity in legislative representation. The proposal to have board of ulama was dropped.33 By mid-September, 1954, the constituent Assembly had completed its debate on the report of the basic principles committee and Bogra made the pleasant announcement that 34 the final draft of the constitution bill would be completed by December 25, 1954. Dissolution of the First Constitution Assembly 1954 During September and October ,1954 there was a chain of dramatic events which resulted in a final show down between the Governor General and the Bengali-Sind-Frontier group in Assembly led by the Prime Minister. On September 20, the public and representative office disqualification Act (PRODA) was repealed by the constitution Assembly. The Prime Minister and his supporters expected that the Governor General would dismiss the

33 K.K. Aziz, Party Politics in Pakistan, 1947-1958, (Lahore: Sang-e-Meel publication, 2007), p.51 34 Syed Noor Ahmad, From Martial Law to Martial Law, Politics in Punjab, 1919-1958, (Lahore: Vanguard publishers, 1985), p.342 86

Prime Minister and form a new cabinet. On September 21, therefore, an amendment bill to the Government of India Act 1935 was moved to make sure that the Governor-General did not use the Act in any way to dismiss a ministry which enjoyed the confidence of the house. 35 It could be described as an important step towards the growth of parliamentary democracy in Pakistan because the Governor General became powerless to dismiss his ministers. They would instead be individually and collectively responsible to the federal legislature. But the amendment was made in such haste that it could be termed as ‗constitutional coup‘.36 On October 24, 1954, Ghulam Muhammad dissolved the constitution Assembly of Pakistan on the grounds that it has lost the confidence of the people and unduly long period in framing a constitution. The Assembly had no longer the representative of the people and he would arrange elections for a new assembly.37 The next day Ghulam Muhammad imposed press censorship and issued a proclamation. ―The Governor General having considered the political crisis with which the country is faced, has with deep regret come to the conclusion that the constitution machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The constitution Assembly as at present constituted has lost the confidence of the people and can no longer function. The ultimate authority vests in the people who will decide all issues including constitutional issues through their representatives who are to be elected; fresh elections will be held as early as possible.‖ 38 The Governor General not only dissolved the constituent Assembly by his proclamation of 24 October 1954, he also reconstituted the cabinet. In the same proclamation the Governor General declared that until such time as elections were held (he did not mention any definite date for elections) the administration of the country would be carried on by a reconstituted Cabinet.39

35 (Saeed 1967, 74) 36 (Choudhury 1969, 143) 37 (Noor Ahmad 1985, 345) 38 Allen McGrath, The destruction of Democracy in Pakistan, (Karachi: Oxford Press, 1996), p.130 39 (Choudhury 1969, 145) 87

―A cabinet of talent,‖ as it was called, assumed the office. Some old ministers were retained, some new taken in. The new members were General Iskander Mirza, Dr. Khan Sahib and General Muhammad Ayub Khan, the commander in chief of the army was defense minister. A few months later, Hussain Shaheed Suharwardy agreed to join the cabinet. Along with him, Abu Hussain Sarkar was also included in to the ministry. Muhammad Ali Bogra continued to be called Prime Minister in that cabinet.40 The so called ‗cabinet of talents‘ was remarkable only for its utterly unrepresentative character.41 This was to set a pernicious precedent for future relations between the executive and legislative arms of the state. Justifying his action, the Governor General lambasted the constituent Assembly for being unrepresentative and accused its members of delaying constitution making in order to avoid facing the electorate. The fact that some of the assembly members were facing corruption charges under the public representative office disqualification act lent absence to this line of argument. Yet it was judicial complicity with the executive rather than force of popular opinion that determined the outcome of Pakistan‘s first and most decisive constitutional crisis.42 Tamizuddin Khan Case The president of the Constituent Assembly appealed to the Sind chief court to issue writs declaring that the central government had no right to prevent the Constituent Assembly from carrying on its functions. When the Sind court gave its verdict in favor of the president of the Constituent Assembly, the central government appealed to the Federal court. The ruling of the federal court given on March 26, 1955, was that the act under which the president of the constituent assembly had appealed to Sind chief court for the issue of writs had not received the assent of the Governor General and therefore was illegal. As a result of the decision of the federal Court about 46 Acts became invalid. To fill the legal vacuum, the Governor-General issued a wide-ranging Emergency Powers Ordinance (IX of 1955) to validate retrospectively the bills passed by the Assembly

40 (Noor Ahmad 1985, p.346) 41 Ayesha Jalal, Democracy and Authoritarianism in South Asia, A comparative and historical perspective, (Lahore: Sang-e-Meel Publication,1969), p.52 42 Ibid 88

without his assent, but was prohibited from doing so in Usif Patel and 2 others v. the Crown (PLD 1955 FC 387). The court ruled that the 1948 act that extended the Governor-General's power in the constitution-making arena had itself never been validated, so that revisions of the 1935 Act pursuant to it were also invalid. Its Usif Patel judgment removed the legal sting from the Tamizuddin Khan decision. The court placed the Governor-General on notice that his authority, upheld in the Federation appeal, was still limited. At the same time, the Federal Court prohibited the federal legislature from entering the constitutional field. With undisguised frustration it observed that "a more incongruous position in a democratic constitution is difficult to conceive particularly when the legislature itself, which can control the Governor- General's action, is alleged to have been dissolved." It alleged that the authority to make provision to the constitution of the country could not be exercised by the governor general by means of an ordinance. The court held section 2 of the ordinance issued by Governor General as ultra vires. The power of the federal court to make any provision to the constitution of the country was not granted by the law on anybody except the constitution assembly whose continuing legal status was recognized. 43 Later when the Governor General made a reference to the Federal Court seeking its advisory opinion with regard to legality of his action in dissolving the Constituent Assembly, the Federal Court declared that the Governor General was within his rights in dissolving the constituent assembly because he felt that the Constituent Assembly had not performed the duty assigned to it by the Indian independence act, namely that of providing a constitution for the country.44 Assured of support from the Punjab Chief Justice of Pakistan, legalized the decision of Governor General under 45 the cover of the ‗doctrine of necessity‘. In view of facts (1) that the constituent assembly, though it functioned for more than seven years, was unable to carry out the

43 Paula R. Newberg, Judging the state, Courts and Constitutional Politics in Pakistan, (UK: Cambridge University Press, 1995), p.63

44 (Sayeed 1967,75) 45 (Jalal 1995, 52) 89

duty to frame constitution for Pakistan to replace the transitional constitution provided by the Indian independence act 1947. (2) that the constituent assembly became in course of time wholly unrepresentative;(3) that for the practical purpose the constituent Assembly assumed the form of a ‗perpetual legislature‘ and (4) that throughout the period of its existence the constituent assembly asserted that laws made by it were valid without the consent of the Governor General, the court held that the Governor General had legal authority to dissolve the constituent Assembly.46 The new constitution Assembly met on 7 July 1955. Out of its 80 members the Muslim League had only 26, all except two from West Pakistan. In view of the drastically changed party position, Muhammad Ali Bogra was replaced by Chaudhry Muhammad Ali. Meanwhile Ghulam Muhammad was succeeded by Iskander Mirza as the Governor General of Pakistan. Iskander Mirza was sworn in as Acting Governor General on 7 August 1955 as Ghulam Muhammad Proceeded on medical leave; he resigned on 6 October 1955.47 Second Constitutional Assembly After the defeat of Muslim League in the provincial elections, Muhammad Ali Bogra could no longer justify his position even as a leader of East Pakistan, much less substantiate his claim to leadership of the country. He was the leader of the Muslim League by virtue of his position as the Prime Minister and not vice versa. The government that had formed after the dissolution of the constitutional Assembly did not have any sanction in constitutional law or practice. It was responsible to and removable by the Governor General. From October 24, 1955 to July 7, 1955 when a new constitutional Assembly was convened, he continued to head a government which could only be described as the Governor-General‘s council.48

46 (Choudhury 1969, 153) 47 (Rizvi 2000, 325) 48 (Ahamad 1988, p.51) 90

The two major acts of the second constitutional Assembly were the establishment of the province of West Pakistan () and the first constitution of Pakistan passed on 23 March 1956.49 The important enactments of the new constitution Assembly was the establishment of West Pakistan Bill (One Unit) which was passed on September 30, 1955. The Assembly thus legalized the integration of West Pakistan as one province, a power had been denied to the Governor General by the federal court. The name of the Eastern province was changed from East Bengal to East Pakistan in the 1956 constitution; since then the two provinces have been referred to as West Pakistan and East Pakistan. Dr. Khan Sahib was appointed the chief minister while Mushtaq Ahmad Gurmani was appointed as the Governor of West Pakistan. The constitution of 1956, which came into being on 23, March, 1956, was largely the handiwork of the Prime Minister, Chaudhry Muhammad Ali, and had certain unique characteristics. In its desire to circumscribe the power of the President, it spilled out the mechanics of parliamentary government in all its essential details. In its attempt to accommodate the Bengali demand for autonomy and parity, and the demand of the orthodox elements for an Islamic state, it came halfway in making concessions to both of these groups. Under the 1956 constitution, Pakistan became a Republic and the head of the state was known as President. Iskander Mirza became the first President of Pakistan according to the 1956 constitution.50 Judiciary under the 1956 constitution Adequate provisions were made in the 1956 constitution to ensure the independence of the judiciary so that ‗justice could be dispensed in a real and unpolluted form‘. ―The efficiency and independence of judicial system depend to a great extant upon the method of appointment, tenure of service and salary of judges. The framers of the constitution thought it desirable to include the organization of the judicial system and provisions relating to it were given in considerable length. The aim of such constitutional safeguards in the organization of the judiciary was to secure its independent as being fundamental to

49 (Yousaf 1999, p.63) 50 (Sayed 1967, 81-82) 91

both the Islamic and the western concepts of justice. The Supreme Court of Pakistan was entrusted with the task of interpreting the constitution. It was given the power to adjudicate in any dispute between Federal Government and any provincial government or between provincial Governments. Each High Court had power to issue orders or writ including habeas corpus, mandamus ,prohibition, quo- warrants and certiorari for the enforcement of fundamental rights guaranteed under the constitution or for any other purpose, with in its territorial jurisdiction. The writ jurisdiction of the superior Courts of Pakistan constitute a perpetual reminder to executives to exercise restraint and caution as imposed under laws of the land. The courts exercised this power in the beneficial and benefiting manner and thus have earned the confidence and trust of the people.‖ 51 Thought the Supreme Court under the 1956 constitution was the successor of the Federal Court, The aim of such constitution its jurisdiction was in some respects wider. Apart from expressed constitution or statutory provision there was no limit to its jurisdiction in matter decided by the High Court. ―The law which it would lay down was binding on all courts in Pakistan. As supreme tribunal it was the sole judge of its jurisdiction and there was no judicial means of challenging its exercise. A judgment of Supreme Court was binding on all courts in Pakistan; all executive and judicial authorities throughout the country also had to act in the aid of the Supreme Court and all directions, orders, decrees, or writs issued by that court were to be executed as if they were issued by the high Courts of the appropriate province. Like its predecessor, the Federal Court, the Supreme Court was entrusted with the task of interpreting the constitution. It was specifically given the power to adjudicate in any dispute between: The federal government and the government of one or both provinces, or the federal government and the government of a province on the one side and the government of the other province, or the government of the provinces, if and in so far as the dispute should involve any; I. Question of legal rights. II. Question relating to the interpretation of the constitution.

51 (Sultan 1998, 277) 92

The 1956 constitution thus departed from the principle of parliamentary supremacy which exist in England and accept the principle of judicial review found in the federal system of Australia, Canada, and the United States of America. The constitution was made the ‗supreme law of the land‘ and the ‗judiciary was made the guardian of the constitution‘.‖ 52 The provision regarding judiciary in 1956 constitution followed the pattern set under the second report of the Basic principle committee, 1952 which was more are less included in toot in draft constitution adapted by the first constituent Assembly in October 1954. ―The Supreme Court consisted of the Chief Justice and not more than six judges, a number that could, be raised by the parliament under the Act. The Chief Justice was to be appointed by the president and other judges were to be appointed by the president in consultation with the Chief Justice. The Qualification for appointment as a judge of the Supreme Court was either Five years standing as a judge of High Court or fifteen years standing as advocate or pleader of a high Court. The retirement age of a Supreme Court judge was fixed at 65 years and he was disqualified from plodding or acting before any Court or authority in Pakistan. The provision regarding the removal of a judge of the Supreme Court was similar to one provided under the continuation of India? A judge could only be removed on the presentation of an address by the national Assembly by not place then one third of the total number of members of the Assembly ; by the president if after due investigation and proof of misbehavior, or infirmity of mind or body was established, with the National Assembly votes for his removal by two thirds of its members present and voting (But not less than a majority of total member ship ) on the ground of miss behavior, infirmity of mind or body there was also provision for the appointment of acting chief justice in the absence of the chief justice or when the office became vacant. There were also provisions for acting judges and adhoc judge.‖53 The constitution provided for two high courts one for the province of East Pakistan and other for province of West Pakistan. Each High Court was to consist of a Chief Justice

52 Ibid 53 (Ibid, 109) 93

and such member of the other judges that the president might determine. The chief justice of a high court was to be appointed by the president after consultation with the chief justice of Pakistan and the governor of the province concerned. In case of appointment of other judges of the High court, the president could appoint them in consultation with the aforesaid constitutional functionaries as well as the chief justice of the concerned High Court. The qualification for the appointment as a judge of a High court included ten years as a district judge, or holding of a judicial office in Pakistan for at least ten years. Member of the civil service in India were not qualified for the appointment as judge of High Court. ―A High court judge could not be removed from his office by an order of the president make on the ground of misbehavior or infirmity of mind or body, if the supreme Court on reference being made buy it by the President, reported that the judge ought to be removed on any of those ground .there was provision for appointment of acting chief justice when the office of chief justice became vacant or absent or unable to perform his duties. However, transfer of judges from one high court to another was made subject to the Comment of the judge being transfer and subject to the consultation with the chief justice of Pakistan and the chief justice of High Court of which he was judge. The procedure of transfer of a judge from one high court to another could strengthen the judiciary and its independence could pre-empt the interference of the executive with the judiciary. As discuss above the High Courts were given the power to issue writs of habeas corpus, mandamus, Prohibition, Quo-warrantor, and certiorari. Similar powers were vested in the Supreme Court of Pakistan to issue all such writs for the enforcement of the fundamental rights granted under constitution. This provision was apparently borrowed from the Indian constitution (Enforced in 1950) where in the supreme Court was empowered to issue all such writs for the enforcement of fundamental rights.‖ 54

Failure of the 1956 Constitution

54 Ibid 94

The constitution of 1956 proved to be a short lived one. It introduced a number of reforms in the country. The most important thing for political stability in Pakistan was the holding of elections as soon as possible and this would necessarily have to be done under the 1956 constitution but it never held.55 Interference by the president, in the work of the ministries and political parties had increased. Under the 1956 constitution, which established a parliamentary system of government, the president was a constitutional head of the state while the prime minister was the real executive. But the undo interference of the president reduces the prime minister to that of a parliamentary secretary of the president. This interference disorganized the proper working of the cabinet system and ministerial responsibility to the parliament. Frequent ministerial changes and lack of leadership were the causes. There was growth of bureaucracy and undo interference of the bureaucrats in the governmental policy and administration. The general lack of character in the politicians and their undue interference in the day to day administration, lack of discipline, solidarity and frequent changes their loyalty for personal gains widespread corruption in the country lack of education and public spirit in electorate. 56

Martial Law and New Judicial Set up

On the night of 7th October 1958, Iskander Mirza abrogated the constitution of 1956, the central and provincial Assemblies were dissolved, and the central and provincial cabinets were dismissed. Political parties were also banned and General Ayub Khan was appointed Supreme Commander of the armed forces and Martial Law was declared through out Pakistan. In his proclamation, President Iskander Mirza explained the circumstances which forced him to take this step. He said that the pathetic political conditions and the growing corruption in the society and the inability of the politicians to change their ways had left him with no alternative but to take his step General Ayub

55 (Noor Ahmad 1985, 380) 56 Mazharaul Haq, The 1973 Constitution of Pakistan, (Lahore: Bookland, 2003), pp.8-9 95

Khan the nation on 8th October, 1958, and explained that the army entered politics ―with great reluctance but with the fullest conviction that there was no alternative to it except the disintegration and complete ruination of the country‖. This was the first phase of Martial law.57 Meanwhile, at top level, much more important matters were on the move. Ayub Khan was made the Prime Minister of Pakistan on 26 October 1958, with a cabinet but he want to accumulate all the powers in his hand. He made a plan against Mirza.58 Twenty days later the second phase started when the army Generals forced Iskader Mirza to resign the office of President. Iskader Mirza silently obliged. General Ayub Khan combined in himself the office of the president and the Chief Martial Law administrator.59 Why President Iskader Mirza did proclaimed Martial Law? It was cleared to him that there was no much prospect of his getting his reelected as president.60 President Mirza also wrote to ex- Prime Minister Noon, explaining the reason for his actions and expressing regret that Martial Law had to be imposed during his premiership. The Chief Justice of Pakistan, Muhammad Munir, was asked to prepare a new constitution more suited to ―the genius of the Pakistani people‖. President Mirza favored the American system of a presidential executive with an independent legislature and judiciary.61 Later, even when Iskander Mirza was still the president, General Ayub disclosed that it was at his initiative that the president imposed martial law ― I said to the president: are you, going to act or are you not going to act? It is your responsibility to bring about change and if you do not, which heaven forbid, we shall force a change‖.62 General Ayub thought that he had to justify in two ways his seizure of power by unconstitutional means both to Pakistanis and to the outside world. First, he had to establish clearly that the previous regimes had brought Pakistan to the brink of disaster.

57 (Rizvi 2000, 86-87) 58 Herbert Fieldman, Revolution in Pakistan, A Study of Martial Law Administration, (Karachi, Oxford Press, 2001), p13 59 (Rizvi 2000, 87-88) 60 (Syed 1967, 92) 61 Humayun Mirza, From Plasy to Pakistan the Family History of Iskader Mirza, (Lahore: Feroz sons Ltd, 2000), p.224 62 (Syed 1967, 93) 96

Secondly, he had to show that he had not only save Pakistan but could also get the country moving on the highroad of political stability and social and economic reform.63 If the political process had continued and political parties were allowed a free hand, it would have been nearly impossible to protect the federal principles. This was

64 unmistakably evident from the mood of politicians and political parties.

Supreme Court Validated Martial Law

In certain matters before the Supreme Court of Pakistan, a question arose as to what was the effect of the abrogation of the late constitution and its replacement by the laws (continuance in force) order, 1958 on writs issued under the existing pieces of legislation. The Supreme Court headed by the Chief Justice Muhammad Munir delivered a judgment on 27 October 1958 in four appeals generally known as Doss‘s case. To the effect that a victorious revolution for a successful coup d‘états was an internationally recognized method of changing a legal order, and citing Kelson general theory of Law and State, gave legal sanctity to the coup d‘état in Pakistan. Here again Justice Cornelius dissented, as he did not think that the coup could be legally justified. The following day, President Iskander Mirza was mad to resign and was replaced by General Ayub Khan as the 65 president of Pakistan. By the time of Ayub‘s coup two critical issues had been settled. First, parliamentary democracy would not be allowed to function in Pakistan. Second, a strong central executive would dominate the provinces. Pakistani politics have never recovered from these twin setbacks.66 The new cabinet consists of civilians as well as generals. The office of the prime minister was abolished and Ayub Khan‘s cabinet begins to function as a presidential cabinet.67 One of the first acts of the Martial law was keep the politicians

63 Ibid 64 Nadim Shafiq Malik, Research Papers on Pakistan, (Lahore: National Book Foundation, 1998), p. 379 65 Javed iqbal, The Judiciary and the Constitutional Crisis in Pakistan,(ed) in Hafiz Malik Pakistan founders aspirations and today‘s realities, (New York, oxford, 2003), pp.63-64 66 Omar Noman, The Political 1947-85, (London, KPI Limited, 1988), p.15 67 (Qureshi 1992, 922) 97

away from public life. The ban on political parties which had accompanied the proclamation of Martial Law was followed up by freezing of the bank accounts of many political parties and the detention of some of their leaders. The activities of the politicians were brought under a heavy restrained by the elective bodies( disqualification) order, 1959,( EBDO), which provided the former politicians with the option of being tried for misconduct or disqualifying themselves from engaging in political activities for seven years. Such was the lack of faith in specially constituted criminals, that the majority preferred the later course. About 7000 persons, at least 3000 from West Pakistan, come to labour under EBDO disqualification or were ‗ebdoed‘ as it was called in popular parlance. With one stroke the political voice of the nation was silenced. Subsequently, under an amendment made to the political parties act, 1962, the ‗ebdoed‘ politicians were banned from even making political statements.68 The Martial Law regime appointed law reforms commission in December 1959 to suggest improvements in the legal system inherited from the British. The recommendation of the commission covered a wide field and their implementation was only feasible over a number of years. The objective of the recommendation was to make available the speedy and less expensive justice. Ten ordinances were issued during 1962- 63 to streamline the administration of justice.69 The implementation of the recommendations of these two commissions, no doubt had some healthy effects on the legal system of Pakistan, but the ideal of ―speedy and less expensive justice‖ was too high to be achieved through the steps taken by the military regime.70 The Law Reforms Commission was among the first to be appointed by the Martial Law Regime, it had, as its object, the improvement of the legal system which had been adopted wholesale from the pre-independence British days. Experience had shown that the administration of justice in the country was far from satisfactory either from the point of view of costs, expeditious disposal or procedure and not excluding the integrity of the subordinate court officials. The recommendations of the

68 (Yousaf 1999, 71) 69 Ibid 70 (Ibid, 104) 98

Commission covered a wide field and their implementation was only feasible over a number of years. Their discussion in any detail is a subject of legal study and beyond the scope of a political analysis. Some of the major recommendations were designed to cut down delays which occur as a result of the procedure followed by the courts. The establishment of special courts for the summary trial of certain offences in big centres of population, and the family laws courts for the settlement of matrimonial disputes, was intended to facilitate the quick disposal of many civil suits and criminal cases which drag on indefinitely in the ordinary law courts. The proposal to have mobile courts for trial of petty offences had the same end in view. While the Commission did not consider it desirable to regulate the fees of lawyers—a major item in litigation—a voluntary regulation by lawyers was suggested to rehabilitate their reputation. What it did recommend, however, was the scaling down of the court fees so as to balance the profit and loss account of the administration of justice. Constitution of conciliation courts, competent to deal with cases involving a claim up to one thousand rupees, was yet another step to curtail the cost of litigation as the disputes in these courts were to be settled through friendly intercession and without any legal aid or advice.71 Although not all the recommendations of the Commission were implemented, some of them were adopted on the eve of the withdrawal of Martial Law through a series of Presidential ordinances. The amendment of the Civil Procedure Code aimed at reducing the technicalities of procedural law by which—the~-cause-of substantial justice was not infrequently hindered, the first hearing, perfunctory in the old system, was to be made as comprehensive as possible so that the parties knew each other's case at the very first appearance. All the relevant documents were to be filed and their copies prepared before the parties came to the court and, if any documents were not in their possession, they had to state in whose possession they were. This was expected to enable the judge to dispose of many suits in the first instance and also to act as a deterrent to habitual litigants, bringing up false cases

71 (Ahmad 1988, 192) 99

on the basis of inadequate evidence not supported by documents. The practice of granting adjournments in the lower courts on flimsy pretexts to suit the convenience of lawyers and parties .alike was to be discontinued Adjournments were to be given on genuine and substantial grounds. An appeal from the judgment of a single judge of the High Court to a bench of two, known as Letters Patent Appeal, was to be cut out as unnecessary and uncalled for. In criminal cases the delays of justice are even more dangerous. Due to the long periods of confinement of the accused in jailor, even when the accused are on bail, the mental anxiety caused to them during protracted proceedings. For the small men it is areal hardship because of the expenses involved in engaging lawyers and the methods used by the police to extract confessions, on the basis of which they are challenged, and which are later denied by them in the courts. The accused, on their part, abuse the procedure to prolong proceedings so that they can tamper with the evidence by calling fresh witnesses to refute the charges alleged against them.72 The Commission proposed the adoption of a common procedure in all criminal cases requiring the framing of the charges in the first hearing and also an amendment of the law so that the trial was not vitiated on account of an error in the mode of trial. The methods of investigation were to be made more scientific to avoid the physical hardships to the accused. The changes already made and proposed to be made could, however, go only a small way in improving the quality of justice unless the competence of the lawyer, the caliber of the judges and the incorruptibility of the police were guaranteed.73 The Commission did not go into the basic concepts of law nor was its purpose to examine them. All that it did was to suggest changes in the details of procedure. The laws governing it, in its opinion, were not inherently bad but had been frequently abused due more to the human factor associated with their enforcement or exposition than with their inherent good sense. Cheap and speedy justice still remained the crying need of the people. Justice was so much delayed that it

72 Ibid 73 (Ibid, 193) 100

almost amounted to its denial. Apart from the family law courts which were a great boon in the matrimonial causes, in the new courts of trial for petty offences, justice was often more rough and ready than just. Local influences, bribery and nepotism defeated the purpose of the reforms. The Jirga courts were used by the police as a dumping ground for cases where the police could not marshal enough evidence and where persons wrongly accused were punished after letting of those against whom evidence could be produced for pecuniary considerations. A dangerous practice of interviewing lawyers for appointment as High Court judges was introduced. The congestion in the lower courts was still unbelievable. Even the High Courts were over worked. It had taken years before even ordinary cases are disposed of, causing harassment and expenses to the clients and the accused. Cases have been reported in the press of the accused serving a longer term of imprisonment under trial than was actually pronounced in the judgment later. The strength of the courts, both lower and higher, and especially of the lower courts, was wholly inadequate for speedy dispensation of justice.74 Laws were nevertheless passed by the legislatures, both before and after the framing of the 1956 Constitution, investing the executive with powers to arrest and detain individuals whose activities were considered prejudicial to the security of the State, The Security Act, instead of being used with utmost caution and discretion, was employed to stifle criticism unpalatable to the government, often creating a climate of fear, vitiating what Justice Kayani had cryptically observed, 'the fundamentality of fundamental rights.' So grave was the abuse of authority that tetanus who obtained their release through the intervention of the courts again found themselves in jail without remedy or redress. There were cases where the tetanus was not even informed of the nature of the charges against them. In many instance, the courts passed strong strictures on the authorities for the high-handed manner in which the powers designed to be used under most pressing and unavoidable circumstances, were arbitrarily exercised. The

74 (Ibid,194) 101

executive had constituted itself as the solo judge of activities prejudicial to the security of the State.75 The scheme of Basic Democracies announced by the president Ayub Khan in 1959 provided for the election of 80000 Basic Democrats, equally divided between East and West Pakistan. The Basic Democrats or BD‘s as they were called been to be elected on direct adult franchise, and were to provide membership of a four tiered structure of local government. At the base of this were the union council in the rural areas and the town committee in the urban areas, having elected members and chairman. The upper three tiers (Tehsil councils, District councils and Divisional councils) were composed differently. They comprised representatives of the lower tiers as well as officials‘ nominees. These upper tiers were presided over by officials who were the ex-officio chairman.76 Its main purpose was to cultivate a new rural constituency for the regime that would endorse rather than set its political and economic agendas.77 It maintained law and order through its rural policies and has been given some judicial powers to try miner civil and criminal cases through its conciliation courts. It has also been empowered to impose local taxes to finance its activities.78 Although the system presumed to offer training in democracy, it was not spelled out how the system would gradually achieved greater democratization or the manner in which, in Ayub Khan‘s words, ―the Basic Democrats would become less basic and more democrats‖.79 Ayub spoke of a democracy, which could suit the genius of the people. His concept of democracy found expression in the shape of basic democracy, which, in fact, was more basic than democratic. Under this system, a limited number of basic democrats decided the fate of the nation.80 Other weakness appeared. Illiterate villagers did not suddenly acquire a sense of social responsibility overnight. They elected many land lords, mullahs and pirs, the old

75 (Ibid, 215) 76 (Yousaf, 72) 77 (Jalal 1969, 56) 78 (Syed 1967, 247) 79 (Yousaf 1999,73) 80 (Mahmood 1999, 363) 102

panchayat leaders who were able to perpetuate their power through the traditional social system. The concept of the basic democracies reflects a soldier‘s attempt to organize the entire society along military lines. It was an experiment in limited but expanding, self government, which requires the test of time before it is proven. It could prove no less effective however, than the programme Pakistan tried half heartedly during its first ten years.81 The basic democrats were also to serve as the Electoral College for the election of the president and the provincial and national Assemblies.82 Under the system of Basic Democracy, the president seemingly attends stability and security. In fact, Ayub Khan went further and established an autocratic rule in the country with the help of civil service.83 Ayub Khan came to the conclusion that the Basic Democracy was the cure of all ills. The elections of the Basic Democracies were held in January 1960. The following month, February 1960, Ayub Khan announced an election for the office of the president, offering himself as a candidate. In this elections the voters were asked to respond to a single, straightforward question; ‗Do you have confidence on Ayub Khan‘s leadership?‘ The leaders from the Basic Democracies, who constituted the Electoral College, were obliged to answer ‗Yes‘ or ‗No‘. The result was a foregone conclusion. Ayub Khan received 95 per cent of the vote. He considered this overwhelming electoral victory a mandate from the people to do as he liked.84

The 1962 Constitution and the Judiciary

Ayub Khan was sworn in as the first elected president of Pakistan on 17 February, 1960 and on the same day he announced to appoint the constitution commission.85 He was very keen to provide the country with anew constitution as soon as possible, the old one

81 Richard V, Weekes, Pakistan Birth of a Muslim Nation, (Karachi: Royal Book Company,2004),p.117 82 (Jalal 1969, 56) 83 (Mahmood 1999, 363) 84 Major General S. , Early Years of Pakistan, Lahore: Ferozsons (pvt) LTD, 1993, p.141 85 (Yousaf 1999, 73) 103

having been abrogated when Martial Law was proclaimed in October 1958. Accordingly, soon after he was sworn in on 17th February 1960 as the first elected president of Pakistan. He appointed a commission, under Manzoor Qadir, to draw up the new constitution. The commission submitted its report in May, 1961, and arrangements were then made to hold elections to the National Assembly and the Provincial Assemblies, these being completed by May, 1962. The new constitution was promulgated and martial th 86 law lifted on June 8 of the year, ushering in an era of presidential government. . It had 250 articles and 5 schedules. It was rigid in nature. In the words of former Prime Minister Chaudhry Muhammad Ali ―The constitution of 1962 is for the president of the president and by the president‖.87 The constitution had provided for independent judiciary consisting of a supreme court and two high courts. The president could appoint chief justice and judges of Supreme Court, who could hold offices till the age of 65. There was security of tenure under the constitution and they could be removed from offices on the ground of misbehavior or infirmity of mind or body which could be proved in supreme judicial council. The Supreme Court had the jurisdiction any dispute between the central government and the provincial government or between two provincial governments. It had appellant jurisdiction against judgment, decree, order or sentences against given by high courts. Every high court had power throughout in the territory in the relations to which it exercised jurisdiction to issue any person or authority including in appropriate cases, any government within these territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and ceritori or any of them. The courts could order any person authority or government to do anything or refrain from doing anything for any purpose. The courts might overrule a president‘s decree as they did in 1963. When they defied president Ayub by ordering ministers to resign from the assemblies to which they had been elected. By induction of first amendment, the judiciary had full power to pass judgment over the views of legislature. The constitution also maintained the judicial

86 (Ibid, 142) 87 (Haq, 10) 104

control over the executive. The courts had the power of ―judicial review‖ of executive action.88 Ayub had the mandate to call for a referendum, on the basis of universal franchise, to obtain the mandate from the people to rule the country until such time as general elections were organized.89 As the presidential elections scheduled to be held in January 1965) approached, the opposition parties in National Assembly formed themselves into an alliance called the combined opposition parties (COP).90 The combined opposition parties announced that Miss Fatima Jinnah had ―graciously accepted their request for nomination as a candidate for the presidential elections.‖ The ruling party had first decided that it would nominate its candidates for BD Elections and issue them with part tickets. The elections of the basic democrats ended on 19 November 1964 with both sides claiming an overwhelming victory. The Muslim League declared that 80 per cent of the elected members were Ayub supporters and COP claimed that 90 per cent of the members were pledged to vote for Miss Jinnah.91 The polling took place on January 2, 1965, in a peaceful environment as the strategy of COP was to maintain a calm atmosphere at the polling stations. Out of 80,000 members of the Electoral College, 49,951 voted for Ayub and 28,691 for Miss Jinnah. Thus Ayub elected as the president of Pakistan for the next five years in the result of his so called referendum.92 The demands of the East Pakistan had been put forward in an articulate and extreme manner in the six points93 of Sheikh Mujibur Rehaman and the . These came into the

88 (Sultan 1998, 292) 89 Altaf Gauhar, Ayub Khan, Pakistan’s First Military Ruler, (Lahore: Sang-e- Meel Publications, 1998), p.160 90 (The alliance comprised the led by khwaja Nazimuddin and Mian Mumtaz Daulatana, the Awami League of Shaikh Mujibbur Rehman, the National Awami Party(NAP) led respectively in East and West Pakistan by Maulana Bashani and Khan Abdul Wali Khan. The Nizam-e- Islam party was headed by Chaudhry Muhammad Ali while Maulana Maududi was the chief of Jamaat-i- Islami. (Yousaf 1999, 86) 91 (Gauhar 1998, 275) 92 (Ibid, 285) 93 ―The six points I. the character of the government shall be federal and parliamentary in which the election of the federal legislature and to the legislatures of the federating units shall be direct and on the basis of universal adult franchise and representation in federal legislature shall be on the basis of population. ii the federal government shall be responsible only for defence foreign affairs and currency. iii two separate but freely convertible currencies for the two wings. IV the power of taxation and revenue collection shall be vested in the federating units and the federal centre will have no such power. V. there shall be two separate accounts for foreign exchange earning of the two wings. vi. A militia or a Para 105

limelight for the first time at a meeting of the opposition parties at Lahore, soon after the signing of the Tashkent Declaration in January 1966, and found a ready response in East Pakistan.94 Sheikh Mujibur Rehaman, who had been arrested in 1966 after he launched his six points, was involved in the Agartala Conspiracy case. It was alleged that while he was in prison, his followers had been in contact with P.N.Ojha of the Indian mission in Dhaka and were reported to have contacted Indian officials at Agartala in India, to obtain arms. These people twenty eight in all, mostly relatively junior personal of the defence services, were charged with a conspiracy to overthrow the government and were arrested in late December 1967. Mujibur Rehman‘s trail started in 1968. As resentment against West Pakistan grew, the trail continued at a slow pace. Finally, the political climate made his continue detention impractical and when the round table conference was called, he was released to enable him to take part. At the conference, he placed his six points before Ayub Khan but did not press for their acceptance. He asked for a one man one vote system and the undoing of One Unit.95 While the government was making necessary arrangements to celebrate the 10th anniversary of Ayub Khan‘s assumption of power, the opposition parties were planning their strategy for the new elections. In November 1967, Z.A. Bhutto launched a new political party- Pakistan People‘s Party. He had been associated with Ayub Khan from 1958 to 1966. But in 1966, he had sharp differences with Ayub Khan on the Kashmir question and peace term with India. He, however, decided to enter politics in opposition to Ayub Khan.96 After the mid-sixties the politics of exclusion and economics of inequality were coming to haunt Ayub‘s regime with revenge. Labors militancy at industrial site and rampant student radicalism in campuses around the country provided the background for the opposition‘s renewed efforts to settle old scores. In May 1967, four political parties- the East Pakistani based Awami League, the council Muslim league, the Jamat-i-Islami and military force shall be set up for East Pakistan‖. ( M. Asghar Khan, We Have Learn Nothing from History, Pakistan: Politics and Military Power, (Karachi: Oxford University Press, 2005), p.30 94 (Ibid, 24) 95 (Ibid, 26) 96 (Rizvi 2000,166) 106

Nizam-i-Islam formed the Pakistan Democratic Movement. Among the demonds was the introduction of the parliamentary system, direct elections, and federal structure with the devolution of powers to the constituent units.97 ―Between November 1968 and March 1969, students, industrial labors, professional groups, low ranking government employees and the ulema all took to the streets in massive anti-government demonstrations in key urban centers. Some 250 people died in ensuing clashes with the police and the army. Pressed from all sides, Ayub had no choice but to employ with the military high commands unequivocal demand that he immediately hand over power to General Yahya Khan, the commander-in-chief of the Pakistan army on March 25, 1969.‖ 98

Second Martial Law

General Yahya Khan assumed the power of chief Martial Law Administrator and president of Pakistan without facing any opposition. He followed Ayub Khan‘s course very closely.99 The 1962 constitution was abrogated and assumed control for the direction of the nation‘s life, the country, by any reckoning, presented a situation of great complexity and danger.100 Yahya Khan decided to merge the status of Chitral, Swat and Dir with West Pakistan. Hitherto these states were being ruled by their prices despite their accession to Pakistan. Another important administrative reorganization related to the abolition of the integrated province of West Pakistan (one unit scheme). He also promised to hold ‗fair and free‘ elections and transfer of power to the elected representatives. The Legal Frame Work order (LFO), issued on 30 March 1970, provided the guidelines for the general elections and outlined the principles which the military leaders thought the National Assembly must keep in mind while framing the constitution.101

97 (Jalal 1969, 60) 98 (Ibid, 61) 99 (Rizvi 2000,181) 100 (Yousaf 1999,111) 101(Rizvi 2000,187) 107

Soon after assumption of power, ―Yahya Khan issued the provisional constitutional order which provided that until a constitution was enforced; Pakistan would be governed as nearly as possible by the 1962 constitution. Fundamental rights were suspended and no court was authorized to pass any order, issue any decree or writ against the order of the Martial Law Administrator or any other Martial law authority. No judgment of a special military court or summary military court could be challenged in any ordinary court of law. The Order further provided that the president could make such provisions, including constitutional provisions, as he may deem fit, for the administration of the affairs of the state.‖ 102 The National Assembly was required to frame the constitution within 120 days of its first meeting. After the expiry period of the National Assembly would automatically dissolve.103 All the political parties issued election manifestos and their leaders toured both the wings extensively to win the people over to their side. The central theme of the election campaign in East Pakistan was the question of provincial autonomy. The Awami League put forwarded a six point formula which aimed at converting Pakistan into a very loose federation. It was said time and again that if the people did not vote for the Awami League, the political, administrative and economic ―exploitation‖ of East Pakistan by West Pakistan would never end and the East Pakistan would continue to be a ―colony‖ of West Pakistan. The election campaign in the West Pakistan was overshadowed by the sharp polarization of the left and the right. Z.A. Bhutto, who was the most vocal spokesman of socialist economy, gave the four fold slogan: Islam is our faith, democracy is our polity, and socialism is our economy, all power to the people. His economic program and a promise of 1000 year war with India captured the minds of the people of West Pakistan. 104

102 Jan Muhammad Dawood, The Role of Superior Judiciary in the Politics of Pakistan, (Karachi: Royal Book Company, 1994), p. 28

103(Ibid,188) 104 (Rizvi 2000,190) 108

According to the schedule the elections to the National and Provincial Assemblies were held on 7th and 17th December 1970 respectively. The Awami league won 160 seats and Pakistan people‘s party won 81 seats. However, both were regional in their character.105 According to Aysha Siddiqa ―Despite the majority won by Rehman‘s Awami League in the elections, the West Pakistani establishment, which included the military and the other dominant classes, was uncomfortable with the idea of transferring power to Bengalis, whom they considered ethnically inferior. The army leadership had to make a difficult choice between Rehman and Bhutto, which resulted in delaying the transfer of power to either of the two leaders after announcement of the general election results. Eager to get into power, Bhutto played upon the military‘s attitudinal bias against the Bengali leadership. The ppp leader‘s defiant attitude caused the postponement of the National Assembly which was to be held in Dhaka in March 1971. He threatened the entire politician with dire consequences if they attended the session. This was an insult of the Bengali people and their leadership, who had since independence experienced unequal and insulting treatment by the West Pakistani elite. Islamabad saw the unrest in East Pakistan as part of a larger Indian conspiracy to undo Pakistan. The army launched a military operation, ‗searchlight‘ against the Bengali resistance on 15 March 1971 in which the army cracked down on all dissent in the Eastern Wing.106 On 16 December 1971, Pakistan‘s military commander in East Pakistan surrender to Indian forces, and a new state Bangladesh was carved out of Pakistan. This led to the crisis of legitimacy which made it imperative for the army to withdraw from politics. Bhutto assumed the power in December 1971 as the president and chief martial law administrator.‖ 107

Asma Jilani Case

105 (Ibid, 191) 106 Aysha Siddiqa, Military INC. inside Pakistan’s Military Economy, (Karachi: Oxford University Press, 2007), p.77 107(Ibid, 78) 109

The interim constitution that comes into force on 21 April 1972 on the withdrawal of martial law was adopted by the national Assembly that had been elected in December 1970 on an all-Pakistan basis. It is true that this was to be a constituent Assembly and enjoyed a mandate to give a new constitution to what remained of Pakistan after the war in December 1971. Due to the formation of Bangladesh, this Assembly lost its efficacy and mandate and the members elected from West Pakistan could not act and form a Constituent Assembly of their own. It would have been appropriate to hold fresh elections in West Pakistan for a constituent assembly on the basis of the change constitutional and political realities so that this assembly could have had a fresh mandate to give a new constitution to the remainder of the country.108 Between December 1971 and April 1972 the Supreme Court did deliver some important Judgments. The first was Asma Jilani109 vs. government of Punjab. In this case, the detention of some eminent persons under martial law regulation 78 was challenged and the Supreme Court was called upon to examine the validity of Yahya Khan‘s imposition of Martial law. The leading judgment was by Chief Justice Hamood-ur-Rehman in which the principle enunciated in state vs. Dosso was overruled as laying down incorrect law and placing the country on worn lines. Yahya Khan was declared as usurper who had no authority to abrogate the 1962 constitution and to impose martial law. Martial law regulations 78 issued by Yahya Khan was accordingly declared as void and of no legal effect. The judgment also attempt to warn future military adventures if they took advantage of the

108 (Dawood 1994, 29) 109 Malik Ghulam Jilani was arrested initially under the Defence of Pakistan Rules, which he challenged in the . Before his hearing, the government rescinded its order, replacing it with Martial Law Regulation No. 78, which barred judicial challenge under the 1969 Courts (Removal of Doubts) Order. Altaf Gauhar was arrested under MLR No. 78, and the Government of Sind presented a new arrest order after Jilani's High Court hearing; when the Sind government withdrew its order in July 1972, the federal government issued a new order under the Defence of Pakistan Rules. Gauhar challenged his detention in 1972 (Mrs. Zarina Gauhar v. Province of Sind and 3 others, PLD 1976 Karachi 1257). His attorney, A.K. Brohi, maintained that under the Interim Constitution, the Defence of Pakistan Ordinance was not valid law; Attorney General Bakhtiar maintained that fundamental rights could not be enforced by the courts during emergency. The High Court challenged the Sind government nonetheless. (Paula R. Newberg, op, cit., p. 132)

110

concept of revolutionary legality and considered themselves as the new lawgivers, then they would be treated as usurpers. The Supreme Court gave the following judgment: 1. ―As to whether the doctrine enunciated in the case of State v. Dosso was correct; 2. Even if correct, whether the doctrine applied to the facts and circumstances in which Field Martial Ayub Khan transferred power to Gen. Agha Muhammad Khan; 3. If the source of power assumed by Gen. Agha Muhammad Yahya Khan was illegal and unconstitutional, then whether all legislative and executive acts done by him including the imposition of Martial law and promulgation of the Martial Law Regulations and Orders were illegal.‖ 110 Chief Justice Hamoodur Rahaman then observed that in laying down a novel juristic principle of such far reaching importance, Chief justice Muhammad Munir proceeded on the basis of assumptions, namely, 1. ―That the basic doctrine of legal positivism, which he was accepting, were such firmly and universally accepted doctrines that the whole science of modern jurisprudence rested upon him; 2. That any abrupt political change not within the contemplation of the constitution, constitute a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it; and 3. That the rule of international law with regard to the recognition of state can determine the validity also of the state internal sovereignty.‖ According to the chief justice , the above assumptions were not justified as, according to him, Kilson‘s theory was by no means a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence. He therefore came to the conclusion that the learned chief Justice Muhammad Munir in Dosso‘s case not only misapplied the doctrine of Kelson but also fell into error in thinking that it was a generally accepted doctrine of modern jurisprudence. For the first time in its history, the Supreme Court refused to

110 (Dawood 1994, 29) 111

validate a coup d‘état, deciding that Yahya Khan had been a usurper of power and that his regime had been unconstitutional. This demonstration of judicial independence was, however, made after Yahya Khan‘s regime had collapsed, and as history demonstrates, the decision constitutes the exception rather than the rule.111 The second case was Hashmat Ali vs. Lt-col Muhammad Shafi Durrani etc. in that case , two sitting judges of the Lahore High court had called upon respondent Lt. Col Durrani to explain under what authority he had taken a particular action against a civilian. The notice of the high court so annoyed the commanding officer, General Mitha, that he ordered the said judges to show cause why they should not be proceeded for having committed contempt of martial law. But the crisis was averted on the intervention of the zonal martial law administrator who assured that Mitha would be dealt with departmentally. Since no action was taken against during the prevalence of Yahya Khan‘s Martial law, the High court took up the matter soon after Yahya Khan‘s ouster and held that Mitha had committed gross contempt of the High court by issuing the aforesaid notice to the high court judges. The general tendered an unconditional apology before the court. As he had seized to be a Martial law officer, he was sentenced to simple imprisonment till the rising of the court.112 In the third case, state vs. Zia-ur-Rehman, the question of the validity of the 1972 interim constitution was considered. Under the interim constitution, the national assembly, consisting of elected members of only West Pakistan was summoned and Zulfiqar Ali Bhutto was inducted as president. The Supreme Court held that the national assembly, as constituted, was a competent body to frame the constitution and that the constitution it framed would be a valid document. In short, the effect of judgments in the cases of Asma Jilani and Zia-ur-Rehman was to re-emphasize the power of judicial review and to widen its scope so as to include reversing the principle of stare decisis.113

Judiciary under the 1973 Constitution

111 (Ibid, 32) 112 (Hafiz Malik 2003, 67-72) 113 Ibid, p.68 112

Bhutto assumed the office of the president and chief Martial Law Administrator on 20 December 1971. He continued with martial law, generally described as civilian Martial law until 21st April 1972, when an interim constitution (1972) was enforced. In other words, the second martial law lasted from 25 March 1969 to 21st April 1972.114 Noorul Amin a Bengali was appointed the vice president as Bhutto had a plan to bring the two 115 th wings together. Bhutto moved over to Prime Ministership on 14 August 1973 when parliamentary system was introduced under the 1973 constitution. Fazal Ilahi Chaudhry elected as the president.116 The judicial system in Pakistan works under the rules and regulations laid down in the constitution of Pakistan. The constitution provides for the ―separation of judiciary from the executive and the independence of judiciary‖. It has its basic function protecting, preserving, defending and interpreting the constitution. The qualification, remuneration, mods of appointment, service conditions and pension etc. are clearly laid down in in the constitution and are charged on Federal/Provincial consolidated fund and thus can be discussed in the legislature but cannot be voted upon in the legislature.117 The supreme judicial council, consisting of senior judges of the Supreme Court and High Courts can recommend the appointment or removal of any senior judge on any legal grounds. Thus the constitution ensures the supremacy, freedom, independence and impartiality of the supreme judiciary. The Supreme Court and high courts have been given a degree of financial autonomy recently.118 Supreme Court of Pakistan is headed by the chief justice of Pakistan. It is the major court of Pakistan having original, appellate, suo moto and advisory jurisdiction. It is the court of last and final and ultimate appeal and its decisions are binding on all other High

114 (Askari 2000, 208) 115 Syed Shabir Hussain, Ayub, Bhutto and Zia, How they fell Victim to their Own Plans, (Lahore: Sang-e- Meel Publications, 2001), p.176 116 (Askari 2000, 208) 117 Dr.Faqir Hussain, The judicial system of Pakistan, (Islamabad: Supreme Court of Pakistan constitution Avenue, Islamabad, 2011), p.7 118 (Ibid, 8) 113

Courts, session courts etc. The president is responsible for the appointment of the judges in the supreme court under the rules and limitations laid down under the constitution. The number of the members of the Supreme Court is subject to the changes in the rules through the Acts of the parliament. The current number of the judges of the Supreme Court is 17 including a chief justice. A senior judge or advocate of High Courts can be appointed as the judges in the Supreme Court. The court exercises original jurisdiction in discussing the inter-governmental disputes and in the enforcement of fundamental rights. It also has appellate jurisdiction in civil and criminal matters. It has also the right of jurisdiction of ‗suo moto‘ jurisdiction under the situation, where there is a question of ―public importance‖. It also exercises advisory jurisdiction in giving opinion to the government on a question of law.119 The supreme court of Pakistan is the highest court in a judicial hierarchy in Pakistan. It has inclusive jurisdiction in some matters. It is the interpreter of all laws whether relating to the fundamental rights of citizens, questions arising among governments or any other matter.120 There is a high court in each of the four provinces, situated at their capital cities and headed by the chief justice of the high courts. The judges are appointed by the president with consultation with the chief justice of the Supreme Court, the Governor and the chief justice of the high Court, these courts have both original and appellate jurisdiction. The , situated at Islamabad, consists of eight Muslim judges and a chief justice of the court. The judges in the Federal Shariat court are appointed by the president of Pakistan. The court has both original and appellate jurisdiction. Its basic function is to determine whether any law is consistent or opposing District & Session Judge to the Islamic laws. The president can alter the term and conditions of the Federal Shariat [2] Addl District & Sessions Judge [3] court.121

Senior Civil 119(Ibid,11) 120 Syed Mujawar Hussain Shah, Theory and Practice, (Islamabad: National Judges institute of Pakistan studies, Quaid-e-Azam university Islamabad, 1994), p.91 121 The Struggle to Maintain an independent Judiciary: A Report on the Attempt to Remove the Chief 1st Class Justice of Pakistan, International Bar Association 10th Floor, 1 Stephen Street London W1T 1AT (United Civil Kingdom, July, 2007),pp,17-18 judges

114 2nd Class

Judicial [10] Magistrates

Qazi

[30]

In the judicial hierarchy in Pakistan, the next lower level to the Courts is subordinate courts. They are divided in two categories. Firstly the civil courts which are established under the West Pakistan civil courts ordinance 1962. These courts are further sub divided into four classes. District judge, Additional District Judge, Senior Civil Judge and Civil judges no I, II, and III. Secondly, criminal courts are established under the criminal procedure code 1898. These are further subdivided into three classes; session judge, Additional Session Judge and Additional Magistrate no I, II and III. The rules regulation, terms and conditions and mode of appointments are controlled by the provincial government, however these courts are administratively controlled by the High Courts of the relevant provinces. These courts have both original as well as appellate jurisdictions and powers. The decisions of these courts can be appealed in the High Courts and then in Supreme Court. These courts are regulated the provincial civil service acts/rules.122 The constitution of the state allows for some special courts. These special courts can be both for Federal government purposes as well as provincial Government purposes. There are so many courts which work under the supervision of Federal Government. These are special courts for control of narcotics, banking courts for recovery of loans, special courts for offences in banks, income tax appellate tribunal, environment appellate tribunal, insurance appellate tribunal, drug courts, antiterrorism courts and accountability courts, etc. There are also so many courts, which works under the control of provincial governments like labor courts, consumers‘ protection courts, anti-terrorism courts and anti-corruption courts. There are also certain revenue courts like board of revenue, the commissioner, the collector, the assistant collector of the first and second grade. The judges in the special courts are appointed on deputation from provincial and federal judicial cadre. The law prescribes the functions, jurisdictions and powers of such courts.123 The article 212 of the constitution authorizes the Federal as well as Provincial governments to establish administrative tribunals and courts for exercising exclusive

122 (Hussain 2011, 17) 123 (Ibid, 18) 115

jurisdiction in matters relating to the terms and conditions of service of civil servants. The members of these services courts are appointed by their respective government and the appeals against the decisions lies to the Supreme Court.124 The constitution of Pakistan has fully ensured the Supreme Court and its judges, a position of independence. Though the judges are appointed by the President, they can not be removed by him, except on report of Supreme Judicial Council, consisting of the highest judges of the country. Moreover the salaries and allowances of the judges can not be reduced during the time they are holding their offices. Their salaries are not vote able, for they are charged on the Central Consolidated Fund. All this ensures a position of Independence and impartiality to them. Unlike the American judiciary, has no power to declare a law of central legislature unconstitutional being ultra vires and therefore null and void. Its main function is to enforce the law, as it is made by the Majlis-e-Shoora and not to question of its validity. However, Supreme Court of Pakistan has power to protect the fundamental rights and to interpret the constitution, thus the Pakistani Judiciary is the custodian of fundamental rights of citizens and guardian of the constitution.125 In the new Constitution provision relating to the judiciary was on the same lines as those in the previous Constitution. ―However, an effort was made to regulate and confine the powers and jurisdiction of the superior courts. It was clearly stated that no court should have any jurisdiction except that which was conferred or would be conferred in future, on it by the Constitution or by or under any law. Thus the court could not assume unto themselves any jurisdiction or powers which were not expressly conferred on them by the Constitution or a law. This provision was clearly meant to whittle down the concept of inherent powers and jurisdiction of the superior courts. The Supreme Court continued to be the apex court in the land. The law which it would lay down was binding on all courts in Pakistan. All executive and judicial authorities throughout the country would act an aid of the Supreme Court and all direction, order, decrees or writs issued by that Court were

124 Ibid 125 (Sultan 1998,302-303) 116

to be executed as if they were issued by the High Courts of the appropriate province. The Supreme Court was entrusted with the task of interpreting the Constitution. It was specifically given the power to adjudicate in any dispute between any two or more ―Governments‖ which term included the federal government and the provincial government. The Supreme Court had appellate jurisdiction, both criminal as well as civil, over the judgment, decrees, final order and sentences passed by the High Court. The Supreme Could also hear an appeal from any judgment decree order or sentence of a High Court and grant of leave The Supreme Court also had advisory jurisdiction or any question of law that the President might consider of public importance and refer it to the Supreme Court . The Supreme Court was conferred with original jurisdiction to make orders on a question of public importance with reference to the enforcement of any fundamental rights.‖ The constitution of 1973 for the first time provided for administrative courts and tribunals two are set up for the civil servants in relation to the matter of their terms and condition including disciplinary matters. Appeals against the orders or judgment of such courts such courts or tribunals would lie directly to the Supreme Court and that also on grant of leave to appeal on substantial question of law of public importance.126

Zulfiqar Ali Bhutto and the Judiciary

Bhutto had introduced certain amendments regarding the judiciary. The third amendment empowered the government to detain a person without trail for three months and facilitated the constitution of proclamation of Emergency. The fourth amendment in 1975 curtailed the writ powers of the High Courts under Article 199 in respect of preventive detention and further restricted the systematically curtailed freedom of association. The Fifth Amendment in 1976 further reduced the writ powers of the High Courts. Also the tenure for the Chief Justice of the Supreme Court and High Courts was fixed four and five years respectively. This empowered the government to ease out the Chief Justices of

126(Khan 2009, 281) 117

Lahore High Court, Sardar Iqbal, and the Chief Justice of , Safder Shah, and appoint Aslam Riaz, who stood eight in the order of seniority, as the Chief Justice of the Lahore High Court. This amendment also empowered the executive to transfer a judge to any High Court up to a period of one year without his consent or consultation the Chief Justice concerned. It enabled the executive to appoint a High Court judge as a judge of Supreme Court and in case of his failure to accept such appointment he ‗shall be deemed to have retained from his office. This amendment also permitted the executive to appoint ‗any one of the judge ‗and not the senior to act as Chief Justice. This curtailed the independence of the judiciary. The six amendments in 1977 allowed the Chief justice of the Supreme Court and High Courts to hold the office for the tenure of five and four years respectively even if they had attained the retirement age of 65 and 62 prescribed for them. The beneficiary was the Chief Justice of the Supreme Court, Yaqub Ali Khan, who publicly lavished praise, ‗I can say from personal knowledge that the Prime Minister, by conviction has great respect for the judiciary from the lowest to the highest rung. Yaqub‘s certificate of appreciation to Bhutto did not enhance the image of judiciary. The Seventh Amendment was enacted after the people had risen in revolt against the Bhutto government as a result of the rigged elections held in 1977. It provided for a referendum to escape from re-election. It also prohibited the High Courts from exercising jurisdiction over people and property of an area where the armed forces had been brought in aid of civil power. These amendments weakened the fundamental rights of the people and compromised the independence of the judiciary.127 In 1973 there was a political dispute in Sanghar District that resulted in the arrest of some persons. On August 23, an FIR (first information report) was filed by an opposition leader. The government frustrated the process of law. On August 24, the District and session judge, Sanghar Muhammad Awais Murtaza was arrested. He was released on August 27 after a bail application had been filed on his behalf in the . The same day his telephone was disconnected and he was advised by the government to

127 General K. M. Arif, Khaki Shadows Pakistan 1947-1999, (Karachi: Oxford University Press, 2002), pp.281-82 118

leave Sanghar immediately for a couple of days in his own interest. The chief justice of the Sindh High Court, Tufail Ali Abdul Rahman, protested against the arrest of the district judge. In a letter addressed to Bhutto on September 4, 1973 he complained that he had been kept in the dark about the circumstances leading to the arrest and requested an interview. The prime Minister neither conceded to the request nor cared to respond to the letter. Instead, he marked it to the with the remarks, ‗for heaven sake, meet this old woman and kept him happy, otherwise dealt with him. You are duly…this attitude of ridicule towards a Chief Justice showed Bhutto‘s respect for judiciary.128 The Bhutto government enjoyed a comparable majority in the parliament to meet the legislative needs of the country. It had the legal and the moral responsibility to administer the country on democratic lines. Law-making by parliament is a democratic process. Instead, the Bhutto administration adopted the technique of the legislation by ordinance, at the average rate of one ordinance per week. It is conceded that the ordinances were also promulgated during the army years, but during those periods legislatures did not exist. Besides, it is futile to judge military rule by democratic standards-martial law is a negation of democracy.129 The constitution forbids any discussion in parliament with respect to the conduct of any judge of the Supreme Court or of a Hugh Court in the discharge of his duties. During the debate on the Fifth Amendment Bill, Bhutto declared in the National Assembly on September 4, 1974 that: ―The judiciary cannot become a parallel executive by who sale misapplication, misrepresentation and misinterpretation of the laws. This must be very clearly understood….and anyone who does not understand it does so at his own peril…. Each organ must remain in its sphere of influence, in its own orbit. It cannot transgress into the orbit of others. The judiciary cannot transgress into the executive function, into the executive organ….... It has been necessary to introduce this Fifth

128 (Ibid 2002, 285) 129 Ibid 119

Amendment as a result of the transgressing by the judiciary of its functions into the executive branch.‖ 130 The tone and tenor of Bhutto‘s language was insulting to the judiciary. Throughout Bhutto‘s five year rule, a state of emergency remained operative in the country and the fundamental rights of the people were suspended. Those critical of the government‘s arbitrary and harsh policies soon felt the coercive instruments of the state closing in on them. Bhutto demanded subservience and choose daring to differ with him were firmly fixed.131 In April 1976, soon after Zia ul Haq‘s appointment as army chief, the ISI prepared a position paper for Bhutto, recommending that he hold early elections and renew his mandate. Bhutto scheduled the election and was overthrown by the military following mass protest resulting from allegations of rigging the polls.132 ―Bhutto made a number of political mistakes, from interfering with civil liberties of opponents to isolating himself from his own supporters. His legitimacy as a civilian leader derived from his success in a general election, only electoral defeat or an election victory attained by questionable means could render Bhutto‘s political legitimacy questionable. The military could not topple Bhutto without delegitimizing his leadership position, which explains the ISI‘s eagerness to advise Bhutto on the holding of the elections.‖ 133 Although Bhutto had decided to hold elections in June 1976, when Rafi Raza was made his campaign manager, the announcement on 07 January 1977 concerning the holding of national and provincial polls was as unexpected for the public as Mrs. Gandhi‘s some eleven days later. Like his Indian neighbor Bhutto was surprised by the ability of the opposition to unite, the Pakistan National Alliance (PNA), founded on 11 January, comprised nine political parties embraces electioneering focused mainly on the grievances arising from inflation, government arbitrariness and unemployment,. The more positive aspects of its programmed were unconvincingly vague, as over the issue of

130 (Ibid, 287) 131 Ibid 132(Yousaf 1999,158) 133 Ibid 120

denationalization, although commitment, to Illumination was given.134 One crises faced by the regime arose out of the moment launched in 1976 for the declaration of the Ahmadies as a non Muslim minority. The moment which had a long history was animated by a powerful religious sentiment. As scheduled elections were held in which Z.A. Bhutto got overwhelming victory and captured 155 seats. But he was blamed for rigging in elections in a large scale. On the other hand due to the strong opposition of PNA law and order situation was so disturbed that the chief of the army staff Zia-ul-Haq imposed martial law on July 5, 1977.135

Third Martial Law

After the coup of 5 July a series of White Papers were issued listing Bhutto‘s misdeeds, which included the rigging of the election. The deposed Prime Minister‘s refutation of this charge, his counter-claim of army and ‗external‘ support for the PNA Campaign is set down a length in if I am assassinated. The reality seems to be that a certain PPP victory was inflated by malpractices committed by local officials, which may have affected 30-40 seats. According to the PPP election campaign manager and manifesto architect Rafi Raza who resigned as Production Minister after the polls, Bhutto was unprepared for the furor which accompanied the rigging episode and had not authorized it as some opponents alleged in order to secure the two-thirds majority necessary to bring in constitutional change.136 Nevertheless, it was not apparent at the time of the bloodless coup of 5 July, 1977 that Pakistan had entered a new era. The army commander-in-Chief- General Zia-ul-Haq, in his maiden national address delivered in Urdu, Promised fresh elections within ninety day, Bhutto and the PPP leaders as they played cards and discussed politics in the comforts of their Murree and Abbotabad captivity-could

134 Ibid, 135 Ibid 136 Ian Talbot, Pakistan, A Modern History, (London: Hurts and Co. 1999), p.241 121

confidently look forward to the wheel of political fortune once more turning n their direction. The PPP and PNA leaders were released after three weeks of detention.137 On 5 July 1977, no one could foresee that the martial law imposed by Genral Zia ul Haq Chief of army staff would mark the beginning of the longest period of military rule which the country had yet known. Although he gave the impression of a reluctant coup maker Gen Zia held on to power with a tenacity which belied his declaration about the limited purpose of his action. Disproving all prediction about his early fall authority he wielded from 1977 to 1985 absolute power as a chief martial law administrator (CMLA) and president.138 The military claimed that it was forced to intervene because Bhutto‘s talks with PNA were going nowhere and the country was on the brink of complete breakdown. The Islamic parties especially the Jamat-i-Islami, celebrated the take over by the new military ruler, General Zia ul Haq, by distributing sweets in the streets of major cities and outside mosques, Zia ul Haq declared: ―I want to make it absolutely clear that neither I have any political ambitions nor does the army want to be taken away from its profession of soldiering. My sole aim is to organize free and fair election, which would be held in October this year. Soon after the elections power will be transferred to the elected representatives of the people.‖ 139 Zia ul Haq postponed the elections, and one year included the PNA in his cabinet. He initiated the process of Islamizing the country‘s laws and institutions. 140 A semblance of continuity was maintained and Gen. Zia seemed to with caution. The constitution was not abrogated but placed in abeyance. The political parties were not yet banned. President Fazal Elahi choudary continued as a president. The chief justice of the high court in every province was made acting governor of that province. The law order issued on the day of proclamation of material law provided that notwithstanding the abeyance of the constitution the country should be governed as nearly as may be in accordance with the constitution subject to the laws order and any order made the

137( Ibid, 243) 138 (Yousaf 1999, 171-72) 139 Hussain Haqqani, Pakistan Between Mosque and Military, (Lahore: Vanguard Books, 2005), p.123 140 Ibid 122

president or any regulation issued by CMLA in pursuance of said order. The superior were permitted to function but with restricted powers. The emergency already in force was continued. No order of the martial law authority could be challenged before any tribunal or court. Fundamental rights were suspended. A number martial orders and regulations were promptly issued which prescribed numerous offences and provided for the trial and punishment of the offenders by the newly established military courts. The military cracked down on descent on protest and the brutal sentence of flogging often carried out in the public which shocked the nation's conscience, terrorized the people into submission.141 In his address to the nation 5th July Gen. Zia justified on the ground that ―saw no prospectus compromise between the people ad the PNA because of their mutual distrust and lack of faith. It was faired that the failure of PNA and Pakistan people‘s party to reach compromise would through the country into chaos and the country will be plunged into more serious crises‖ ―When leaders failed to rescue the country out of a crisis‖. He declared ―it is an excusable sign for the armed forces to sit silent spectators. It is primarily for this reason that the army had to intervene to save the country‖. He went on to give solemn assurance that his sole aim as to organize free and fair election which would held in October (1977).142 Gen. Zia-ul-Haq at first held out a promise to the people of Pakistan that he would hold elections to the National and Provincial Assemblies within 90 days of his take over and will soon hand over power to the party who received the majority of votes in the elections. However second thoughts, he postponed the elections and arrested Mr. Z.A. Bhutto and ten other leaders of the on September 17, 1977 indicated his intention of placing the detents before Military Courts or Tribunals for trial so as to enforce the principle of public accountability against them. The military operation for affecting his coup was code named ‗Operation Fairplay‘ to indicate that its purpose was to facilitate disengagement between warring political factions and ensure free

141 (Yousaf 1999, 174-75) 142 Ibid 123

elections.143 The Nusrat Bhutto Case Begum Nusrat Bhutto filed a Petition under Article 184 (3) of the 1973 Constitution before the Supreme Court, challenging die detention of Mr. Z.A. Bhutto and others. The Petition, was heard by-, nine learned Judges of the Supreme Court, presided over by the Chief Justice, Mr. Justice Anwarul Haq. In the said Petition reliance was mainly placed by the Advocate of Begum Nusrat Bhutto on the judgment of the Supreme Court on Asma Jilani's case), and contended before the Court that the Chief of Staff of the Pakistan Army (namely, Gen. Zia-ul-Haq) had no authority under the 1973 Constitution to impose Martial Law in the country. It was further con-tended by the counsel mat the imposition of Martial Law by Gen. Zia-ul-Haq amounted to an act of treason in terms of Article 6 of the Constitution. His further argument was that as a consequence the proclamation of martial Law on 5th of July, 1977, the Laws (Continuance in Force) Order, 1977, as well as Martial Law Order No. 12 under which the detenus had been arrested and detained were all without lawful authority. It was further contended by him that the Constitution of 1973 continues to be the supreme legal instrument of the country, especially because Gen. Zia- ul-Haq himself had declared that the said constitution was not being abrogated but only certain parts thereof were being held in abeyance for the time being so as to create a peaceful atmosphere in the country for the holding of elections and restoration of democratic institutions.144 Bhutto was rearrested in September 1977 on a charge of the murder of one of his political opponents, Ahmad Raza Kasuri. A discerning reader will see the similarity between the views expressed in Dosso's case and accepted by the Supreme Court at that time and the views (that were now being canvassed before the Su- preme Court in the petition filed by Begum Nusrat Bhutto. The learned Attorney General who appeared before the Court as the Law Officer submitted that the "change which took place on the 5th of July, 1977 did not amount to usurpation of State power by the Chief of the Army Staff but was in fact intended to oust the usurper who had illegally assumed

143 (Haqqani 2005, 254)

144 (Dawood 1994, 41) 124

power as a result of massive rigging of the elections of the 7th of March, 1977. He further contended that the present case was not governed by the dicta of the Supreme Court in the two well-known cases of Dosso and Asma Jilani because the circumstances in Begum Nusrat's case were radically different. According, to the learned Attorney General, in the cases of Dosso and Asma Jilani, the change brought about by military intervention was of a permanent nature, while in the present case the object of the Chief Martial Law Administrator was to remain in power only for a limited period so as to hold free and fair elections for the restoration of democratic institutions. According to the learned Attorney General, 'the circumstances which led to the imposition of Martial Law on the 5th of July, 1977, fully attracted the doctrine of State necessity) with the result that me action taken by the Chief Martial Law Administrator must be regarded as valid, and the Laws (Continuance in Force) Order, 1977 must be treated "as being a supra-constitutional instrument, now regulating the governance of the country. The learned Attorney General went to the- extent of saying that the doctrine of State necessity is also recognised by the Holy Quran He therefore contended that all actions taken by the Chief Martial Law Administrator "to meet the exigencies of the situation and to prepare "the country for future elections with a view to the restoration of democratic institutions must be accepted by the courts as valid and there-can be no question of condemnation, which concept can apply only in the case of the acts of a usurper."145 The Supreme Court was armed-twisted into giving him the death sentence, and the deposed prime minister was hanged by the army on April 4, 1979. The death of Bhutto was a signal of the public regarding the regime‘s zero tolerance.146 Mr. Justice Munir observes as the case of Nusrat Bhutto as follows: "When this doctrine was expounded it was ridiculed but now there should be no surprise if 22 years later the sonorous. Sound of Latin was heard in Court Room at Rawalpindi, 170 miles away from Lahore, and by different ears to provide two iron pillars to support a tottering society." I had treated the doctrine of State or civil necessity as a

145(Dawood 1994, 42) 146 (Siddiqa 2007,84) 125

common law rule applicable to all civilized. Governments, Therefore, prefixes or suffixes to the word 'constitutional' or 'legal', as for example, ex unconstitutional, supra-constitutional, constitutional deviation or m eta-legal, were unnecessary as they were all unauthorized by the Constitution and brought in the concept of revolution."147

From 1979 to 1983, both external and internal factors worked in his favour. The Soviet incursion into with great military might turned Pakistan into a so called frontline state against USSR. In the formulation of western political strategy in this region, Pakistan‘s geopolitical situation became for more important than its internal political crisis. The need was felt to either bestow legitimacy on the Zia regime or at least to postpone the whole issue to a convenient point in the future. This way, a major irritant for this regime in the form of incessant demands for the restoration of democracy put up by western parliaments was taken out of the way.148

Judiciary under Zia-ul-Haq Military Government

Working under the CMLA Order No. 1 of 1977, the country was administered by various martial law orders and regulations issued by the CMLA. Likewise, provincial martial law administrators had issued martial law orders and regulations within the jurisdiction of their respective provinces. The elections initially promised for October 1977 were postponed. Initially the military hierarchy was divided upon the issue as it adversely affected the credibility of the army. However, General Zia‘s judgment prevailed and a consensus was reached. On March 23, 1979, he rescheduled the elections for 17 November 1979. The announcement was made to dampen the impact of the impeding execution of Mr. Bhutto. Zia‘a image was seriously degraded when the elections were

147 (Ibid, 48-49) 148 Muhammad Waseem, Pakistan under Martial Law 1977-1985, (Lahore: Vanguard Books, 2002), p.4 126

indefinitely postponed on 16 October 1979. Having burnt his fingers twice, Zia became overtly cautious and declined to announce a fresh election schedule.149 A judicial dichotomy soon surfaced. The co-existence of the military courts and civil courts in the country started creating tension soon after the initial impact of martial law decline. The twice postponed elections schedule put the government on steep declivity. Bhutt‘s execution raised political dust even though the public reaction was milder than anticipated by the administration. Gradually, the courts started asserting their authority and making the operation of the military courts difficult. The power of judicial review was liberally exercised by them, which created administrative hurdles for the provincial governments.150 The political pressure started rising and the judges, an inexorable part of the national milieu, increasingly intervened in the military courts to redress the grievances of the oppressed. They granted stay orders liberally in respect of cases tried or under trail in the military courts. Such orders took a long time to vacate because, under the law, no time limit was prescribed for the courts to complete the process. The lacunae in the legal system were fully exploited. The concept of one government two systems was misused by the litigants. Those convicted by the military courts rushed to the High Courts to get stay orders to the chagrin of the administration. The administrator argued that the impact of martial law must be maintained through speedy trails and quick justice. Pakistan‘s legal system was slow and expensive even under normal conditions. An abnormal situation existed in the country that demanded firm and quick handling of the cases under trail in the military courts. The law and order requirement justified awarding quick, deterrent and inexpensive judgment to the delinquents to the country onto the rails of normalcy. The military courts felt they should be able to function without undue interference from the High Courts.151 The martial law administrators unanimously demanded that the jurisdiction of the judiciary from the operation of the military courts be ousted. Conversely, the judiciary

149 (Arif 2002, 285) 150 Ibid 151 Ibid 127

guarded its constitutional right to interpret all laws, notwithstanding the fact that the constitution itself was held in abeyance. In October 1979, the Law Minister was asked to evolve a mechanism to keep the functions of both the courts mutually exclusive within their respective jurisdictions. On the suggestions of , General Zia sought the advice of the Chief Justice of Pakistan, Justice Anwarul Haq. A meeting was held in Zia‘s house. The chief Justice and Justice Mualavi Mushtaq Hussain, after mutual discussion, suggested that an additional Article 212-A be incorporated into the constitution. Both the judges scrutinized the draft and further modified it before the Constitution (Second Amendment) Order, 1979 was issued on 18 October 1979. Article 212-A stated that no civil court, including a High Court shall grant an injunction, make any order, or entertain any prceedings in respect of any matter to which the jurisdiction military court extends. General Zia and Justice Anwar felt that the amendment would serve the purpose.152 Zia called for a renewal of the requirements of jihad (holy war) and said that his government had been instructed to explore Holy Scripture in the formation of the Nizam- i-Mustafa. Citing the need to adopt Islamic jurisprudence, he spoke of strengthening the social fabric through a process of ―Islamization‖. Zia cited the Islamic requirements of zakat (alms) and usher (the tax on agriculture) that traditionally provided the state with funds needed to assist those unable to provide adequately for themselves. Zia also described the operation of qisas (the right of pre emption) and diyat (the laws of evidence), as well as the official establishment of Qazi courts that were to be headed by religious judges. Zia called for the formation of an Islamic judicial system and a form of commercial and financial practices that conformed with the principles of Islamic jurisprudence. The intended Islamic reforms were supposed to root out corruption as well as prevent the exploitation of the weaker member of society. But they also impacted on the secular legal fraternity and undermined the preserve of the country‘s cosmopolitan elite.153 In May, 1980, the federal shariat court was constituted. Its function was to review

152 (Arif 2002, 300) 153 (Ziring 2007, 171-72) 128

its own verdicts and appeals against their order lie in the shariat bench of the supreme court of Pakistan.154 Hudood Ordinance

The offences against property (enforcement of Hudood) ordinance, 1979 deals with theft liable to hadd as also with Haraabah (a kind of dacoit). The said law provided that if the offence of theft liable to hadd is proved behind doubt and to the satisfaction of the trail court the right hand of the offender may be amputated for the first offence while his left foot may be amputated for second such offence and imprisonment for life may be awarded if he commits the offence for the third time.155 The offence of zina ordinance deals with zina and offences connected therewith. Islam deprecates the offence of zina i.e. rape and holds both the man and women guilty for the same unless such an offence is committed by a man forcibly and against the intension and will of the woman. The commission of the offence of zina by a married person is regarded more heinous and as such carries greater punishment. The punishment provided for this offence can be stoning to death or one hundred stripes and such other punishment including the sentence of death as the court may deem fit to award.156 The offence of Qazaf (false allegation) ordinance, 1979 mostly relates to false imputation of zina(rape or adultery). This offence was punishable with eighty stripes if the offence is proved. The proof of this case is also required to be as strong as in the case of theft liable to hadd.157 The prohibition order 1979 completely prohibits the Muslim from taking any sort of intoxicant including liquor as it is forbidden by the Holy Quran. The punishment of drinking liable to hadd was whipping numbering eighty stripes.158

Provisional Constitutional Order 1981

154 Dr. Afzal Iqbal, Islamization of Pakistan, (Lahore: Vanguard Books, 1986),p.112 155(Ibid,113) 156 (Ibid,114) 157 (Ibid, 115) 158 (Ibid, 116) 129

In March 1981, the martial law government introduced the Provisional Constitutional Order (PCO) which replaced what was left of the 1973 constitution. It provided for a setting up a nominated Federal Council as an advisory body. The PCO provided that the political parties that had registered with the Election Commission by 30 September 1979, could function where the president granted them permission to engage in political activities. Unregistered parties stood dissolved and their properties were to be forfeited to the Federal Government. No political party could be formed without prior permission of the Chief Election Commissioner. The President could dissolve a political party in consultation with the Chief Election Commissioner if he was convinced that a party was formed or was operating in a manner prejudicial to the Islamic Ideology or the sovereignty, integrity, or security of Pakistan.159 The PCO validated all Presidential orders, orders of the CMLA, martial law regulations, martial law orders, and all laws made on or after July 5, 1977, notwithstanding any judgment of any court, to have been validly made and shall not be called in question in any court on any ground whatsoever. The judges of the High Courts and the Supreme Court were required to take oath under the PCO. Many judges, including Chief Justice Anwarul Hawq, refused to take oath. Consequently they lost their jobs.160 A situation was faced by Zia when he was confronted with a strong agitation in the province of Sind under the banner of the Movement for Restoration of Democracy (MRD).161 MRD announced launching a movement from 14 August, 1983. This presented a signal for a change in the status quo. President Zia‘s regime was never to be the same again. He recognized the new potential of the MRD and sought to undercut it by announcing an election formula. According to this, elections would be held before March 1985 and constitutional amendments would be announced some time before that to cover these election.162

159 (Mahmood 1999, 92-93) 160 Ibid 161 Mushahid Hussain and Akmal Hussain, Pakistan Problem of Governance, (Lahore: Vanguard Books, 1993),p.43 162 (Waseem 2002, 6) 130

In December 1984, General Zia ul Haq suddenly announced the holding of a referendum which, in his view, would be an ingenious way of linking his political legitimacy with Islam. People were asked to respond either in the affirmative or the negative to a single, simple question on whether they wanted an ―Islamic system‖.163 According to the election result of the so called referendum, the percentage of the ‗yes‘ votes was 97.7 of the total polled votes. Thus Zia was elected as the president of Pakistan for the next five years.164 He then announced general elections on party-less basis. Consequently the National and Provincial Assembly elections on 25th and 28th February 1985 returned a mixed bag, mostly members of established feudal families. A few also belonged to the industrial commercial elite, while a handful came from religious groups. Mr. a nominee of the president became the prime minister.165

The Eighth Amendment

On 2 March 1985, a couple of days after the elections, President Zia introduced many amendments in the 1973 constitution. These amendments gave overriding powers to the president by diluting the original character of the 1973 constitution. It was followed by the Revival of the Constitution Order, according to which the amended constitution was enforced from 10 March 1985. Over sixty amendments in the constitution retained the parliamentary system but the president was given enormous powers to command the system. The position of the prime minister was weakened. The president was given power to nominate the prime minister, to appoint the provincial governors, services chiefs, judges of the Supreme Court and high courts.166 There was a provision for banning political parties also. Unregistered parties were not allowed to contest election.

163 (Mushahid Hussain 1993, 43) 164 (Iqbal 1986,125) 165 (Waseem 2002, 31) 166 (Mahmood 1999, 374-75) 131

Martial law was withdrawn on December 30, 1985 and the constitution was fully restored. 167 The eighth amendment was a piece of ―constitution engineering‖ to provide a bridge for transition from military rule to democracy and to entrench Gen. Zia and a dominant position in the post martial law constitutional arrangement.168 Under the amended 1973 constitution the president could act in his discretion in certain matters. The discretionary power included the power to dissolve the national assembly in the certain situations. In the actual conduct of the business of government, however, the prime minister had a free hand as the chief executive under the constitutions. the president could exercise has influence only indirectly, notably by the virtue of his holding the powerful position of supreme commander of the armed forces and the power to appoint in discretion the chief of army staff . in the subtle understanding of the sharing of power which accompanied the transition from the military to the civilian rue it was assume that military would have a decisive say and the domains of defence and the foreign policy. Consciously are under the impulse of events Junejo moved in a direction which was considered by the military as a transgression of this understanding, leading to the rift.169 On 29 May 1988, the government of Prime Minister Muhammad khan Junejo was dismissed by Zia –ul- Haq while exercising his presidential power under Article 28(2) (b) of the constitution. About two and a half months later on 17 August 1988 Zia-ul- Haq was killed in a plane crash, near Bahawalpur. The dismissal of the government of Muhammad Khan Junejo and dissolution of the national assembly by Zia- ul- Haq were challenged by Haji Saifullah Khan before the Lahore High Court. The high court set aside that order holding that the ground on which the impugned order was passed by the president was vague, general and non-existent. However, it did not grant relief of the restoration of the Assembly. The matter came up in appeal before the Supreme Court which upheld the judgment of the Lahore high court. It ruled that the impugned order did not fulfill the requirements of Article 58 (2) (b), therefore it was illegal and

167 (Ibid, 377) 168 (Yousaf 1999, 208) 169 (Ibid. 212) 132

unconstitutional. But, like the high court relief was declined because general elections held already been announced in and were being held on 16 November 1988.170 General Zia‘s sudden death in plane crash on 17 August 1988 changed the picture. Immediately following the crash, which claimed the lives of the American ambassador and 29 senior Pakistani military officials, General Aslam Beg took over as the chief of the army staff. Ghulam Ishaq Khan the then chairman of the senate took the office of the president. He announced the formation of emergency council. It oversaw the elections on 16 November, 1988 as announced by General Zia. Elections were held on party basis. the main contest occurred between the PPP, led by and the Islami Jamhori Ittehad, led by Mian Nawaz Sharif. The result of the 1988 elections, however, favored the PPP, while unable to win a clear majority, the PPP succeeded in securing 92 of 205 contested seats in the parliament. The IJI, on the other hand, won 54 seats, emerging as the second largest political group in the Assembly.171 Judiciary from 1988-1999 The superior courts managed to assert themselves once again when martial law was lifted. They straightened out some of the problems created by the drastic amendments of the existing provisions of law. The first important case in this connection was federation of the Pakistan vs. Malik , in which the supreme court ruled that immunity granted under article 270-A to order passed by the military courts would not be available when there had been a mollify exercise of power or orders had been passed without jurisdiction, or in violation of specific constitutional provisions. The second case was Ms. Benazir Bhutto vs. federation of Pakistan, in which amendments made in the political parties Act 1962 were challenged as violation of the fundamental rights granted under the constitution. The petition was accepted and the objectionable amendments of the political parties Act 1962 were struck down by the Supreme Court. The third case was also brought by Ms. Benazir Bhutto against the federation of Pakistan. In that case

170 (Hafiz Malik 2003,71-72)

171 Viberto Selochan, The Military the State and Development in Asia and the Pacific, (United Kingdom: Westview, 1991),pp.170-71 133

amendments made in the representation of the people Act, 1976 were challenged whereby restrictions were imposed on the allocation of a common election symbol to candidate of a political party. This petition was also accepted by the Supreme Court holding the amendments as violation of the fundamental right of political association.172 Benazir as the first women prime minister was unique in the political history of Pakistan. She could have developed a genuine federal structure in the country which built upon the strength that diversity properly handled, can provide. A blunder was committed by the PPP government was the dissolution of the Baluchistan Assembly just after three weeks of its installation. General Musa, Governor of Baluchistan, dissolved the Assembly on the advice of Chief Minister, Jamali. The opposition criticized the dissolution by calling the act of chief minister as illegal as he had not yet taken the vote of confidence from the National Assembly, Prime Minister Benazir Bhutto said that General Musa dissolved the Assembly without consulting her; however, she assured the House that there would be no interference by the federal government in provincial affairs. She also said that the dissolution was constitutional. The Prime Minister said that an executive order restoring the Baluchistan Assembly would at once be challenged in the court on constitutional grounds as no provision of our constitution empowers the executive to revive a dissolved Assembly. She also said that a wrong cannot be made right by committing another wrong. In Baluchistan neutral was installed by December 22, 1988. However the High Court declared the act of Chief Minister unconstitutional. Nawab Akbar Khan Bhugti became the new chief minister of Baluchistan.173 The second issue which attracted public notice and exposed the growing friction between the both concerned the appointment of judges of the superior courts. It arose indirectly. During the period between 17th August, 1988 and 1st December, 1988, the acting president, Ghulam Ishaq Khan, had appointed eleven judges of the Lahore High Court. There was no caretaker Prime Minister during this period. The validity of the

172 (Hafiz Malik 2003,71-72)

173 The DailyPakistan Times, (Islamabad) December 16, 1988. 134

appointments of the judges was challenged by M.D. Tahir, an advocate, by means of a writ petition filed in the Lahore High Court mainly on the ground that the appointments had been made without the advice of the prime minster. The High Court upheld the validity of the appointments.174 The PPP government tried to repeal the 8th Amendment, large number of press statements were issued in this regard from time to time. Federal interior minister said that 8th Amendment would be annulated after the mutual consultation with the opposition in the parliament but unfortunately PPP could not get the required parliamentary support because the opposition kept opposing the question. And finally PPP fell prey to the political weapon gifted to the President by the military regime of Zia in the form of 8th Amendment.175 Her failures led to the development of serious rift between her and the Islamabad establishment. With his patience exhausted, the President dismissed her in August 1990 under the provisions of Article 58 (2) (b) of the constitution that had been inserted by President Zia ul-Haq as a part of eight amendments.176 The formal transfer of power to Benazir Bhutto ushered Pakistan‘s politics into another era. The military began claiming that it had transferred power to political leaders177 Following the dissolution of the national assembly and the dismissal of Benazir Bhutto‘s government by the president; a caretaker government headed by Prime Minister took office; charged with the responsibility of holding general elections. General elections were held on the 24 October 1990, in which Nawaz Sharif became the new Prime Minister under the banner of political alliance IJI (Islami Jamhoori Ittehad).178 The new national assembly opened its doors on November 3, 1990. The prime minister declared his government would embrace all who shared the IJI philosophy and wished to

174 (Mahmood 1999, 175)

175 Ikram, Rabbani, An Advance Study in Pakistan Affairs, (Lahore: Carvan Publisher, 2005), p.270 176 , A Revisionist History of Pakistan, (Lahore: Vanguarg Publishers, 1988), pp.89-90 177 (Viberto1991, 172) 178 (Yousaf 1999, 234-35) 135

work toward reconciliation and the national renewal.179 The Nawaz formula for democratic and economic development receives a positive and collective response that was unique in the history of Pakistan. Self reliance sharing was given greater emphasis. The government declared its intention to end the country dependence.180 The twelfth amendment to the constitution approved in summer of 1991 called for summary justice and speedy trail of those found in violation of the law. Serious efforts were launched to combat the disorder. But the violence, however continued.181 According to the new Amendment Article 212B was inserted in the constitution.182 Article 212 (b) was created for the establishment of special courts for trials of heinous offenses.183 The IJI performance in the first two years was better than any previous political government in Pakistan. But despite the fact that IJI enjoyed majority in the house and economy was set on the path of recovery, the president dismissed the government in April, 1993, exercising his discretionary powers.184 Mr. Nawaz Sharif the ousted prime minister however, approached the supreme court of Pakistan directly on 26 of April 1993, and filed a petition under Article 184(3) of the constitution with a prayer that the order of the dissolution of the national assembly and that the dismissal of the prime minister and his cabinet be declared as illegal and without any legal authority. The Supreme Court took the immediate notice of the petition and after giving enough time to the other side for filing their objections and after hearing the advocates of the petitioner and the Attorney General and the advocate of the caretaker prime minister for full sixteen days passed a short order. The Government and National Assembly were reinstated. The decision sent shock waves through the political establishment.185

179 (Ziring 2007, 218-19) 180 Ibid 181 (Ibid, 221) 182 This new Article says: ―In order to ensure speedy trail of the cases of person accused of such of the heinous offenses specified by law are referred to them by the Federal Government, or an authority or person authorized to it. In view of their being gruesome, brutal and sensational in character or shocking the public mortality, the Federal Government may constitute as many laws for special cases as it may consider necessary.‖ 183 Rasual Bakhs Rais, Pakistan in 1995, Lahore, 1995, p. 130. 184 (Mahmood 1999, 393) 185 (Dawood 1994, 123-24) 136

The order of revival of the national assembly and the reinstanment of Nawaz Sharif government was rendered ineffective when on 18th July 1993; the prime minister was constrained to resign and to advise the president to dissolve the national assembly under article 58 of the constitution. The president promptly acted upon the said advice, but in the process he was also obliged to resign, which he did on the following day on 19th July 1993.thus ended one bitterer chapter in the political and judicial history of Pakistan. A care taker government under Mr. Moeen Qureshi was installed.186 Yet another election was held in October 1993 and resulted in Benazir Bhutto coming back to Islamabad as prime minister.187 Benazir government‘s relations with the judiciary also deteriorated. She criticized the Supreme Court for restoring the National Assembly and Nawaz Sharif‘s Government while her government was not resorted although it had been dismissed on similar grounds. Soon after, she appointed a junior judge, Justice Sayyed Sajjad Ali Shah, as the Chief Justice of the Supreme Court. Justice Shah was the only dissenting Judge when the Supreme Court had ruled in favour of Nawaz contention. The appointment of twenty additional judges to the Lahore High Court in 1994, which included some PPP activists, became the subject of public debate and criticism. Another cause of conflict was the Supreme Court rulings for the separation of judiciary from the executive by 23 March 1994. The PPP Government allegedly pressurise the Chief Justice and his family members to get this decision amended. This gloomy situation coincided with a damaging stand-off between the Government and the judiciary. On 20 March 1996 the Supreme Court upheld the challenge mounted by the Rawalpindi lawyer Habib Wahabul Khairi to the PPP‘s legal appointments, in particular the appointment to the Lahore High Court of three female judges who lacked the required ten year‘s High Court Experience and who, in violation of the Constitution, had been recommended by the Government rather than the Lahore Chief Justice. Further controversy arose from the Government‘s appointment of Justices Muhammad Ilyas, Muhammad Munir and Hazar Khan Khoso as additional

186(Ibid, 148) 187 (Burki 1988, 91-92) 137

judges of the Supreme Court. The Supreme Court has agreed to hear Khairi‘s petition challenging the appointments and transfers of judges by the Benazir Government on 5th November 1992 a year to the day before Benazir‘s eventual dismissal. The ensuing attempts to pressurize the Supreme Court Chief Justice Sajjad Ali Shah through the intimidation of his son-in-law Pervaiz Shah caused immense damage to the Benazir administrations image.188 Benazir Bhutto‘s government was apprehensive of the new found assertiveness of the judiciary. Therefore, she embarked on a course to make the judiciary subservient to the executive. Numerous devices were adopted in order to tame and emasculate the judiciary. The constitutional amendments made by Zia-ul-Haq, in respect of the appointments, tenure and terms of service of the judges, were used by Ms. Benazir Bhutto to her own advantage. The superior courts were packed through temporary, additional, adhoc appointments. The length of the tenure of these judges dependent on the pleasure of the executive. In disregard of the principle of seniority, hand packed. Acting chief justices were appointed in the Punjab and Sindh high courts that blindly followed the direction of the executive and appointed judges who were favourits of the executive. Many of them did not even meet the constitutional requirements for elevation to the High court. Habib Wahab Al Khairi filed a writ petition before the Lahore high Court challenging the appointment of the new judges in which among others, twenty additional judges of the Lahore High court appointed by Benazir Bhutto‘s government, were arrayed as respondents. The petition was dismissed by the High Court. But on appeal of full bench of Supreme Court, presided over by chief justice Sajjad Ali Shah passed a historic judgment in March 1996 setting aside all these appointments.189 The new government at the federal level, headed by Nawaz Sharif, was installed in February 1997. The Muslim league also formed coalition governments in the all the four

188 Kalim Bahadar, Democracy in Pakistan Crisis and Conflicts, (New Delhi: 1998), p. 160 189 (Hafiz Malik 2003, 73-74) 138

provinces. The federal faced tremendous difficulties in managing its relations with the MQM which refused to disassociate with itself from its terrorist elements.190 Nawaz Sharif in his second term made two fundamental changes in constitution in the post Zia political system. It introduced two significant amendments (thirteenth and fourteenth) in the constitution. The thirteen amendments restored the parliamentary character of the constitution by limiting the powers of the president to that of a nominal head of the state. His power to dissolve the National Assembly at his discretion was done away with, and the role of the prime minister was increased for some key appointments like the services chiefs. The fourteen amendments related to the problem of floor crossing, which had been the main source of political instability in the past. Under the amendment, the party leader could unseat its party members to the assemblies on grounds of changing the party or for violation of the party directive or for engaging in any activity that went against the interest of the party. These changes shifted the balance of power in the favor of the prime minister.191 It is unfortunate that during the year of golden jubilee celebrations (1947-97) Pakistan witnessed another constitutional crisis in the form confrontation between Sajad Ali Shah chief justice of the supreme court of Pakistan, and Muhammad Nawaz Sharaif, the prime minister of Pakistan. The confrontation brought home the fact that judicial activism without judicial restrain can be self destructive. While laying down the principles of appointments of the judges of the superior courts in the famous judges case, sajjad Ali Shah, chief justice did not apply the ‗legitimate expectancy‘ principles in his own case as he had superseded three of his colleagues on his appointment as chief justice by the ex- prime minister Benazir Bhutto. As a result, his fellow judges remained alienated from him and he could never really succeed in carrying them along with him. The dispute between the chief justice and prime minister initially started when the view point of the chief justice on the functioning of the newly created speedy trail courts was rejected by the prime minister. Thereafter the chief justice asked for the elevation instead

190 (Mehmood 1999, 399) 191 (Ibid, 400-401) 139

of conceding the demand, the prime minister flirted with the idea of reducing the number of judges of the Supreme Court by making an appropriate amendment in the constitution. However, this did not happen and the requisition of the chief justice was accepted after some delay. The chief justice particularly attempted to suspend the operation of the amendment whereby article 58(2) (b) had been struck down. The objective behind this was to restore the presidential powers to dismiss the prime minister and to dissolve the national assembly. Thus under the garb of judicial activism Sajad Ali shah politicized the judiciary. Most of the people were of the opinion that the chief justice and President Farooq Laghari were together conspiring against the prime minister and his government. In this connection a parliamentary meeting was called to that the president should be impeached. As a consequence the president tendered his resignation. A fight ensued among the judges of the Supreme Court and eventually, the appointment of the chief justice was held as illegally a large bench of the Supreme Court and soon after, he retired as an ordinary judge of the Supreme Court. 192 These months were marked by the protracted and dramatic confrontation between Nawaz and the judiciary, culminating in the removal of the Chief Justice of the Supreme Court, Justice Sajjad Ali Shah, and the resignation of President Laghari, Nawaz presented this as a victory for parliamentary sovereignty. His position appeared to be further strengthened when Rafiq Tarar, an associate of his father the increasingly influential Nawaz, was elected to the Presidency on New Year‘s Eve 1998.193 The prime minister choice for a new army COAS was general Pervez Mussarraf a general in the lower tier of commanding officers, but most important , an officer Nawaz believed he could successfully manage. Sworn in on October 7, 1998, Musharaf has been selected by Nawaz inner circle. Sharif believed that the general as the son of an Indian refugee an Urdu member of the Karachi Mohajir community, would be more pliable then a Punjabi or Pashtun. Moreover Sharif was confident Musharraf would be too focused on managing the generals in his command to middle in civilian politics. Unlike Karamat, therefore,

192 (Hafiz Malik 2003, 75-76) 193 (Talbot 1999, 362) 140

Musharraf was expected to ally himself with the Muslim league administration.194 The Prime Minister Mian Muhammad Nawaz Sharif was moving fast in his style of government by bringing speedy changes in the body politic of the country and he had more amendments in his bag to be made in the constitution. But unfortunately for him, the haste in consolidating his power base to unprecedented heights landed him in prison when he made an attempt to dislodge the joint chief of the Army Staff Committee and commander in chief of the Army, General Pervez Musharraf and further getting involved in disallowing flight of PIA carrying him to land in the country. Thus the life of General and other 200 passengers was in the shadow of death.195 The fateful day was 12 October, 1999, when the PIA flight was arranged by the armed forces to land safely at Karachi Airport. Having landed safely, General Musharraf immediately established a military government by deposing Prime Minister Nawaz Sharif.196

194 (Ziring 2007, 251) 195 K.M.Kashif, Pakistan Almanac 2005-2006 Essential Dates on Pakistan, (Karachi: Royal Book Company, 2006), p.58 196 Ibid 141

Chapter No 4

Military Take Over of 1999 and it’s Legitimacy

Nawaz Sharrif, on the morning of 12 October 1999, finally decided that his army chief would have to go like many Pakistani leaders before him. It was a very difficult task. The key posts of his administration were filled by his relatives and business partners. The chief of army staff, General Pervez Musharraf, did not fit in.1 Owen Bennett Jones narrated: ―Sharif had appointed General Musharraf in October 1998 and quickly came to regret the decision. He regarded his army chief with distaste. The origin of the antagonism, which was mutual, lay in the snow-clad, Himalaya peaks of Kashmir. In the spring of 1999, Musharraf gave the final order for Pakistani troops to cross the line of control that separates the Indian and Pakistani armies in Kashmir. The soldiers, posing as divinely-inspired Islamic militants, clambered up the snowy passes that led to one of Kashmir‘s most strategic location; the dusty, run-down town of . Having caught the Indians off guard, the Pakistani troops made significant territorial gains. Tactically, the operation was a success. Politically it was a disaster. As Indian cried foul, Sharif found himself in the midst of a major international crisis. And while General Musharraf had sent the troops send in, Prime Minister Sharif was left with the unenviable task of getting them out. For three decades the Pakistani people had absorbed a steady flow of vitriolic propaganda about the Kashmir issue; Sharif decision to withdraw seemed incomprehensible and humiliating. As the man who had defied world opinion and tested Pakistan‘s nuclear bomb, Sharif had been acclaimed as a national hero. As the man who pulled out from Kargil, he was denounced as a supine coward. Sharif‘s sense of resentment was acute. General Musharraf, he complained, had marched his men to the top of the hill without considering how he would get them down again.‖ 2 The generals, though, were also unhappy. By deciding to full out of Kargil without negotiating any Indian concessions in return, they argued, Sharif had squander a military

1 Owen Bennett Jones, Pakistan eye of the storm, (Lahore: Vanguard Books, 2002), p. 34 2 Ibid 143

advantageous position and caused a crisis of confidence within the Pakistan army. After the Kargil withdrawal Musharraf faced a surge of discontent within the army. As he toured a series of garrisons he repeatedly faced the same question; if Kargil was a victory then why did we pull back? Musharraf told his men that it was the Prime Minister‘s fault and that the army had had no choice but to obey his order. It was a disingenuous response. Musharraf had fully consulted on the withdrawal order and raised no serious objection to it. Sharif was never in any doubt that removing Musharraf would be a high risk exercise.3 Nawaz Sharif, within a month or so, was moved against Musharraf while he was out of the country in Sri Lanka on an official trip. Musharraf was due to arrive back on 12 October, 1999. His flight was delayed, but when they came close to Pakistan, the Captain of the aircraft was informed that they could not enter Pakistani airspace and needed to go to a neighboring country, with the exception of Dubai. Short of fuel the plane was diverted to Nawab Shah.4 Meanwhile, the corps commander of Karachi, Lt. General Muzaffar Usmani, moved his troops and dislodged pro-Sharif police and civilian authorities from the airport, and Musharraf aircraft landed safely. By the time Musharraf reached the Karachi Corps headquarter, his commanders were in control of Islamabad.5 Musharraf had started planning a coup detat and, as part of that plan, had appointed some of his closes friends in the army as commanders in positions critical during a coup. On October 12, the coup was executed as soon as Sharif tried to fire Musharraf and replace him as army chief with the head of ISI, Lieutenant General Ziauddin while Musharraf was out of the country. Official accounts, however, projected the coup as the military spontaneous reaction to Musharraf‘s ouster.6 According to the official account, Sharif‘s firing of Musharraf resulted in an institutional decision by the army to depose him. Later Sharif was put on trail for trying to ―hijack‖ the plane on which Musharraf was traveling back from a trip to Sri Lanka. In other words, the

3 (Ibid, 35) 4 Shuja Nawaz, Crossed Swords Pakistan its Army, the Wars Within, (Karachi: Oxford University Press, 2008), p.526 5 Hassan Askari Rizvi, Military, State and Society in Pakistan, (Lahore: Sang-e-Meel Publications, 2003),p.xv 6 Hussain Haqqani, Pakistan between Mosque and Military, (Lahore: Vanguard Books, 2005), p. 254 144

army had seized power only after being provoked to do so by Sharif‘s decision to replace Musharraf.7 At 10.15 p.m. PTV (Pakistan Television) came back on air to announce the dismissal of Nawaz Sharif‘s government. Thousand of people, supporting the army action, had gathered outside the TV building. General Musharraf shortly addressed the nation on PTV shortly. He said; ― I was in Sri Lanka on an official visit. On my way back the PIA commercial flight was not allowed to land at Karachi but was ordered to be diverted to anywhere outside Pakistan. Despite acute shortage of fuel, imperiling the lives of all the passengers, thanks are to Allah, this evil designed was thwarted through speedy army action. My dear countrymen, having briefly explained the background, I wish to inform you that the armed forces have moved in as a last resort to prevent any further destabilization.‖ 8

Another period of military rule had begun.9 Musharraf was in the search of political leaders for his legitimacy. He had not a grand vision for the future but brought constitutional arrangement to insure check and balances among key institutions and officials as well as create an institutional framework for military‘s formal participation in decision making.10 General Musharraf was born in New Delhi (British India) in August 1943 to a middle-class and well-educated family. His father, Sayed Musharrafuddin, was a graduate of Aligarh University, worked in the Directorate General of Civil Supplies in Delhi. The family migrated to Pakistan during the turbulent partition of the Indian Sub-Continent in 1947. He joined Pakistan Army as a young cadet in 1961 and was commissioned as an officer in 1964. As a junior officer, he participated in the two wars Pakistan had with India in 1965 and 1971. He remained director general of military operations (DGMO) in the early 1990s before a lieutenant general in 1995.11 In October 1998, as new army chief, he was appointed by the then Prime Minister Nawaz Sharif. Lieutenant-General Pervez Musharraf replaced

7 Ibid 8 (Jones 2002, 55) 9 Ibid 10 (Rizvi 2003, xix) 11 Hassan Abbas, Pakistan’s Drift into Extremism, Allah the army and America’s War on Terror, (New Delhi: Pentagon Press, 2005), pp.178-89 145

General Karamat as COAS (Chief of the Army Staff). On October 12, 1999, Sharif appointed his relative, the ISI chief, Lieutenant General Khawaja Ziauddin Butt to the post of the COAS, and dismissed General Pervez Musharraf in a surreptitious move.12 General Musharraf, Instead of Martial Law, issued a notification on October 14, 1999 and proclaimed emergency. It kept in abeyance the constitution of the Islamic Republic of Pakistan. The Senate, the National Assembly and Provincial Assemblies were suspended including their Speakers and Deputy Speakers. The Prime Minister, Federal Ministers, Federal Ministers of State, parliamentary Secretaries, the Provincial Governors, Chief Ministers, Provincial Ministers and parliamentary Secretaries including advisors to the Chief Ministers ceased to hold their offices. Only President Rafiq Tarar remained unaffected. For filling the constitutional gap, military dictators suspended the constitution and issued PCO- Provisional constitutional Order. For filling the gap of Prime Minister, General Musharraf adopted the designation of Chief Executive.13 Provisional Constitutional Order In pursuance of Proclamation of the 14th days of October, 1999, and in exercise of all powers enabling him in that behalf, the Chairman Joint Chiefs of Staff committee and Chief of Army staff and Chief Executive of the Islamic republic of Pakistan under the proclamation of Emergency of 14th day of October 1999, is pleased to make and promulgate the following Order. 1. ―This Order may be called Provisional Constitutional Order No. 1, 1999. 2. It extends to the whole of Pakistan. 3. It shall come into force at once. 4. Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan hereinafter referred to as Constitution, Pakistan shall, subject to this Order and any orders made by the Chief Executive, be governed, as nearly as may be in accordance with Chief Executive, be governed, as nearly as may be in accordance with the Constitution.

12 (Ibid, 180) 13 Dawn, (Karachi) October 15, 1999. 146

5. Subject as aforesaid, all courts in existence immediately before the commencement of this Order, shall continue function and to exercise their respective powers and jurisdiction provided that the Supreme Court or High courts and any other court shall not have the powers to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority; 6. Fundamental Rights conferred by Chapter 1 of Part II of the constitution, not in conflict with the Proclamation of emergency or any Order made there under from time to time, shall continue to be in force. 7. The President shall act on, and in accordance with the advice of the Chief Executive. 8. The Governor of the province shall act on, and in accordance with the advice of the Chief Executive 9. No court, tribunal or other authority shall call or permit to be called in question the proclamation of emergency of October 1999 10. No judgment, decree, writ order or process whatsoever shall be made or issued by any court or tribunal against the Chief Executive or any authority designated by him.‖ 14 Seven Point Agenda On October 17, 1999, in his policy address to the nation, after assuming powers of Chief Executive, General Pervez Musharraf identified his preferences,. His agenda contains seven points i.e.: 1. ―Rebuild national confidence and morale. 2. Strengthen federation remove inter provincial disharmony and restore national cohesion. 3. Revive economy and restore investor confidence. 4. Ensure law and order and dispense speedy justice. 5. Depoliticize state institutions. 6. Devolution of power to the grass roots level. 7. Ensure swift and across accountability.‖ 15

14 Text of the Provisional Constitutional Order 1999 also see The Daily Frontier Post (Peshawar), October 18, 1999. 15 Shahbaz Chaudhry, The Man of Crisis, (Lahore: Ilm-o-Irfan publication, 2010), p. 36 147

General Pervez Musharraf, on October 17, 1999, clarified the position of military take-over in his national address. He said ―This is not martial law, only another path towards democracy. The armed forces have no intention to remain in charge any longer than is absolutely necessary to pave the way for true democracy to flourish in Pakistan‖.16 Case against Nawaz Sharif During the detention of Mian Nawaz Sharif and his close associates, a criminal case- based on FIR No. 201/1999, under sections 120-B, 402-B, 324/365 of the Pakistan panel code, read with section 7 of the anti terrorist act (ATA) was registered with the Karachi airport police station, for the hijacking of the air plane in which General Musharraf, his family, and other passengers were traveling from Colombo to Karachi. They were indicated for their conspiracy ―to physically eliminate and murder the COAS, General Pervez Musharraf and 198 passengers onboard flight PK 805, with deliberate criminal intent in apparent from the act, conduct, and orders of persons, including the then Prime Minister, Mian Nawaz Sharif.‖ Along with Nawaz Sharif, six others, Shahbaz Sharif, (his brother) Ghous Ali Shah, Saifur Rahman accountability chief, Shahid Haqqan Abbasi Chairman PIA, Saeed Mehdi Senior Bureaucrat and Rana Maqbool Inspector General Police stood to face trail on the same charges. On December 2, 1999, before the commencement of the trail in the plane hijacking case, through an ordinance the military regime had amended the anti-terrorist act 1997. The amendments pertained to expanding the scope of offences under jurisdiction of the anti terrorist court. The amendments were openly criticized by the PML (N) leadership on the touchstone of being Nawaz specific, and Musharraf was accused of his determination to procure the convection of the deposed Prime Minister.17 The special judge, Rehmat Hussain Jaffri, tried the former Prime Minister, and on April 6, 2000, while acquitting all the co accused, awarded the sentence of life imprisonment to Nawaz Sharif. Appeals were fired before the Sindh High Court. Having convicted in the plane hijacking case, Nawaz Sharif and his brother Shahbaz Sharif were shifted to the

16 The Daily News (Islamabad), October 18, 1999 17 Zulfikar Khalid Maluka, Reconstructing the constitution for a COAS President: Pakistan, 1999-2002 in Craig Baxter (ed) Pakistan on the Brink Politics, Economics and Society, (Karachi: Oxford University press, 2005), p. 56 148

Attock military fort where they faced trail under the national accountability ordinance 1999 on the charges of corruption and corrupt practices.18 Nawaz and his family members, before his appeal could be decided, left Pakistan and wayed to Saudi Arabia on 11 December, 2000.19 Military Confronts the Judiciary The judiciary was initially touched by the change. The military government promised the judiciary its independence and full powers and jurisdiction under the constitution, subject to certain restraints on jurisdiction in regard to acts or orders of the chief executive or authorities under him. The judges of the superior courts were not required to take oath under the Provisional Constitutional Order and were allowed to continue to perform their functions and exercise their jurisdiction under the constitution. In the first week of January 2000, a serious question arose as to what oath should be given to judges of superior courts at this time when the Chief Justice of Peshawar High Court became due. It was agreed that the new Chief Justice of that court would take an oath under the constitution. This was reaffirm through oath of office (judges) Order 1999 (promulgated on December 31, 1999) wherein it was provided that the judges of the Superior Courts would take the oath specified in the constitution and appropriate form set out in the third schedule to the constitution.20 This situation was not to continue for long. A number of petitions had been filed by Nawaz Sharif and others PML (N) leaders in the Supreme Court under article 184(3) of the constitution challenging the military take over on 12 October 1999 and seeking restoration of the Assemblies. All these petitions had been entertained and were fixed for hearing on 31 January 2000. As the date of hearing approached, the government started panicking. It was strongly rumored that these petitions might be accepted and that the assemblies might be restored and the Nawaz government reinstated.21 On 25 January 2000, oath of office (judges) Order, 2000 was promulgated in which all the judges of the Superior Courts were required to make oath to the effect that they would discharge their duties and perform their

18 (Ibid, 57) 19 Hamid Khan, Constitutional and Political History of Pakistan, (Karachi: Oxford University Press, 2010), p.480 20 Ibid 21Ibid 149

functions in accordance with the proclamation of emergency of 14 October 1999 and the PCO as amended from time to time. However, it was provided that if a judge was not given oath or did not make with in the time fixed by the chief executive for the purpose, he would cease to hold office. In pursuance of this order, the chief justice of Pakistan, Justice Saiduzzaman Siddiqi refused to take oath. His stand point was that the military regime would not interfere in the independence of judiciary and would be allowed for functioning under the constitution. He was virtually put under house arrest until 11 a.m. on 26 January 2000 so that he might not influence those judges who were willing to take oath. Four judges of the Supreme Court who originally hailed from Sindh, namely Aslam Nasir Zahid, Mamoon Kazi, Wajuhuddin Ahmad and Kamal Mansoor Alam, following the example of the chief justice, did not take oath. Khalil-ur-Rehman Khan, a Supreme Court judge from Punjab, also refused to take oath. Only seven judges took oath and the senior most among them was Irshad Hassan Khan, appointed the chief justice. Two judges of the Lahore high court, three judges of the Sindh high court and two judges of the Peshawar High Court were not given oath and thus they ceased to hold office. None of the judges of the high courts refused to take oath voluntarily.22 Supreme Court Uphold Military Takeover In December 1999, a constitution petition, No. 63/99, was filed by five leaders, Syed Zafar Ali Shah, Wasim Sajjad, Ilahi Bux Soomro, Raja Zafarul Haq and Chaudhry Pervez Ilahi, on the behalf of PML (N) to challenge the validity and legal effect of the army take over of the country on 12 October 1999. It prayed inter alia that the said take over be declared illegal and violate of the 1973 constitution. The petitioners had also prayed that the Provisional Constitutional Order No. 1 of 14 October 1999, the proclamation of emergency of the same date and all orders, enactments and instruments issued hereunder may be also declared as illegal, ultra vires of the constitution and of no legal effect.23

22 Ibid 23 , Between Dreams and Realities, Some Milestones in Pakistan’s History, (Karachi: Oxford University Press, 2009), pp. 294-95 150

The Supreme Court, on May 12, 2000, issued a short order after hearing this petition for four months, and on May, 29, 2000 rejected the pleas made by the petitioners, after a detail judgment, and observed as follows: 1. That the military action on the 12-10- 1999 was validity taken, being justified on ground of state necessity. 2. That the constitution of Pakistan 1973 still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of state necessity. 3. That the superior courts continue to function under the constitution and that the new oath taken under the ‗Oath of Office (judges) Order No. 1 of 2000‘ does not in any manner derogate from this position. 4. That the chief executive is entitled to perform all such acts and promulgate all legislative measures as enumerated in the judgment and has also powers to amend the constitution, subject to certain conditions stipulated therein. 5. That the supreme court continue to have the power of judicial review to judge the validity of any act or action of the armed forces in the light of principles underlying the law of state necessity. 6. That the chief executive be allowed a period of three years from 12 October 1999 to achieve his declared objectives and that not later than ninety days before the expiry of the afore- mentioned period, he shall appoint a date for holding of general elections to the National Assembly, the Provincial Assemblies and the .24 The military government could not have asked for more. According to Hamid Khan ―After the justification of the military takeover of October 12, 1999 by the Supreme Court, the government allowed for period of three years to accomplish the seven points programme declared in the speech of General Musharraf on October 17, 1999. The court did not appreciate that the programme was so comprehensive that that it might not even be accomplished in many more years. The court also ignored the bitter experience of the past when Zia as head of a military regime was allowed to amend the constitution. He made frequent use of this power and mostly in a wanton and irresponsible manner. He virtually changed the face of the constitution particularly when he introduced amendments in 65

24 Ibid 151

articles of the constitution under the Revival of the Constitution of 1973 Order 1985 (RCO). Conferment of the same power on the chief of the army staff under the judgment of 12 May 2000 has resulted in similar abuse once again.25 The Supreme Court, in order to validate the military regime, ventured into matters which were not even an issue before the court. The validity of the removal of Musharraf as the chief of the army staff on 12 October 1999 was not directly an issue in the case but the court went out of its way to invalidate his removal on the principles of natural justice. Most unusual was the finding regarding the judge of the Supreme Court who did not take oath voluntarily or judge of the high courts who were not given oath. The matter of not taking or being given oath was declared as a closed and past transaction. The matter was not an issue before the court. Besides, the finding was clearly against the principles of natural justice. None of these judges were heard or even represented before the court and they were all virtually condemned unheard.‖ 26 After taking the oath under PCO the Supreme Court ceased to be a constitutional court. It had abandoned its oath to preserve, protect and defend the constitution. In any case, the Supreme Court has no authority to amend the constitution.27

Removal of the President In the wake of the military coup, holding of the 1973 constitution in abeyance, and administration of the new oath of office to the judges, President was the only constitutional officer untouched by the PCO. However, the coup maker decided to remove the president in June 2001 and assumed that office.28 The Supreme Court in the Zafar Ali Shah case held in part: ―That the 1973 constitution still remains the supreme law of the land subject to the condition that certain thereof have been held in abeyance on account of state necessity…[and] that the supreme court continue to function under the constitution. The mere fact that the judges of the superior courts have taken the new oath under the Oath of Office (judges) Order No. 1 of 2000, does not in any manner derogate from this position, as the courts had been originally established under the 1973 constitution, and have continued in their functions in spite of the

25 (Khan 2010, 482) 26 Ibid 27 Ibid 152

proclamation of emergency and PCO No. 1 of 1999 and other legislative instructions issued by the chief executive from time to time.‖ 28

A plain reading of the aforementioned conclusion of the Supreme Court indicates that the supreme law in the country was the 1973 constitution. However, such a conclusion of the Supreme Court was negated by the removal of President Muhammad Rafiq Tarar and assumption of the office by the chief executive under the PCO. The former Chief Justice Saiduzzaman Siddiqi opined: ―there can not be two supreme laws operating in the same field. If one law is supreme, the other has to be subordinate to it. Therefore, the PCO has to be read as sub constitutional legislation. If the sub constitutional legislation, that it cannot amend or curtail the constitution, itself. Despite holding the constitution as supreme law, the very Chief Justice who was the author of the judgment, administered the oath to the military ruler as president. If, the constitution was the supreme law of the country, as declared by judgment of the Supreme Court, then it provided, in a particular manner for the removal of the president. This act of the military ruler and the chief justice was in direct conflict with the judgment.29 On 21 June 2001, Musharraf issued the Proclamation of Emergency Order, under this order he amended the existing proclamation of emergency order of 14 October 1999 and dismissed President Rafiq Tarar whose term of office was to end on January 1, 2003. He himself, the next day, assumed the office of president.30 Referendum 2002 Pervez Musharraf announced referendum on 30 April 2002, to seek validation on his reforms in various sectors and to get an extension of further five years. Political parties like Pakistan Muslim League (N) Pakistan People Party, Jamiat-ul-ulma-e-Islam, Jamat-e- Islami and all political fictions boycotted this referendum and held rallies and political meetings to convince the general public to keep away from polling stations. Some political parties like Tehrik-e-Insaf, the Millat Party and Pakistan Awami Tehrik were in vanguard to

28 (Ibid, 61-62) 29 Ibid 30 (Aziz 2009, 296) 153

earn cheap fame. Some people were of the view that helped Musharraf in his referendum so that he might be awarded premiership. But Musharraf used these political parties like tissue paper. New elected Nazim and councilors did a lot for referendum. They were made to work under the pressure of administration. Musharraf was becoming a symbol of hatred. However, Musharraf and his camp claimed that turn out was over 50% and that 97.49% votes were cast in Musharraf‘s favour.31 Referendum in Pakistan was not a new phenomenon. It has been symptomatic of the issue between the two rival traditions in the politics of Pakistan i.e. the state centered rule and the rule of public representatives. Under the former tradition, Ayub and Zia used the referendum as an alternative to the constitutional election of the president in 1960 and 1984 respectively. In 2002, this exercise was aimed at gaining legitimacy without bowing down to pressures of the presidential election through the Electoral College, which comprise the provincial assemblies and the two houses of the parliament. The first model had been spearheaded by the military, representing the interests of the non-representative elements and institutions of the state. Musharraf referendum was to act as a necessary mandate for the regimes desired constitutional engineering, aimed at neutralizing the upper hand acquired by politicians through the passage of the 13th amendment in 1997. The idea was that a president must be empowered to oversee the functioning of parliament and, if need be, dispense with it.32 Musharraf‘s holding the office of presidency in 2001 and the removal of the president Rafiq Tarar had showed the ambition of the military government to hold the politics in the country. The referendum provided the way forward in that direction. The president was aware that, once the constitution is restored as directed in Syed Zafar Ali Shah case in May 2000 his present action become suo sponte, subject to security by the next parliament. The

31 (Chaudhry 2010, 42-42) 32 Muhammad Wasim, The 2002 Elections: a Study of Transition From Military to Civilian Rule, in Saeed Shafqat (ed), New prospective on Pakistan vision for the future, (Karachi: Oxford university press, 2007), p.75 154

regime could ill afford to leave itself at the mercy of elected representatives after the October 2002 elections.33 Musharraf did not of course admit a more fundamental flaw in his decision to get ‗elected‘ as president through a dubious referendum, before the next general elections under Article 48(6) of the constitution34. Even the most liberal and flexible interpretation of this provision would not allow its use, in fact misuse, to elect a president, in total disregard of the procedure laid down in Article 41 of the constitution for the election of the president. But Musharraf decided to follow the footstep of the of his predecessors, Field martial Ayub Khan and General Zia-ul-Haq along this dubious course, because he could not face democratic alternatives of presenting his candidature to the new parliament, after 2002 elections.35 Almost the entire international and local media condemned this farce in the strongest possible terms and considered it a serious violation of the Supreme Court decision of May 2000, under which general elections within three years and transfer power to elected representatives. These commentators were not in fact aware at that time that many more violations and distortions of the constitution and rule of law lay in store for this unfortunate nation over the next five years.36 With the political battle lost for the opposition, the arena shifted to the Supreme Court for a decision regarding the legality of the referendum order. Nawabzada Nasrullah, Qazi Hussain Ahmed, the Supreme Court bar association, the Lahore high court bar association and Awami Himayat Tehrik moved petition against the referendum order 2002. A nine members bench headed by chief justice Shaikh Riaz Ahmad, took the six identical petitions. These petitions also challenged the removal of Rafiq Tarar from the office of president and the assumption of the office by the chief executive General Musharraf. The petitioners argued

33 Ibid 34 ―Article 48 (6) of the constitution of 1973 says that ‗if any time, the president considers that it is desirable that any matter of national importance should be referred to a referendum, the president may cause the matter to be referred to in a referendum in the form of a question, that is capable of being answered either ‗Yes‘ or ‗No‘.‖ 35(Aziz 2009, 297) 36 Ibid 155

that the assumption of the office was in violation of the Supreme Court‘s decision in Zafar Ali Shah case, as it went beyond the mandate set for the regime, which was the holding of free and fair elections to effect transition to the elected government. They pleaded that the referendum for election to office of president be declared illegal, ultra vires of the constitution and violation of the judgment of the Supreme Court in Syed Zafar Ali Shah case. It was argued that the referendum was against the provision for election to the office of president as stipulated by the constitution and that ‗writ in nature of quo warranto be issued against the chief executive‘. The referendum order had made it clear that a positive vote in the referendum would be deemed to have given mass mandate to Musharraf to continue as president for five years. regarding the removal of Rafiq Tarar, the defence counsels pleaded that the outgoing president continue in office under the provisional constitutional order (PCO) 1 of 1999 and was part of the present government for nearly two years. They also argued that he had been performing the functions and duties of the office of president on in accordance with the advice of the chief executive of Pakistan under the new dispensation.37 Regarding the amendment to the constitution by the holding of the election of president through referendum, the government argued that the referendum order did not have the effect of amending the constitution. The referendum for the election of president was said to be necessitated by the reforms undertaken by the government under the mandate granted to it by the Supreme Court in the Zafar Ali Shah case, and that it was necessary for a smooth transition of authority after decision. It was argued that the government was committed to holding of elections in accordance with the Supreme Court‘s ruling in Zafar Ali Shah case and that a referendum was unavoidable because ‗transition and transformation of an extra constitutional set up into a democratic dispensation is the most trouble path and the gap cannot just be covered with one jump‘. The government declared that it was committed to upholding the decision of the Supreme Court, as the domestic and international public opinion focused on the proceedings of the case. The Supreme Court ruled in its decision on 27 April, 2002 that the holding of the referendum was a valid exercise. However, it refused to pass any judgment on the issue of consequences of the referendum, leaving ‗the same to

37 (Wasim 2007, 80-81) 156

be determined at a proper forum at an appropriate time‘. The Supreme Court, in its unanimous judgment, held that chief executive Pervez Musharraf validly removed Muhammad Rafiq Tarar and assumed the office of president on 20 June 2001. The court accepted the contentions made by the government lawyers that Rafiq Tarar remained in the office from 12 October 1999 to 20 June 2001, by virtue of the proclamation of emergency and not by force of his election. The court observed that the referendum order was issued under the powers given to president Pervez Musharraf on 12 May, 2000 by the supreme court bench validating military take over on the basis of the ‗doctrine of necessity‘. The Court observed the referendum did not have the power of amending the constitution of Pakistan when it dismissed all the petitions that challenged the holding of the referendum.38 Legal Frame Work Order 2002 Musharraf, after referendum, was eager to widen his hold on power by amendments in the constitution before it was revived. He tried to amend the constitution on the basis of the Supreme Court judgment in Zafar Ali Shah‘s case. He had assigned the task of drafting the proposed constitutional amendments to the NRB (National Reconstruction Bureau) particularly its chief, Lt General (Retd) Tanveer Naqvi who worked on these draft amendments in great secrecy. He is said to have consulted some constitutional experts from abroad. It goes to Musharraf‘s credit that he could turn a retired general into a constitutional expert.39 Initially two constitutional amendments packages, purportedly one for sustainable democracy and the other for institutional strengthening, were circulated for soliciting public opinion. The proposed packages, apart from being contrary to the scheme and spirit of the constitution, were poorly drafted. There were glaring omission and contradictions in these drafts. The exercise of obtaining public opinion turned out to be a sham. Naqvi would address meetings of persons carefully selected to explain his constitutional proposals. He would do most of the talking and was averse to any objections raised during such meetings. There were widespread protests against the proposed constitutional packages and lawyers‘

38 (Ibid, 81-82) 39 (Khan, 485) 157

bodies through out the country rejected them outright. In the first place, the lawyers resolved, there was no legitimate power vested in Musharraf to amend, the constitution, and secondly, the proposed amendments would undermine the parliamentary system of government and provincial autonomy in the country.40 The constitutional package titled ―establishment of sustainable Federal democracy‖ was made public in two installments; that is package I was released on June 26, 2002 and package II on July 15, 2002. The constitutional package for the sake of ―political stability‖ and ―check and balances in the power structure‖ of the country envisaged the following salient features. 1. Voter‘s age reduced from 21 to 18 years. 2. Adoption of joint electorate system as originally contained in the 1973 constitution. However, no reserved seats for the minorities were proposed. 3. Article 58(2) (b), was restored. Now president was empowered to remove the Prime Minister and his cabinet, without dissolving the National Assembly. 4. President can appoint Governors, in his discretion. 5. President can nominate any member of the national assembly as prime minister. 6. Governor can nominate any member of the provincial assembly as Chief Minister. 7. Setting up of the National Security Council, and the president will be the chairman of the national Security Council. 8. Members of the senate will be elected directly. 9. No independent candidate can take part in the senate election. 10. The minimum educational qualification of the bachelor‘s degree is prescribed for candidature to membership of legislatures. 11. An overall increase of 51 percent in the membership of the assemblies. Number of seats in National Assembly increased from 207 to 342. 12. Number of Senate seats increased form 87 to 100.

40 Ibid 158

13. Number of seats of the Punjab assembly increased from 240 to 371, Sindh assembly up from 100 to 168, the NWFP Assembly from 80 to 124, and the Baluchistan assembly from 40 to 65. 14. Reserved seats for women, technocrats and uleme in the senate and assemblies increased. 15. Qualification for reserved seats in the senate, national assembly and the provincial assemblies for technocrats will be sixteen years of education, recognized by the university grant commission (presently HEC) or a recognized statutory body, as well as at least twenty years of experience, including record of achievements at the national or international level. 16. The concept of caretaker government has been envisaged in case of general elections on the completion of the normal term of assemblies. 17. Election commission to be converted into permanent and autonomous institution with four members. The tenure of the chief election commission increased from three to five years. 18. Loan defaulters will not be able to contest elections. 19. Any political party securing less than 10 percent of the total vote castes in the election on general seats shall not be entitled to any seats. 20. Any party getting less than 5 percent of the votes will not get any seat in the senate. 21. The amendments proposed disqualification of a convict from holding a political office, regardless of the lapse of time since his release. Similarly, another provision was added, debarring of a person who had been proclaimed an absconder or convicted and sentenced to imprisonment for having absconded. 22. Local governments to have constitutional cover for their operation and existence.41 On August 21, 2002, General Pervez Musharraf with the stroke of his pen, made fundamental changes in the constitution and felt no need to resort to the future parliament even for their validation. He made himself president for the next five years and revived Article 58(2) (b) for dismissing the government and dissolving the national assembly. A new Article 152-A was inserted, creating the National Security Council. Several amendment that is president‘s power to appoint anyone as prime minister, discretionary power to appoint governors, reservation of seats for technocrats in the national assembly, amendment

41 (Maluka 2005, 69-70) 159

pertaining the council of common interest, national finance commission and national economic council etc, originally proposed in the constitutional package were withdrawn.42 In a set of 29 constitutional amendments enacted by General Musharraf, from time to time during his tenure as the military ruler. Even though all these amendments were in question, criticism raised on these three sections; 1. Extension of three year period in the service period of the judges of the supreme court, 2. Institution of a National Security Council, a supra parliamentary body, 3. Section 58 (2) (b) that empower the president to dissolve the national assembly and dismiss the parliament. The reinvigorated upheaval of the opposition against the LFO was expected. The article 58 (2) (b) was the bone of contention to all conflict resolution. The authority of the president to dismiss the cabinet and the elected prime minister was a live threat. The Musharraf government having earned the credit of holding elections must ensure to carry the day as well. The coercion of the opposition that the president would dissolve the assemblies and that such a crisis was inbuilt through section 58 (2) (b) is to provide a system of check and balances; there were some issues to consider. In case of a confrontation between the president and the prime minister, the majority of votes in the national Security Council will automatically go in favour of the president who can thus easily remove the prime minister, putting the parliamentary form of government once again in jeopardy. 43 Also LFO 2000 has been sanctified by postulating that no body can challenge it in any court of law ―on any ground whatsoever‖. It is now assumed to be an integral part of the constitution and there is no imperative left for the newly and duly elected national assembly but to accept it willingly or unwillingly. The present parliament is quite unable to reseverse or does away with any of the amendments, especially the one relating to the national Security Council. The prime minister and the whole parliament were at the will of president for their survival.44

42 Ibid 43 M. Imtiaz Shahid and Memoona Shahid, An Advance Study in Pakistan Affairs, (Lahore: Carvan Book House, 2005), p. 306 44 Ibid 160

Many believe that the LFO 2000 has been enforced with out any regard for the constitutional and democratic norms and properties. By terminating the thirteen amendment that was not passed by two third majority but a unanimous vote of the parliament, the president has gain been authorized to enjoy the power of dismissing the prime minister along with his cabinet and the parliament.45 The LFO provided for a joint electorate and extended the same by enabling voters up to the minimum of 18 years of age to elect the members of parliament and the assemblies and also increased the number of seats in the Senate, National Assembly and the Provincial Assemblies besides providing for additional representation to technocrats and women. LFO improving certain aspects of the constitution such as prohibiting sectarianism, disqualifying the defaulters of loans from getting elected and bringing harmony between the working of two houses of parliament and making the chief election commissioner more independent and improving certain aspects of judiciary including the increase in age of retirement of superior judges. These provisions of the LFO can be called less controversial.46 The more controversial provisions were related to the continuity of General Pervez Musharraf as president and his simultaneously holding the office of the chief of the army staff, the tilt of balance of power in favour of the president which authorized him to dissolve the national assembly and appointment of the chiefs of army, navy and the air forces, or even encroachment of the provincial autonomy and the creation of the National Security Council. LFO purported to validate all the actions of the chief executive since 12 October 1999 and the issue of validation given by ―one man‖ instead of parliament.47 Elections 2002 On 27 February 2002, conduct of general elections order, 2002, was promulgated. On 16 August 2002, the election commission announced the election schedule and 10 October was fixed as polling day for elections to the national and provincial assemblies. All the political parties decided to participate in the elections.48 Meanwhile the military government put

45 Ibid 46 S.M. Zafar, Dialogue on the Political Chess Board, (Lahore: Brittle Books), 2004, p. 34 47 Ibid 48 (Khan 2010, 490) 161

together a political party consisting of dissenters from the PPP and the PML (N) and gave it the name of PML (Q). This party owes its origin and expansion to NAB and the political wing of ISI. All those whose cases were being prosecuted before the accountability courts were easily susceptible to the pressure of the military government and were easily persuaded to join the king‘s party; PML (Q) another Musharraf pro-alliance was built with the help of the government facilitators. It consisted of six small parties including the millat party of former president Farooq Ahmad Khan Laghari. It was given the name of National Alliance. The government official including provincial governors facilitated the adjustment of seats between PML (Q) and national alliance.49 Another significant development was the formation of an electoral alliance of six religious parties (including jamat-i-islami and jamiat-i-ulema islam) calling itself, Muatihida Majlis- e-Amal (MMA) it decided to contest the election with common candidates. It adopted an anti American stance during the election campaign and attracted large crowds in the provinces of Baluchistan and the NWFP.50 A major part of the government‘s blueprint for elections was reliance on local and district councilors as well as Nazims. In the last week of August 2002, the finance minister was asked to immediately sanction 15 billion rupees for nazims of 105 districts under the head of development funds. In the run u-up to the elections, the provincial government distributed some 1.5 billion rupees to various pro-government Nazims. The government of Punjab was reportedly involved in the support of pro-government candidates.51 Officials were posted and transferred in scores. Nazims took part in the political campaign in favour of various ―kings‘ parties‖. Elections observers from European Union Common Wealth severely criticized the electoral arrangements including the role of election commission as well as the LFO. Most of the political parties in opposition to the Musharraf government alleged blatant malpractices even before the elections were held. The October elections for the national and provincial assemblies were held in controversy and

49 Ibid 50 Ibid 51 (Wasim 2007, 92) 162

confusion.52 All military governments, to gain a certain degree of legitimacy, have tried to create a civilian façade by coopting certain political parties and leaders. In such scheme the military establishment retains real power but gives a marginal and largely a ceremonial share to those political parties and leaders who are ready to be content with this marginal share. Some of them are coerced while others are bribed. Musharraf‘s game plan to build such a civilian façade started taking shape soon after he took over. Immediately, after Nawaz Sharaif was convicted in the hijacking case on 10 April 2000, efforts to capture the Pakistan Muslim League as a pro-Musharraf political party were launched. Initially the main focus of these efforts was to find a PML leader, around whom PML dissidents would gather and either take over the party from Nawaz Sharif or if that was not possible, to create a new and large function of the PML. 53 The system rigging in this case started with the military take over, under which the constitution was suspended and amend and all major institutions including the judiciary and the election commission were brought under the control of martial law administrator or the chief executive as he was called. Pervez Musharraf‘s election as president through a dubious referendum, in violation in the procedure laid down in the constitution, was another dimension of system rigging. Thus extra constitutional forces were placed over and above the parliament. The judiciary was weakened and brought in line, through the PCO, because six independent judges of the Supreme Court, who refused to take oath under the PCO, in violation of the constitution, had to resign. In 2001, to the surprise of all legal experts, justice Irshad Hassan Khan was appointed as chief election commissioner, as soon as he retired as the Chief Justice of Pakistan. Normally according to tradition, Chief Justice does not accept any other office after his retirement. In this case justice Irshad Hassan Khan had also become controversial because he made several judicial appointments only six days before his retirement allegedly on the recommendations of the government. As a result, for

52 (Wasim 2007, 269) 53 (Aziz 2009, 297) 163

the first time in judicial history, his colleagues had refused to give him a full court reference.54 Another and more gruesome part of the pre poll circus was the systematic disqualification of opposition candidates through discriminatory accountability. Some like Makhdoom were arrested on charges, others were pressurized to withdraw or face the wrath of the administration. The nomination papers of Shahbaz Sharif and Begum Kalsoom Nawaz were rejected on the flimsy ground that in their absence, the returning officer could not verify their signatures on the nomination papers. The governors were openly campaigned for the king‘s party PML (Q) and announced allocation of millions of rupees for development projects in constituencies of officially supported candidates. Musharraf himself campaigned extensively while wearing his uniform. Public funds were used for projecting a positive image of the government and a negative image of the opposition parties through the electronic and print media. Just a day before the polling date, Musharraf announced certain changes in his legal frame work order (LFO), under which those winning elections as independent candidates would be free to join any political party within three days. The retirement age of judges of the high courts and the Supreme Court was also extended by two years.55 As expected the October 2002 elections turned into mysterious results. The two big parties disappeared from the screen, especially the PML (N) and the PPP. As a result of the elections, PML (Q) won 77 seats, PPP-P 62 seats, MMA 45 seats, independent 30 seats, PML (N) 15 seats, MQM 13 seats and ANP 13 seats. Obviously the two new faces on the seen were PML (Q) and MMA who never won such huge number of seats before.56 Elections for the women and minority seats were held and by-election for vacant seats in the national assembly. The October 2002 elections produced a split. There was also nonexistence of the big political parties.57 Now it was time for formation of a coalition government. There were two parallel negotiations for making a ruling government. Firstly negotiations among PML (Q), PPP-P and MMA and of such three big parties with other

54 (Ibid, 299) 55 (Ibid, 300) 56 (Shafqat 2007, 269-270) 57 Ibid 164

small parties like PML (N), MQM and independents for making a government. These negotiations were covered by the media and were given an impression of being authenticated. Secondly, negotiation between Musharraf and the political parties like PML (Q), MQM and independents etc. to get PPPP out of the government candidacy. These negotiations were performed below the table and were not allowed to be covered by the Media. As a result of these types of negotiations, Musharraf was able to rule PPPP out of the candidacy both for government as well as opposition. Musharraf was ten more seats and thus the PML (Q) nominated Mir as the Prime Minister of Pakistan on the basis of votes and support from PML (Q), MQM and independents. Maulana Fazlurehman of MMA was nominated as opposition leader of the national assembly.58 Party position in the National Assembly Name of party General Seats Women Minorities Total PML(Q) 92 22 4 118 PPP-P 63 15 2 80 MMA 47 12 2 61 PML-N 15 3 1 19 MQM 13 3 1 17 NA 13 3 0 16 PML-F 4 1 0 5 PML-J 2 1 0 3 PPP-Sherpao 2 0 0 2 BNP 1 0 0 1 JWP 1 0 0 1 PAT 1 0 0 1 PML-Z 1 0 0 1 PTI 1 0 0 1 MQM-Haqqani 1 0 0 1 PKMAP 1 0 0 1 PSPP 1 0 0 1 FATA 12 0 0 12 Independents 1 0 0 1 Total 272 60 10 342 Source: Election Commission of Pakistan. Also see Saeed Shafqat (edited) p.270

58 (Ibid, 272-73) 165

The October 2002 elections produced a split. There was also nonexistence of the big political parties.59 Now it was time for formation of a coalition government. There were two parallel negotiations for making a ruling government. Firstly negotiations among PML (Q), PPP-P and MMA and of such three big parties with other small parties like PML (N), MQM and independents for making a government. These negotiations were covered by the media and were given an impression of being authenticated. Secondly, negotiation between Musharraf and the political parties like PML (Q), MQM and independents etc. to get PPPP out of the government candidacy. These negotiations were performed below the table and were not allowed to be covered by the Media. As a result of these types of negotiations, Musharraf was able to rule PPPP out of the candidacy both for government as well as opposition. Musharraf was ten more seats and thus the PML (Q) nominated Mir Zafarullah Khan Jamali as the Prime Minister of Pakistan on the basis of votes and support from PML (Q), MQM and independents. Maulana Fazlurehman of MMA was nominated as opposition leader of the national assembly.60 Can there be more glaring proof that the national assembly elected in October 2002, was in effect a rubber stamp parliament which was not given even the authority to discharge its constitutional responsibility of electing one of its own members as Prime Minister? That was perhaps the most overbearing face of ―khaki democracy‖ imposed on Pakistan in October 2002.61 Vote of Confidence for Musharraf The parliament and the four provincial assemblies were summoned on January 1, 2004 for holding a vote of confidence for Musharraf. According to the result announced by the election commission of Pakistan, Musharraf received 658 votes out of 1170 from electoral college(342 members of the national assembly, 100 members of the senate and 728 members of the four provincial assemblies), which represented about 56 percent of the total votes.62 In this exercise of vote of confidence, not only several articles of the constitution

59 Ibid 60 Ibid 61 (Aziz 2009, 304) 62 (Khan 2010, 494) 166

relating to the election of the president were flagrantly violated but the system of weightage of votes, so vital to the principle of provincial autonomy, was abandoned. Had this principle of weightage been applied to the count of vote of confidence, the total number of votes in the Electoral College would have added up to 702. Out of this, 373 would have been ‗Yes‘ votes for Musharraf, 216 absent, 112 abstentions and one ‗no‘ vote. Hence, the votes in his favour would have been just 53 percent of the total votes. As a result of the protest by the opposition in the parliament, Musharraf had not been able to address both Houses of Parliament in a joint setting. This was clear violation of the constitution which requires the president to address both Houses of Parliament assembled together at the commencement of the first session after each general election to the National Assembly and at commencement of the first session of each year. Finally he address to the joint session of the parliament on 17 January 2004 amidst protest by the opposition. When he took the podium, he was jeered and hooted by members of opposition. Before departing, he raised his fists towards the opposition.63 The Seventeenth Amendment The 17th constitution amendment bill was passed by the national assembly with more than two third majority on December 29, 2003. It further legitimized Pervez Musharraf‘s rule. The bill was approved by 248 of the 342 member lower house and no single vote in opposition whiles the opposition the Alliance for the Restoration of Democracy (ARD) and its allies boycotted.64 The bill was piloted by Raza Hayat Hiraj minister of state for law and parliamentary affairs. The bill, which largely approved president Musharraf‘s Legal Framework Order, passed by two third majority of the national assembly and also by the 100 seat by senate, which began a new session to continue its debate on the legislation.65

63 (Ibid, 295) 64 K.M. Sharif, Pakistan Almanac 2005-2006 Essential Dates on Pakistan (ed), (Karachi: Royal Book, 2007),pp.64-65 65 Ibid 167

The ground work for the seventeenth amendment was laid down in the LFO No. 24 of 2002, issued by the chief executive, General Musharraf on 21 August 2002 in preparation for the 2002 elections. Under this order many important amendments and changes were made: 1. The 1973 constitution was revived but with several amendments in the constitution. 2. The results of the dubious referendum held on April 30, 2002 were sanctified by giving a ‗democratic mandate‘ to General Musharraf to serve as president for five years. 3. Article 58-2(b) was restored to revive the powers of the president to dissolve the national assembly. 4. The number of seats in the national assembly was increased from 210 to 342 and in the senate from 87 to 100. Correspondingly the provincial assembly seats also increased from 250, 100, 80 and 40 to 371, 175, 124 and 65 for Punjab, Sindh, NWFP, and Baluchistan respectively. 5. The provision for a National Security Council, abolished under the eight amendment, was revived (Article 152-A) with the president as chairperson. 6. Under the original article 224(I), a general election to the national and provincial assembly was to be held with in a period of sixty days immediately preceding the day on which the term of the assembly was due to expire. Through the LFO 2002, the word ‗preceding‘ was substituted by the word ‗following‘, thus opening a constitutional Pandora‘s Box in 2007. 7. The president was given powers to appoint, in his discretion, service chiefs and members of the superior judiciary.66 Under the seventeenth amendment all the constitutional amendments promulgated by General Musharraf under the LFO No. 24 of 2002, were validated, allowing him inter alia to keep his uniform, along with his presidency, but with the following proviso added to article 41-7(b): ‗provided that paragraph (d) of clause (I) of article 63 shall become operative on and from the 31st day of December 2004‘. This paragraph (d) says that ‗a person shall be disqualified from being a member of parliament, if he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify him‘.67

66 (Aziz 2009, 305-6) 67 Ibid 168

The MMA leaders were jubilant that they had managed to persuade General Musharraf to take off his uniform by December 2004. General Musharraf himself appeared on the television and made a promise to the whole nation that he would relinquish the post of army chief by the end of 2004. This promise he never fulfilled. The seventeenth amendment thus caused irreparable damage to the democratic process.68 The MMA in return, for legalizing Musharraf and his two offices under the seventeenth amendment, received three major concessions: (I), a promise that their government in NWFP and Baluchistan would not be de-stabilized.(2), the case in the Supreme Court challenging the equivalence of a madrassa degree with a normal degree, would remain in abeyance, if these degrees had been declared insufficient, the majority of MMA parliamentarian would have been disqualified;(3) the ban on a prime minister not to hold office for the third term, also provided them a fig leaf that in the absence of Nawaz Sharif and Benazir Bhutto, the two mainstream political parties would not do as well, leaving more space for the MMA.69 The most bizarre constitutional amendment through LFO No. 24 of 2002, which the MMA failed to detect and prevent under the seventeenth amendment, was in article 224. Musharraf and his supporters had already hatched a plot to get Musharraf re-elected as president for another five years from the same assembly, by changing the word ‗preceding‘ (the day on which the term of the assembly is due to expire) into ‗following‘. This anomaly created a serious political and constitutional anomaly by requiring an assembly which was about to end its tenure, to elect a president for the next five years in total violation of the spirit of the constitution or accepted democratic principles and created a major political crisis in the last quarter of 2007.70 The government moved the constitution (seventeenth amendment) bill on 26 December 2003 in the national assembly. Aitaza Ahsan of PPP-P raised the objection that the amendment bill was contrary to the joint stand of the ARD and MMA and that the LFO was not a part of the constitution. Qazi Hussain Ahmad, Amir Jamat-i-Islami, admitted that the

68 (Ibid, 307) 69 Ibid 70 Ibid 169

draft amendment bill would constitute acceptance of LFO as part of the constitution and that the same was against the agreement reached between the government and the MMA. He thus demanded drafting of the new bill in accordance with the agreement. On this, Prime Minister Jamali agreed to adjourn the House in order to present a new draft of the seventeenth amendment bill. However, on 27 December 2003, another agreement was reached between the PML (Q) and its allies with MMA and it was agreed that no new bill would be tabled but suitable changes would be made in the existing bill in order to satisfy MMA. Finally on 29 December 2003, the revised seventeenth amendment bill was passed by the national assembly with 248 out of 342 members in favour and no vote in opposition. In fact, ARD and other opposition parties had boycotted the session in protest against the deal between the government and MMA. On 30 December 2003, the senate passed the amendment bill by 72 votes to nil. ARD and other opposition parties again boycotted the session of the senate.71 However, ―the LFO was never submitted before parliament and the seventeen amendment bill only contained amendments which were being made in the constitution under the assumption that the LFO had become part of the constitution. In fact amendments were made in the provisions that were altered/amended/added/varied by the LFO. The amendments were made in articles 17, 51, 59, 62, 63, 63A, 70, 71, 73, 75, 101, 140A, 199, 203C, 209, 218, 224, 260, 270B and 270C of the constitution by the LFO were not touched by the seventeenth amendment Act.‖ 72 Those were deemed to have validly made in the constitution under the language used in article 270AA.73 Also during the year President Musharraf found occasion to informally utilize his newly validated constitutional powers to ‗dismiss‘ two governments. On 26 June Prime Minister Jamali resigned his position amidst chronic rumors that he was being strongly encouraged, if

71 (Khan 2010, 492) 72 Ibid 73 ―The relevant words in the seventeenth amendment were reproduced as: the proclamation of Emergency of the fourteen day of October 1999, all president‘s Orders, Ordinances, Chief executive‘s orders, including the provisional constitutional order No. 1 of 1999, the oath of office (judges) Order, 2000(No. 1 of 2000), Chief executive‘s order No. 12 of 2002, the amendments made in the constitution through the Legal Frame Work Order, 2002 (Chief Executive‘s order) No. 24 of 2002, the Legal Frame Work(Amended) order 2002, Chief executive;s Order No. 29 of 2002, the Legal Frame Work (second amendment) Order, 2002, Chief executive‘s order No. 32 of 2002 and all other laws made between 12 October 1999, and date on which this article comes into force, having being duly made or accordingly affirmed, adopted and declare to have been validly made by the competent authority and notwithstanding any thing contained in the constitution shall not be called in question in any court or forum on any ground whatsoever.‖ (Khan 2010, 492) 170

not forced, to resign by Musharraf. In his resignation speech he curiously nominated his successor, Chaudhry , the president of PML (Q), and even more curiously also stated that the latter nominee would only serve until (the finance minister) could become eligible to hold the post. Pakistan constitution mandates that a prime minister must be an elected member of the national assembly. During the nexst several months Jamali scenario was played out. On 29 June 2004 Shujaat Hussain was elected prime minister securing a majority of 190 votes in the 342 seats house. When vacancies became available in two constituencies in July ( and Tharparker), Shaukat Aziz duly filed his nomination papers and campaigned. In the subsequent by-elections held on 18 August 2004, Aziz won both seats making him a member of the national assembly. Nine days later he was duly elected Prime Minister securing 191 votes in the National Assembly.74 Although no formal explanation has been given by any of the principles for why Jamali offered his resignation, or why the government decided to pursue the unusually untidy process of electing a stand in prime minister until Shaukat Aziz could secure the necessary credentials to assume the post, it is apparent that Musharraf orchestrated the process of government change. From this it is safe to assume that Musharraf was firmly in control of the government and that Musharraf was planning to remain in charge of the government for foreseeable future at least until the end of his five year term (2007). It is important in this regard that Shaukat Aziz was not a professional politician but rather a technocrat- an economist and banker. Before Musharraf named him finance minister in 1999, he was a senior executive in Citibank. Musharraf was not looking to Shaukat Aziz to help him politically; rather he was hoping that Aziz will help him to govern in spite of politics.75 During 2004, Musharraf made significant progress in validating the legal basis of his cabinet to govern. The passages of the seventeenth amendment formally legitimize his regime; and insulated him from prospective judicial challenge. Also, Musharraf was able to flex his new found political muscle by orchestrating a change of government and installing the hand- picked Shaukat Aziz to the office of prime minister. Those were not small feats. But, during

74 Charles H. Kennedy and Cynthia Botteron, Pakistan 2005, (New York: Oxford University Press, 2006), pp. 3-4 75 (Ibid, 4) 171

2004, little if any progress was made with respect to democratizing the political process and opposition to Musharraf and his regime hardened during the year. This was due in part to Musharraf‘s decision to renege on the promises that he made to the MMA to gain passage of the seventeenth amendment. And also because of the seemingly cavalier way that he manipulated the national assembly regarding the appointment of Shaukat Aziz. Pakistan‘s parliament remain largely dysfunctional (its session chaotic; its accomplishments few) since its re-composition in 2002. The main cause of the dysfunction was originally the festering legacy of military rule and the profoundly undemocratic manner of regime change associated with the 1999 coup, and the subsequent promulgation of the LFO. Following the passage of the seventeenth amendment there was glimmer of hope, albeit short-lived, that the deal with the opposition would lead to enhancing the power of the politicians and of weakening the authority of the military. Unfortunately, president Musharraf‘s actions and political style during 2002 have dashed such hopes.76

National Security Council The idea of the NSC has been perceived as an undemocratic and supra-constitutional exercise, with the ulterior motive to make the parliament ineffective, and to reduce the role of prime minister to zero. Initiatives of the NSC have always originated from the army, during the absence of an elected government. Notwithstanding its abject interventions in the democratic dispensation of the country, the military has a long cherished desire of constitutional role in the political permutation of Pakistan.77 It resembled Zia-ul-Haq‘s proposed National Security Council that had been excluded from the constitution by the national assembly in 1985.78 Army‘s top leadership struggled to strengthen the military‘s economic interest and find new ways of institutionalizing the organization‘s power. General Zia-ul-Haq the third military dictator, initiated the debate of establishing National Security Council, an institution that would give the armed forces a permanent role in governance. Although Zia did not succeed

76 (Ibid, 4-5) 77 (Maluka 2005, 72) 78 (Haqani 2005, 242) 172

in establishing National Security Council, he managed to introduce constitution provisions such as article 58-2(b) which empowered the president to dismiss an elected government. This provision was used often during the 1990s to sack political regimes.79 During Nawaz Shari period General Jahangir Kiramat also felt the need of making National Security Council. But Sharif was unhappy with the statement of Karamat regarding the need of National Security Council which would give a permanent role to the armed forces in political decision making.80 In 2002 Musharraf amended Pakistan‘s constitution to reintroduce the idea of a National Security Council and to enhance presidential powers before holding parliamentary elections.81 The NSC consists of the president, the prime minister, the chairman Senate, the speaker of national assembly, the leader of the opposition, the chief ministers, the chairman joint chief of staff committee, chiefs of staff of army, navy and air forces as its members.82 A military sponsored system of patronage is one of the features of the armed forces institutional political power. An institution such as National Security Council indicates the military‘s position in the country‘s power politics. A realization of this power forces some civilian players to support the military, and vice versa.83 Musharraf also took two specific measures to institutionalize the military‘s control of politics: first the restoration of article 58-2 (b), and second, establishment of National Security Council.84 Contrary to the Musharraf‘s claim that the National Security Council was necessary to strengthened democracy and to stop the irresponsible behavior of politicians, it was formed to protect the military‘s interests and to enhance the organization‘s position as the guardian of the state.85 ―The period after 1999 saw the military consolidating its political power and control of the state and society. Politically, Musharraf institutionalized the military‘s role in politics

79 Aysha Siddiqa, Military INC. inside Pakistan’s Military Economy, (Karachi: Oxford University Press, 2007), p.27 80 Ibid 81 (Haqani 2005,op,cit. p.259) 82 Mazhar-ul-Haq, The 1973 Constitution of Pakistan, (Lahore: Book land, 2003), p. 152 83 (Siddiqa 2007, 53) 84 (Ibid, 106) 85 (Ibid, 108)

173

through reinstating the power of the president to sack the parliament and establishing the National Security Council. Musharraf in fact institutionalize the military‘s power better than his predecessors by creating the National Security Council and sharing the presidential power of dismissing governments with it. This move surely helped in co-opting other senior generals who were member of the national Security Council to his political scheme. Like the Turkish national Security Council the Pakistani NSC had a wide jurisdiction over all strategic affairs including national security. It had the power to deliberate on all issues of strategic importance. This was the first time that a number of senior generals had an opportunity to participate, almost at an equal level, in the highest policy making deliberations. Therefore, the act of establishing the NSC was also about crystallizing the military‘s stakes in maintaining power. The Council represented a natural upward progression of the military‘s power, which by 2004 had given it sufficient autonomy and confidence to participate and shape not only its own organization but the political and economic destiny of the nation. Musharraf‘s regime is known for consolidating the economic stakes of the armed forces as well, especially of those of the officer cadre. The economic power of the military was an expression of its political power.‖ 86 The establishment of the NSC, which was the core decision body, was the culmination of the drive to establish the military as an independent class that could protect its interests and negotiate political terms and conditions with other political players. The four top generals of the armed forces were the members of the NSC along with nine civilians. The NSC had the power to decide on all strategic matters including the distribution of natural resources.87 In an interview with Singapore‘s Straits Times, Musharraf denied perpetuating his hold on power by creating the NSC. He said that the NSC would act as an ―institutional check‖ on the power of the president and the army chief. Previously there was no check on me. I could get up and decide among my people.88 Musharraf assured those afraid of the NSC that it would not be a super-constitutional body or have dominance over the legislature and

86 (Ibid, 166-67) 87 (Ibid, 246) 88 Syed Farooq Hasanat and Ahmed Faruqui, Pakistan Unresolved issues of State and Society (edited), (Lahore: Vanguard Books, 2008), p. 54 174

executive. Its prime task is to maintain a working relationship between the army, the president and the prime minister.89 The much-dread NSC, introduced by General Musharraf, agitates against democratic values and undermines the growth of representative institutions.90 The NSC envisaged in the LFO would be an institution for checks on the prime minister, his government and indeed, on the institution of democracy, itself. The composition of the NSC indicated that the army wants to run the state affairs from the back seat. The president in military uniform would head the NSC for the next five years. The chief ministers appointed by the governors (nominees of the president) would not be independent of the coercion and influence of the president and his governors. It is worth mentioning that not of all the chief ministers would belong to the political party. Of the prime minister and a political scenario on the pattern of 1989 may well emerge once again, when the Punjab chief minister Mian Nawaz Sharif, confronted the then prime minister, Benazir Bhutto on the behest of the then president Ghulam Ishaq Khan. The navel and the air forces chiefs traditionally never play an independent role and always toe the army lines, whether it is coup-making or any other intervention in civilian affairs. Besides the army chief, the three other chiefs would be present in the meetings, merely for decorative purposes and for increasing the military‘s vote in the council. Through the NSC, the generals have succeeded in extracting a coercive constitutional role in the country‘s future governance. The main argument advanced in the favor of NSC, was consultation on the ―strategic situation‖ and ―security of the state‖. The critics of the NSC consider the institution as an open ended and all embracing intrusive body. They contradict it with the arguments that such mechanism for consultation are already in place in the form of the defence committee of the cabinet(DCC), the ministry of defence, the joint chief‘s committee and, the ISI.91 Musharraf and the issue of the Uniform

89 Lawrence Ziring, Pakistan at the Crosscurrent of History, (Lahore: Vanguard Books, 2004), p. 346 90 (Maluka 2007, 73) 91 Ibid 175

According to the agreement of December 24, 2003 between the PML (Q) and the MMA Musharraf would give up the office of chief of army staff by 31 December 2004 at the latest. On December 24, 2003 Musharraf appeared on the television and radio and made a solemn promise that he would give up the office of chief of army staff by 31 December 2004 at the latest. ‗I have decided to leave the army chief post before 31 December 2004. But it will be up to me to decide about the timing, within this period. It is for the reason that a proviso was added to the clause (7) of article 41 of the constitution in the following words by the seventeenth amendment: provided that paragraph (d) of clause (1) of article 63 shall become operative on and from the 31st day of December 2004.92 Article 63 pertains to disqualifications for membership of parliament and paragraph (d) of clause (1) reads as under: A person shall be disqualified from being elected or chosen as, and from being, a member of Majlis-e-shora (parliament) if he holds an office of profit in the service of Pakistan other than an office declared by law not disqualify its holder. Clause (2) of article 41 provides that president should be qualified to be elected as member of the national assembly. Therefore holding an office of profit in the service of Pakistan would disqualify a member of the national assembly to hold his office and by the same token, it would also disqualify the president to do so. There can be no two opinions that office of chief of army staff is an office of profit in the service of Pakistan. Thus as a result of the aforesaid amendment in Article 41, Musharraf could not hold both the offices of the president and the chief of army staff at the same time on and after 31 December 2004.93 According to S.M. Zafar, Musharraf had accepted the universal rule that two offices of the president and COAS could not be held by one and the same person but believed that it was necessary for an interim period, more so to strengthen and stabilize the civilian rule. With the benefit of hindsight, it now appears that Musharraf never meant to honor his own pledge to the nation about retiring as COAS. Qazi Hussain Ahmad, president of MMA and Ameer,

92(Khan 2010, 498) 93 Ibid 176

Jamat-e-islami, has said that Musharraf by going back on his words had once again subjected the country to the worst constitutional crisis.94 It all started with the Punjab chief minister, Chaudhry Pervez Ilahi, calling upon Musharraf not to give up his uniform. This was followed by Musharraf himself making a statement that 96 percent of the people in Pakistan did not want him to take off his uniform. These statements were followed by the resolutions of he provincial assemblies of the Punjab and Sindh calling upon Musharraf not to give up his office of COAS. The principle argument of the proponents of retaining of office of COAS was that Musharraf‘s uniform was necessary of the stability of the system. All this was followed by the government party in the parliament moving a bill in the national assembly allowing Musharraf to retain his army post during his tenure as president. The bill provided: The holder of office of president of Pakistan may, in addition to his office, hold another office of profit in the service of Pakistan which will not disqualify its holder as provided under paragraph (d) of clause (1) of article 63 of the constitution or any other law for the time being enforce, provided that his provision shall be valid only for the present holder of the office of president.95 This bill titled ― the president to hold another office Bill‖ caused a great deal of commotion in the national assembly and the opposition, including the MMA, accused Musharraf of going back on his solemn promise to the nation. The national assembly passed this bill hurriedly on 14 October 2004 when the speaker abruptly cut short the debate on the bill and put it to vote. The opposition parties accused the speaker of partiality and threatened to move a note of no confidence against him. A resolution for a vote of no confidence was moved against the speaker but the same was abandoned when the Deputy speaker presiding over the session, did not allow sponsors of the resolution to speak on the motion. The bill was moved in the senate and during the debate harsh words were exchanged between the Senators from government and opposition parties and they nearly came to blows. The senate passed the bill on 2 November 2004 with the opposition boycotting the session of the Senate

94 Ibid 95 Ibid 177

in protest. A clever ploy was to have the bill assented to the acting president Muhammadmian Somro on 30 November 2004 while Musharraf was abroad.96 The bill and the endeavors of Musharraf to retain his uniform are attempts to subvert the constitution. He did not have any intention of shedding his uniform, which became clear on 2 October 2004 when he appointed General Ehsan-ul-Haq as chairman, joint chief of staff committee, and General Ahsan Saleem Hayat as Vice Chief of army staff. Thus he had filled all the slots around himself and had no intention of giving up the office of COAS. Musharraf had no confidence in his self-created system of so called sustainable (real) democracy and feels that its stability depends upon his remaining in uniform. It did not matter to him if in the process the constitution is subverted and the breaks a solemn promise made to the nation.97

96 Ibid 97 Ibid, p. 499 178

Chapter No 5

Musharraf and the Judiciary

General Pervez Musharraf came into power as a result of a bloodless coup in 1999. He deposed the government of the Prime Minister, Mian Muhammad Nawaz Sharif. After the coup, those judges who were expected to oppose the military takeover of 1999 were removed from their posts. This provided an opportunity to those judges who were loyal to General Musharraf to take an oath under the Provisional Constitutional Order. This fresh oath under the Provisional Constitution Order was a violation of oaths of the original 1973 Constitution.1 On January 20, 2000, as Chief Executive vide the proclamation of Emergency dated October 12, 1999, and the Provisional Constitution Order 1999, General Pervez Musharraf enacted the Oath of Office (Judges) Order 2000 to isolate judges of the superior courts. The reconstituted court did not waste the precious time in reversing gears. Its judgment in Zafar Ali Shah‘s case legalized the takeover of the government by General Musharraf. , the Chief Justice of Pakistan, openly displayed and distributed the copies of his shameful judgment at international judicial conferences to show his genius in jurisprudence. In the Zafar Ali Shah case the Supreme Court decided a number of cases prominent of which was the validity of the presidential referendum. Because of that referendum General Musharraf became the president of Pakistan for five years. However, he also continued to wear military uniform. Seventeen constitutional amendments were also validated. It was an interesting joke that the judges and the military dictators safeguard the interest of each other. In this regard one of the interesting example in the Zafar Ali Shah case was, the Supreme Court had given three years to General Musharraf initially to hold elections and to restore the constitution. In response, Musharraf gave three years extension to the judges of the Superior Courts. In this way Musharraf constitutionally secured himself. He gave legal cover to his illegal acts. But without any resistance Chief Justice Saeedu- Zaman Saddiqi and five judges of

1 Azmat Abbas and Saima Jasam, ―A Ray of Hope: Heinrich-Boll-Stiftung, in the publication series on promoting Democracy under Conditions of State Fragility” Pakistan: Reality, Denial and the Complexity of its state. (London: 2009), 6

179

the Supreme Court declined to take fresh oath to the office.2 He separated the controversy over the three years extension in the retirement age of the judges from the rest of the matter. Perhaps he wanted to hold that withdrawal of three years extension in retirement age of the judges the seventeenth Amendment did not apply to those judges who were in service at the time of the Amendment. He constituted a special bench of five judges to decide this controversy. The government notified Justice Iftikhar Muhammad Chaudry as the Chief Justice with effect from the date of retirement of Chief Justice Saddiqi.3

Chief Justice Iftikhar Muhammad Chaudry as the Chief Justice Chief Justice Iftikhar Muhammad Chaudhry was the greatest challenge for Musharraf which ultimately led to his resignation. He was the only hurdle in his political and constitutional way. Chief Justice, Iftekhar Muhammad Chaudhry was a judge of the Supreme Court from 2000 to 2005. He was in a key position that actually validated military takeover by General Musharraf, his referendum, his Legal Framework Order and the 17th Constitutional Amendment. All those gave General Musharraf additional powers as President, and allowed him to continue as the army chief. Justice Chaudhry voted with the majority on each bench.4 At the time of his appointment to the Supreme Court in June 2005, Justice Iftikhar Chaudhry was seen and perceived as General Musharraf‘s man of trust and thus interested with the key position. However, with the passage of time, he established himself as one with an independent bent of mind. He took suo moto actions, requiring the government to explain, even take back, certain measure that in the court‘s view affected the general public‘s interest.5 While becoming the Chief Justice of Pakistan there was nothing special in the rise of Iftekhar Muhammad Chaudhry. He was born in in 1948. After graduation he started practice in 1974. In 1985 he qualified for legal practice at the Supreme Court. In 1989 he was appointed as Advocate General of Baluchistan and served as a judge of the

2 Zafar Ali Shah vs. General Pervez Musharraf, PLD 2000 S.C. 869 3 Ibid 4 (Azmat Abbas and Saima Jasam 2009, 9) 5 Murtaza Razvi, Musharraf the Years in power, (New Delhi: Harper Collins publisher, 2009), p.94 180

Baluchistan High Court in 1990. In April 1999, he was raised to the rank of Chief Justice. He became a judge of the Supreme Court of Pakistan in February 2000. He was appointed as the Chief Justice of Pakistan on June 30, 2005 by President Pervez Musharraf. Justice Chaudhry was among those judges who legalized the military coup of 1999 of General Musharraf. It was in this background that it came as a surprise when Chief Justice Iftekhar Muhammad Chaudhry refused to step down on the demand of the military ruler and decided to contest the charges. This was for the first time that a military ruler, who enjoyed the support of the international powers, had been clashed with the Superior Judiciary.6 ―Justice Iftikhar Muhammad Chaudry became the 20th Chief Justice of Pakistan. Until the events of 9 March 2007, he was not widely known to the people of Pakistan at large. He enjoyed the respect of the legal profession due to the offices he had held, but was not generally seen as an outstanding jurist. His attempt to reduce the backing of pending cases in the Supreme Court was appreciated, though at times he appeared to be rather hasty in disposal of cases. Justice Chaudry came into the limelight for using his suo moto powers in matters where he believed that injustice had occurred. He took up many cases involving violations of human rights as well as other cases of political and public importance. He therefore incurred the intense displeasure of Musharraf, Prime Minister Shaukat Aziz, and many of their close associates because he investigated a large number of cases of human rights as well as other cases of political and public importance. He provided relief to some of the most disadvantaged people in Pakistan. He particularly inquired into the cases of land allotments to influential people in Gwader, restrained environmental degradation that would have been caused by cutting off millions of trees to make way for new Murree Scheme in the foothills of the Himalayas and prevented parks from being converted into commercial enterprises. His most notable decision related to the privatization of Pakistan Steel Mills. The Supreme Court (including the Chief Justice in the majority) held that the agreement with a consortium was void because the privatization process was vitiated by the act of state functionaries including the Prime Minister, which violated the law. Among the most sensitive cases, were the ones that related to ‗forced disappearances‘? At the end of 2005 the Chief Justice, through his suo

6 Ibid 181

moto powers, began investigating the disappearance of 400 to 600 persons. The Chief Justice ordered the Government to furnish details of the whereabouts of some of missing people. When these orders were not satisfactorily implemented upon, he expressed strong disappointment over the Government‘s failure to produce the necessary information. As of 9 March 2007, a number of persons had been released due to his efforts. Those who disappeared and were subsequently released by intelligence agencies have testified that the victims were illegally detained and subjected to prolonged isolation and physical and mental torture by law enforcement agencies to extract confessions and evidence. Prior to 9 March 2007, it was expected that the Chief Justice would be hearing other cases of national, political and constitutional importance in the near future. All those Cases either pending or likely to come before the Supreme Court, would raise issues pertaining to future presidential elections, the possibility of the postponement of the general elections to be held in 2007, the legality of the President retaining his position as Chief of Army Staff, and further challenges relating to the privatization of national assets.‖ 7 In the beginning of 2007, the Supreme Court of Pakistan brought into notice 11 human rights cases. Those cases were filed by their families and the Human Rights Commission of Pakistan (HRCP) with constitutional petition. The Human Rights Commission submitted a report if 100 missing persons. Some were in the custody of police while others were in the custody of military. These people were kidnapped by unknown persons and had not been seen for a long time. For about eight months the Supreme Court heard the cases of such type of people. Those cases were increasing been day by day. The Court stressed on government to provide information about the missing persons and the reason for which they have detained. President Musharraf later on justified his position regarding his action against the judiciary and dismissal of the judges that judiciary has released the terrorists. In fact some missing cases were wonderful. One example was in Baluchistan where a 9 years old boy was released by the Court Order who was being held in order ― to procure the arrest of his elder brother‖. A lot of these missing persons were released and found after a long time without any charges. The agencies of the government also released a number of people. The fact was that the court only desired

7 Hamid Khan, Constitutional and Political History of Pakistan, (Karachi: Oxford University Press, 2009), p. 510 182

reports, charges and location of missing persons. In this regard the court order was of historical significance. Senior officials from the Ministries of Defense and Interior were occasionally summoned to the Court, where they made promises that ―hectic efforts‖ were underway to locate the missing persons.8

Growing Influence of the Judiciary

When Iftikhar Chaudhry became the Chief Justice in 2005, he started an ambitious programme of public interest litigation. The practice involving the court‘s original jurisdiction, suo moto, and relaxing standing in matters of public interest were not new in Pakistan. But Chaudhry expanded the exercise by establishing the Human Rights Cell at the Supreme Court. A careful examination of the chronological sequence of public interest litigation illustrates how the court deviated from the judicial functions expected in authoritarian contexts.

a. Missing Persons Cases

Among the most sensitive cases, were those that related to ‗forced disappearances‘? according to Sajjad Ali Shah ―At the end of 2005 the Chief Justice, through his suo moto powers, began investigating the disappearance of 400 to 600 persons. The Chief Justice ordered the Government to furnish details of the whereabouts of some of these people. When these orders were not satisfactorily acted upon, he expressed strong disappointment over the Government‘s failure to produce the necessary information. As of 9 March 2007, a number of persons had been released due to his efforts. Those who disappeared and were subsequently released by intelligence agencies have testified that the victims were illegally detained and subjected to prolonged isolation and physical and mental torture by law enforcement agencies to extract confessions and evidence. Prior to 9 March 2007, it was expected that the Chief Justice would be hearing other cases of national, political and constitutional importance in the near future.‖ All those Cases either pending or likely to

8 Human Rights Report, ―Pakistan‘s Courts and Constitution under Attack Reversing the Damage‖ (Washington D.C, February 2008), p.5 this report is available online at www.humanrightsfirst.org 183

come before the Supreme Court, would raise issues pertaining to future presidential elections, the possibility of the postponement of the general elections to be held in 2007, the legality of the President retaining his position as Chief of Army Staff, and further challenges to the privatization of national assets.9 In the beginning of 2007, the Supreme Court of Pakistan brought into notice 11 human rights cases. Those cases were filed by their families and the Human Rights Commission of Pakistan (HRCP) with constitutional petition. The Human Rights Commission submitted a report of 100 missing persons. Some were in the custody of police or the military. These people were kidnapped by unknown persons and had not been seen for a long time. For about eight months the Supreme Court heard the cases of such type of people. Those cases were increased day by day. The Court stressed on government to provide information about the missing persons and the reason for which they have detained. President Musharraf later on justify his position regarding his action against the judiciary and dismissal the judges that judiciary has released the terrorists. In fact some disappearance cases were wonderful. One example was in Baluchistan where 9 years old boy was released by the Court Order who was being held in order ― to procure the arrest of his elder brother‖. A lot of these missing persons were released and found after a long time without any charges. The agencies of the government also released a number of people. The fact was that the court only called for reports, charges and location of missing persons. In this regard the court order was a historical significant. Senior officials from the Ministries of Defense and Interior were occasionally summoned to the Court, where they made promises that ―hectic efforts‖ were underway to locate the missing persons.10 Most of the cases were related to Baluchistan. Being the native of Baluchistan, Chaudhry took particular notice of the disappearances. The Supreme Court ordered the authorities to trace all other disappearance cases. Another list of 148 missing persons to the court was provided by the Human Right Commission of Pakistan alleging that the intelligence agencies were detaining these people as well. A bench headed by Chaudhry took a petition and sent notices to federal provincial governments. By reach of judicial power to

9 Sajjad Ali Shah. ―Let Sacked Judges be Restored.‖ Dawn Islamabad, December 5, 2007

10 (Human Rights 2008, 5) 184

intelligence agencies the Chaudhry Court had gone too far. Instead of the social control of over dissidents and political opponents the court was expanding its power by taking up the popular cause of missing persons. The media was enthusiastic about this role and encouraged the court to move toward further political liberalization.11

b. Privatization of Public Enterprises

Shaukat Aziz became the Prime Minister of Pakistan in 2004. He was vice president of Citibank in New York before he was appointed finance minister by Musharraf in 2002 to spearhead economic liberalization. Being a prime minister he also retained the position if finance minister and chairman of the privatization commission to oversee the sale of state enterprises such as Pakistan Tele Communication Ltd (PTCL), Pakistan State oil (PSO) and Pakistan Steel Mills. PTCL was privatized in 2005 with the help of Citibank, amid labor union protests. When the government refused the union demands, the workers threatened to bomb the telecom facilities, and the army had to secure the infrastructure.12 In the political context, the Pakistan Steel Mills was privatized in 2006, also amid labor union protests. The opposition parties and labour unions raised charges of corruption against the privatization commission. They argued that the enterprise was sold for a price lower than its land value, not to mention the inventory and the equipment. On a petition filed by the union in May 2006, the Supreme Court heard the case. The Supreme Court set aside the privatization of Pakistan Steel Mills and held as follow: I. ―The establishment and working of the Council of Common Interest is the cornerstone of the federal structure, providing for the protection of the rights of the federating units. The federal government was therefore directed to make it functional again and expeditiously. II. Although the approval of the privatization of Steel Mill by the council of common interest on 29 May 1997 continued to hold the field yet, due to

11 Shoaib A. Ghias, ―Miscarriages of Chief Justice: Judicial power and the Legal Complex in Pakistan under Musharraf‖, Law and Social inquiry, Journal of the American Bar Foundation, Volume 35, Issue 4, 985-1022, Fall 2010

12 Ibid 185

developments taking place during the intervening period, it would only be appropriate if the matter was referred to the CCI consideration. III. The process of privatization of Steel Mill stood vitiated by acts of commission and commission on the part of certain state functionaries reflecting violation of the mandatory provisions of law and rules framed thereunder. It adversely affected the decisions qua prequalification of a member of a successful consortium which were not in accord with the initial public offering given through advertisement.‖ 13

After the Steel Mills case, the Chaudhry Court also went after accepted position against the privatization of PSO and PTCL. The Steel Mill case is considered the principal factor behind the regime‘s confrontation with the court. Furthermore, instead of enforcing contracts and supporting foreign investment, the Supreme Court was expanding power by reviewing contracts and canceling them based on corruption concerns. Once again, the space for judicial intervention had been opened by the regime‘s economic liberalization agenda.14

c. Presidential Election

The Chief Justice heard other cases of national, political and constitutional importance in the near future. One of the important case come before the Supreme Court was the upcoming presidential elections and the legality of the President retaining his position as Chief of Army Staff. As he want to re-elect himself from the parliament. ―On October 5, the Supreme Court declined to stay the presidential election scheduled for the next day, but directed the Election Commission not to officially notify the result until it gave its verdict on petitions challenging the eligibility of Musharraf to run for the office of president while remaining army chief. Musharraf was elected on October 6, 2007 and secured more than fifty-five percent of the votes cast by the members of the national and provincial legislatures that form Pakistan's Electoral College. However, the Supreme

13 Watan Party vs. The Federation of Pakistan PLD 2006 S.C. 669 also see Hamid, p. 504 14 (Ghias, 2010) 186

Court declared that he may not take the oath of office until the SC decided a number of petitions challenging his candidacy on the grounds that his re-election while still being the COAS violated the Constitution.‖ The Chaudhry Court challenged the legitimacy of Musharraf as he was not eligible for another presidential election. 15

d. Price Control

After some cases of public interest, ―the Chaudhry court intervened in oil and sugar price controls. Both cases involved market shocks in the context of deregulation and high level corruption. In case of oil, the international price shock of 2004-2005 provided the context. The ministry of petroleum had delegated the power to set the price of petroleum to a consortium of of oil companies called the oil companies advisory committee, with no parliamentary oversight. When the international price rose to US $ 70 per barrel in the beginning of August 2005, the committee increased the petroleum price, but when the oil price dropped to US $ 62 per barrel at the end of the month, the committee did not correspondingly decrease the petroleum price.‖16 In May 2006, ―a three member bench of the Supreme Court, headed by Chaudhry, heard the petitions challenged the oil hike, and asked the national accountability bureau (NAB) to investigate. After initial hearings, the bench send the case to a large bench to investigate whether the committee collaborated with corrupt officials from the ministry of petroleum to fix an unreasonable petrol price. In the case of sugar the country faced a national crisis in 2005-2006. The price of sugar more than doubled in less than a year.‖ 17 According to Ghias Ahmed ―A Supreme Court bench headed by Chaudhry took suo moto notice of the price hike in 2006 and asked the NAB to investigate. Their report implicated eight persons including Nawaz Sharif and Asif Zardari and claimed that the government soft policy was responsible for the sugar crisis. Even though the oil and sugar cases were not decided before March 2007, cooperation from the NAB probably made the court confident about compliance. Instead helping the regime to deflect blame for the

15 Dr. Richard Blue and Dr. Richard Hoffman, ―Pakistan Rule of Law Assesment- Final Report‖, USAID Pakistan, November 2008. 16 The Daily Times (Lahore), August 2005 17 (Ghias 2010) 187

unpopular deregulation measures, the price controls cases exposed the regime and targeted high level corruption. The space for judicial intervention in price controls, welcomed and encouraged by the media, was opened by the discontents of economic liberalization.‖ 18

e. Regional Influence

―Not only does the Indian judiciary take pride in its independence, it continues to exert its healthy influence over other branches of the state from time to time. Let alone taking on the courts, the executive and legislature in India revere and seek guidance from the judiciary. This is perhaps why India is hailed as a successful democracy whereas its separated-at-birth twin, Pakistan, continues to fight daily existential battles 60 years after its creation.‖ 19 Ghias Saddiqi further narrated that ―the Supreme Court may also have been inspired by its Indian counterpart, which has long standing tradition of public interest litigation. The Pakistani petitioners were pushing the scope of jurisprudence by using Indian case law in public interest litigation. The use of Indian precedents, for example, S.P. Gupta in the Steel Mill case, points towards this development. During this period, the two governments were also taking a series of confidence building measures in an effort to resolve tension. Exchange programs from various levels of government, including the judiciary, were under way. In 2005, delegation of high court judges from Pakistan visited India and met with chief justice Y. K. Sabharwal of the Indian Supreme Court. These exchange programs may have fostered an epistemic community and provided an impetus for affirmation of public interest litigation in Pakistan.in addition the role of Indian Supreme Court in urban issues was reported in the Pakistani media. On the issue of public interest litigation a columnist stated in the cultural context of Pakistan‘s obsession with comparison to India, What India can do, perhaps Pakistan now with enlightenment and moderation to the fore, can do even better. Criticizing the Supreme Court‘s backlog of cases, another commentator stated, India, with seven times the population, no less

18 Ibid 19 Aijaz Zaka Syed, ―Contempt for Institutions‖, Dawn Islamabad, March 19, 2007

188

criminal or litigious than ours, has only 26 [justices] but the cases on its roster are fewer.‖20 An important factor at play in expanding judicial power was regime compliance. According to Saddiqi ―The regime cooperation in preliminary measures gave the court a signal of compliance. But why did the regime comply? The core function of courts in Pakistan during authoritarian periods has been to provide legal legitimacy to the reigning regime. But in the process, courts carve pout some judicial power as well. The regime knows that a court that validates everything legitimizes nothing. In Musharraf case, judicial credibility was particularly valuable in legitimizing his forthcoming presidential election. Furthermore, expansionary ruling do not threaten a military regime in the same way as they threaten a democratic regime since ultimate power depends not on some constitutional balance but on the armed forces. So the Musharraf regime could comply with the judicial decisions without fearing a judicial coup. Moreover, Musharraf did not see judicial activism as a threat until the prime minister was implicated in the Steel Mill case and the intelligence directors involve in illegal detentions convinced him that Chaudhry was threatening core regime interests. Even so Musharraf was confident that he could simply force the chief justice to resign.‖ 21

Removal of the Chief Justice

On 9 March 2007, Musharraf ‗called‘ the Chief Justice to Army House. The Chief Justice arrived at 11:30 a.m. and began general discussions with Musharraf, who was dressed in his full military uniform. At this point ‗a number of TV cameramen and photographers were also ushered into the room. They took several pictures and made movie footage. Shortly thereafter, the Chief Justice was ‗confronted‘ by Musharraf with allegations of misconduct. Soon they were joined by several other senior military officers including Director General ISI and Director General Military Intelligence as well as the Prime Minister. Musharraf referred to baseless charge which had already been blamed in a letter written by an advocate and widely circulated through e-mail. Musharraf gave Justice

20 (Ghias, 2010) 21 Ibid 189

Chaudhry option, either to resign from the office of the Chief Justice of Pakistan or face trial before the Supreme Judicial Council. Musharraf offered to accommodate him if he resigned. Justice Chaudhry refused to resign. After 30 minutes, Musharraf departed but Justice Chaudhry remained practically confined in Army House until after 5 p.m. During this he was in the company of the senior military officers who kept insisting that he should resign.22 Upon the Chief Justice‘s refusal to resign Musharraf ordered that ―The President does hereby restrain Mr. Justice Iftikhar Muhammad Chaudry to act as Chief Justice of Pakistan & a Judge of the Supreme Court, as he is unable to perform the functions of his office due to facts narrated in a reference having been made against him by the Supreme Judicial Council. While the Chief Justice was still being held at Army House, Musharaf appointed Justice Javed Iqbal as the Acting Chief Justice under Article 180 of the Constitution.‖ 23 Justice administered the oath of office to him. The appointment of Justice Javed Iqbal was made in the absence of the senior most Judge of the apex court. Justice , who was in India at that time and temporarily absent from Pakistan.24 This action was clearly supported by secret motives of the executive branch. This was a move against the chief justice because of (a) judicial activism increased day by day, (b) he took several steps and thus the executive branch became accountable to judiciary on multiple fronts, (c) the chief justice tried his level best to provide justice to the common man at his doorstep and to stop plight of the masses (d) practical steps were taken for the rule of law and the independence of judiciary and (e) suo moto actions were taken and issued judicial notices of illegal omissions and commissioned to both the federal and provincial governments.25 Keeping in view series of decisions were taken by the Supreme Court of Pakistan on key economic and social issues. Thus it created a clash with the executive branch. In this regard the first blow was one of the greatest decisions of the chief justice of Pakistan by setting aside the Pakistan steels mills privatization in which

22 (Khan 2009, 510) 23 ―According to article 180 of the constitution of 1973 of Pakistan, when the office of the Chief Justice becomes vacant or the chief Justice is unable to perform his duty or due to any other reason the president shall appoint senior most judge of the Supreme Court as the Chief Justice of Pakistan.‖ 24 (Khan 2009, 511) 25 Rai Muhammad Saleh Azam, ―Assault on Judiciary‖, The Daily Nation , Islamabad, March 13, 2007 190

allegations of impropriety and lack of transparency were leveled against the privatization commission. It put a question mark on the entire privatization policy of the government and the credibility of the privatization commission. Never in the course of Pakistan‘s history; had a court set aside such a major privatization deal. It was judicial activism at its finest.26 The entire exercise of suspending the Chief Justice of Pakistan by General Pervez Musharraf was to replace him by another Judge who may be friendly to the present regime, as the government was anticipating numerous litigations in the Supreme Court involving several legal questions including: (i) to keep General Pervez Musharraf as Chief of Army Staff continue while enjoying the office of the President and (ii) whether the Parliament, whose tenure was expiring in the month of September, 2007 was constitutionally competent to reelect President Musharraf as President for next five years ?27 Subsequently, due to the decision of the Chief Justice of Pakistan his position further perturbed the executive branch. These decisions were about the missing persons of Pakistan. A petition was already filed by the Human rights commission of Pakistan and their families. Besides, his position on the negative environmental impact on the new Murree development project, his blocking of a scheme to convert public parks into private sector commercial ventures, his reprimanding of the police for dereliction of duty in the face of the spiraling crime rate and deteriorating security, and his position on the dual nationality of parliamentarians that threatened to disqualify certain parliamentarians. The Chief Justice of Pakistan brought judicial activism and because of this the government was feeling increasing threat from the chief justice of Pakistan. The most important case for President Pervez Musharraf was his military uniform. He wanted to wear it in all seasons. He also wanted himself as the president of Pakistan as well. But Chief Justice was a valid card on key [political and constitutional] issues affecting his future. Musharraf was to make a deal with to legalize his position and to keep his office. He played all cards to convince the Chief Justice of Pakistan to secure his position. He

26 Ibid 27 Justice (Retd) Rasheed A. Razvi, ―Testing time for Judiciary in Pakistan‖, Published on the Internet: http://www.upiasiaonline.com/politics/2007/08/08/commentary_testing_time _for_pakistans_judiciary/ 191

also pressurized the Chief Justice of Pakistan to resign from his post and leave the office.28 In Musharraf opinion the chief justice of Pakistan would surrender and he will be under pressure and thus will be resigned. But the chief justice of Pakistan showed a different attitude. He refused to bow to military and executive. He felt no hesitation and did not seem under pressure. As a result he has renewed the faith of millions of Pakistanis in the judiciary. It was encouraging to note that there still were (albeit a few) public functionaries not afraid of standing their ground in the face of immense pressure. The refusal of the chief justice of Pakistan to resign, not only made his position high but it also encouraged all the citizens of Pakistan. This whole story raised some basic questions. For example the judiciary is not subservient to the executive under the scheme of the constitution. According to the constitution of 1973 of the Islamic Republic of Pakistan, the chief justice of Pakistan is not answerable to the prime minister or the president. He is only answerable to the supreme judicial council and his peer judges and, of course, in the court of public opinion. The way the Chief Justice was blamed to answer false allegations by the president and the prime minister was deliberately intended to insult and undermine the Chief Justice of Pakistan‘s office. Neither of Musharraf‘s two offices gave him the right to summon the chief justice of Pakistan let alone suspend him.29 It is also interesting to note that why Musharraf had called the chief justice of Pakistan in his capacity as president. And why he chose army house, Rawalpindi (the so-called ―presidency camp office‖) for the meeting? Constitutionally, if he wanted to talk to the chief justice of Pakistan in his capacity as president, he should have worn civilian dress and called the chief justice of Pakistan to Aiwan-e-Sadr (President House). That the Chief Justice of Pakistan was called to army house and his meeting with Musharraf means that his position was weak. He was no mare a Chief Justice and immense pressure was extended on him to resign. As chief justice of Pakistan was a threat for him. Musharraf once again used the card of Chief of the Army Staff to undermine, intimidate and threaten an important civilian institution. The presence of Prime Minister Shaukat Aziz in army

28 (Saleh, op, March 13, 2007) 29 Ibid 192

house also added fuel to fire. Being the head of the executive branch his presence in the army house was also the insult of the chief justice. It showed that the chief justice of Pakistan (head of the judicial branch) was answerable to the Prime minister (head of the executive branch), which was not legitimate. The chief justice of Pakistan is not answerable to the prime minister under any circumstances. The constitution envisages the judiciary as acting as a check on the executive branch a role which would mean if the chief justice of Pakistan was to be hauled up to explain frivolous allegations against him before the Prime minister. The right thing for Prime Minister Shaukat Aziz to have done was to decline Musharraf‘s invitation to be present on this occasion.30 Chief justice Iftikhar Muhammad Chaudhry was also responsible for some of his general actions. Being the head of the judiciary he was not performing his functions as would be expected from the head of the judiciary of a country under the shadow of the military. He was beginning to stretch the long arm of the law to areas it had never visited before. He asked the government about the long ‗disappeared‘ persons. He sounded even more threatening when seen from the prospective of what lay ahead of this hapless nation in the year 2007. At the time Musharraf perceived that the military uniform was his mortal soul. But that was inconsistent with the constitution of Pakistan. Chief Justice of Pakistan considered it a threat to national security, violation of the rule of law and the constitution. President Musharraf and his legal advisors did not recognize Chief Justice Iftikhar Muhammad Chaudhry at the time of his appointment as the Chief Justice of Pakistan. He had given a clear indication before his appointment as the Chief Justice of Pakistan. He argued that what should be done with the problems and prospect of the future judiciary of Pakistan. At the time when a provincial ordinance passed by President Musharraf, he made an observation in December 2004, in the case of Arshad Mehmood vs government of Punjab PLD 2005 SC 193 in the following words: ―It is significant note that ordinance of 1999 could not be placed before the provincial assembly to make it an Act because during its subsistence the provincial assembly was suspended on account of the military take over on 12 October, 1999. Consequently, it may be legally supposed that in the enactment of section 69-A of the ordinance, the public view through chosen representatives were not included. Thus, in the absence of public opinion promulgating section

30 Ibid 193

69-A of the ordinance, it may not be hard to infer that it was not promulgated in the public interest and general benefit etc. indeed, had this law been discussed in the assembly, through the representatives of the public, it might have changed its impediment, to bring it within the command of article 18 of the constitution.‖ 31

General Musharraf and his legal team forgot that a judge who believes in the rule of law and public welfare would become a direct threat for them and their so called ‗genuine democracy‘. They hand over the reins of judiciary to such a person that his tenure was too long up to 2013. That was nothing but strategy on the part of Musharraf. When Chief Justice was suspended and made ‗non-functional‘ the government tried her level best to give a constitutional cover to their unconstitutional and shameful exercise of raw power. ―If such an act had been taken by a civilian government, it would have been toppled by the military within hours. Initially it was claimed by the government that the president had filed a reference against the Chief Justice of Pakistan under article 209 of the constitution of Pakistan 1973, only after he was unable to satisfy the uniformed president of his innocence in the chief of the army staff house which happened to be the camp office of the president. However, subsequent events showed that the reference was not ready even when the chief justice first appeared before the supreme judicial council on March 13, 2007. In the meanwhile, some of the spin doctors of the government unleashed a campaign to malign the chief justice who was not only legally presumed to be innocent until proven guilty but still held the highest judicial office in the country.‖ 32

President’s Reference against the Chief Justice

President Musharraf filed a reference on 9 March 2007, with the Supreme Judicial Council. He directed to enquire a lot of charges of misconduct against him. During the oath-taking ceremony of the Acting Chief Justice, a session was held in the Supreme Judicial Council. The acting Chief Justice presided over the meeting. Other members of the meeting were Justice Abdul Hameed Dogar and Justice Khan of the Supreme Court, Iftikhar Hussain Chaudhry, Chief Justice of Lahore High

31 Arshad Mehmood vs the Government of Punjab PLD 2005 SC 193 32 Ibid 194

Court. The last two judges had come from Lahore and Karachi respectively. Attorney General also attended that meeting. The deposed Chief Justice was given no notice of these proceeding. He did not attend that meeting.33 At the session of the Supreme Judicial council an order was issued which stated:

―After examining the Reference and having gone through the record of Council has taken cognizance of the Reference and decided to invite the respondent to appear before it on 13 March 2007. It further ordered that the ‗respondent shall not perform function as judge of Pakistan till the above Reference is answered by the Council.‖ 34

President Musharraf, the president of Pakistan filed a reference against the deposed Chief Justice Iftikhar Muhammad Chaudhry. The reference contained some of the allegations. It was said that the Chief Justice by his personal efforts promoted his son‘s career.firstly, he was promoted in the medical profession and then in the police services. Chief Justice was also blamed that he had more cars than he was entitled. He was also blamed for extra protocol which was not availed by any Chief Justice previously. This included the demand of police with vehicles at airports. Further he was blamed that he used aircraft/helicopters of Governors or Chief Minister frequently for his travel. Some of the charges were listed in the letter of Naeem Bukhari an advocate against the Chief Justice of Pakistan which he wrote to him. This letter was widely circulated, several weeks before the Reference of the president. The lawyers‘ community felt that the Chief Justice was targeted for his judicial activism and especially in cases involving violation of human rights, particularly the cases of political and public significance.35 When the Chief Justice came out from Army House, both the and the emblem flag were removed from his car. He tried to return to his office at the Supreme Court but was prevented from entering his office. He was ushered to his residence. He arrived at his home at 5:45 p.m. He was surprised to see police officials and agencies persons. They were without uniform and performing their duty all over his residence.

33 Ibid 34 Ibid 35 International Bar Association, ―The Struggle to Maintain an Independent Judiciary a Report on the attempt to Remove the Chief Justice of Pakistan‖, (United Kingdom, July 2007) Also see Khan, p. 511 195

Moreover, all his vestiges of office had been removed. His cars were taken from him. His telephone line and television cable were disconnected and he did not receive any newspapers. Later on one car was returned to him without the keys. He was prohibited to leave premises with his family, including a child of seven. His children were prevented form attending their school or collage.36 The deposed Chief Justice on March 10, 2007, received a notice from the supreme judicial council which informed him that the reference had been filed. He was sent a copy of the order of the supreme judicial council of 9 March, but no supporting documents with Reference were provided to him. In the meantime many people tried to meet with the chief justice but the police did not allow their entry. On March 10, 2007 a delegation of the representatives of the lawyers tried to meet the Chief Justice but they were also prevented from entering his house. Asghar Khan a veteran politician was the first person who got permission to visit the chief justice. Before he had requested for permission several times but it was not granted. He visited the place where the Chief Justice was kept in detention along with his family members and security personals. Just after one day, four Supreme Court judges visited the Chief Justice. All others lawyers, friends, political leaders‘ senators and journalists were refused permission from entering his residence, along with all his family members and the only people given access to him were those who were approved by the officials serving the president.37 On March 13, 2007, the deposed chief justice tried to attend a session of the supreme judicial council which was at a short distance from his residence. He refused to go by an official car. At that time he was in the custody of police in a very miserable position. They forced him into the car. Chaudhry Iftikhar complained about this behavior to the Acting Chief Justice. He directed an inquiry into the mistreatment bench of the Supreme Court instituted a charge for contempt of court against seven police officers, including the Inspector General of police and senior superintendent of Police of Islamabad, for (grossly manhandling)the Chief Justice. On October 28, 2007 the court announced its judgment on

36 Ibid 37 Ibid 196

these charges awarding various punishments to the police officials responsible for manhandling the Chief Justice.38 Chief Justice was detained with his family members until March 13th, 2007. The deposed Chief Justice said that his (personal and private life) and that of his family had suffered a great shock and that serious violation of the privacy of his home had taken place. After 16th March the ongoing pressure to (resign from office) was released to some extent‖ The Chief Justice believed his house was bugged and the residence opposite him had been occupied by the members of intelligence agencies and the police. In addition, the Chief Justice‘s staff at the Supreme Court was reportedly missing and had been kept at an unknown place. The Chief Justice‘s Chamber was sealed and legal files had apparently been removed from there. 39 On March 15, 2007, President Musharraf issued another order which provided: ―The President, In terms of Article 2(1) of the Judges (Compulsory Leave) Order 1970 (p.o.no.27 of 1970), Is pleased to order that Mr. Justice lftikhar Muhammad Chaudhry, Chief Justice and Judge Of the Supreme Court of Pakistan shell be on compulsory leave with effect from 9 March 2007, till submission of the report by the supreme judicial Council and the President‘s order thereon. This action was taken by Musharraf in repose to Public criticism that there was no legal basis for the President‘s order of March 9, 2007 suspending the Chief Justice. However, the same criticism was also extended to the order of March 15, 2007.‖ 40

Supreme Judicial Council Proceedings

The deposed Chief Justice appeared before the Supreme Judicial Council on March 9, 2007. When he reached the Supreme Court building the lawyers‘ community accompanied him. They wanted to represent him but the council initially disallowed legal representation. The deposed Chief Justice challenged the legal authority of the council to entertain the reference. Ultimately, the deposed Chief Justice was given permission for legal representation and appearance. The lawyers requested the supreme judicial council

38 Ibid 39 Ibid 40 Hamid Khan, p. 512 197

that if they are unable to meet with the chief justice to follow his instructions, the proceedings be adjourned. The proceedings were adjourned till March 16, 2007. On that day, Attorney General was directed that the chief justice would have access to his council. In spite of the fact that the council had given permission to Chief Justice for legal councilor but he had not been permitted to meet him by the security personals. Therefore further adjournment was postponed. In a press release the Council stated: ―The Supreme Judicial Council made it clear that there was absolutely no restraint on the respondent who could move freely and everyone has access to see him and so far as the security measures are concerned, this aspect of the matter squarely falls within the jurisdictional domain of the executive/police. Therefore, the Council directed learned counsel for the Referring Authority to ensure that every step is taken in accordance with law; The Council adjourned the proceedings to 21 March 2007.‖41 Again on March 20 2007, the council issued a press release stating that the proceedings against the Chief Justice were adjourned until April 3, 2007. For this postponement no reason was provided. But on April 3, 2007 the composition of the Supreme Judicial Council had changed. Justice Rana Bhagwandas, who had been sworn in as Acting Chief Justice on 24 March 2007, replaced Justice Javed Iqbal as Chairman of the council. Until this time, proceedings of the council were conducted in camera only. The Chief Justice made an application for an open and public trial, which was rejected. The council rejected objections raised by the legal counsel of the Chief Justice.42 ―On April 13, 2007, legal team of the deposed Chief Justice completed their arguments biased attitude, personal interest and misconduct of certain members of the Supreme Judicial Council. Proceedings were adjourned until April 16, 2007. On April 18 council for the Chief Justice made an application seeking decision on the allegations of biased attitude before Supreme Judicial Council. The application was rejected and the counsel was directed to address further arguments challenging the Reference. The arguments were addressed on the council‘s constitution and composition. The Chief Justice also applied for a stay of the council‘s proceedings until the decision of the Constitutional petition No. 21/2007, filed by the Chief Justice, before the Supreme Court. This

41 Supreme Judicial Council Press Release, March 16, 2007 42 Supreme Judicial Council Press Release, March 20, 2007 198

application was denied. The proceedings were adjourned until 24 April. On 24 April, the Chief Justice‘s counsel addressed arguments on the constitutionality of the presidential Order No.27 of 1970, under which Musharraf had passed his order of 15 March requiring the Chief Justice to go on compulsory leave. Proceedings were adjourned until May 2, 2007.‖ 43 Again in May the deposed Chief Justice‘s counsel requested that the proceedings be adjourned until the decision of the Supreme Court. This request was again denied. ―The deposed Chief Justice‘s counsel addressed arguments regarding the power of the Supreme Judicial Council under Article 209 of the Constitution to restrain the Chief Justice from performing his functions as well as the president‘s power to suspend or send a judge on forced leave. On May 3, 2007 legal arguments were given by both sides and the proceedings were adjourned until 9 and 10 May 2007. On May 7, 2007, the Supreme Court upheld proceedings in the Supreme Judicial Council until a decision had been announced by full court of the Supreme Court on the petition of the Chief Justice.‖ 44

Proceedings before the Supreme Court

On April 18, 2007, the deposed Chief Justice Iftikhar Muhammad Chaudhry filed a constitutional petition in the Supreme Court. He challenged Musharraf for filing of the Reference against him. A Supreme Court bench of three judges was already hearing similar petitions filed by various bar associations. The Chief Justice‘s petition raised Judicial Council to hold a trail of the Chief Justice and the action taken by the Executive against him. Musharraf‘s move itself was unconstitutional because: (i) ―The president had suspended the chief justice of Pakistan, which he does not possess the power to execute under any provision of the constitution. Nor there is any provision empowering the president to declare a judge to be ―non- functional before sending the reference to the supreme judicial council under article 209 of the constitution.

43 Ibid 44 Dawn May 8, 2007 199

(ii) Under article 209, the president does not have the power to remove or suspend the chief justice of Pakistan without the recommendation of the supreme judicial council. (iii) The president can only send a reference to the supreme judicial council against a judge. The supreme judicial council then conducts hearing into the allegations and, after inquiry, submits its recommendations to the president. Only in the event that the supreme judicial council reports to the president that a judge is guilty of misconduct the president can proceed against that judge by removing him. (iv) The constitution of the supreme judicial council itself was unconstitutional because even if the chief justice of Pakistan himself is being inquired, then, by virtue of article 209 (3), the next senior most judge of the supreme court in his place. Mr. Justice Javed Iqbal had been appointed as acting chief justice whereas Mr. Justice Raana Bagwandas was the senior most judge. So the supreme judicial council, as presently constituted, is a forum non judice. (v) Under article 180, only the senior most judge of the supreme court of Pakistan can be appointed by the acting chief justice of Pakistan if (a) the office of the chief justice of Pakistan is vacant, or (b) the chief justice is absent or is unable to perform the functions of his office so the appointment of Mr. Justice Javed Iqbal was also in violation of article 180 since he is not the senior most judge. Secondly, the criterion for appointment of an acting chief justice has not been fulfilled since neither the office of the chief justice of Pakistan is vacant nor was the chief justice of Pakistan absent or unable to perform his duties.‖ 45

The Chief Justice denied the charges leveled against him in the Reference and called for an open public trial by an impartial, unbiased and legally competent forum, as well as ample opportunity for him to obtain the records required for his defense. ―The Respondent‘s reply denied the above contentions and asserted the legality of all actions carried out on 9 March and thereafter. On May 7, 2007 a bench of five members decided that, due to the unprecedented constitutional and legal issues involved in the cases the full

45 (Saleh, March 13, 2007) 200

court would hear the Petition of the Chief Justice and 22 similar petitions. The bench also decided to withhold the proceedings of the Council until the case was heard by the full bench of the Supreme Court. This bench excluded the judges who were members of the Supreme Judicial Council. One other judge recluse himself and, from May 14, 2007 a thirteen member bench of the Supreme Court heard the petitions of the chief justice. On June 11, 2007 the Supreme Court deferred its ruling on the maintainability of the petition against the Presidential Reference and commenced regular hearings on merits of the petition of the Chief Justice.‖ 46 According to Human Rights Report 2008: ―On June 15, 2007 the Supreme Judicial Council modified its records to the Supreme Court, holding that the records were not protected. On 28 June the government withdrew its objection to the Supreme Court deciding the issue of the presidential reference and handed all its files and documents relating to the reference to the thirteen-member full court bench of the Supreme Court. On 2 July the Supreme Court reprimanded government lawyers for filing a ‗scandalous‘ dossier of evidence against the Chief Justice, fined the government an amount of Rs.100,000 and suspended the advocate on record who had filed the so called evidence containing scandalous materials. It also banned all unauthorized personnel, including intelligence personnel, from entering the Supreme Court and High Courts and ordered the intelligence Bureau to remove all bugging devices from the courts and judges‘ homes, and to file an affidavit to this effect within one week.‖ 47 The Supreme Court of Pakistan was heard 35 individual cases and 7 constitutional petitions and a number of the cases of missing persons up October 2007. The new setup of the Supreme Court was unable to persuade these cases. The problem increased day by day. In December 2007 the human rights advocates reported new cases of missing persons. Such cases along with state owned Steel Mills soon led to a showdown, with President Musharraf unconstitutionally removing Supreme Court Chief Justice Iftikhar Muhammad Chaudhry in March based on questionable corruption charges. The new set- up of the Supreme Court of Pakistan ignored all the constitutional provisions to handle these cases. On the removal of the Chief justice Iftikhar Chaudhry the lawyers‘

46 Ibid 47 (Human Rights Report, 2008) 201

community reacted very harsh. In July 2007, in a major setback for President Musharraf and a milestone for judicial independence in Pakistan, the Supreme Court threw out the accusations against Chief Justice Chaudhry, fined the government, and even revoked the license of the government lawyer who had knowingly filed false corruption charges. These events encouraged the lawyers and judges and gave them a new confidence. The Court continued to deal missing cases and challenged the Musharraf government over the deportation of the president‘s political rival, Nawaz Sharif, and the arrest and detention of political activists.48 This entire drama raised some basic questions. Why a reference was filed against the Chief Justice of Pakistan in a hurry when Justice Rana Bagwandas was outside the country? Why president filed a reference against the chief justice of Pakistan on the basis of a vague and frivolous letter written by a lawyer? If the transfer of the chief justice of Pakistan son‘s to the Punjab police was illegal, then what action was the government taking against all those in the executive chain of command who approved such a transfer? Why chief justice of Pakistan and his family was under house arrest? This entire episode was not a move against the chief justice of Pakistan by the president, it was a move against the judiciary by the executive intended to tarnish and erode judiciary‘s image, integrity and authority.49 On March 9, 2007, President Gen. Pervez Musharraf dismissed Chief Justice Iftikhar Muhammad Chaudhry based on the allegations for misuse of office. But the real motive behind the dismissal of Chief Justice was that the Supreme Court demonstrated its separate independence from the executive. Justice Iftikhar refused to resign due to personal revenge. The support of deposed Chief Justice had led to a mass nationwide protest against the government of Pervez Musharraf. The government tried to suppress the movement for the restoration of Chief Justice. People who participated in the movement were bitterly treated by security personals. On May 12, 2007, the situation became tenser when 42 persons died in violence. This tragedy was instigated by activists of the Mutahedda Qaumi Movement (MQM), a major coalition partner in the Musharraf government. They tried to prevent Chaudhry Iftikhar from entering Karachi to address

48 Ibid 49 ( Saleh March 13, 2007) 202

the Sindh High Court Bar. This procession was accompanied by lawyers, Human Rights activists and even the opposition political party activists.50 On March 9, 2007, media showed the actual position of the President wearing military uniform and the Chief Justice at Army House. The information minister stated that the Chief Justice was ‗non-functional‘ and had been ‗suspended‘. The media gave a wide coverage to the maltreatment of Musharraf with Chaudhri Iftikhar. Many lawyers condemned the act of the president in their interviews. They said that the action of the president was unconstitutional. Both the bars, the Supreme Court Bar Association and the passed resolutions condemning Musharraf‘s actions against the Chief Justice and for placing him under house arrest. A number of petitions in the Supreme Court against the President‘s attempt to restrain Chief Justice from carrying out his duties were filed by advocates who urged the Court to declare the order of 9 March and the detention of the Chief Justice to be illegal and unconstitutional. Many other petitions of a similar nature were filed, including those by the Pakistan Bar Council and the Supreme Court Bar Association. The lawyers condemned not only the President‘s order of 9 March but also his order to appoint the acting Chief Justice. Such appointment was obviously unconstitutional given that the senior most judge had not been appointed. The official position adopted by the government on 9 March and thereafter was that the President had acted in accordance with the law and the constitution and that the matter was now under judicial consideration. The government also denied that the Chief Justice was under house arrest. During the weeks following 9 March a number of people resigned in protest against Musharraf‘s actions. Those included Justice Jawwad S Khwaja of Lahore High court, and a number of judges of the subordinate courts and a number of law officers.51 According Hamid Khan: ―On March 12, 2007, massive nationwide demonstrations by lawyers were held against the maltreatment of the chief justice. Protests continued on a regular basis and so did nationwide boycotts of courts. Initially only lawyers were protesting, but they were soon joined by members of civil society and political parties

50 Human Rights Watch ―Destroying Legality, Pakistan‘s Crackdown on Lawyers and Judges‖, December 2007, Volume 19, No.19 (c), p.15

51 (Khan 2009, 516) 203

opposed to the government. The legal community of Pakistan demonstrated remarkably strong and courageous commitment of the rule of the law and to the importance of an independent judiciary. Many leaders of the bar stated that they could neither rely on the executive nor the judiciary to act in accordance with the law. Their protests represented their attempt to hold these institutions accountable. The police encountered many lawyers‘ protests with force and brutality. Though the lawyers protested peacefully they were confronted with baton charge, teargas, rubber bullets, and brutal force. Some of the pictures in the media and firsthand accounts of lawyers being beaten up and physically injured were shocking. A troubling pattern had been established before each protest began. Hundreds of people were arrested and detained in the days leading up to a schedule protest. Barriers were placed outside city center to prevent people who lived outside the city from participating in the protests. In addition, barriers were placed in close proximity to the area of the protests, which could further limit the citizens‘ possibility to participate in the protests. Bans on public gatherings on the days of scheduled protests were also ordered. The involvement of civil society in the issue became widespread and was evidenced by the facts associated with the journey of the chief justice to Lahore on May 5, 2007, where he was to address members of the Lahore High Court Bar Association. The chief justice left Islamabad by car and was joined by over thirty cars and six coaches. The convoy totaled over 300 vehicles. The journey ordinarily used to take no longer than six hours, but it took the chief justice over 25 hours to reach Lahore. In the towns and cities along the way he received an unprecedented welcome, with people lining the streets and throwing rose petals on his car while chanting slogans in his favor. It was reported that at least 4,900 opposition leaders and 60 members of legal bodies were taken into custody by the police throughout the country on the eve of the chief justice journey.‖ 52 On March 17, 2007, there was an all Pakistan Lawyers convention in the high court building in Lahore, for the purpose of devising a course of action in response to the events of 9 March. The lawyers were attempting to bring out a peaceful protest when they were confronted by a large contingent of police. The police, wearing anti –riot uniforms ,

52 Ibid

204

had cordoned off the Lahore high court building and setup barricades around the area , including barbed wire on the main gate , the riot police entered the grounds of the high court and fired a large number of teargas shells into the grounds and into the high court building itself. Many a lawyers were beaten with batons. Approximately 55 lawyers were injured. Ambulances and the fire brigade vehicles (the latter being necessary because of fire erupting in a car as a result of the teargas) were prevented from entering the area. According to the lawyers hundreds of charges were leveled against the protesting lawyers under the terrorist law. The events of 12 May in Karachi, where the chief Justice had scheduled another visit, represented the most violent protest. Tension was already high in Karachi prior to the visit. Two days prior to these events, unidentified assailants had fire 16 bullets at the house of the Chief Justice‘s lawyer, Munir A Malik, who was also the president of the Supreme Court bar association. Lawyers and opposition leaders had organized their regular protest to coinside with the Chief Justice visit, while political parties who supported the president had also organized large rallies to demonstrate their support.53 On May 12, 2007, the chief justice along with his lawyers flew into Karachi but was prevented from leaving the airport. Many lawyers who wanted to escort him from the airport to the high court building where he was to address the lawyers found all the roads blocked with barricades and large containers, and by trucks and buses with their tires deflated . when the violence erupted it was widely reported that the large contingent of police, in excess of 16,000 , were either not present during the violence or did nothing to intervene these events left 48 dead and hundreds injured . In response to these events the human rights commission of Pakistan stated the following: The aim is to silence, Depress, and decimate the civil society of Pakistan. It was a militant act to deny people there freedom of expression and association. The blocking of roads and equipping MQM militants with arm who took position at strategic roads block, and ignoring the directions of the Sindh High Court were all carried out by the governments. On 17th July, when chief justice was to address the members of the Islamabad bar association, a high intensity bomb went off outside the meeting area next to PPP Camp

53 (Ibid, 517) 205

killing more than 20 persons, mostly PPP workers. It was a time device which was meant to go off at the time of arrivals of the chief justice and his supporters but since their arrivals were delayed they escaped without any harm.54

Chief Justice Restored

Public support for the deposed Chief Justice increased. The courts were over-crowded at the time of hearings of Iftikhar Chaudhri. This gave weightage to him. This agitation was really a challenge for Musharraf. On July 16, 2007, the government lawyers issued a detailed report against the deposed Chief Justice. After four days, on July 20, 2007, a 13- member bench of the Supreme Court of Pakistan restored the deposed chief justice Iftikhar Chaudhry. The people were satisfied on the performance of the Supreme Court had proclaimed its independence. Iftikhar Muhammad Chaudhry resumed the office of the Chief Justice of Pakistan on July 21, 2007. Following the restoration of the Chief Justice, preserving and enhancing the independence of monitoring the limits of the judicial independence of the superior judiciary through public interest litigation. 55 Some analysts were of the opinion that now onward judiciary was a great threat to the military government. The real status of the constitution had restored in the Supreme Court. However, two points became very clear, firstly, it was a rising of judicial independence in Pakistan. Secondly, the Supreme Court declined to hear petitions against General Musharraf, and thus the Supreme Court win able to gain public confidence. During the period between July 21, 2007 and November 3, 2007, the Supreme Court dealt with several cases that had far-reaching impact. 56

Judicial Orders and Proceedings Flouted

The judgment in the chief justice case brought a fresh air of confidence to the people of Pakistan. For the first time in 60 years, it was felt that there was independence of judiciary in Pakistan and the Common man could look up to the courts for redress of his

54 (Hamid, 516) 55 (Azmat Abbas and Saima Jasam 2009, 14) 56 Ibid 206

grievances against the oppressive actions of the governments. Such expectations were obviously premature. However, a beginning towards independence of judiciary had been made. On a petition filed on behalf of Nawaz and Shahbaz Sharif, the Supreme Court passed an order on 23 August 2007 that being citizens they had the fundamental right to return to Pakistan any time. It is difficult to understand why they did not return immediately after the order. After long deliberations, Nawaz announced his return to Pakistan on 10 September 2007. This gave Musharraf enough time to block his return. On his arrival at the Islamabad airport, Nawaz was arrested and was forcibly deported to Saudi Arabia in a plane kept waiting at the airport for purpose. One the same day, the Sindh High Court building was surrounded by thousand of armed men presumably belonging to MQM also surrounded the courtroom, in which a seven member bench of the Sindh High Court was to assemble to continue the judicial enquiry in to the carnage of 12 may 2007 in Karachi the courtroom was stormed by the MQM workers forcing the court to postpone the proceedings. Thus on 10 September 2007, the Musharraf regime decided to take on the Judiciary by flouting its orders and frustrating its proceeding.57

Dual Office Case

A number of petitions were filed in August/September 2007 including those filed by Qazi Hussain Ahmad, Imran Khan and Jamaat-e-Islami in which the vires of dual office law 48 was challenged. It was also challenged that Musharraf was not qualified; rather he was disqualified, to be candidate for the office of President of Pakistan. It was also contended that the outgoing assemblies could not form a valid Electoral College to elect an incoming President and particularly the same Electoral College could not elect the same person twice as President. It was also urged that Musharraf could not be candidate for the election because he had already served two consecutive terms as President and was barred under Article 44 of the Constitution to run for the third term.58 The Chief Justice formed a nine member Bench to hear these petitions. He however reclused himself but included the next nine senior most judges headed by Justice Rana

57 (Khan 2009, 518) 58 Ibid 207

Bhagwan Das. Some of the petitioners requested for forming the full court to hear such an important case. The Bench however denied this request. The cases were heard in detail for two weeks on all aspects of the case including the merits of the case. On 28 September 2007, short order was announced holding by a majority of six to three that these judges held the petitions not only maintainable but also allowed them on merits.59

Wajihuddin’s Case

During the hearing of the dual office cases, it appeared through the observation of the judges that the majority of the members of the bench hearing the cases were inclining to avoid the decision on the question of eligibility and qualification of Musharraf to be candidate for the office of the President. In this situation, it became necessary that a candidate of proven integrity and good reputation should be fielded against Musharraf so that his candidature might first be challenged before the Chief Election Commissioner and subsequently before the Supreme Court. Justice (Retd.) Wajihuddin Ahmad, a former judge of the Supreme Court, who had refused to take oath under the PCO on 26 January 2000, was requested to offer himself as a Presidential candidate. He fully deserved up to the lawyers‘ leadership, being a man of unimpeachable integrity and character.60 Justice Wajihuddin agreed to the proposal of the lawyers‘ representation and submitted nomination papers on 27 September 2007. The scrutiny of the nomination papers was to take place on 29 September 2007 which was declared by the lawyers‘ representative to be a nation wide black day. The lawyers and political party activists were requested to demonstrate in front of the office of the Election Commission of Pakistan in Islamabad. While the arguments were being addressed against the acceptance of nomination papers of Musharraf, the demonstration of lawyers outside was met with great brutality by the police and non uniformed members of security and intelligence agencies. Even the journalists covering the demonstrations in front of Election Commission‘s office were brutally attacked and their cameras were broken or damaged. A number of lawyers and

59 Ibid 60 Wajihuddin Ahmad vs. Chief Election Commissioner, PLD 2008 S.C. 25 (also see Hamid, pp.518-19) 208

journalists were badly injured. However, as expected, the nomination papers of Musharraf were accepted rejecting all the objections leveled against him.61 On 2 October 2007, Wajihuddin filed a constitution petition under Article 184(3) of the Constitution challenging the acceptance of nomination papers of Musharraf by the Chief Election Commission on 29 September 2007. A few other petitions were also filed including one by Makhdoom Amin Fahim who was also a candidate for president of Pakistan on the PPP ticket. All these petitions were fixed for hearing on 3 October before a nine-member Bench. At the very beginning, one of the members of the bench namely Justice Sardar Raza Khan observed that since he was one of the dissenting judges in the decision of dual office case, and had already expressed his opinion that Musharraf was not qualified to be a candidate for the office of President of Pakistan, it would not be appropriate for him to sit in this case. Despite the fact that counsels and other members on the Bench requested him to be a part of the Bench, he recluse himself. However, the remaining eight members‘ bench assembled after the interval and the arguments on the case commenced afterwards. Subsequently, two judges including Justice Khalil-ur-Rehman Ramday were added to the Bench which had become a ten member Bench. Since October 6, 2007 had been fixed as polling day, it was not possible to conclude arguments in the case. Therefore it was decided that arguments should only be addressed on the stay application in which it was sought that the polling be postponed till the final decision on the case. After hearing all the counsels on the stay application, the order was announced on 5 October 2007 in the following words: ―Having heard the learned counsel for the parties at some length, it is unanimously resolved and directed that the election process already commenced shall continue as per the schedule notified be the Chief Election Commissioner of Pakistan but the final notification of the election of the returned candidate shall not be issued till the final decision of these petitions.‖

On 17 October, an eleven member Bench of the Supreme Court president over by Justice Javed Iqbal commenced the hearing of the petition of Wajihuddin Ahmad. It was heard

61 Ibid 209

from day to day. On 2 November 2007, the Attorney General was arguing the case when it was adjourned till 5 November. It was expected that the hearing would be completed in three to four days and the verdict of the court would be announced on November 8, 2007.62

Musharraf’s Presidential Election

For presidential elections Musharraf had cleared all the hurdles in his way and removed all the difficulties. He was no more the president after November 2007. Tenure of the elected assemblies was also to be expired in October 2007. To elect the president he made a plan. His plan was to get himself re-elected from the present assemblies and may also take a vote of confidence from the new assemblies after the general elections.63 That meant that the president must be elected between September and October 2007. After general elections of 2008, he wanted to take a vote of confidence from the new assemblies. But the greatest challenge in his way for presidential elections was the Supreme Court. Musharraf and his legal team stated that the Supreme Court is an important ―pillar of the state, and was not expected to play a role that destabilizes the country‖. They also claimed that he was qualified for another term. ―At the time of his elections, one has to see his qualification, not disqualification‖. The term of general Musharraf as army chief was also co-extendable with his term as president. ―It is the discretionary powers of president Musharraf who could only remove General Musharraf as army chief‖.64 On June 9, 2007, the first significant step of the government was to withdraw ban on the media. This had two effects. First, Musharraf government had openly limited freedom of speech it was difficult for Bush administration to support him. Second, it prevented a countrywide anti-Musharraf movement from receiving a sudden and major boost. To

62 Ibid 63 Dawn, January 22, 2007. 64 Dr. Noorul Haq and Miss. Farhat Akram, ―Presidential Elections 2007‖, Institute of Policy and Research Institute factfile (Islamabad: 2007) 210

neutralize the legal community protests was the next step for Musharraf. Chief Justice was also restricted to deal all the cases related to president Musharraf. 65 As Musharraf want to get himself re-elect from the same Electoral College, the presidential elections were highly controversial. Opposition political parties demanded for fresh general elections before presidential elections. The main opposition political party was Pakistan people‘s party (PPP) headed by former Prime Minister Benazir Bhutto. She made a deal with Musharraf whereby Musharraf can be re-elected on the condition that he would leave the post of army chief. PPP being the largest political party and having a reputation of anti-establishment was not ready to accept president in uniform. It was a red line and the PPP did not want to cross that line and sustain its position.66 Although Musharraf make a deal with the PPP for his re-election but the rest of the parties were in his opposition. So in parliament there was not only the PPP but the MMA (Mutahidda Majlise Amal) and the Pakistan Muslim League Nawaz of former prime minister, whom Musharraf ousted from power in 1999 were the largest opposition block in parliament. Attorney General Malik Muhammad Qayyum stated that according to the constitution, president Musharraf was allowed to contest the presidential elections in uniform. ―There is no bar in the constitution to prevent the president from contesting presidential elections‖.67 Mr. Justice (R) Qazi Muhammad Farooq, chief election commissioner announced elections for the office of the president. He stated that elections would be held in accordance with the provisions of the constitution of Islamic Republic of Pakistan article 41 and that all necessary arrangements were being made for the conduct of the said elections.68 On 6 October, Musharraf won a one sided election according to unofficial count of the Chief Election Commissioner (CEC). The Electoral College was already depleted with resignation of members of most opposition parties before 6 October. The PPP abstained

65 Ibid 66 Ibid 67 The Daily Times Islamabad: September 1, 2007 68 (Haq and Akram 2007) 211

from voting despite having fielded Amin Fahim as their Presidential candidate. In the evening of 6 October, the CEC announced the results given below:

Constituency Votes polled Musharraf Wajihuddin Rejected

NA & Senate 257 252 02 03 Punjab 257 253 03 01 Sindh 104 102 02 00 Baluchistan 33 33 00 00 NWFP 34 31 01 02 Total 685 671 08 06 Source: Election Commission of Pakistan Presidential Elections 2007 Musharraf thus received 671 votes out of a total of 1170 member electoral college. He claimed that he had polled 57 (actually 57.2) percent of the votes in his speech on 3 November 2007 while imposing emergency in Pakistan. Applying the weightage formula for these votes, according to the Second Schedule of the Constitution, he had polled 55.4 percent of the votes.69 The Supreme Court of Pakistan ordered the election commission to declare general Musharraf the winner of October presidential elections.70 Pervez Musharraf ran for the presidency, presenting himself to a third legislature, despite the fact that the maximum number of legally stipulated terms was two. Furthermore, the fact that he continued to hold the post of head of the army which was unconstitutional.71

Musharraf action against the Judiciary and Emergency Rule

Musharraf had stated that some external elements were involved in derailing the ongoing political process of the country but he was determined to go ahead, irrespective of what the Supreme Court decided. He proclaimed Emergency in Pakistan on November 3, 2007. The Chief Justice was deposed, the constitution of 1973 was suspended, and all the judges of the Supreme Court were removed other judges of that court declared his act

69 (Khan 2009, 519-20) 70 BBC News, Musharraf declare winner of the presidential election, Friday, 23 November 2007, 15:43 71 TEIM Election Watch Analysis, Electoral Report Pakistan Presidential Elections, 6 October 2007,Alternativas Foundation, OPEX Series No. 4 also see www.election-watch.org 212

illegal. Lawyers, politicians and human rights activists were arrested by police. Private TV channels were banned and restrictions were imposed on anti-government reports. Thousands of people were sent to jails. Journalists were threatened and lawyers who participated in anti-government rallies were suppressed. Musharraf‘s motive was to retain his power to legitimize his martial law and replaced dissenting judges with hand-picked appointments. This was followed by the creation of a democratic façade through rigged elections. The international community demanded for the rule of law, the restoration of independent judiciary, release of political prisoners, immediate restoration of constitutional order, and the appointment of an impartial caretaker government to oversee free and fair elections.72 Musharraf proclaimed emergency in his capacity as army chief of staff, a move that was constitutionally illegal. When he imposed emergency he justified it with reference based on three points, firstly terrorist attacks on agencies and state infrastructure secondly, judicial reference that demoralized the police, challenged the government policies, undermine efforts to tackle militancy and affected economic growth, thirdly, judges misuse of power and humiliating officials.73 Musharraf claimed for holding of general elections before January 9, 2008 and for taking off his military uniform before his oath for a new presidential term. But he did not fulfill his promise. No proper elections were possible under martial law. Election Commission was under his control and judiciary that has been eradicated and hand-selected by the military. On the other hand some political leaders were in jail and others were striped from contesting. Musharraf claimed for the restoration of his so called ‗real democracy‘. He wanted to retain status quo even after eight years of military rule. He also stated that he had been facing challenges by the Supreme Court to his re-election as president. In spite of his claim of tackling extremism, the lawyers and journalists had been imprisoned at large and still it was not true because at the same time he released 28 militants, some of whom had been convicted of terrorism, in yet another deal with terrorists and extremists. Musharraf disingenuously used this language that he had not imposed martial law, and it was a ―state of emergency‖

72 Policy Briefing, International crisis group report: Winding Back Martial Law in Pakistan, Asia Briefing N°70 Islamabad/Brussels, 12 November 2007 73 Oxford Analytica, Musharraf bid for survival may prove costly: Global Strategic Analysis North America, November 5, 2007, p.1 213

that is provided in the 1973 constitution, which can be imposed by the president if the country faces a grave external threat or internal disturbance. When emergency was proclaimed on November 3, 2007, some articles of the constitution had been suspended; the constitution was held in ―abeyance‖. The general‘s proclamation was made in his capacity as army chief, not as president. This was unconstitutional. In his capacity as army chief, he also issued a Provisional Constitutional Order (PCO). Thus a direct military rule had started replacing constitutionalism and rule of law. The emergency proclamation clearly said, ―A situation has arisen where the Government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures‖.74 In the Supreme Court any executive order can be challenged for being unconstitutional; this has the constitutional ―power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. It also has the power to consider a question of public importance with reference to the enforcement of any of the Fundamental Rights‖.75 Under the PCO the judges were required to take a new oath of office. When Musharraf came into power in 1999 through a military coup and suspended the constitution, many judges took such an oath but this time they refused to do so due to judicial independence. This time too some of the judges were removed from their respective positions. At least 60 judges out of 97 of the superior courts were removed. Some of the judges were kept under house arrest when they refused to take fresh oath under the PCO. They also lost their security and protection. Soon after the PCO they received threats from different sides. They were also threatened with the loss of their government residence and pensions as well.76

74 Text of the Provisional Constitutional Order, Daily News: Islamabad, 4 November 2007. 75 ―On the same day, in pursuance of the Proclamation of Emergency, Musharraf as COAS promulgated Provisional Constitution Order (PCO) No. 1 of 2007. Notwithstanding the abeyance of the provisions of the Constitution, it was provided that Pakistan would be governed, as nearly as may be, in accordance with the Constitution. The President was however empowered to amend the Constitution from time to time. Under a Proviso, the fundamental rights under Articles 9, 10, 15, 16, 17, 19 and 25 were suspended. Subject to the Oath of Office (Judges) Order, 2007, all courts in existence would continue to function and exercise their respective powers and jurisdiction.‖ 76 (Human Rights Report 2007, 6) 214

The PCO stated that no court, including the Supreme Court, shall ―have the power to issue any order against the President‖ or ―call or permit to be called in question this Order, the Proclamation of Emergency or any Order made in pursuance thereof‖. It also stated that the federal and provincial assemblies will remain intact with normal routines. Under the PCO president Musharraf had assumed all powers for himself. He had also empowered to ―amend the Constitution, as is deemed expedient‖. As it was stated in the PCO that no ―judgment, decree, writ, order or process whatsoever [can] be made or issued by any court or tribunal against the President or any authority designated by the President‖. Musharraf‘s action in the shape of PCO was declared by the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, and six further judges of the Supreme Court as illegal and unconstitutional. As a result they were kept under house arrest and the army humiliated them. Legal experts of Pakistan were of the opinion that the PCO has no legal status and the removal of the judges from their respective positions had no legal foundations. This action was based on personal benefits of Musharraf to retain his dual positions as head of the army and president. On November 15, 2007, his term as president was due to expire. Parliamentary approval for his dual responsibilities was required. It was quite clear that the Supreme Court in its judgment in the legality of his presidential election criticized him on two grounds: firstly, it was illegal for him to hold both offices and secondly, he was bound by the bar on senior military officers standing for public office until they have been retired for two years.77 Earlier the Supreme Court released some persons, not because judges were sympathizers but simply because the government and its security agencies failed to present legal evidences. The Supreme Court under the chief justice Iftikhar Muhammad Chaudhry had taken bold steps to expedite terrorist cases. In this regard a committee was constituted. He stated that the court could not punish people without evidence. Musharraf‘s plea was that that the intervention of judiciary had demoralized the police force and never supported them. But actually government‘s frequent use of police for political purposes in fact severely undermined their capacity to enforce rule of law. 78

77 (Crisis Group Report 2007) 78 The Daily Times, (Islamabad), November, 6, 2007 215

In previous coups, including Musharraf‘s in 1999, primary target was to overthrow political leadership, but the situation was different in 2007. This time the judiciary was the key target of his action. Judiciary challenged military‘s legitimacy since it threatened the military regime‘s survival. The Proclamation of Emergency blamed the judiciary for ―constant interference in executive functions‖ and ―overstepping the limits of judicial authority‖ by taking over ―executive and legislative functions‖. Once again, with an eye on international opinion, the proclamation singled out ―some judges‖, and committed the government to ―the independence of the judiciary‖, so long as judges ―confine the scope of their activity to the judicial function and not to assume charge of administration‖. 79 The first hours of military rule consequently focused on subverting judicial independence. Judges were forced to step down for refusing to take an oath of allegiance to military rule (i.e., the Provisional Constitutional Order), instead of the 1973 constitution.80 ―On the same day, 3 November 2007, Oath of Office (Judges) Order, 2007 was promulgated which provided that judges who refuse to take oath under the Provisional Constitution Order (PCO) or were not offered such oath would cease to hold office. Consequently only four judges of the Supreme Court took oath under the PCO on 3 November 2007. Senior-most amongst them, Justice Abdul Hameed Dogar was sworn in as the new chief Justice under the PCO. Three other judges of the Supreme Court who took oath under the PCO were , Faqir Muhammad Khokhar and M. Javed Buttar. The following day, one more judge Syed Saeed Ashhad took oath, raising the total strength of the Supreme Court judges to five. Thus the Chief Justice and eleven other permanent judges of the Supreme Court and an ad hoc judge refused to take oath under the PCO and reminded loyal to their oath under the Constitution. In this way, 72 per cent of the judges of the Supreme Court showed exceptional courage, conviction and commitment. They were put under house arrest and were held incommunicado.‖ 81 A large majority of judges refused to comply. The others, including Chief Justice Chaudhry, had been dismissed, with mostly placed under house arrest. Scores of judges in the Punjab, Sindh and Peshawar High Courts also refused, including the Chief Justices

79 (Crisis Group Report 2007) 80 Ibid 81 Hamid khan,p.521 216

of the Sindh and Peshawar High Courts. Musharraf had moved quickly to appoint loyal judges as Chief Justices of the Supreme and High Courts. Because loyalists were or would be appointed to the vacant positions, free and fair elections were impossible under Musharraf‘s watch. It remained so unless the restoration of independent judiciary and the deposed judges. 82

Amendments to Laws under Emergency Rule

During the Emergency rule of Pervez Musharraf after Novemebr 3, 2007, some laws were amended. Some are the following:

(a) Restraining Order of November 3, 2007

An eleven member Bench of the Supreme Court was hearing Wajhuddin‘s petition on presidential elections. It continued from October 17, to November 2, 2007. Arguments were near to be concluded. The case was further postponed to November 5, 2007. It took three to four days to complete the arguments. Final decision was expected on 7 or 8 November. On November 1, 2007 there were strong rumors circulating through the country that Musharraf was becoming extremely agitated and desperate and was about to do something reckless like the suspension of the Constitution, imposition of PCO and oath of office of judges under PCO, and promulgate some kind of unconstitutional emergency to pre-empt the verdict of the Supreme Court on the validity of his candidacy. With this in mind, an application was filed on 2 November before the Supreme Court in which such apprehension was expressed and the Court was requested for taking any unconstitutional or extra constitutional step. 83 On 3 November 2007, it had become obvious that Musharraf was bent upon taking unconstitutional measures. The Supreme Court building in Islamabad was being surrounding by army personal, a seven member Bench headed by the Chief Justice was

82(Crisis Group Report, 2007) 83 Hamid Khan, p.521 217

immediately constituted and assembled to consider the aforementioned application. A restraining order was passed by the court.84 The order said: a. ―Government of Pakistan i.e. the President and Prime Minister of Pakistan are restrained from undertaking any such action which is contrary to independence of judiciary. b. No judge of the Supreme Court or High Courts including chief justice shall take oath under PCO or any other extra constitutional step. c. Chief of the Army Staff, Corps Commanders, staff officers and all concerned of the civil and Military Authorities are hereby restrain from acting on PCO which has been issued or from administering fresh oath to chief justice of Pakistan or judge of supreme court and chief justice or judges of the provincial high courts. d. They are also restrained to undertake any such action, which is contrary to independence of judiciary. any further appointment of the chief justice of Pakistan and judges of the supreme court and chief justices of High Courts or judges of provinces under new development shall be unlawful and without jurisdiction. e. Put up before full court on November 5, 2007.‖ 85 This order was made public through the electronic media sufficiently in time before issuance of oath of office (judges) order 2007. After passing this order the armed forces of Pakistan entered the building of the Supreme Court, arrested the judges including the chief justice. Thus, this injunction of November 3, 2007 became the last valid order of the valid Supreme Court in aid of which all executive and judicial authorities throughout Pakistan would be required to act under article 190 of the constitution. Thus Musharraf

84 The restraining order of the president on November 3,2007 issued as: ―(i)Government of Pakistan i.e. President and Prime Minister of Pakistan are restrained from undertaking any such action, which is contrary to Independence of Judiciary,(ii)No Judge Of the Supreme Court of High Courts including Chief Justice(s) shall take oath under PCO or any other extra Constitutional step, (iii)Chief of army Army Staff, Crops Commanders, Staff Officers and all concerned of the civil and Military authorities are hereby restrained from acting on PCO which has been issued or from Pakistan or Judges of the provisional High Courts.(iv)They are also restrained to undertake any such action, which is contrary to independence of Judiciary. Any further appointment of the chief Justice of Pakistan and Judges of the Supreme Court and Chief Justice of High Courts or Judges of Provinces under new development shall be unlawful and without jurisdiction. (v) Put up before full court on 5 November 2007.‖ 85 Wajuhuddin Ahmad vs. Chief Election Commissioner, PLD 2008 S.C. 25 also see Hamid, p.522 218

and those acting under him on 3 November and the PCO judges not only violated the constitution but also acted in contempt of this order of the Supreme Court.86 In the first place the PCO Supreme Court tried to deny any such order had even been passed. But subsequently, when the order was found in the file of the case of Wajihuddin, Justice Dogar hurriedly fixed it before the PCO judges available on 6 November and it had declared illegal and without jurisdiction. The reason given was that in pursuance of proclamation of emergency read with PCO and oath of office (judges) order 2007, the judges passing the order of 3 November had ceased to hold their offices as chief justice and judges of the Supreme Court and could not have performed function or exercised judicial power. Therefore it is reasoned that the order of 3 November could not have been passed by these judges.87

(b) Ordinance LXIX of 2007 to amend the Legal Practitioners and Bar Councils Act, 1973 President General Pervez Musharraf denied an end to the growing influence of lawyers. In this regard he amended the law of legal practitioners and Bar Council of Pakistan on November 24, 2007. As a result of which he was able to terminate the anti-government lawyers and judges. The attorney general was named as the chairman of the bar council. In an attempt to control the lawyers movement, the chairman was authorized to terminate any member advocate of the bar without giving him the right to defend himself. The ordinance allowed and encouraged only persons who were aggrieved by any decision, order or resolution of any bar association or bar council, to appeal to the chairman of the Pakistan bar council-the attorney general, who could then overrule the decision. To defend itself against loyal claims the government empowered the so-called independent Supreme Court and high courts to reprimand, suspend or remove any lawyers name from the list of lawyers. The decision of the attorney general was basically final and was not generally open for appeal in superior courts. This ordinance allowed the government, the president and the heavily politicized Supreme Court and high courts to revoke the license of any lawyer to practice. Generally speaking, this ordinance allowed, enabled and

86 Ibid 87 Ibid 219

encouraged the government to terminate any lawyer or judge of the lawyers‘ movement, it thinks undesirable.88

(c) Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007)

Pervez Musharraf, as an army chief amended the constitution of Pakistan through an executive order on November 27, 2007. The order consisted a number of announcements that gave protection to all actions of the army chief taken under the Provisional Constitutional Order. It terminated the powers of the judicial courts to review decisions taken under the provisional constitution order. This order introduced a new constitutional clause called article 270 AAA, under which all laws orders and constitutional amendments passed from November 3, 2007 up to the date of revocation of emergency were affirmed, adopted and declared to have been validly made by competent authority. It terminated the right and power of all courts and forums to discuss or alter any decision, law or amendment brought during that period.89 According to Article 270 AAA (2) all orders , proceedings taken, appointments and acts done by any authority under PCO order no 1 of 2007, were deemed to have been validly made, taken or done. These were declared not to be questioned in any court on any ground.90 Article 270 AAA(3) stated that all proclamations, president‘s orders, amendments to the constitution, notifications, laws, by-laws, rules and regulations which were in action during the period of emergency, will continue to be in force until altered, repealed or amended by the competent authority91 The leadership of the lawyers‘ movement had contributed much more in the restoration of judiciary. A number of people provided collaboration to the lawyers across Pakistan in the capacity of financial, moral and emotional support. Prominent among those were the president of SCBA 2006-07 Muneer A. Malik, SCBA President 2007-08 Chaudhry

88 Ordinance No. LXIX of 2007, Legal Practitioners and Bar Councils (Amendment) Ordinance, also available on http://www.app.com.pk/en/index.php?option=com_content&task=view&id=21729&Itemid=38 (accessed December 16,2007 89 Constitution (Amendment) Order, 2007, http://www.app.com.pk/en/index.php?option=com_content&task=view&id=21447&Itemid=1 (accessed December 16, 2007). 90 Ibid 91 Ibid 220

Atizaz Ahsan and SCBA President 2008-2009 Ali Ahmad Kurd, Justice (retired) Tariq Mahmood, Baz Muhammad Kakar. They all make the movement highly successful. They brought the people to a single platform. The landmark of this movement was that it was a peaceful movement and that was the reason that not a single bullet had been fired.92 The five judges of the Supreme Court along with the Chief Justice residing in judges‘ colony were taken into house arrest. Those judges were namely Justice , Justice Sardar Mohammad Raza, and Justice Shakirullah Jan. Two judges were detained in Islamabad, Justice Rana Bhagwandas and Justice Ghulam Rabbani was released on December 16, 2007. Besides, five judges of the Supreme Court were house arrested in Lahore. Those were Justice Khalilul Rehman Ramday, Justice Jamshed Ali Shah, Justice Tassaduq Hussain Jilani, Justice Raja Fayyaz, and Justice .93 The government of Pakistan on November 20, 2007 decided in the principle to release all the judges. The spokesman of the government Brigadier (retired) Javed Cheema, announced unconditional release of judges. In spite of the announcement most of the judges told the media that they were still under the house arrest. The Human Rights Watch conducted telephone meetings with the judges namely, Justice Rana Bhagwandas in Islamabad and Justice Khalilul Rehman Ramday in Lahore. The Chief Justice Iftikhar Mohammad Chaudhry and his family members were also put under strict house arrest since November 3, 2007. The phones secretly given to the judges were jammed by the government but still they managed to communicate with the human rights watch. The media related activities were banned. Chaudhry has no access to television or newspapers since November 3, 2007.94 Deposed chief justice Iftikhar Muhammad Chaudhry, stressed upon the restoration of the constitution and also termed the emergency as illegal and unconstitutional. During his telephone address he urged ―The constitution has been ripped into shreds,‖ and asked the lawyers to convey his message across the country. He said ―The time has come for sacrifice and for rising up for the supremacy of the constitution.‖ He asked for the supremacy of the constitution and abolition of dictatorship.95

92 (Abbas and Jasm 2009, 11) 93 Human Rights Watch, Pakistan Destroying Legality,op,cit,p.68 94 Ibid 95 Noor ul Haq, Judicial issues in Pakistan, Islamabad: IPRI fact file, 2008, p. 22 221

(d) Law of Legal Practitioners Amended

Musharraf also attacked that regulates the legal Profession, Legal Practitioners and bar Councils Act, 1973 to restrict independence and autonomy of the Legal profession. The amendment introduced with drew discipline powers of the Bar Councils and transferred them to the High courts(in case of provincial Bar Council )and the Supreme Court (in case of Pakistan bar Council ) appeal against the orders of the Bar Councils would lie before the Attorney General. This Ordinance threatened the Independence of the bar associations as well as individual lawyers. This was a sordid attempt to scare the lawyers into submission by sending their disciplinary matters to PCO judges sitting in the Supreme Court and the High Courts. Musharraf thought that these PCO judges would cancel licenses of lawyers, which might force the layers community to roll back its movement. This was not to be. The commitment of the lawyers to the objectives of the movement that is independence of judiciary and the rule of law, were far more important than such considerations. They were already making enormous sacrifices by boycotting the courts of PCO judges and the Attorney General could hardly do any thing to cow them down. Thus these malicious amendments could not do anything to check the movement of lawyers for restoration of judiciary as it was on 2 November 2007.96

Supreme Court Validated Emergency and PCO

The supreme court of Pakistan headed by justice Abdul Hameed Dogar affirmed and validated the state of emergency, imposed by Pervez Musharraf as an army chief. However the court demanded for the revocation of emergency as soon as possible. The seven members bench presided over by Dogar announced the orders for hearing to the petition against the emergency and provisional constitutional order (PCO). This gave the army chief the first formal and legal permission and power to impose emergency and govern through his own PCO. Many lawyers and judges were not surprised by the

96 (Khan 2009, 524) 222

decision because they already knew that the judges, who have taken oath under PCO, basically have agreed to accept all the actions of an army chief.97 The things which do surprise the lawyers were the emphasis on judicial activism as a reason to impose the emergency. Two solid reasons, terrorism and judicial activism were pointed as a cause for emergency. However those judges who refused to take under PCO criticized the emergency. 98 The Supreme Court disposed-off two identical petitions of Mr. Tikka Iqbal Khan and Zafarullah Khan, Chairman of Watan Party who challenged the imposition of emergency rule, the PCO, removal of superior courts judges and limitation on media, under article 184(3) of the constitution. The court gave the reason for the disposing of the petition that the situations were as such that following the constitution was impossible. The judges were of the view that the situation was the same as that on July 5, 1977 and October 12, 1999, warranting for the proclamation of emergency. The chief justice Abdul Hameed Dogar ordered the president; the federal government and the election commission to ensure free, fair and transparent elections.99 The attorney General Malik Muhammad Qayum remarked on the decision in the court room that ―the court has given an independent and balanced judgment‖. Regarding the violation of fundamental rights, he remarked, ―The constitution has been declared the supreme law of the land‖. A prominent lawyer Fakhruddin G Ibrahim stated on the judgment that the judges were present to protect the PCO rather than the constitution. The Pakistan bar council, through a resolution appealed to the lawyers, the political parties‘ members, the professionals, the civil society members and the general public to participate in a campaign against Musharraf and in favor of restoration of the pre November 3, 2007 judiciary.100 The so called independent Supreme Court, after hearing Mr. Zafarullah Khan of Watan party for a while announced the following short order; ―since the old legal order has not been completely suppressed or destroyed, therefore this is a case of constitutional period‖. It added that the constitutional amendments could only be used when the

97 Nasir Iqbal, ―Supreme Court validated Emergency and PCO‖, Dawn, November 24, 2007 98 Ibid 99 PLD 2008 SC 178 and the Review petition reported as PLD 2008 SC 615 100 Ibid 223

constitution failed to provide a solution for the attainment of the declared objectives of the chief of the army staff. Justice Abdul Hameed Dogar and some other judges , in case of Tikka Iqbal Khan, reported as PLD 2008 SC 178 and the Review petition reported as PLD 2008 SC 615 ―validated on the touchstone of the law of necessity and the principle of salus populi suprema ast lex (welfare of the people was the supreme law) the proclamation of emergency as well as other unconstitutional instruments of the 3rd November, 2007 and the action taken there under including amendments made in the constitution and insertion of article 270 AAA whereby validation was purported to be given to all such acts of the General. The judicial crisis, which had erupted with the actions of November 3, 2007, continued to deepen with every passing moment. General Pervez Musharraf relinquished the office of chief of army staff and assumed the office of president for another term of five years. The power of judicial review was given to the courts and empowered to review the actions of the army chief or the president, notwithstanding the ouster of their jurisdiction by the extra-constitutional measures. It added that the chief justice and other judges of the superior courts were subject to accountability only before the supreme judicial council under article 209 of constitution.101 The chief justice and the judges of the superior courts, who have not taken oath under the oath of office order 2007, ceased to hold their respective titles and offices. Their cases could not be reopened due to being hit by the doctrine of past and closed transaction.‖ 102 The order said: ―the proclamation of emergency could be revoked by the president or the chief of the army staff so that the period of constitution deviation was brought to an end. However the Supreme Court retained its power to re-examine at any stage the continuation of the state of emergency if the circumstances so warranted‖. The 1973 constitution remained the supreme law of the land still, except some parts in abeyance for the better interest of the people of Pakistan.103 It added, ―the extra constitutional steps of proclamation of emergency of November 3, the PCO no 1 of 2007, the PCO amendment order 2007, the oath of office order 2007 and the president order No 5 of 2007 are hereby declared to have been validly made by

101 PLD 2008 Tikka Iqbal Khan v. General Pervez Musharraf, S.C. 6 102 Ibid 103 Ibid 224

COAS/president, subject to the condition that the country should be governed in accordance with the constitution as much as possible. All act and actions taken for the orderly running of the state and for the advancement and welfare of the people are also validated.‖ 104 In the non-existence of the effective parliament, the order gave the president General Musharraf the power and authority to amend the constitution as and when required for the larger interest, safety and betterment of the people of Pakistan under the principle of salus populi suprema lex (welfare of the people to be supreme law). General Musharraf had given permission by the Supreme Court to do anything whether according to or against the constitution for the betterment of Pakistani people. The Supreme Court noted with special concern that the entire Pakistan was affected by terrorism, extremism, suicidal attacks, bomb blasts, hand grenades, mines and missiles especially used by the armed forces and law enforcement agencies. The situation got much and much fierce and was at apex on October 18, 2007 when 150 people were killed and more than 500 injured in an attack over a public rally.105 The terrorists and extremists even attacked the foreigners which badly affected the image of Pakistan and its economic growth. The situation in Islamabad and Khyber Pakhtunkhwa, Baluchistan and FATA were out of control and reached a situation of ―state inside a state‖. Unfortunately no government efforts were enough for the curbing of extremism, terrorism and suicide attacks.106 The court ruled that the constitution was based on tracheotomy of powers in which all the three organs i.e. the legislature, the executive and the judiciary were required to perform their functions and attain objectives with in the specified sphere. Unfortunately, some judges in the superior judiciary were crossing the sphere of the judiciary. The order added, ―thousands of applications involving individual grievances were being processed as suo moto cases ostensibly in the exercise of power under article 184(3) of the constitution, whose provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance‖ The order added that various examples of judicial activism were the determination of prices of fruits, vegetables and

104 (Iqbal, November 24, 2007 105 Ibid 106 Ibid 225

other edibles, suspension and transfer of government officials, frequent directions to enact particular laws, stoppage of various development projects such as Murree New city, Islamabad Chalets and Lahore canal roads etc. ―The situation was so tense that the functioning of the government in accordance with the provisions of the Constitution became impossible and the constitution provided no remedy or satisfactory solution.107 There was a strong possibility of disastrous circumstances if the actions of November 3, were not taken by the army chief. The situation on November 3, 2007 was exactly the same as on July 5, 1977 and October 12, 1999, which warranted the actions of emergency. The Supreme Court validated the emergency as it validated on 1977 in Nusrat Bhutto case and in 2000 in Zafar Ali Shah case in the interest of the state and in the betterment of the people.108

General Elections Announced

Article 219 of the Constitution of Pakistan stipulates that the Chief Election Commissioner shall be charged with the duty of preparing Electoral Rolls for election to the National Assembly and the Provincial Assemblies and revising such rolls annually.109 On 11 November, Musharraf announced that general elections would be held on 9 January 2008.On 20 November; the election commission announced 8 January 2008 as the polling date. The nomination papers were to be filed between 21 to 26 November. The election schedule was suddenly announced and very little time was given to the candidates to file the nomination papers in order to deprive the political parties from making sufficient preparation for the elections. All the political parties had to decide whether or not to contest the elections being held during unconstitutional emergency and PCO.110

107 Ibid 108 Ibid 109 The Constitution of the Islamic Republic of Pakistan 1973, article 219 110 Dawn, December 10, 2007 226

On 22 November, the Pakistan Peoples Party (PPP) decided to participate in the general elections. All Parties Democratic Movement (APDM) which include parties like PML (N), jamaat-e- Islami, Pakistan Tehreek-e-Insaf (PTI) and Pukhtun Khawa Mili Awami party (PMAP), decided on 24 November to boycott the elections ,Nawaz came to Pakistan on 25 November and the meeting of APDM was held on 29 November, it was decided to reiterate the decision to boycott the elections. However, it was decided that Benazir, would be approached to join boycott of polls. After meeting with Benazir, a joint committee of Alliance for Restoration of Democracy (ARD) including PPP and APDM was constituted to prepare a charter of demand. These demands were to be made before the Musharraf government and if they were not met, the general election would be boycotted. The committee differed on some of the demands, particularly the demand for restoration of judiciary of 2 November 2007, APDM fully supported this demand but PPP had its reservations. Thus ARD and APDM failed to agree on the restoration of judges. On 9 December 2007, Nawaz decided that PML (N) should change its stance and not boycott the elections, rather, participate in them. However other parties of APDM refused to change their stance and confirmed their decision to boycott the elections. This resulted in APDM break up, with PML (N) opting out of it Mahmood Achakzai became the convener of APDM Similarly the (ANP) and some parties of MMA also went along with PML (N) and decided to participate in the elections.111 The Election Commission of Pakistan decided, in compliance with the orders of the Supreme Court of Pakistan, to compare both the Electoral Rolls, i.e., ―the Electoral Rolls 2002 and the draft Computerized Electoral Rolls, 2006-07, and add the voter's names which existed in the Electoral Rolls 2002 but did not appear in the draft Electoral Rolls 2007. The concerned Provincial Election Commissioners were also directed that all the Registration Officers in the Provinces, including Federal Capital, Islamabad and FATA, to identify the names of all those persons (male/female), who stood enrolled as voters in the Electoral Rolls 2002 and updated in 2004 but their names did not appear in the draft Computerized Electoral Rolls, 2006-07, so that the same could be merged with the final computerised Electoral Rolls to be used for the conduct of subsequent General Elections in the country.‖ The exercise for comparison of Electoral Rolls commenced on August 21,

111 (Khan, 526) 227

2007 and completed on September 4, 2007.112

Musharraf Quits as COAS and Emergency Lifted

A writ petition against Musharraf selection filed in Supreme Court by Qazi Hussain Ahmad, Imran Khan and others. They challenged President General Pervez Musharraf‘s re-election. The nine member bench of the Supreme Court announced, by a ―six three‖ majority, that the constitutional petitions bid to be re-elected president in uniform was ―not maintainable‖. This was a technical victory for Musharraf because at the same time lawyers were of the view that Musharraf may not be permitted to be re-elected as president. Hamid Khan stated that president Musharraf‘s holding of two offices were unconstitutional and the act shows that he was holding it forcefully. Sharifuddin Pirzada argued, ―To take control of the country was easy for a military ruler, but the time to depart was very difficult because he changed everything into ash. Therefore, any transition from military to civilian rule was a difficult task.‖113

Before re-election General Pervez Musharraf had initially decided to doff his uniform but later on he changed his intention. Attorney General Justice Malik Qayum, S.M. Zafar and Makhdoom Ali Khan were the legal experts who were consulted by the president on the matter. Malik Qayum suggested that General Musharraf may take new oath for the next term as civilian president under the 1973 constitution and not under the provisional constitutional order (PCO). Also he was of the view that General Musharraf would doff uniform before taking the oath.114

On November 28, 2007 Musharraf handed over his charge as the commander of the army to General . On November 29, 2007 he took oath as civilian President of Pakistan. After taking oath he addressed the nation that he was lifting

112 State of electoral Rolls in Pakistan, A project under the Electoral and Parliamentary Process and Civil Society in Pakistan, in partnership with the East-West Centre, Hawaii and supported by the United Nations Democracy Fund, Pakistan Institute of Legislative Development And Transparency PILDAT: Islamabad, March 2010, p.12 113 (Haq and Akram 2007, 49) 114 (Ibid, 106) 228

emergency on December 16, 2007 and also withdrawal of the PCO. He promised for holding of general elections on 8 January 2008. He announced that the Constitution would be revived on 15 December 2007 subject to Article 270 AAA and other amendments purportedly made by Musharraf in the Constitution.115

Musharraf on December 14, 2007 introduced six more amendments in the constitution through executive orders. Article 41(3) were amended to undo the requirement that Musharraf could only run for the office of president after completion of his term on 15 November 2007, Article 44(2) was amended allowing Musharraf to seek re-election for a fresh term of five years not withstanding any bar in the Constitution Article 270-C was amended to provide that judges who had not taken oath on and after 3 November had ceased to hold office. Article 175 was amended for providing the establishment of High Court for the Islamabad Capital Territory. Article 193 and 194 were amended deleting the requirement of consultation with the governor for appointment of Judges for the because there was no such office in Islamabad. Article 193 was amended reducing the minimum age requirement for appointment of a High judge for 45 to 40 years.116

The Islamabad High court (Establishment) order was promulgated for establishment of Islamabad High Court with its principal seat at Islamabad and the jurisdiction of this High Court would extend to Islamabad Capital Territory and would have the same appellate jurisdiction as available to other High courts Its original jurisdiction would be in all suits of the value of Rs. 2.5 million or more .On the establishment of High Court , all cases pending in the Rawalpindi Bench of the Lahore High Court relating to Capital territory would be transferred to this court. On 15 December 2007, Musharraf lifting the emergency, repelled the PCO and revived the 1973 Constitution after inserting the amendment made there in from 3 November to 15 December through president decree.

115 The Daily News, (Islamabad), November 29, 2007 116 Constitution Second Amendment Order 2007. President Order 6 of 2007. PLD 2008 Federal Statutes 117. Also see Khan, 523 229

Chief justice and judges of the Supreme Court, High Court and Federal Shariat Court took oath again this under the raised (rather mutilated) Constitution.117

Assassination of Benazir Bhutto

On the evening of 27 December‘s 2007, Benazir Bhutto was assassinated after she had addressed a public gathering at Rawalpindi Liaquat Bagh. She was hit by an assassin‘s bullets followed by a bomb blast outside her vehicle. She was taken to the hospital at5:35 p.m. with open wounds in her neck and head and was pronounced dead at 6:16 p.m. Surprisingly, no autopsy was carried out and the exact cause of her death will remain a mystery. Her body was hurriedly enclosed in a makeshift coffin and flown to her ancestral village, Ghari Khuda Bukhsh. The site of her murder was washed and cleansed of any evidence within a few hours. She was quickly buried in the afternoon of 28 December in the mausoleum of her father; Zulfikar Ali Bhutto. From 28 December to 30 December, the entire country particularly Sindh was in the grip of protests violence, arson and killings. A large number of vehicles including car, trucks, and railway carriages were set on fire by unruly mobs in Sindh. Some of the jails in Sindh were broken and hardened criminals serving death and other heavy sentences get a chance made to escape. They also joined in this indiscriminate rioting, arson and looting of shops and valuables. On 30 December 2007, Benazir‘s husband, held a press conference with other PPP leader sitting next to him in which he disclosed a handwritten will by the late Benazir in which she had appointed Zardari as her political successor. Zardari decided to appoint their son, nineteen year old Bilawal as her successor and chairperson of PPP. Zardari himself assumed the position as co-chairperson. Bilawal Bhutto Zardari appeared as successor to Zulfikar Ali Bhutto. It was also announced that PPP would participate in the general elections to be held on 8 January 2008. Nawaz also changed his decision and announced participation in the elections.118

117 Ibid 118 Dawn, December 28, 2007 230

During the emergency rule amendments were declared controversial and criticized by many judges of the Supreme Court. Most of the lawyers and judges remain under house arrest during the emergency. Among those were a prominent lawyer , who played a leading role in the restoration of Chief Justice Chaudhry in 2007. He also proposed by asking all parliamentarians to sign an oath for the restoration of judiciary but this was rejected by Benazir Bhutto and some other leaders. Ahsan himself accused the U.S. government of not considering caring about Musharraf‘s crackdown on the Supreme Court and making no mention of the issue in various agency briefings.119

The imposition of emergency further produced anti-Musharraf feeling among the people. Moreover it intensified considerable civil-military tensions. Aggression against Pakistani civil society degraded the morale of military. The nature of the military rule was authoritarian that deteriorated the country‘s moderate political forces. On other hand, Musharraf wanted to hold on the political management of the country while Chief of the Army Staff Pervez Kiyani managed the military‘s counterinsurgency efforts. An International Crisis Group report told that martial law would bring further instability in Pakistan. The detention of political leaders of civil society increased the number of jihadi groups. The targeting of moderate political parties empowered the Islamists. Absence of the rule of law opened doors to extremism. Certainly, emergency rule of Musharraf did not give fruitful results specially improvement in his government‘s battle with the militants.120

Musharraf was a strong ally of the U.S in the ―war on terror‖ and well known personality due to his efforts but at home he was strongly criticized for his illegitimate rule. He faced many challenges in domestic affairs. When on March 2007 Musharraf attempted to oust the chief justice on the basis of charges claimed against him. However, the Supreme Court rejected his decision totally. The lawyers and the media protested against him. A country wide protest started against the military rule. An American Institution,

119 K. Alan Kronstadt, Pakistan’s Political Crises, (Washington: Congress Research Service, 2008), p.8 120Ibid, pp.21-22 231

International Republic Institute (IRI) conducted a survey among the people of Pakistan on October 11, 2007 and produced the following results: 21 percent people liked Musharraf, 66 percent thought that the country was on wrong track, 62 percent were against the military role in politics, 76 percent were in the favour of Musharraf resignation, 74 percent against the reelection of Musharraf as a president. 83 percent declared that they will oppose the emergency declaration. If Musharraf failed to restore the constitution, he should give up president‘s post.121

121 ( Crisis Group Report, 2007) 232

Chapter No 6 The Lawyers Movement for Judicial Independence The judicial turmoil started on March 9, 2007 when the chief justice of Pakistan was called by Musharraf to his camp office at Army House Rawalpindi. Also present on the occasion were his military intelligence chiefs and some other officers. The chief justice was asked to resign and effectively dismissed him for alleged ―misuse of office.‖ but the chief justice did not pay any heed to the order of the president Musharraf and thus he refused.1 When the Chief Justice Chaudhry was forcibly deposed from his office, mass nationwide protests started against Musharraf. Government tried to subdue a movement led by lawyers for the restoration of chief justice. Security personals could not help themselves but to act upon the advice of the government. They committed oppression on lawyers, opposition activists and journalists covering unfolding events. This anti-government protest was so tense that 42 persons lost their lives. Mutahedda Qaumi Movement (MQM), a major coalition partner in the Musharraf government instigated the violence. They tried to prevent Chaudhry from entering Karachi to address the Sindh High Court Bar in the face of relentless country-wide protests by lawyers and Bar Association. Human rights activists, joined later and only half-heartedly by opposition political party activists, Musharraf tried his level best to deter chief justice and his allies in the protest.2 Musharraf planned to get himself re-elected as the president of Pakistan for the next five years in November 2007. This was the time when the Pakistani Supreme Court was on the verge of ruling on the validity of Musharraf‘s reelection as President. As a result Musharraf suspended the constitution and declared emergency rule on November 3, 2007. Musharraf imposed emergency that further spurred the masses in Pakistan to stage protests, these demonstrations were led by the lawyers with the support of political parties. As a result protests and demonstration against the military government further strengthened. Moreover new protest groups emerged and came to include not only

1 Murtaza Razvi, Murtaza Rizvi, Musharraf the years in power, (India: HarperCollins publishers, 2009), p.94

2 Human Rights Watch, Pakistan Destroying Legality, Pakistan’s Crackdown on Lawyers and Judges, New York: December 200 7, Volume 19, No. 19 (C), p.12

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secular urban elites, but also some poorer and more religious Pakistanis. ―It was a very interesting mixture represented by every class of society. Even people from the religious political parties [protested] with the lawyers outside the Supreme Court.‖3 Two important outcomes of the struggle came to lime light. First, the Supreme Court of Pakistan declared its independence and gained credibility in the public. Second, the lawyers, political parties, and other groups formed a coalition and provided a strong platform against the government. Countrywide demonstrations had started. Media played a pivotal role and added significance to the struggle of a common man against the autocratic leader.4

Commencement of the Lawyers’ Movement

As a result of the emergency and PCO, the lawyers started a campaign to restore the custodians of the court and constitution. On November 2, 2007 consequently, all the high ups of the movement passed a resolution in which the injustice to the lawyers and the court was highlighted as well as the restriction on the media was bitterly criticized. They expressed to continue their struggle till the restoration of transparent judicial system. The invalidity of PCO judges was also pointed out as unconstitutional. On November 6, 2007 under the leadership of Vice Chairman and members of Pakistan Bar Council5 meeting was held in Islamabad. They passed a resolution which consist the following points. a. Provisional Constitutional Order is unconstitutional and invalid. b. The lawyers had accepted the order of November 3, 2007, passed by a seven- member bench of the Supreme Court in which the PCO was declared unconstitutional.

3 Abdullah Freed Khan, The Pakistan Lawyer Movement and the Popular Emergency of Judicial Power, Harvard Law School Chayes Fellowship work with the Human Rights commission of Pakistan 2008, p. 11

4 Ibid 5 ―The Pakistan Bar Council is the highest elected body of lawyers in Pakistan. It came into existence under The Legal Prictioners and Bar Councils Act, a parliamentary act, 1973. Its chairman is the Attorney- General which is ex-officio. Throughout the country 22 members are representing each province. The Members of the Pakistan Bar Council are elected on the basis of a single transferable vote by Members of the Provincial Bar Councils. The Council also elects its Vice-Chairman every year from amongst its elected Members. The Pakistan Bar council exercises general control and supervision over the Provincial Bar Councils and regulate the entry of lawyers into the legal profession.‖ (http://pakistanbarcouncil.org/) 234

c. It was decided that the lawyers did not accept those judges who took oath under PCO and the lawyers who were detained were requested not to file any petition before such PCO judges. d. The lawyers will continue their struggle with determination till the end of the military rule in Pakistan and that lawyers would prosecute case of committing high treason under Article 6 of the Constitution. e. The restrictions on TV Channels, suppressing of media and cruel amendments in the Pakistan Electronic Media Regularity Authority (PEMRA) Ordinance was strongly condemned.6

In order to show solidarity with the lawyers, on November 7, 2007 all the lawyers were intimated to stop till the restoration of a fair legal setup. That was supported by the people from all walks of life and observed the demo. The lawyers‘ community along with the support of the prominent leaders of political parties and the general public put at the back fully supported the cause which happened when chief justice, Iftikhar Chaudhry was removed from his position. Former judges of the Supreme Court also joined the lawyers‘ movement. On November 28, 2007, a joint call was given by the 17 retired judges7 of the superior courts from Karachi. They aimed at the restoration of judiciary to the position as on 2 November and the resurgence of the country to the Constitutional status. They jointly signed a letter on November 28, 2007 in which high tributes were paid to the judges who refused to take oath under the PCO.8 Media played an active role to create the awareness of the masses and raised spirit among the people to look for a fair judicial system in Pakistan. This struggle was ignited and continued till long. They bitterly criticized the then president General Musharraf who was

6 Hamid Khan, Constitutional and Political History of Pakistan, (Karachi: Oxford University Press, 2009), p.522 7 Those were retired judges namely, former chief justice of Pakistan Sajad Ali Shah, and Saeeduzaman Saddiqi, former judges of the supreme court Fakhruddin G, Ibrahim,Nasir Aslam Zahid, Wajihuddin Ahmad, Deedar Hussain Shah, Kamal Mansoor Alam, Hamid Ali Mirza, Mamoon Kazi and Zafar Hussain Mirza and former judges of High Court of Sindh Mushtaq Memon, Majida Rizvi, Agha Saifuddin Ali Muhammad Baluch, Rashid A. Rizvi, and S.A Sarwana (Hamid Khan, op,cit, p.523)

8 Dawn, (Islamabad) November 8, 2007 235

elected for the second term. For this purpose they contacted the apex court and they suggested the name of Justice ® Wajuhuddin Ahmad as their candidate to contest elections but later failed against president Musharraf. This was a matter of concern for the president Musharraf.9 The big question was that how Musharraf was elected as a president for the next five years when he was not eligible anymore and the lack of mandate required for choosing and electing the president for the next tenure. However, the matter was placed before the court for consideration and decides; unfortunately the Supreme Court was unable to delay the election. Thus the president and his allies considered this as a victory without terming it as rigging, by anyone. The fact was that presidential elections were not free and transparent as the president claimed. Even the lawyers also criticized the presidential referendum which was held in 2002. It was also a case of rigging and fraud. The man in military uniform was re-elected, that was not suitable for the goodwill of the nation. Thus referendum itself proved to be an enigma for the president and the stigma of the nation. On the other hand general masses were in favor of the lawyers‘ community to contest the elections wholeheartedly and expect what would be the progress on part of the lawyers. It was also opined that the chief justice had been restored and therefore lawyers had to go to work and ought not to indulge themselves in politics. They were also argued for their discriminating attitude regarding the decision of the court.10

Objectives of the Lawyers Movement

It is indeed true that lawyers owe a duty to the litigants whom they represent in courts. They have a legal as well as moral obligation to discharge their professional duties. But discharge of their obligation to their clients is incompatible with what the legal fraternity has been doing since March 9, 2007? Basically the lawyers‘ movement was launched for the independence of judiciary, providing fundamental rights to the people and to play its role in functioning of constitutional bodies in their own circles. Its main focus was;

9 Khalid Jawed Khan, ―What lawyers want‖ Dawn, October 11, 2007

10 Ibid 236

a. Independent and sovereign judiciary- in this regard to fight against the unconstitutional behavior against the chief justice of Pakistan and his restoration. b. The rule of law-elimination of military dictatorship forever and to stop all the ways of doctrine of necessity. c. Restoration of democratic process-free and fair to form a democratic government to send back army to their barracks.11 On July 20, 2007 the initial goal was achieved but yet a long way to go on, as it was reflected in the afterwards happenings. It was also realized that time would be needed to resolve these issues and that only the supreme court was not responsible for it rather it needed patience and cooperation. All the lawyers were committed to safeguard the judiciary and from tagging any political label to them. They had constitutional objectives, which if achieved, even by half, would make us a much better and civilized country. They were united for the dignity and respect of the constitution that would help make the country developed. The general masses of Pakistan fully supported their movement rather than to ask for quitting the struggle. As they were taken to the streets for the betterment of masses and the people reacted accordingly to restore the judiciary and chief justice. Now that was the time for the nation and it committed to continue support as the initiative taken by the lawyers was productive and provocative to wake the public up and struggle for their rights.12 From the very outset of the lawyers‘ movement and the judicial revolt, the rhetoric of revolution has been a constant battle cry. This movement was consisting of two groups; a. The idealist group b. The realist group The idealist group was in favor of social and political change in Pakistan while the realist group was out of these to restore efficient democratic system, the respect for the constitution and the restoration of a free and fair judicial setup in the country, chanting the poem of Aitiza Ahsan that kept the wheel moving and motivated the people. Some verses of his are the following: Dunya ki tarekh gawa he, Dunya ki tarekh gawa he,

11 Muhammad Akram Chaudhry, ―Adalathi Buhran Aur Wakalaw Tehrik ke Maqasid‖ (urdu), The Daily Nawa-i-Waqt, Rawalpindi, April 5, 2007. 12 (Jawed, October 11, 2007) 237

Es adl ke sang jamhoor na hoga, Ye hal raha to mulk hamara, Wahshat, khof se dor na hoga, Jo adl kare kamzor edary, Jo adl kary kamzor ekaienya, Dunyab ki tarekh me socho, Tesh me kia ensaf hua he, Munsif ki bas apni ana he, Be adl yahan napeed hua, Adl ke dewano ab sun lo Hum jaj apni manwayenge, Roti, kapra aur ghar apna, Har ek ko hum dilwaienge, (Urdu) English Translation: “World history is the witness; World history is the witness, Democracy will not move with this judiciary, if it goes like this, Our country will not come out of terror and fear. Weak institutions can’t provide justice, When weak units do so it is fruitless; Aggression never results in justice, as history of the world shows Because the judge (dictator) has his own ego, Scarcity of justice is here, Those who want justice, listen! We will reinstate the judge, Home, bread and clothes; Will be given to everyone”. 13

This had been merely the lip services that played the cards well. This revolution indicated as a persistent and long lasting struggle which also brought the imminent consequences for Pakistan and the judicial system. In short, the lawyers‘ long march was not really a long march but merely a linguistic expropriation of Mao‘s long march.14 Three narratives of this judicial revolution have emerged. Firstly, the legal community was interested in the superiority of judiciary over social and political setup. Secondly, the radicals opined the judicial revolution leading to a revolutionary judicial system with radical implications for democracy, the state and society. Thirdly, the activists were of

13 During his custody Aitazaz wrote a poem and it was used as an anthem during the lawyers‘ movement. 14 Faisal Siddiqi, ―The Narratives of Judicial Revolution‖ Dawn, September 29, 2010 238

the view that judicial revolution can bring in positive change in the judicial system thus it could better serve the people at large.15 Keeping in view the above, many argued that military dictatorship was not acceptable and it had bitter consequences for the country. Therefore, it was suggested to replace dictatorship by a fair judiciary under the banner of constitution of Pakistan.16 The lawyers played an important role in every democratic movement in the history of Pakistan. Also during this movement they wanted to bring a democratic government in the country and to get rid of Musharraf‘s dictatorship. However, the movement to restore the Chief Justice Chaudhry to office strengthened at several levels. First, the Bar Associations provided strong leadership to the lawyers. In this way they gained public support. The movement also got the support of political parties. The opposition political parties also wanted to join the movement. The Lawyers‘ Movement for Judicial Independence gained an important position in political parties. On the other hand Benazir Bhutto-led Pakistan Peoples Party, attempted to use the lawyers‘ agitation to negotiate a transition to democracy with Musharraf. Secondly, the lawyers‘ movement for the restoration of chief justice grew to become a campaign for the restoration of constitutional rule. The movement further extended for the ouster of Musharraf because he attacked the rule of law time and again. Lawyers organized the bars and countrywide structure to mobilize effectively. Political opposition leaders also proved resistant. The lawyers used the safe-haven of the courts—customarily the police can only be invited in by court authorities—to mount effective protests against Musharraf.17 Thirdly, high-profile lawyers encouraged media to provide extensive coverage to the lawyers‘ movement for agitating for the independence of the judiciary, and a return to the rule of law. Thus prominent lawyers succeeded in mobilizing different sections of society hitherto considered apathetic, depoliticized, or simply disinterested—the urban privileged. Pakistan‘s bar associations had achieved by bringing the judiciary over to the side of the rule of law before this political parties had singularly failed to do so. It created a deep split within the Pakistani ruling establishment, raising serious questions about the

15 Ibid 16 Ibid 17 (Human Rights Watch 2007. 15). 239

lack of accountability in governance as well as mobilizing public opinion on the side of transparency, accountability and the rule of law.18

Atrocities on Lawyers

Military government of Pervez Musharraf in Pakistan had been more fundamentally threatened by a few thousand lawyers in eight months instead of the combined efforts of political opposition over eight years. The lawyers stood for the rule of law and for constitutionalism. The lawyers‘ movement stood its arguments and sought both physical and political security in the protections enshrined in the constitution. In this context Musharraf‘s decision to suspend the constitution on November 3, 2007 was understood. This military dictatorship added a new chapter to the government of Pakistan. The lawyers association and their political alliances were up there to defend their due rights as per the constitution. Musharraf went to unlimited extent to torture and deter the process and therefore, took a decision against lawyers where lawyers were tear-gassed and beaten by police and intelligence officials with impunity. The lawyers were forced to restrain with all sort of atrocities, and force but they were all out to do or die. 19 Constitutionally speaking, military rulers could not hold two positions at a time, but Musharraf himself violated the constitution with his powers in hands. Pakistan lawyers were detained and they were not let to fight even for their own rights, rules regulations and their professional obligations. When the Supreme Court of Pakistan was not in the position to legalize Musharraf‘s election illegal, the military suspended the constitution, imposed martial law, and fired the judges. According to Human Rights Watch ―the Pakistani government has detained thousands of lawyers, political party activists, human rights defenders, students, and others without charge. Hundreds of others had been charged under various provisions of Pakistani law, some passed through regular parliamentary procedures, others through irregular and unconstitutional procedures by General Musharraf. The legal provisions most frequently used to detain and charge people since November 2, 2007.‖ According to international

18 Ibid, p.16 19 Ibid, p. 17 240

law it was not allowed to arrest anyone who is protesting for his rights but practice continued in Pakistan under the head of the state. 20 There was a single notice for shielding his presidency, to impose emergency due to which there was a complete restriction on any all sort of protest or procession. He even brought changes to perfectly safeguard his power even after returning to the civil position, with ordinance LXVI of 2007 and the Pakistan army act, 1952, on November 10, 2007. The following changes were made at that time; The anti-terrorism act 1997 The prevention of anti-national activities act, 1974 The Pakistan ordinance 1965 The explosive substance act, 1908 Prejudicial conduct under the security of Pakistan act, 1952 Several sections of the were amended. Under the amended Army Act civilians were made able to try in military courts for acts of treason, sedition and less specific offences such as ―giving statements conducive to public mischief.‖21

The Role of Civil Society in the Lawyers’ Movement

Musharraf‘s attack on the independence of judiciary paved ways for civil society to think about institutional supremacy. For the Protection of a core democratic rule, the fragmented segments of society came together at one platform. This movement got momentum after ouster of the Chief Justice of Pakistan. Queues were formed up for restoring the chief justice and democratic set up in the country. Before the movement Musharraf faced political opposition. The movement that started with a core mission to restore democracy and independence of judiciary in Pakistan was a bit lacking in the achievement of the actual milestones, hoped at the beginning of the movement. Peoples

20 ―Pakistan: Musharraf Should Accept Ruling on Re-Election,‖ Human Rights Watch news release, October 24, 2007, http://hrw.org/english/docs/2007/10/24/pakist17130.htm. 21 Pakistan Army (Amendment) Ordinance, November 10, 2007, also available on http://www.app.com.pk/en/index2.php?option=com_content&task=view&id=20627&pop=1&page=0&Ite mid=2.

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from all walks of life collectively and heartedly facilitated the change as this sort of acts had been a source of change in many civilized societies around the world. They were the voice for change. The linkages between the civil society and parliament had been seen as a powerful bond for strengthening democracy. This was a considerable difference from the anti-Ayub movement. That was also a mass-based movement but not united wholly around a single issue. It started as student agitation over issues of concern mainly to students, which did not appeal to a broad contingent of Pakistani society. The anti- Musharraf movement‘s appealed for democratic government and rule of law. It exceeded all sectors of society. They were united until the dissolution of Musharraf. People mobilized subsequently the suspension of the judiciary‘s institutional independence. They suggested that democracy resonates with the core values of Pakistani society.22 According to PILDAT survey ―the lawyers movement was joined by thousands more from other civil society sectors, including students, women‘s groups, journalists, human rights activists, academicians, trade unions, and professional groups. Since the judges‘ restoration, these groups‘ roles in strengthening the transition from dictatorship to democracy, with some exceptions, have been much less visible than hoped. Since the elections, they have generally failed to occupy the political void that they helped to create. In strong democracies, civil society is an agent of social change, advocating reform on issues of concern, raising awareness, and mobilizing public opinion as a vehicle for input to the political decision-making process. Civil society groups are also crucial watchdogs of institutions, such as parliament, the police, the election commission, and the courts, adding another level of accountability and transparency.‖ Pakistani civil society had faced numerous problems under the dictatorship of Musharraf. Much more encouragement was needed to help the citizens of Pakistan. Transparency and accountability was directly needed in Pakistan. For this purpose Pakistan institute of legislative development and transparency (PILDAT) and free and fair elections network (FAFEN) provided a valuable monitoring role and enhanced transparency and accountability. They also build relationship between the civil society

22 PILDAT, ―Joint Session of Parliament and Joint Resolution: A Step in the Right Direction,‖ Islamabad, 2007 also seehttps://mail.google.com/mail/?shva=1#label/Pakistan/12ffdaad62d98c20.

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and the military in Pakistan. Peoples also have democratic rights and responsibilities for voting after every five years. If people are fulfilling their responsibilities, the roots of democracy will be stronger and deeper. Overthrowing of democracy itself will be harder.23 PILDAT lauded the unprecedented joint parliamentary session as an important step in rebalancing the civil-military equation.24 The prominent head of the Supreme Court Bar Association and a former leader of the ―lawyers‘ movement,‖ Asma Jahangir, expressed disappointment on military‘s involvement in domestic politics. She was of the opinion that military must favour on security and foreign policy instead of being involved in the politics. She stated ―Now that parliament has given a clean chit to our security forces through a resolution, should they then expect sturdier shoulders in the commission to carry the responsibility of uncovering the bitter truth and presenting wiser choices? This time around the main issues have been skillfully sidelined. We have suffered crisis after crisis with unending patience because of skewed security and foreign policies. This is not likely to change after the military leadership has turned the tables on civilians who have abandoned their own concerns and joined the establishment‘s bandwagon.‖ 25

Politicians and the Lawyers’ Movement

It was in 2005, when Alliance for the Restoration of Democracy (ARD) was formed to face the military ruler. This get-together agreed upon to reinstate a true and dignified democracy and the power of the parliament. The Alliance for the Restoration of Democracy (ARD) united fifteen political parties, including the PPP and PML-N, the two largest political parties in Pakistan. The Alliance sought to agree on an ―effective political strategy for the restoration of real democracy and the supremacy of parliamentary institutions.‖26 Two key parties PML (N) and PPP leader Nawaz Sharif and Benazir

23 Ibid

24 Ibid 25 Asma Jehangir, ―Carry on Jeeves‖ Dawn, May 17, 2011.

26 Shaun Gregory, ―Pakistan on Edge‖ Open Democracy, September 24, 2006, http://www.opendemocracy

243

Bhutto signed an agreement for restoration of democracy, called charter of democracy (CoD), in May 2006. Even both were in exile and both were strong opponent of each other, these political rivals negotiated an agreement that set out a roadmap for the country‘s return to democracy. Both the parties launched their anti-Musharraf campaign on March 9, 2007, after the removal of Iftikhar Muhammad Chaudhry, chief justice of the Supreme Court of Pakistan from office. The then PML (N) and PPP leader Benazir Bhutto also joined the movement after returning to the country from exile. This movement showed their dissent against Musharraf and throwing him out of the presidency.27 The lawyers‘ movement challenged the authority of Musharraf. The opposition political parties fully supported the movement from March 2007 to February 2008. The most significant demonstration of the opposition was on the occasion when the deposed Chief Justice Chaudhry drove from Islamabad to Lahore to address the lawyers. This was stated as the Long March; Chaudhry‘s caravan had to slowly inch from village to village as the overwhelming number of supporters waved party flags and showered with rose petals. Political parties were soon in the mix and tied the quest for the return of democracy with the cause of institutional supremacy. Both Benazir Bhutto and Nawaz Sharif gave further motivation to the movement. Their opposition movement faced episodes of government backlash. More than sixty-five PPP and ANP activists were killed while attending rallies to support Chief Justice Chaudhry and many more injured by gunmen in Karachi and a suicide attack in Islamabad. Dozens of lawyers and other activists were beaten. They were thrown in jail, or forced into hiding.28 Musharraf‘s violent response to political protesters, however, only fermented anti-Musharraf sentiments and provided greater momentum to the movement. The struggle lasted for almost a year and faced various hardships, displayed by Musharraf in order to foil their efforts but they were determined. This proved to be a stimulus to spur the movement. Finally their efforts brought a drastic change and resulted in quitting the role as army chief and Musharraf stopped to wear

27 Human Rights Watch, ―Pakistan: Musharraf Uses Anti-Terror Laws to Jail Critics,‖ news release, November 2008 28 Ibid

244

military uniform on November 28, 2007. General Ashfaq Pervez Kiyani became new chief of the army staff (COAS). Before presidential elections, Musharraf had promised that if he was re-elected as president, he would relinquish his position as COAS and put off his uniform. Political situation became tenser when on December 27, 2007 Benazir Bhutto was assassinated at a campaign rally. Asif Ali Zaardari, Benazir Bhutto‘s husband and the party‘s new leader, demanded that the election go ahead. Party leaders refused to allow Bhutto‘s murder to derail the opportunity to restore democracy to the country. Citing Benazir‘s words that ―democracy is the greatest revenge‖ against dictatorship. Anticipation of a potential sympathy vote may also have influenced the decision. Nawaz Sharif fully supported the PPP demand to proceed with the elections, leaving Musharraf with no excuses to stop them. Musharraf started his preparation for general election but it was hindered with the murder of the PPP‘s leader Benazir Bhutto. All the leading parties insisted to go for election and restore democracy as early as possible. Thus Musharraf and his allies PML (Q) faced bitter defeat in the elections. PPP won election with majority seats and this way, Musharraf was compelled to resign as president on August 18, 2008.29 Musharraf‘s split the military-backed PML-Q and created momentum for the PML-N. It also signaled a weakening of Musharraf‘s control over the political environment. After returning both leaders of the main political parties, Nawaz Sharif and Benazir tried their level best to mobilize their parties‘ activists to bring in a positive change in the country. Although they were having some personal grudges yet they collectively struggled to restore democracy in the country. They added a vigorous momentum to the lawyers‘ movement.30

Role of Media during the Lawyers’ Movement

There have been a number of restrictions placed on the media since the events of March 9, 2007. On March 12, 2007 two prominent television channels, AAJ TV and GEO

29 Sheila Fruman, Will the long march to democracy in Pakistan finally succeeds? United States Institute of Peace 2301 Constitution Ave., (NW Washington, D.C. 20037, 2011), p. 10

30 Ibid, p.11 245

News, were taken off air after receiving a warning from the Pakistan Electronic Media Regulatory Authority (PEMRA) for showing picture of police baton-charging protesting lawyers in Lahore. It was reported that television channels were contacted and advised not to telecast scenes of police action against lawyers. There were also reports that GEO News received a written order from the PEMRA restraining it from airing a popular show because of its coverage of the March 13, 2007 meeting of the supreme judicial council. It was also commonly perceived by many people that many of the editors of newspapers had been contacted and requested not to give too much coverage to the issues regarding the chief justice.31 According the HRCP press release: ―on March 16, 2007 violent incident occurred when GEO News team was covering, from its rooftop, the events outside the Supreme Court while the supreme judicial council was in session. It was reported that three or four police men, including an inspector, came to the office and asked for the cameras on the rooftop to be removed. The request was refused unless a written directive was provided. In response, approximately two dozen police officers entered and ransacked the premises. There was a strong reaction from journalist, politician, lawyers and traders against this attack and Musharraf appeared live on television and said the incident was ‗regrettable‘ and promised swift action against the people responsible for it. Another restriction on the media and more generally on the freedom of expression occurred on May 9, 2007 with the circulation by the Supreme Court of a press release which warned against comments being made about the president‘s reference against the Chief Justice, stating that any comments would mount to contempt of court. It stated: discussion, comments or write- ups that are likely to interfere with the legal processes, ridicule, scandalize or malign the court or any of its judges, or that touch on the merits of the case are strictly prohibited.32 On 26 May 2007, a seminar on the ‘independence of judiciary was held by the Supreme Court bar association with the chief justice being the chief guest. This was televised live by all the major private TV channels including GEO, AAJ and ARY. The speeches and papers at the seminar were too much for the Musharraf government to bear. The government imposed serious restrictions against electronic media and live coverage of all

31 Dawn, March 13, 2007 also see Hamid, p. 516 32 HRCP Press Release May 13, 2007, also see Hamid, p. 516 246

events relating to the chief justice was completely banned. PEMRA through an ordinance was empowered to take any draconian measure against the private TV channels. It was the end of live coverage of the events relating to the chief justice from that point onwards.‖ 33

Supreme Court bar Association and the Lawyers Movement

Having played a leading role in opposing military rule in 2007, the legal community was the principal target of Musharraf‘s martial law in November. The bar association strived hard to restore the chief justice and the other judges. New judges under the PCO were not acceptable to them and they continued with same pace to detest policies of the Musharraf government. The bar associations criticized the coalition government‘s decision to increase the strength of judges from 18 to 29 through the Finance Bill in June 2008. This was aimed at accommodating the sitting judges in the event of the deposed judges‘ restoration. As the government incrementally restored the sacked judges, even as it retained the PCO judges. However, lawyers were of the opinion that whatever hurdle stood in front of them, they would prefer as per the standard of the Supreme Court without heeding to government that was not rational and applicable under the prevailing the circumstances.34 One of the biggest problems that the lawyers were facing was lack of unity and their solidarity was a question at the time. Even the Director of Human Rights Commission of Pakistan I.A. Rehman had a great concern about the movement. He stated that ―Perhaps they [the leaders of the lawyers‘ movement] did not have the time to decide whether their agitation was in the form of a trade union strike or a political movement for change. If the former was the case, the risk in stretching the struggle beyond the endurance of the judges and lawyers should not have been ignored. In such struggles, it is crucial to assess when the agitation should be wound up and inflexibility replaced with [pragmatism]. If

33 Ibid 34 International Crisis Group ―Reforming the judiciary in Pakistan‖ Asia Report N°160 (Washington DC, October 2008)

247

the agitation fell in the second category, then the strategy recommended for long term political movements should have been adopted – and in this, there is room neither for short-period ultimatums nor for promising success within days.‖ 35 Due to their protests the lawyers were also facing financial problems. They could not attend their professional obligations in courts. Their practiced suffered due to protests and demonstrations. According to one analyst ―The constant agitation on the streets along with innumerable bar meetings and occasional hunger strikes and general strikes has virtually destroyed the practices of many lawyers. The public has become so weary of litigation that it has stopped opting for lawsuits in many cases.‖36 An editorial in a major daily argued: ―the legal system has almost grounded to a halt in the face of [the judges issue], and the lawyers that service the [lower] courts have been preoccupied over the last eighteen months with matters far removed from those concerning people at the bottom of the pile‖.37 Some external factors had provided a great support to the lawyers‘ movement. These proved to be a pressure group and indirectly supported the lawyers‘ movement. Some Islamist parties like Jamaat-e-Islami, tried to exploit the lawyers movement for the restoration of democracy and the removal of military dictator Pervez Musharraf. They want to get popular legitimacy and thus promote their own agenda. On the other hand the members of the Jamia Hafsa Madrasa and other religious right-wing groups actively participated in the ―long march‖ of the lawyers on June 2008 from Karachi to Islamabad. Even Jamaat-e-Islami, gave a proposal that ―to lock the country‘s courtrooms‖. The All Pakistan High Court Bar Association said that the proposal is authored by the right-wing religious party, Jamaat-e-Islami, not the bar leadership.38 The lawyers‘ movement was also suffering from internal conflicts as lock out of the courts. In September 2008, some of the lawyers in Punjab locked courts. They prevented their fellow lawyers, court staff and litigants from entering the courts. These were extreme steps that suffered and damaged the movement‘s credibility and support. The

35 Ibid 36 Anees Jillani, ―The stalled revolution‖, Newsline, July 2008 37 The Daily News, Islamabad, 11 August 2008. 38 Daily Times, Islamabad, 9 July 2008.

248

movement also witnessed internecine disputes and turf battles, especially between the SCBA and the Pakistan Bar Council (PBC) over the movement‘s leadership. Though, the lawyers‘ community remained an important pressure group as they stressed on basic principles and the rule of law. A prominent lawyer stated ―I would like the judges to be restored but that‘s not my main issue at the moment. My main issue is the restoration of the 1973 constitution and the removal of all made under Musharraf‖.39 The bar associations were so emotional that they called elected government to restore the judiciary on priority basis. It was opined that lawyers ought to respect the PPP government, after all it succeeded in getting mandate by the public. So they had to join the government, in order to ensure true democracy and could get rid of military dictatorship. As one of the lawyers stated ―I don‘t support the PPP, but I want to see this government succeed‖. They said that the government had ―been given a public mandate. We [lawyers] have to keep that in mind‖.40 The SBA (Supreme Court Bar Association) tried their level best to introduce an appropriate constitutional package and to remove the military rule. They played a key role for judicial reforms. The leadership of the Pakistan Bar Council and the Supreme Court Bar Association as well as the four provincial bar councils and the provincial High Court bar associations provided full support.41 Those associations were democratic and resist external interference from both government and bench. Lawyers recognized the need for internal reforms of their own movement. Subsequently the leadership in the bar associations were strong. Further a council was established, comprising of bar leaders, a longstanding demand by lawyers. The council gave proposal and reports, in collaboration with human rights organizations and media representatives.42

International Support

39 (Crisis Group, Asia Report N°160) 40 (Dawn, 28 August 2008).

41 (Crisis Group, Asia Report N°160) 42 Ibid 249

The human rights organizations in Pakistan and from across the world provided their full support for judicial independence. The lawyers were also encouraged by many bar associations. During this time the leading lawyers were strongly pressurized by the military government in Pakistan. At the same time, Justice Chaudhry had awarded with the prestigious ―Medal of Freedom‖ at the Harvard Law School. ―Thus he became the third man in history to have been conferred with such award in recognition of his individual efforts to uphold the legal system fundamental commitment to freedom, justice and equality. The past recipients of the award included the legendry anti-apartheid leader Nelson Mandela, and the team of litigants that contested Brown versus the Board of Education, that brought an end to racial segregation at educational institutions in the United States of America. The New York City Bar Association granted the Justice Chaudhry, an honorary membership as a symbol of the movement for judicial and lawyer independence in Pakistan. The Chief Justice also received the Lawyer of the Year award from the New York-based periodical The National Law Journal for the year 2007. That was the time when struggle for the restoration of the deposed judiciary was in progress.‖43 According to International Bar Association Report, ―the independence of the judiciary was widely recognized in a number of international instruments, such as Article 10 of the Universal Declaration of Human Rights (Universal Declaration) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which both require an independent and impartial tribunal. Although Pakistan is not a signatory to the ICCPR, the Universal Declaration is widely regarded as representing customary international law upon which the ICCPR elaborates, and Pakistan‘s Constitution provides law for an independent judiciary as well as for the other rights.‖ 44

General Election of 2008 and Formation of New Government

43 Azmat Abbas and Saima Jasam, ―A Ray of Hope: Heinrich-Boll-Stiftung, in the publication series on promoting Democracy under Conditions of State Fragility” Pakistan: Reality, Denial and the Complexity of its state. (London: 2009)

pp.11-12 44 International Bar Association Report, A Long March to Justice: A report on judicial independence and integrity in Pakistan. ( London: 2009) 250

After the assassination of Benazir Bhutto, in December 2007, elections were held in a very tense atmosphere. As after exile she returned to Pakistan to contest elections. Bhutto‘s assassination on December led to violence, street protests and demonstrations throughout Pakistan. The elections were postponed to 17 February 2008. PPP became stronger with the Benazir Bhutto‘s assassination got the credit and avail the opportunity and won the election with mandate. PPP got 125 seats, while PML (N) got only 91 seats. The PPP proved to be more powerful and formed the government. These two parties formed a ―government of national consensus.‖45 PPP and PML (N) reached a power sharing agreement at the Center as well as in the province. Initially, PML (N) did not want to join the cabinet at the center. Subsequently PML (N) agreed to form the federal government in coalition with PPP and ANP and also in the provinces. On March 17, 2008 a session of the National Assembly was held for oath taking of its members. PPP nominated Dr Fehmida Mirza and Faisal Karim Kundi for the offices of speaker and Deputy Speaker of the National Assembly respectively. Dr Mirza was elected Speaker on March 19, 2008 with 249 votes. Mr. Kundi was elected Deputy Speaker with 246 votes against 68 polled by his opponent Ms Khushbakht Shujaat. Dr Mirza became the first woman Speaker of the National Assembly of Pakistan.46 Elections results of the five constituencies late.47 Pakistan People party (PPP) nominated Syed Yousaf Raza Gilani for the post of Prime Ministership on March 22, 2008. He was elected as a Prime Minister of Pakistan against Pervez Elahi of PML (Q), with a vote ratio of 246 to 42.48 On March 24, 2008, he ordered to release the detained judges. The authorities immediately acted upon his order and released judges from jail since November 3, 2007. Hundreds and thousands of lawyers, civil society members, journalists and general public crowded over the residence of the deposed Chief Justice Iftikhar Muhammad Chaudhry to share the joyful moments with

45 ―PANORAMA of Parliamentary elections‖, An Annual publication of the Inter-Parliamentary Union (IPU) Grand- Saconnex, (Geneva, Switzerland, 2009), p. 3

46 Dawn, op, cit., March 20, 2008 47 Election in NA-119, NA-207, NA-37, NA-42 were postponed while result in the NA-269 awaited. 48 Ibid 251

him and other family members. Gilani took oath of the office as Prime Minister of Pakistan from President Pervez Musharraf at the president house on March 25, 2008.49 On March 29, 2008 he took a vote of confidence from the National Assembly. A federal cabinet was formed comprising of 24 ministers. These 24 ministers were from the coalition of four major parties, PPP, PML (N), ANP, and JUI (F). Out of these 24 ministers, 11 members were from PPP, 9 from PML (N), 2 from ANP and one each from JUI (F) and FATA. Chaudhry Nisar Ali Khan became the senior minister of the cabinet.50

Elections Results

Party Punjab NWFP Baluchista Islamaba FATA Wome Sindh Total (now) n d n/Min KPK ority Allocat (148) (35) (14) (02) (12) 60/10 (61) (342) ed seats PPP 45 10 04 - - 22/03 29 113 PMLN 59 04 - 02 - 16/03 - 84 PMLQ 28 06 03 - - 11/02 05 55 ANP - 10 - - - 03/01 - 14 MQM - - - - - 05/01 19 25 PML(f) 01 - - - - 01/00 03 05 PPP(s) - 01 - - - - - 01 Ind/oth 14 01 04 - 10 - 04 33 ers MMA - 03 02 - - 02/00 - 07 Total 147 35 13 02 10 60/10 60 337

49 (The Daily News, March 30, 2008) 50 (Ibid, April 1,2008) 252

Source: Election Commission of Pakistan Report on 2008 Elections

Provincial Governments

In Khyber Pakhtunkhwa, the newly elected chief minister was from ANP named Amir Haider Khan Hoti formed the KPK provincial assembly consisting of all the coalition parties of PPP‘s. Kiramtullah Chagharmatti and ANP‘s Khushdil Khan were named respectively as the speaker and deputy speaker of KPK provincial assembly. In Sindh a coalition government was established consisting of two parties namely PPP and ANP. There were dialogues with MQM to enter them to the coalition government which did not succeed and thus the cabinet of several ministers from PPP and ANP was sworn in. The provincial assembly elected of PPP as unopposed Chief Minister of Sindh provincial assembly with Nisar Ahmad Khuro and Shela Raza both from PPP as the speaker and deputy speaker respectively.51 In Baluchistan, the PPP‘s nominee Nawab Muhammad Aslam Raisani became the Chief Minister of Baluchtan provincial assembly. He established 38 members cabinet. Aslam Bootani of PML Hamkhyal and Syed Matiullah Agha of JUI (F) succeeded to be the speaker and deputy speaker of Baluchistan provincial assembly respectively. 52 In Punjab a coalition provincial government of PML (N) and PPP was formed. The PML (N) MPA Dost Mushammad Khan Khosa was elected as the Chief Minister of Punjab provincial assembly for temporary basis waiting for the result of the bye-election of Mian Muhammad Shehbaz Sharif. Mr. Rana Khan and Rana Masood Khan were elected as the speaker and deputy speaker of Punjab government. They both were from the PML (N). The members of PML (Q) were on the opposition benches in Punjab

51 (Khan 2009, 531) 52 Ibid 253

provincial assembly. Later on Shehbaz Sharif of PML (N) became the Chief Minister of Punjab.53

The Murree Declaration

A major breakthrough came when the heads of the two big parties forming the coalition government, PPP and PML (N) named Asif Ali Zardari and Nawaz Sharaif, signed an agreement to restore the judges detained on November 3, 2007, within 30 days of the formation of the federal government. It was called as ―Murree Declaration‖ because this agreement was signed in (Bhurbon) Muree. Nawaz Sharaif read out the declaration in his press conference as ―It has been decided to restore the deposed judges through a parliamentary resolution to be passed in the national assembly within 30 days of the formation of the government.‖ The text of the ―Muree summit declaration‖ could be explained as; a. The two major parties the PPP and PML (N) decided to form a coalition government in order to give a practical shape the demands and aspiration of the people of Pakistan. b. It was decided to reinstate the authorities and duties of the detained judges as on the date of November 2, by passing a parliamentary resolution within 30 days of the formation of the coalition government. c. All the allied parties agreed to support and vote for the candidate for the post of the Prime Minister nominated by PPP, based on the condition that he must be able to pass along with the common agenda of all the allied parties. d. The PML (N) agreed on the speaker and deputy speaker of the national assembly to be from PPP, based on the exchange that the speaker and the deputy speaker of the Punjab assembly would be from PML (N). e. Both parties agreed to be part of each other coalition governments, both in federal and Punjab.

53 Ibid 254

f. The heads of the two parties gave their opinion, giving orders to start the formation of the governments and opening the sessions of both the national and provincial assemblies. The federal government was formed on March 31, 2008 and the federal ministers took their oath. Thus it became clear that the 30 days deadline was to expire on April 30, 2008.54 However Musharraf and the anti-Iftikhar Chaudhry members became active and put hurdles in the restoration of the judges. For example, Chaudhry Ahamd Mukhtar defended Musharrf‘s decision and even Zardari criticized the detained judges on the ground of his imprisonment for eight long years. Zardari instantly visited nine zero in Karachi and tried to make a deal with MQM for entering them into the coalition government, as a result the workers and party members of MQM were encouraged to attack the lawyers on April 9, 2008. The lawyers‘ chamber building was on fire as a result of which many lawyers were wounded and advocate Haji Altaf and clients died in the fire. These attacks reminded the people the murders of a large number of lawyers with the hands of MQM on May12, 2007 in the same city of Karachi.55 PPP announced that the draft of the resolution on judges‘ restoration has been given final shape. But a little bit later, PPP announced that the judges‘ restoration could be possible with a ―constitutional amendment‖ rather than a ―parliamentary resolution.‖ The lawyers of PPP worked out a constitutional package which could restore all the judges except the Chief Justice Iftikhar Muhammad Chaudhry. This package was later on called the ―minus one formula‖. They set two ways to expel Iftikhar Chaudhry out of the judicial system; firstly Chaudhry would be restored on his position of the Chief Justice of Pakistan but should be made liable to resign immediately. Secondly, a time of three years should be specified for only chief justice in the constitution and as a result he will be retired very soon in June 2008.56 In fact Zardari believed the present PCO chief justice Abdul Hameed Dogar to be his hero and helper because he accelerated up the acquittal of Zardari in the criminal and corruption cases pending in the court under the National Reconciliation ordinance (NRO)

54 (Dawn, March 10, 2008) 55 (Khan 2009, 532) 56 Ibid 255

2007. On April 21, 2007, a committee of the PCO Supreme Court headed by Dogar removed the restriction of the non-graduate persons to take part in the election, which helped Zardari to take part in the elections for national assembly because otherwise he would have not been able was his graduation degree was duly verified. Thus these situations opened the door for Zardari to become either Prime Minister or even president of Pakistan. So, Zardari thought that he should support Dogar as the chief justice of Pakistan.57

The relationship of Zardari with Nawaz Sharif went into serious trouble on April 21, 2008 on the issue of the restoration of judges. A meeting was held between the two in which it was declared that they will restore judiciary according to the Muree declaration. Despite the clear cut instructions and decisions in the summit a committee was formed to work out the method to be followed, to reinstate the deposed judges. The establishment of this committee was absolutely against the instruction and conditions of the Murree Declaration. It was clearly mentioned that the judges will be restored before any other matter and there will be no subordinate work before the restoration of judges. Meanwhile Asif Zardari visited Dubai on April 24, 2008. He planned to return to Pakistan within three days but it took one week. Nawaz Sharif and his brother Shahbaz Saharif and other leaders of PML (N) held a meeting with the Supreme Court Bar Council leaders on April 27, 2008. They decided on the deadline to be expired on April 30, 2008 and that the resolution must be passed before it, followed by an executive order. They also decided to send a delegation in the supervision of PML (N) leader Shahbaz Sharif to discuss the matter of judges‘ resolution with Zardari, and to influence him to solve the problem within the stipulated time period before April 30, 2008. The PML (N) leaders guaranteed the Bar Council leaders that they would fulfill the tasks. a. Restore judges on their respective positions. b. Subject to the condition PML (N) would leave the coalition government. On the return of Asif Ali Zardari from Dubai, Shabaz Sharif declared on May 2, 2008 that PPP and PML (N) had reached on a consensus on the restoration of judges. He said that the restoration of judges‘ resolution will be passed from the parliament on May 12,

57 Ibid 256

2008 and that the judges will be restored on the same day. He however surrendered to Zardari on the issue of PCO judges‘ retention in the Supreme Court. He made a committee once again to finalize the procedure of judges‘ restoration. However this committee did not succeeded to perform and went into some serious trouble because Fakhruddin G Ibrahim, the committee‘s member refused to work on the matter. He disagreed and became disgruntled on the restoration or retention of the PCO judges in the Supreme Court. He proposed that the main purpose of the committee and the subject matter should be restoration of the deposed judges rather than the retention of the PCO judges.58 According to him the retaining of the PCO judges was against the constitution because they helped Musharraf in the breakdown of constitution and implementation of emergency in Pakistan, on November 2, 2007. The committee did not succeed in working out the solution because of this and other differences in committee members and forwarded the matter to the heads of the two parties. Meanwhile, Nawaz Sharaif and Zardari went to London for their personal matters. Zardari met Nawaz Sharif, but the meeting did not succeed and finally the discussions broke down on May 10, 2008. The reason was that Nawaz Sharif did not accept the condition to retain the PCO judges. He was agreed to accept them as only adhoc judges. The second major reason for the breakdown of negotiations was the procedure of restoration. Zardari wanted the deposed judges to be restored through a constitutional amendment, while Nawaz Sharif suggested restoring the deposed judges on a parliamentary resolution and that the desired constitutional amendment package could be presented in front of parliament later. On May 12, Nawaz Sharif returned to Lahore from London and addressed the meeting of the core committee of PML (N). Ministers of PML (N) resigned from their respective positions on May 13, 2008. However PML (N) said that they are going to support the coalition government rather than sitting on the opposition benches. Zardari actually proved dishonest with his promise and never thought to fulfill it. It was proved that he was never sincere to restore the deposed judges, especially Justice Iftikhar Chaudhry. When he answered a question on a TV channel that the Murree Declaration was not a

58 Ibid 257

Hadith rather was a political statement.59

The Long March

When the coalition government failed to restore the judges to their position, the lawyers‘ representatives from all over the country gathered in Lahore to decide the future of the lawyers‘ movement for restoration of deposed judges and affected judiciary on May 17, 2008. The lawyers‘ representatives decided in the meeting and declared in the following conference, on the final deadline of the restoration of judiciary to be June 7, 2008. They said that if the judges were not restored before June 7, 2008, the lawyers from all over the country would assemble leading a long march towards Islamabad from June 9, 2008 onwards. They invited and requested the political parties‘ professional bodies, traders and the civil society members to take part in the long march and support lawyers. The deadline finished and the lawyers movement actually decided on the long march.60 The long march started from Karachi and Quetta on June 9 and reached Sukkar in the evening. The participants of long march started their journey from Sukkar on June 10 and reached Multan in the evening. In Multan, the deposed chief justice Iftikhar Chaudhry joined the long march in the morning on June 11, 2008. The long march started then from Multan to Lahore and reached there in the early morning of June 12, 2008. In Lahore Iftikhar Chaudhry Mr. Aitizaz Ahsan and other leaders of the lawyers movement addressed a gathering in front of Lahore High Court Bar association Lahore. The participant left out Lahore and left towards Islamabad in the evening of June 12, 2008. The PML (N) founder leader and president Nawaz Sharif, Jamat-I Islami Ameer Qazi Hussain Ahmad and Pakistan Tehrike Insaf Chairman Imran Khan gave the participants of the long march a warm fare well and send off to Islamabad from Lahore. 61 More than quarter of a million of long march members reached Islamabad and gathered in the ―Parade Ground‖ of parliament building on June 13, 2008 in the evening. Earlier in the morning of June 13, 2008 the members of the long march who started from Lahore gathered in Rawalpindi and were joined by the members from different regions of

59 (Dawn, May 13, 2008) 60 (Khan 2009, 533-34) 61 (Dawn, June 13 2008) 258

Khyber Pakhtunkhwa who started from Peshawar. The quarter million participants of the long march comprised of about 30000 lawyers, workers and leaders of the political parties like PML (N), JI and PTI and civil society members like professional businessmen etc. The lawyers, leaders of the bars and heads of the political parties addressed the gathering on June 14, 2008.62 The long march of June 13, 2008 changed the history of the judiciary of Pakistan, which no longer accepted to the violation of human rights and intervention of military dictators. Four hundred thousand opponents to Musharraf regime, led and supervised by lawyers and supported by the general public started from different part of Pakistan and reached capital city by road from June 13-16, 2008. The participants of the long march demanded the restoration of the deposed judges, removal of Pervez Musharraf and deposition of PCO judges. They were on the long march due to the government‘s disability to resolve these crises and make a satisfactory outcome. Ignoring this tremendous movement, would have been a serious mistake of the government and the international communities. Chief justice Iftikhar stated earlier that without an independent judiciary, the provision of justice and the protection of people‘s rights were impossible. The people of Pakistan asserted their needs for an independent judiciary and strong democracy and did not accept any agreement which would not restore the deposed judges. It was such a peaceful and meaningful movement that any agreement or any other administrative authority could not stop it. 63 The long march became a historic event in the history of Pakistan. The workers of all the political parties of the opposition participated in the march. A huge amount of civil society members from all over Pakistan took part in it. The long march was received and welcomed with great enthusiasm and interest all over Pakistan. The march reminded the people of Pakistan the ideal unity and strength of the nation similar to the one observed in September 1965 war against India. The lawyers and bars leaders proved that they can stimulate a lot of people from different areas any time they need. Another aspect of the movement was that in a period of violence and terrorism, the movement was neither hit

62 (Ibid, June 14, 2008) 63 Délou judge and Fatma, ―Pakistan- A Long March for Democracy and the Rule of Law‖ International Federation for Human Rights -FIDH, (France, January 2009) 259

by the militants nor did they indulge in any unlawful activity during six long days of the movement.64 The long march led and headed by the lawyers was really long into different aspects. First, it started from distant areas of Quetta and Karachi and D.I Khan and reached Islamabad. Secondly, it lasted for about 6 days. The long march got such a huge popularity and support because of various reasons. The coalition government was unable to restore the deposed judges. Among the other reasons were the political opposition to Pervez Musharraf, the publics ―NO‖ to the violation of the constitution, the questions and doubts about the Lal Masjid operation, anger over Baluchistan operation, opposition to FATA operations, Bughtee‘s murder, the army‘s and ISI‘s involvement in politics, the issue of missing persons and the lawyers killings in Karachi. The basic reason of the anger of the whole nation was the violation of the principles of the constitution of 1973 of Pakistan, specially the provision of fundamental rights and equal treatment by the state. The constitution clearly mentioned the principles of natural justice and Islamic justice, the average general public whether educated or not aware of the meaning of justice and desired both types of justices; hence almost every individual of Pakistan was frustrated by the actions of the government. They were agreed because they were deprived of their basic rights of provisions of justice. Hence the justice-demanding citizens of Pakistan called it the justice march and demanded the restoration of deposed judges.65 On behalf of this justice march, the citizens of Pakistan achieved a great and dream goal. It forced the democracy from the concept of only elections. It pushed the parliamentarians and political parties to demand for justice through an independent judiciary. Some purely was sleeping and popularity desiring individuals called this movement without any evidence an international plotting and conspiracy of putting the two major parties and thus the general public of Pakistan opposite of each other. On one side was the emerging power of popular spirit, which experienced the situation in the absence of justice by the relevant authorities, had resolved to collectively resist and protest against the injustice. The chief justice and other senior judges deposition and

64 (Khan 2009, 534) 65 Nasim Zehra, ―Justice March‖, The Daily News, Islamabad: June 11, 2008

260

detention in their houses and the implementation of emergency on November 2, 2007 were the catalysts that with other factors collectively triggered this popular spirit. This popular spirit with the help of unity, collective action and affective organization was converted into a popular power.66 There were many characteristics of that new form of popular political power some of which are, a. Although it was a political power but was non parliamentary and did not seek electoral power by itself. b. It seemed to affect electoral politics. For example, PML (N) and PPP adopted the restoration agenda and it was the evidence of its influence all electoral politics. c. It could seek and demand support from any political party and its mission to restore judges but however could not align with any party. d. It had been caused to emerge because of the experienced Pakistani wisdoms that without justice and fair play in the country by the state and its executive the nation will continue to suffer from political nepotism, corruption of the high class, violence and terror in Baluchistan and FATA, absence of genuine democracy, expanding poverty and unemployment and inflation, economic disaster, lack of peace and harmony, and lack of self-confidence, trust, honesty and dignity. e. It was positive rather than bitter in the sense that it did not record a single moment of violation of any rules and regulations. It gave the nation a hope of norm, violent, positive, effective and democratic solution of various problems and punishing at the end of it the wrong runners. f. While there were aspiring leaders in the positive popular political power such as Minir A Malik, Aitazaz Ahsan, Ali Ahmad Kurd and Hamid Khan. It was no doubt the collective leadership of all the lawyers which strengthened and stabilized this power. Even an inspirational figure like Iftikhar Chaudhry was watched out by the movement‘s leaders to be fair and just and not to become political.67 The opposing form of power to all these events was the heartless and hard power where the people with sound political background demanded for and even ordered to be fair and

66 Ibid 67 Ibid 261

just. This form of power used to flow from exercising unaccountable and unlimited authority, whether civilian or military. These two powers, the popular political power and the callous power stood face to face and against each other. The emerging popular political power started limiting the use of the callous power. The popular political power, in demanding for the cancelation of the actions of a military ruler and dictator and the controversially selected president, demonstrated that if they were under the principles of the constitution, which gives them power and authority to defeat the autocratic and authoritarian power. Another important aspect of this movement was that the popular political energy was converted into a reliable monitoring force too. It warned the authorities not to indulge in unlawful and wrong activities. The immediate beneficiaries that is the deposed judges noticed it and they realized that once they were back on the benches, this popular political power like the independent media would follow them in their decision making process. It was impossible for deposed judges to decide against the former PCO judges on the basis of any type of biased attitude, because of the development of political circle and the maturity of the citizens. The demands for fair play by those who were in the public space like lawyers, journalists, civil society members, media and some political parties kept away the judges from committing injustice to their strong enemies that were PCO judges.68 The participants of the long march were of the view that there could have been no democracy with a destroyed and paralyzed judiciary. The government tried to stop the march on the basis of security issues but this tactic proved a lot favorable for marchers because their image in the public, further improved. And by now, the march gained tremendous support from public and strength in itself.69 The government information minister Sherry Rehman announced that the government would support and facilitate the marchers. The government and the lawyers representatives agreed on certain matters. The government provided facilities like drinking water, security and mobile dispensaries to the lawyers. The lawyers‘ representatives assured that the march would be peaceful. Government had reached an agreement with the organisers of the long march on a code of conduct according to

68 Ibid 69 Ibid 262

which the lawyers‘ community and their representatives ensured smooth sailing during the long march. ―Constitution Avenue has been declared ‗red zone‘ and all the sensitive buildings such as the Parliament House, Supreme Court, Aiwan-e-Sadr will be cordoned off and the lawyers will camp at the Parade Ground near D- Chowk,‖ in Islamabad. Government provided all the facilities to the participants of the long march including drinking water, civic amenities, mobile dispensaries and many other facilities. She said according to the agreement reached with lawyers‘ representatives the marchers would enter Islamabad from Faizabad, then from Zero Point they would turn towards Aabpara and from there they would take to the Embassy Road and reach the Parade Ground.70 The marchers did not sit so long as was expected and the marchers come to full stop early in the morning of Saturday. The head of the long march Aitazaz Ahsan gave the reason of not sitting too long in the later interviews to TV channels and newspapers due to shortage of resources as well as keeping the movement peaceful.71 He clarified himself by saying that he and his colleagues were the men of determination. He also stated that he could not think of damaging or harming the justice march because he had sacrificed many facilities and bonuses and rewards for the successes of judiciary, which Pervez Musharraf was agreed to engage him. ―I fought for the case of independent judiciary, fought the case of Iftikhar Chaudhry and won it.‖ While in his interview to ―The News‖ he stated that there was small number of participants of the long march who wanted to stage a Dharna (sitting) in front of parliament house. Another group of small number of participants was of the opinion to attack the security guards and inter the presidency. Aitizaz did a wonderful job by not allowing any confrontation and war between the marchers and the administration. He said that ―he did not want a blood shed of innocent citizens including children and women. He wanted to reinstate the deposed judges including the chief justice with a slogan ―Ham Mulk Bachany Nekly He Aaw Hamary Sath Challow” (we have come out to save the Nation, come and join us). It would have been a dream to hope

70 (The Daily News, June 13, 2008)

71 (The News, June 15, 2008)

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for the progress of nation without a free and independent judiciary.‖72 At the start of the long march it was decided to give a Dharna in front of parliament house. But the participant of the long march lawyers, the civil society members and other were greatly disappointed when SCBA president Aitazaz Ahsan in consent with Nawaz Sharif, decided not to give a Dharna. At the end of the long march the government benefited and the marchers were at the loser ends because they failed to stage a Dharna and missed the opportunity though a large number of people were gathered.73 The long march against Musharraf brought the political parties, lawyers, the media, the civil society members and the general public together under a common agenda of achieving democratic values and norms of independent judiciary, parliamentary supremacy, free and independent media and a free election. However the classical transition vs. consolidation dilemma was felt again when the political parties united to establish a coalition government to oppose Musharraf. The need of a continued and suitable policy was felt immensely necessary to save the future of democracy and hence the future of Pakistan.74

Impeachment of Musharraf

The president of Pakistan Pervez Musharraf flattered the opposition and tried to blackmail it, and thus offered many incentives to opposition. He agreed to work with the opposition. But the opposition felt that it was enough for Musharraf and the opposition brought impeachment against him in the provincial assemblies. Musharraf in year of his humiliation, resigned from his post of presidency and look over to Senate Chairman Mian Muhammad Somro the responsibilities and authorities of the President of Pakistan, on August 18, 2008. The election commission of Pakistan started preparation for the election of new president of Pakistan.75 While resigning from his post, he stressed that he was not guilty of any charges posed on him. He said that he stepped down in the best interest of Pakistan. The main reason of his

72 Ibid 73 Ibid 74 (Sheila Fruman, 2011,23) 75 The law library of congress report, ―Suspension and Reinstatement of the Chief Justice of Pakistan: From Judicial Crisis to Restoring Judicial Independence?‖ (Washington, 2011) P.12 264

stepping down, though, was the weakened support from Pakistan‘s military and the United States. The provincial assemblies had already demanded that Musharraf to seek a vote of confidence from the parliament, in which he would have been clearly failed. Musharraf suffered due to lack of military support. The then Army chief General Ashfaq Pervez Kyani wanted to give a chance to the civilian government elected by the citizens of Pakistan. Also Pak army did not want tarnish its image because of an impeachment against the former army chief. United States due to its own interest in the area, restrained from supporting Musharraf. It was much costly for America to support and stick to a person with no power and authority and decision making. The democratic government of Pakistan requested America to stop supporting Musharraf, when Yousaf Raza Gilani Prime Minister of Pakistan, met George W Bush in Washington. Gilani agreed to continue the war against terror that was against Taliban and Al-Qaeda. Before his resignation there were two options for Musharraf either to resign or to exercise the authority of the president given by article 58 (2) (b) of the 1973 constitution of Pakistan. But the second option was not realistic because of the lack of political and logistic support. Thus he resigned unwillingly and the people of Pakistan enjoyed and celebrated his resignation with great enthusiasm and interest. One of the many hurdles in the way of democratic and civilian government was military so Musharraf‘s resignation was significant.76 The focus on Musharraf has diverted attention from the more acute problems of soaring inflation and spiraling food and oil prices, as well as the sliding foreign exchange reserves and drop in foreign investment. In addition, terrorism remained the biggest threat to Pakistan‘s stability and a concerted effort was vital for tackling this problem. The last thing that Pakistan faced at this stage was political uncertainty and lack of direction in the fight against terrorism. The Indian National Security adviser, M. K. Narayanan, has drawn attention to this danger, saying, ―We abhor the political vacuum that exists in Pakistan. It greatly concerns us.‖77 Clearly, Musharraf‘s resignation was cause for celebration and concern. The key question was what implications this would have on the

76 Rajshree Jetly, ―Musharraf‘s Resignation – A Cause for Celebration and Concern for Pakistan‖, ISAS (Institute of South Asian Studies) National University of Singapore, No.79, 25 (Singapore, 2008)

77 Ibid 265

political stability and security of the nation. This turned on three dynamics: the relationship among the domestic political parties, principally the Pakistan Peoples Party (PPP) and the Pakistan Muslim League-Nawaz (PML-N); the relationship between the military and civilian rule; and the relationship between the United States and the civil/military leadership in Pakistan. There is no ignorance of the fact that there was a huge cloud of uncertainty over the future of Pakistan in terms of the Presidency, the political parties and the military.78 The two major democratic political parties PPP and PML (N) had come to an agreement to form the government but both were politically rivals regarding their own agendas. The bond that kept two parties together was to get rid of president Musharraf. As Musharraf resigned, certain differences rose between the two, specially the major issue of restoring of the supreme court judges, which could make them apart PML (N) demanded that the Chief Justice Iftikhar Chaudhry and all other judges that had been dismissed by the former president should be restored by passing the resolution in the national assembly through a simple majority. Conversely, the PPP wanted to restore the judges by making amendments in the constitution including the terms and conditions of the judges. Asif Ali Zardari the co-chairman of PPP was not in the favour of restoring some judges including the chief justice because he was afraid of that some of the cases regarding corruption against him could be reopened. While the PML (N) wanted to restore the judges as early as possible, otherwise it would turn its role to opposition and the Pakistani political environment will be more complex.79 On August 7, 2008 both the PML (N) and PPP had also agreed that as the 17th amendment including article 58 (2) (b) retaining its place, the coalition partners would put up nonpartisan candidate for the presidency. Zardari‘s decision to contest the presidency results in the violation of this agreement, as did PPP‘s failure within 24 hours that the judges would be restored as the Musharraf Resigns. This weak coalition was a setback for the democracy transition, the government and the opposition in parliament must quickly reach consensus on getting rid of Musharraf 17th amendment. They must

78 Ibid 79 Ibid 266

urgently introduce a constitutional amendment to reject article 58 (2) (b) which had given the power to the president to dismiss the elected governments.80 The government had moved ahead on the issue of restoring the judges. This was the time when the lawyers‘ movement was in full swing. Chudhry Iftikhar had taken a new leadership of the lawyers‘ movement. They rejected the government mechanism for restoring the judges on the grounds that reappointment through a fresh oath mounted to approving Musharraf‘s illegal acts after the imposition of martial law in November 2007. Calling for Iftikhar Chaudhry to once again become the ―functional‖ chief justice, refusing to accept Justice Abdul Hameed Dogar as the constitutional chief justice, they were also adamant that the judges who had taken oath under Musharraf‘s PCO must be sacked.81 Most of the judges that were deposed by Musharraf had accepted the government‘s mechanism for restoration. Among them some judges had complained that the leaders of movement have taken the decision without consulting them. Government had gained the public popularity by restoring a large number of judges, admitted by the leaders of lawyers‘ movement. While the consequences of lawyers‘ failure to compromise and the future directions of their movement for judicial independence seemed to be losing its public support. Aitazaz Ahsan admitted ―the general public, politicians and journalists had already asked the lawyers to accept the change, as negation would not serve anybody‖. 82 The ruling government PPP had drafted a constitutional amendment bill in the spring 2008, during which the negotiation with PML (N) on democratic reforms in general as well as on the restoration of judges. Farooq H Naik law minister stated that the proposed package of amendments prepared by his ministry had been opened for debate, discussion within and outside the parliament. The preface of the constitutional amendment bill that stated ‗reasons and objectives‘ noted: through extra constitutional deviation, the constitution of Pakistan had undergone major changes that in return affected the

80 Ibid 81 (Dawn, September 21, 2008) 82 Ibid 267

parliamentary system. Major amendment had been made to restore the parliamentary system and also ensured the independence of judicial system. 83

Breakdown of Coalition on Judges Restoration

The PPP break a promise again on restoration of judiciary. All the judges who had been suspended would be restored immediately stated in the Islamabad communique on August 7, 2008. According to the Murree Declaration of March 9, 2008 it was agreed that such restoration of judges would take place as the Musharraf stepped down or in any case within three days of it, thus enabling the assembly to pass the resolution as Musharraf stepped down. The government of PPP and its leadership began excuses for the restoration of the judges. 84 Responding to the statement HRCP has said that it was right time for the coalition rose to the occasion and has face to electorate to forgive their dithering. Fulfilling their pledges to completely break from authoritarianism to a democratic transition based the sovereignty of parliament and independence of courts. Additionally, the coalition leaders‘ earnestness in resolutely perusing the course they have chosen alone would have guaranteed them the public support without which the state could not achieve anything. 85 On August 21, 2008, a deadline by the coalition partners for the restoration of the judges was given and considered that August 27 would be the day to restore the judges. On the very next day Nawaz Sharif brought forward the deadline by two days to August 25, 2008 before filling the nomination papers by Zrdari. On the other side of the picture Zardari and his party PPP had tried to set a deadline subsequent to the last date of submission of the desired papers. And as a consequence of the new deadline PML (N) and PPP coalition came to an end on 25 August 2008. Chief justice Chaudhry and some other suspended judges were agreed for reappointment subject to the restoration of their previous seniority as it was on November 2, 2007. On 27 August 2008, eight suspended judges of Sindh high court took the oath under the reappointment notification. Under the

83 (Crisis Group Report, 25) 84 (Dawn, August 20, 2008) 85 (Crisis Group Report, 23) also see the Daily News Islamabad, August 8, 2007

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reappointment notification on September 16, 2008, three other judges of Sindh high court took the oath and four judges of the supreme court took the oath among them were Justice Nasirul Mulk and Sardar Muhammad Raza Khan also took the oath under the reappointment notification on 3 November 2008.86 The arrested 25 judges bravely faced hurdles but their sacrifice was indeed unfortunate. They were the real heroes of all the public and lawyers of Pakistan. They were innocent and cannot be blamed as PPP was clearly against them. They were blamed for all the controversy and it was shown that if they had committed the crime by favoring and getting stacked to the constitution and insulted the Chaudhry those who stood by his side on November 2, 2007. On 27 August the PPP government was exposed when the law minister announced public statement that Abdul Hameed Dogar was the right person for the position of Chief Justice. From this it was clear that the PPP government was against the restoration of chief justice Chaudhry.87

Election of Zardari as President

The presidential election was held on September 6, 2008. Asif Ali Zardari, the PPP candidate secured a massive victory in the elections capping a remarkable rise from, exile and his wife Benazir‘s assisination. Zardari secured 281 votes and won a thumping majority in three of the four provincial assemblies, ending up with 481 of the 702 votes of the presidential Electoral College. Asif Zardari became the 12th president of Pakistan. He defeated Nawaz Sharif backed retired chief justice Saeduzzaman Siddiqi and the PML (Q) backed Mushahid Hussain Syed. They received 153 and 44 votes respectively. Zardari with his massive victory won the presidency after remaining imprisoned for years. But at the same time he faced with daunting challenges ranging from persons credibility to terrorism and wobbling economy affecting the country. The PPP co- chairman got a little more than two third majority of 1170 members 732 vote Electoral College of the two houses and four provincial assemblies in the presidential elections.88

86 Dawn, September 21, 2008 87 Dawn, August 27, 2008 88 M.Ikram Rabbani, Pakistan Affairs, (Lahore: Carvan Publisher, 2012), p. 266

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Zardari masterly subdued a storm of criticism at home and abroad over unproven charges of corruption and dishonor pledges for restoration of the sacked judges. Political sources were of the view that presidency is the most powerful political rank of the country would hardly be a compatible crown for Zardari whose credibility plummeted when he failed to honor three deadlines he agreed with PML (N) leader Nawaz Sharif for restoration of the judges.89 In the presidential elections Zardari said that I was elected as a president I will fully support the Prime Minister, National Assembly and Senate to bring back to the constitution in balance and would reduce the power of the president to dismiss the elected governments.90 Zardari said in his first presidential speech that the days of constitutional deviation were over. He advised parliament to form a committee consisting of all parties to revisit the 17th constitutional amendment and article 58 (2) (b). He added that it is for the first time in the history of the country that the president had given away the powers.91 His government now would work with the opposition to repeal the article and to transfer the powers of appointing the governors, the three services chiefs and the chief justice to the Prime Minister. 92 At his swearing ceremony Zardari addressed his voters and supporters on September 9, 2008. He declared that his election would strengthen the federation and the parliament would be supreme and the president would be subservient. He termed his election a milestone in the political history of Pakistan as being held in a constitutional way.93 A new constitutional problem existed on 25 February 2009, when the Supreme Court upheld the decision of Lahore high court barring Sharif‘s brother from contesting elections. As a result, the Punjab assembly was dissolved and was placed under the direct rule of Punjab governor. PML (N) announced that it would support the long march of lawyers movement till the chief justice is being restored. The government used means to block the march by jamming the transmissions of some news channels, prohibiting the

89 Ibid 90 ( Rajshree Jetly, 2008) 91 Asif Ali Zardari, ―Democracy Within our Reach‖, The Washington Post, 4 September 2008 92 The PPP and PML-N had agreed to do so in the May 2006 Charter of Democracy. 93 (Ikram Rabbani, p. 266)

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public gathering and blocking the roads. On March 11, 2009 a large number of politicians and lawyers have been arrested. PML (N) leader Nawaz Sharif was house arrested but he was able to break through the police cordon. At the end of day security forces in Lahore melted away, evidently no longer willing to obey order to clamp down demonstration. Prime Minsiter Gilani on 16 March 2009 addressed the nation that the chief justice Chaudhry would be restored on March 21, 2009 the day when the Dogar was due to retire. However it was a compromise deal supported by US and UK to avert chaos. Chudhry resumed his duties on March 23, 2009, one and half year after the Supreme Court had effectively reinstated him by throwing out the presidential reference against him. President Zardari lefted the governor rule in Punjab on 29 March 2009 and the supreme court issued a stay order on the disqualification of Shebaz Sharif and thus he was allowed to carry on his duties of chief minister of Punjab.94 The reinstatement of Chaudhry and other judges was the great victory of the lawyers movement continued for two years. It was a hope for judicial independence and rule of law. Some argued that the armed forces task to accede the constitution throughout right political meddling had become next to impossible. This impression might already be changed; many senior lawyers and civil society maintained that the chief justice action after his restoration were hyperactive and had raised concerns over the judicial dictatorship.95

Repercussions of the Lawyers Movement

The movement for the restoration of judicial power in Pakistan benefited the power of judiciary and provided the base to consolidate judicial reviews in future. The movement changed the nature of Pakistan politics. Now political and public have eventually realized

94 International Bar Association, ―A Long March to Justice: A report on judicial independence and integrity in Pakistan‖ (United Kingdom September 2009) This report has been compiled in accordance with the Lund-London Guidelines 2009 (www.factindingguidelines.org)

95 Staff Report, ―Asma Says Judicial Dictatorship on the Cards,‖ The Daily Times, February 18, 2010.

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that they can take the advantage of court. The movement indeed, has deeply reached the mind of Pakistani body politics. It helped to awaken the general public to reshape the institutional and collective bodies of lawyers and activists and to change the references of political parties. Also taking part in protests strengthened what social psychologists say protestors ―collective identity‖. for example, many lawyers saw themselves as participants in a narrative of lawyers, resistance to illegal state authority stretching back to independence activities quickly pointed out that Gandhi, Jinnah, Nehru, Iqbal were all lawyers and that lawyers had played vital role in movement against Ayub Khan Z. A. Bhutto, Zia and many students got political awareness and sense of self responsibility by organizing against military rule.96 The uniqueness of the event in Pakistan seems to command caution when using them as a test case for any theory of judicial power. The popularity of legal government was hurt by many factors like seven years army rule, and intrusion of US, corrupt party system. Now that was just waiting to be compensated by some bold public servant. Moreover the movement struggled for more than the sum of its self-interested parts for example the lawyers also wanted to defend the narrow interest of their association added by political parties to use the movement for their own benefits. But the transparent speed and scope of the transformation of the court produced disrespect in public mind for establishment.97 In short there was a popular circulation to establish judicial power and rule of law and it is when activated, many proved capable of transforming political parties, the judiciary and the people like courts can give power along with government; mass social movement and media. If the court speaks to the people and activates them to rebuild against terror government and convinced the public that a successful collective action is possible, then judicial power is gained. The most important effect of the movement is not its effect on the composition of judicial and executive branches, but the changes it produced in the collective identity of Pakistani lawyers, judges, journalists, students and politicians and its impacts on the political awareness of ordinary Pakistani. Khawar Mumtaz said that the movement caused civic debate and that was totally free debate. It must be promoted.

96 (Freed Khan 2008)

97 Ibid 272

Manullah said that the movement has woken up the whole nation. The common man now understands what is meant by rule of law. The lawyers‘ movement crated a new political awareness among Pakistanis. It taught them to expect a collective response to certain forms of governmental misconduct, and to demand that their government must comply with certain constitutional norms. Ghazala Manullah; ―if you look it from historical view point, whether or not the judges are restored, it does not matter. It is not the question of the judges getting their jobs back. It is the question of the way they stood, the stand they took within risks, living in a country where people having opposite view points are killed. They took those risks with their family and young children. They did it for their country. The lawyers‘ movement has woken up a whole generation.‖98

98 Ibid

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Conclusion

Judiciary plays an important role in the institutions of a state. Being the final mediator of the constitution and guardian of fundamental rights and civil liberties of the citizens, its role becomes vital for the development of a healthy nation and democratic society. Pakistan was inherited a vigorous judicial system from British India with reputation for integrity and competence. The people had trust in judiciary.But, with the passage of time,the morale of judiciary became weak. The credit of this weakness directly or indirectly goes to the rulers.Political and Executive pressure is put on the judges to get favorable decisions and to protect their unconstitutional and illegitimate acts when challenged in the superior courts. The judiciary surrendered to the pressure of the rulers. It never resistedagainst their unconstitutional acts, so today the nation is deprived of and courageous judiciary.

Throughoutthe history of Pakistan, the country has encountered through numerous judicial crises and the superior courts have been called upon to resolve them. In the first decade one of these criseswas the peculiar nature of the Provisional Constitution of Pakistan based on the Government of India Act 1935, with some modifications which remained in force for a period of nine years. This Provisional Constitution retained the office of the Governor General who represented the Crown and enumerated his broad discretionary powers. On the other hand, it laid down the structure of a democratic government. The constitutional assembly enacted laws for the state and also expected to frame the future constitution. Later, a struggle for supremacy between the constitutional assembly and the governor general of Pakistan started, thereby curtailed the powers of the governor general to dismiss council of ministers. As a response the then Governor General Ghulam Muhammad dismissed the Constitutional Assembly. This act of Governor General showed that the 1935 Act had given unlimited powers to him.The act of governor General was challenged in the Sindh High Court which declared the decision of the Governor General null and void. But the federal court decided in the favour of Ghulam Muhammad on the plea that it had lost the confidence of the people. This was severe blow to the independence and dignity of the judiciary.

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Civil and military rulers have imposed their political will on the judiciary to extract judgments to suit their hidden agendas. The 1956 Constitution was framed after a long struggle of nine years but it was short lived. It was abrogated for self-interest by President IskanderMirza. This paved the way to military rulers to take part in politics. As a result Muhammad Ayub Khan the then commander of the army imposed Martial law. His martial law not only disrupted political process but also affected judiciary and constitutionalism. Under the shadow of doctrine of necessity his martial law was legalized by Justice Munir and because of this decision judiciary lost its confidence.

AyubKhan‘s idea of centralized form of government and free of party politics and based on the foundation of basic democracies introduced the 1962 Constitution. Under the Constitution the centre was dominant over the provinces and presidential form of government was introduced. This was an autocratic rule and was dubbed the rule by force. One of the historic decisions of the Supreme Court was in AsmaJilani Case in which Yahya Khan‘s Martial Law was declared invalid. This decision added to the credibility of the Superior Judiciary.

The 1973 constitution was a landmark in the political history of Pakistan by Zulfiqar Ali Bhutto. It provided federal parliamentary government, fundamental rights and the freedom of judiciary. But it was mere an episode in the political and constitutional history of Pakistan. Whilethe 1973 constitution was functioning in its real form, the 1977 elections resulted in another military coup by overthrowing civilian government. The 1973 constitution was suspended and a new military rule had started in 1977 when Zia- ul-Haq imposed martial law. Zia‘s Martial Law was challenged by Nusrat Bhutto the wife of the deposed Prime Minister but the Supreme Court as usual dismissed the appeal on the plea of the Doctrine of Necessity. Even the 1973 constitution pleaded by the government attorneys, did not visualize available solution to the complex situation in the country. The constitution had become practically inoperative.

The real trial of the judiciary began during the Zia regime. In the beginning, there was a marriage of convenience between the Martial law regime and the superior courts. The chief justices of the High Courts were given high official posts and military courts were established.In spite of the validation of his extra-constitutional regime by the Supreme

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Court, the President prevailed upon the partyless parliament to pass the Constitution (Eight Amendment) Act 1985, ratifying all amendments made in the period of constitutional deviation to complete transition to the constitutional path.While the founder of the country was a great constitutionalist, Pakistan lacked an acceptable Constitution for almost a quarter of the century. Eventually when the country had a Constitution in 1973, the process of undermining it started immediately. Fundamental rights were suspended and the judiciary came under attack.

―In a democratic society governed by rule of law, the judiciary acted as the custodian of the Constitution and the law. The role of the judiciary was somewhat anomalous as it was required to demarcate the constitutional role and functions of other organs or functionaries of state. While playing a proactive role, it must nevertheless remain within its own constitutionally allocated jurisdiction.This occasionally brings the judiciary in conflict with the government. Despite the aura of its moral authority, the judiciary still remains the weakest of state organs as it entirely depends upon other institutions of state and public opinion for implementation of its orders.‖

In all civilized societies, judicial decisions are of historic importance. However, the manner in which the higher judiciary in Pakistan conducted itself at critical political turning points has raised doubtsabout its independence and autonomy in dispensing justice. By making themselves readily available to various authoritarian regimes as a convenient and pliable mechanism to be used for abrogation of constitutions, for validating seditious illegal and unconstitutional acts, for liquidating political forces, and for allowing individuals to amend the constitution, the concerned courts seemed to be indulged in judicial misconduct and corruption of justice. By legalizing clear instances of high treason under the ―Doctrine of Necessity‖ the courts deprived themselves of the credit of some of their popularly acclaimed landmark decisions. Thisdoctrine has been the most vitiating factor in Pakistan‘s political history. From Ayub Khan to Pervez Musharraf all the dictators have worked against the spirit of the constitution by deploying measures to impose their own rule. Military rulers have been justifying their rule by doctrine of necessity.Such a doctrine leads directly to anarchy of despotism.

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The process of trying to legitimise ‗constitutional deviation‘ is more destructive of the institutions of governance that affect the lives of common citizens, than ‗constitutional deviation‘ itself. ―This is because the only tools available for legitimising the usurpations of power are lies, deceit, and coercion, buying and selling of loyalties and the support of turncoats, opportunists and sycophants, in short all those who have no interest in the well- being of society. So how can anything vaguely ethical or beneficial for society emerge from or survive such an onslaught? The search for legitimacy also leads to manipulate existing governance institutions, ostensibly for getting rid of corruption. However, the real reason is to curtail their autonomy and make them subservient to the illegitimate power structure. As a result, they become ineffective. For the same reasons new governance systems are created which have nothing to do with the real needs of society or with existing social and political relationships. These institutions are not created through a normal process of rules and regulations and so their only loyalty is to those who have usurped power. As such, these institutions do not take root, their continuity is always questioned, and by their very nurture, seeped in their origins, they promote corruption and nepotism.‖ This has been the story of Ayub‘s basic democracy, Zia‘s Majlis-i-Shoora and education and legal reforms. In the case of Pakistan, the propaganda justifying ‗constitutional deviation‘ has in the last sixty years, constantly used the excuse and slogan of ‗Pakistan is in danger‘.

During 1988-1999 a chance was given to the civilian governments of Benazir Bhutto and Nawaz Sharif. Due to the extraordinary powers of the president in the shape of 58 (2) (b), GhulamIshaq Khan the then president dismissed two elected governments.Judiciary was confronted with the civilian governments on many occasions. Political governments made favourableappointments of the judges. There was a proper check on judiciary and it never functioned freely. Nawaz Sharif introduced his favourable amendments in which president became powerless to dissolve the national assembly. During the period military was a silent spectator and watched the episode carefully.Nawaz Sharif removed Pervez Musharraf chief of the army staff and replaced Zia-u-din for further strengthening his rule. In a response he was removed by Pervez Musharraf in the shape of a bloodless coup. Once again military appeared on the political scene of Pakistan.

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The military takeover of 1999 further disrupted the evolutionary process of judiciary. It was kept under pressure. Military government was given a legal status under the Doctrine of Necessity. The judiciary had frequently resolved all constitutional issues for the military. Judgments on various political issues had resulted mixed resultsand thus it showed the weakness of judiciary. The Provisional Constitutional Order, Legal Frame Work Order, Presidential Referendum, dual office charge with the president and the president with a military uniform were big issues. Hence judgments on constitutional matters were more political than legal.

Even since Pervez Musharraf came into power through an unconstitutional military take over in 1999, he had consistently violated constitutional norms and demoralized Pakistan‘s civilian institutions. Musharraf gained legitimacy through constitutional means, political support, and the support of the army, economic management and reforms. On the assumption of power the military government of Pervez Musharraf made some suitable changes in the 1973 constitution to clear the way for his rule and gain political loyalties. In this connection all his reforms were given a legal status in the form of seventeen constitutional amendments.

When Iftikhar Muhammad Chaudhry became the Chief Justice in 2005, he started a program of public interest litigation. The Chief Justice was increasingly becoming judicially active, take daring steps to hold the executive branch accountable on multiple fronts. Taking practical steps to reaffirm the rule of law and independence of judiciary and exercising his suomotopowers to take judicial notices of illegal commissions of both federal and provincial governments. Particularly a series of decision by the chief justice of Pakistan on key economic and social issues put the Supreme Court on a collision course with the executive branch. The chief justice decision setting aside the Pakistan Steel Mills privatization in which allegations of impropriety and lack of transparency were leveled against the privatization commission. It was judicial activism at its finest.Subsequently, the Chief Justice position on the issues further perturbed the executive branch. The government was feeling increasingly threatened by the chief justice brand of bold judicial activism. President Pervez Musharraf perhaps felt and the chief justice was a wild card on key political and constitutional issues affecting his future

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particularly to wear uniform whilst president constitutionally. Subsequently, chief justice was removed forcibly.

When the Chief Justice was removed by President Musharraf, the legal community launcheda historic movement. Its basic aims were to restore the Chief Justice and to remove his government.This movement was also supported by some political parties like PPP and PML(N) and member of civil society. The leaders like AitazazAhsan, Ali Ahmad Kurd and the prominent lawyers had provided a huge support. They also continued their struggle until the impeachment of Musharraf and the restoration of Judiciary.After a long struggle they achieved their constitutional objectives by impeachment of Musharraf and restorations of the Chief Justice of Pakistan and other sacked judges.It was a step towards judicial activism. This was a turning point in the political and judicial history of Pakistan. This movement restored the dark history of judiciary. The movement restored the Chief Justice on one hand whileotherpaved the way for political liberalism.

After imposition of the second martial law on Nov 3, 2007 Pervez Musharraf virtually wiped out the judiciary. The level of corruption, mismanagement and abuse of power was pervasive everywhere. The court was left with little choice. This not only resulted in a complete reversal of the trend of judicial activism at the higher level but also affected the functioning of the judiciary at the lower level.

Chief Justice Iftikhar Muhammad Chaudhry did not embark upon this journey in any planned manner. It started initially with a few cases where the government authorities had acted in a patently arbitrary manner. It soon developed momentum and dynamics as there was complete decay in the system.

The strength of the executive must be checked by the judiciary if it goes out beyond its limits. Justice should be accessible to all without prejudice. In 2007 the judiciary under IftikharChaudhry tried to reverse that trend through judicial activism. Now a proactive judiciary is a ray of hope for the common man.

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Selected Bibliography

Primary Sources

a. Speeches

Quaid-E-Azam Presidential Address to the Constitutional Assembly. August 11, 1947. General Pervez Musharraf, Chief Executive Islamic Republic of Pakistan‘ Address to the Nation October 17, 1999. General Pervez Musharraf,‘on 18 October, 1999 Address to the Nation. October 19, 1999. General Musharraf ‗Speech on September 19, 2001. September 19, 2001.

b. Government Documents /Statutes and ordinances

Charter of Democracy, between PPP and PML-N, May 2006. Constitution (Amendment) Order, 2007. Emergency Order 1999. Legal Frame Work Order 1970 and 1999. Legal Practitioners and Bar Councils (amendment) ordinance. 2007. Gazette of Pakistan , Extraordinary, Part I, November 24, LXIX of 2007 Legal Practitioners and Bar Councils Act. 1973 XXXV of 1973 National Recociliation Ordinance. 2007. Gazette of Pakistan, Extraordinary, Part I, October 5, LX of 2007 Ordinance No.Lxix of 2007, Legal Practitioners and Bar Councils (Amendment) Ordinance. Pakistan Electronic Media Regularity Authority (Amendment) Ordinance. 2007. Gazette of Pakistan, Exraordinary, Part I, June 4, XXXVII of 2007. Pakistan Electronic Media Regularity Authority (Third Amendment) Ordinance. 2007. Gazette of Pakistan, Exraordinary, Part I, November 3, LXV of 2007. Party Manifestos of Leading Political Parties of Pakistan. Presidential Orders 1958, 1969, 1977 and 1999. Press Newspapers, News Agencies and Books Registration (Amendment) Ordinance. 2007. Gazette of Pakistan, Extraordinary, Part I, November 3, LXIV of 2007

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Proclamation of Emergency. 2007. Gazette of Pakistan, Extraordinary, Part I, November 3. Provisional Constitution Order No. I. 2007. Gazette of Pakistan, Extraordinary, Part I, November 3. Provisional Constitutional Order 1985, 1999 Restraining order of the chief justice, March 2007 President reference against the chief justice, March 2007

c. Official Reports

Election Commission Report 1970.

Election Commission Report 1977.

Election Commission Report 1985.

Election Commission Report 1988.

Election Commission Report 1990.

Election Commission Report 1993.

Election Commission Report 1997.

Election Commission Report 2002.

Election Commission Report 2008.

d. Legal Decision

"Federation of Pakistan Vs Maulavi Tamizuddin Khan ". Federal Court Pakistan, 1955.

"Maulavi Tamizuddin Khan Vs Federation of Pakistan ". Sindh Chief Court, 1955.

"The State Vs Dosso ". Supreme Court 1958.

"Asma Jilani Vs the Government of the Punjab ". Supreme Court 1972.

"Usaf Patel Vs Federation of Pakistan ". Supreme Court 1972.

"Nusrat Bhutto Vs Chief of the Army Staff ". Supreme Court, 1977.

"Benazir Bhutto Vs Federation of Pakistan." Supreme Court 1988.

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"Federation of Pakistan Vs Haji Saifullah Khan ". Supreme Court 1989.

"Muhammad Nawaz Sharif Vs. Federation of Pakistan ". Supreme Court 1993.

"Al-Jehad Trust Vs Federation of Pakistan ". Supreme Court 1996.

"Mahmood Khan Achakzai Vs Federation of Pakistan ". Supreme Court 1997.

"Wukala Mahaz Barai Tahafuz Dastoor Vs Federation of Pakistan ". Supreme Court 1998.

"Zafar Ali Shah Vs Federation of Pakistan ". Supreme Court 2000.

"Watan Party Vs Chief Executive ". Supreme Court 2003.

Iftikhar Mushammad Chaudhry Vs.President of Pakistan 2007.

"Tikka Iqbal Khan V. General Pervez Musharraf." Supreme Court 2008.

"Wajihuddin Ahmad Vs Chief Election Commissioner ". Supreme Court 2008.

e. Proceedings

National Judicial Conference Proceeding 2007 National Judicial Conference Proceeding 2009 National Judicial Conference Proceeding 2010

f. Interviews

Aitazaz Ahsan Interview with Express TV 16 May 2008 http://pkpolitics.com/2008/05/17/aitzaz-ahsan-interview-16-may-2008/ Aitazaz Ahsan Interview with IBRAHI International Bar Association‘s Human Rights Institute, 19 March to 3 April 2009 Aitazaz Ahsan Interview with Hamid Mir in Capital Talk Geo News, 4 October 2010 http://www.siasat.pk/forum/showthread.php?45621-Capital-Talk-4th-Oct-2010- Aitzaz-Ahsan-Athar-Minallah-Ansar-Abbasi Aitazaz Ahsan Interview with TRIBUNE, 'Supreme Court gets too 'free', steps out of constitutional domain': http://tribune.com.pk/story/419030/supreme-court-getting- too-free-stepping-out-of-constitutional-domain-aitzaz/ Hamid Khan Interview with Hamid Mir Capital Talk, Reality of the Lawyers

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Movement, 2007, Chaudhry Iftikhar Interview with The Pakistan Herald, http://www.pakistanherald.com/Profile/ Iftikhar-Muhammad-Chaudhry-118 Chaudhry Iftikhar Interview with IBRAHI International Bar Association‘s Human Rights Institute, 19 March to 3 April 2009 Athar Minallah interview in Geo News, 3rd November 2010 Youtube.flv, Athar Minallah Interview with Hamid Mir Capital Talk, Reality of the Lawyers Movement, 2007, Youtube.flv IBRAHI From 19 March to 3 April 2009 Interviews with: • Advocate Baz Mohammad Kakar, President, Bar Association • Senator Akram Zaki, Chairman, Pakistan International Human Rights Organisation • Habib Malik Orakzai, President, Pakistan International Human Rights organisation • Atta-ur-Rehman Abassi, Senior Vice President, Pakistan International Human Rights Organisation • Professor Muhammad Muneer, Faculty of Shari‘ah and Law, International Islamic University • Dr Faqir Hussain, Registrar, Supreme Court of Pakistan • Senior Advocate Sardar Asmat Ullah Khan, President, Rawalpindi Bar Association

Secondary Sources

a. News Papers (English)

The Daily Frontier Post, Peshawar.

The Daily Muslim, Islamabad.

The Daily Pakistan Times, Lahore.

The Daily Statesmen, Islamabad.

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The Daily Observer, Islamabad.

Dawn, Karachi.

The Daily News, Islamabad.

New York Times, Washington

The Washington Post

b. News Papers (Urdu)

The Daily, Ajj, Peshawar.

The Daily, Jang, Rawalpindi.

The Daily, Khabrain, Islamabad.

The Daily, Mashriq, Peshawar.

The Daily, Nawa-i- Waqt, Islamabad.

The Daily, Express, Islamabad

c. Newspapers Articles

Chaudhry, Muhammad Akram. " Adalathi Buhran Aur Wakalaw Tehrik Ke Maqasid " The Daily Nawa-i-Waqt, April 5 2007. Iqbal, Nasir. " Apex Court Urged to Rectify Past Mistakes: Validation of Unconstitutional Measures." Dawn, May 31 2007. Iqbal, Nasir. "Supre Court Validated Emergency and Pco." Dawn, November 24 2007. Jehangir, Asma. "Carry on Jeeves." Dawn, May 17, 2011. Jehangir, Asma. Judicial Dictatorship on the Cards. Daily Times, 2010 Khan, Khalid Jawed. "Assault on the Judiciary." Dawn, March 20 2007. Khan, Khalid Jawed. "What Lawyers Want." Dawn, October 11 2007. Siddiqi, Faisal. " The Narratives of Judicial Revolution." Dawn, September 29 2010. Zardari, Asif Ali. "Democracy within Our Reach." The Washington Post,, 4 September 2008. Zehra, Nasim. "Justice March." The Daily News, June 11 2008.

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d. Journals

Herald, Karachi.

Press Review, Lahore.

Newsline, Karachi.

Takbeer,Karachi.

Current Affairs Digest,Karachi.

Current Affairs Digest Lahore.

Journal of Democracy,Washington.

e. Journals Articles

Akram, Dr. Noorul Haq and Miss. Farhat. "Presidential Elections 2007." IPRI Factfile Institute of Policy and Research (2007).

Andreas, Schedler. "The Menu of Manipulation." Journal of Democracy 13, No.2 (2002). Ghias, Shoaib A. "Miscarriages of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf." Journal of the American Bar Foundation Law and Social inquiry Volume 35, no. 4 (2010).

Gregory, Shaun & James Revill. "The Role of the Military in the Cohesion and Stability of Pakistan." Contemporary South Asia Vol. 16 No.1 (March 2008).

Hasan, Asifa. "Devolution of Power in Pakistan." IPRI JOURNAL V, No, 2 (2005).

Hussain, Faqir. "The Judiciary and Political Developments in Pakistan." Journal of law and society Faculty of law University of Peshawar X, no. 19 (1991). Hussain, Haqqani. "History Repeats Itself in Pakistan." Journal of Democracy Vol.17, No.4 (October 2006). Kennedy Charles, H. "Pakistan in 2004 Running Very Fast to Stay in the Same Place " Asian Survey XLV, No.1 (2005).

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Khan, Hamid. "Military and Judiciary in Pakistan October 1999 Onwards." Journal of South Asian and Middle Eastern Studies XXVI, No, 4 (2003).

Khan, Abdullah Freed. ,the Pakistan Lawyer Movement and the Popular Emergency of Judicial Powe Lahore: Harvard Law School and Human Rights commission of Pakistan, 2008.

Malik, I.H. "Pakistan in 2000: Starting a New Stalemate." Asian Survey 41, No.1 (2001 Nasr, Wali. "Military Rule, Islamism and Democracy in Pakistan." Middle East Journa 58, No.2 (2004). Pamela, Constable. "Pakistan‘s Predicament." Journal of Democracy Vol.12:No.1 (January 2001).

Qadim, Mussarat. "The Role of Judiciary in the Constitution Making of Pakistan." Journal of law and society Faculty of law University of Peshawar Volume XII, No.21 July (1993).

Rizvi, Hassan Askari. "Civil-Military Relations in Contemporary Pakistan." Survival 40, No. 2 (1988). Rizvi, Hassan Asakari. "Pakistan in 1988: A Polity under Pressure." Asian Survey XXXIX, No. 1 (1999). Shah, Aqil. "Democracy on Hold in Pakistan,‖ , Vol., No.1 (January )." Journal of Democracy 13 (2002).

Shah, Aqil. "Armored Democracy." Journal of Democracy 14, no. 4 (2003).

Talbot, Ian. "General Pervez Musharraf: Saviour or Destroyer of Pakistan‘s Democracy? ." Contemporary South Asia II No.3 (2002).

Talbot, Ian. "Pakistan in 2002: Democracy, Terrorism and Brinkmanship." Asian Survey 43, No. 1 (2003).

Talbot, Ian. "Pakistan in 2003: Political Deadlock and Continuing Uncertainties." Asian Survey XLIV, No.1 (Jan-Feb 2004).

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f. Reports

A Long March to Justice: A Report on Judicial Independence and Integrity in Pakistan September 2009 London International Bar Association Human Rights Institute, 2009. Destroying Legality, Pakistan‘s Crackdown on Lawyers and Judges 19, No.19 (C),. Human Rights Watch, 2007. Destroying Legality, Pakistan‘s Crackdown on Lawyers and Judges. Human Rights Watch, December 2007. Dialogue Group on Civil-Military Relations, the Judicial Crisis March-July 2007. Pakistan Institute of legislative Development and Transparency (PILDAT), 2007. Electoral Report Pakistan Presidential Elections, 6 October 2007. Alternativas Foundation, OPEX 2007. Human Rights Watch Interview. Islamabad: Human Rights Watch, July 1999. Jasam, Azmat Abbas and Saima. A Ray of Hope: The Case of Lawyers‘ Movement in Pakistan. London: publication series on promoting Democracy under Conditions of State Fragility, 2009. Jetly, Rajshree. Musharraf‘s Resignation – a Cause for Celebration and Concern for Pakistan, No.79. ISAS (Institute of South Asian Studies) National university of Singapore, August, 2008. Joint Session of Parliament and Joint Resolution: A Step in the Right Direction. PILDAT, 2007. Musharraf Bid for Survival May Prove Costly. Oxford Analytica Global Strategic Analysis North America, 2007. Pakistan 2008, Preliminary Statement National and Provincial Assembly Elections 18 February 2008. Islamabad: EU Election Observation Mission, 2008. Pakistan. A Long March for Democracy and the Rule of Law. FIDH, 2009. Pakistan: Musharraf Should Accept Ruling on Re-Election. Human Rights Watch 2007. Pakistan: Musharraf Uses Anti-Terror Laws to Jail Critics. Human Rights Watch, 2008. Pakistan‘s Courts and Constitution under Attack Reversing the Damage. Human Rights Watch, 2007. Pakistan‘s Courts and Constitution under Attack Reversing the Damage. Washington

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D.C: Human Rights Report, February 2008. Pakistan‘s Political Crises and Updated CRS 2008. Panorama of Parliamentary Elections. Switzerland: An Annual publication of the Inter- Parliamentary Union (IPU) Grand-Saconnex, Geneva, 2009. Reformaing the Judiciary in Pakistan. Brussels: International crisis Group Asia Report N°160, October 2008. Reforming the Judiciary in Pakistan Asia Report N°160 International Crisis Group, October 2008. Sheila Fruman. Will the Long March to Democracy in Pakistan Finally Succeeds? . NW Washington D.C: United States Institute of Peace, 2011. State of Electoral Rolls in Pakistan, a Project under the Electoral and Parliamentaryprocess and Civil Society in Pakistan. Hawaii: East-West Centre, 2010. Suspension and Reinstatement of the Chief Justice of Pakistan: From Judicial Crisis to restoring Judicial Independence. The law library of congress, 2008. Winding Back Martial Law in Pakistan, Asia Briefing N°70. Islamabad/Brussels: Policy Briefing International crisis group, 2007.

Books (English)

Abbas, Hassan. Pakistan Drift into Extremism,Allah Army and America's War on Terror. New Delhi: Pentagon Press, 2005.

Ahmad, Khalid. Political Development in Pakistan 1999-2008. Lahore: Vanguard Pvt Ltd, 2010.

Ahmad, Mushtaq. Government and Politics in Pakistan. Karachi: Royal Book Company, 1988.

Ahmad, Syed Noor. From Martial Law to Martial Law, Politics in Punjab, 1919-1958. Lahore: Vanguard, 1985.

Ahmad, Syed Sami. Government and Politics in Pakistan. Karachi: Pakistan Publishing House, 1959.

Ajmal, Mian. A Judge Speaks Out. Karachi: Oxford University Press, 2004.

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Ali, A. Yousaf. The Making of India. London: Aand C, Black, 1925.

Ali, Chaudhry Muhammad. The Emergence of Pakistan. Lahore: Research Society of Pakistan University of Punjab, 1973.

Ali, K. A New History of Indo-Pakistan since 1526. Lahore: Emporium Publisher, 1970.

Allana, G. Our Freedom Fighters 1562-1947. Islamabsd: Ministry of Education Government of Pakistan, 1969.

Antonnova, K. The History of India. Mascow: Progressive Publisher, 1978.

Archbold, J.A.W. Outline of Indian Constitutional History. London: Curzon Press, 1973.

Ayesha Jalal. Democracy and Authoritarianism in South Asia, a Comparative and Historical Perspective. Lahore: Sang-e-Meel Publication, 1969.

Aziz, K. K. Party Politics in Pakistan, 1947-1958. Lahore: Sang-e-Meel publication, 2007.

Aziz, Mazhar. Military Control in Pakistan, the Parallel State. London and New York: Routledge, 2008.

Aziz, Sartaj. Between Dreams and Realities, Some Milestones in Pakistan’s History. Karachi: Oxford University press, 2009.

B.B, Misra. Government and Bureaucracy in India, 1947-1976. New Delhi: Oxford University Press.

Bahadar, Kalim. Democracy in Pakistan Crisis and Conflicts. New Delhi, 1998.

Basu, B.D. Rise of Christian Power in India. Calcutta: R. Chatterjee, 1931.

Botteron, Charles H Kennedy and Cynthia. Pakistan 2005. New York: Oxford University Press, 2006.

C., Majumdar R. An Advance History of India. Lahore: Famous Books,, 1992.

Chand, Chuni Lal. The Government of India Being a Survey of the Constitutional Development During the British Period Including the Reforms of 1935. Lahore: The University Book agency 1936.

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Chaudhry, G. W. Constitutional Development in Pakistan. London: Longman Group Ltd, 1959.

Cohen, Stephen Philip. The Idea of Pakistan. Lahore: Vanguard Books, 2005.

Dawood, Jan Muhammad. The Role of Superior Judiciary in the Politics of Pakistan. Karachi: Royal Book Company, 1996.

Dodwell, H. H. The Cambridge History of India, Vol. V. New Delhi: S. Chand, 1963.

Dutta, C.S. Sarkar and K. K. Modern Indian History. Patna: Bihar Publication house,, 1932.

Faruqi, Syed Farooq Hasanat Ahmad. Pakistan Unresolved Issues of State and Society, Edited by Ahmad Faruqi. Lahore: Vanguard Books, 2008.

Fieldman, Herbert. Revolution in Pakistan, a Study of Martial Law Administration. Karachi: Oxford University Press, 2001.

Gauhar, Altaf. Ayub Khan Pakistan’s First Military Ruler. Lahore: Sang-e- Meel Publications, 1998.

Hamid, S. Shahid. Early Years of Pakistan. Lahore: Ferozsons (pvt) LTD, 1993.

Haq, Mazhar-ul. The 1973 Constitution of Pakistan. Lahore: Book land, 2003.

Haqqani, Hussain. Pakistan between Masque and Military. Lahore: Vanguard Books, 2005.

Hussain, Syed Shabir. Ayub,Bhutto and Zia, How They Fell Victim to Their Own Plans. Lahore: Sang-e-Meel publications,, 2001.

Iqbal, Dr. Afzal. Islamization of Pakistan. Lahore: Vanguard Books, 1986.

Iqbal, Javed. The Judiciary and the Constitutional Crisis in Pakistan, Ed in Pakistan Founders Aspirations and Today‘s Realities, Edited by Hafiz Malik. New York: Oxford University Press, 2003.

Johnson, Campbell. Alan, Mission with Mountbatten. London: Robert Hale.

Jois, Rama M. Legal and Constitutional History of India. Vol. II. Bombay: N.M. Tarapathi 1984.

290

Jones, Owen Bennett. Pakistan Eye of the Storm. Lahore: Vanguard Books, 2002.

Joshi, G.N. The Constitution of India. London: Macmillan and Co, 1952.

Karim, Justic (R) Fazal. Access to Justice in Pakistan. Karachi: Zaki sons, 2003.

Kashif, K.M. Pakistan Almanac 2005-2006 Essential Dates on Pakistan. Karachi: Royal Book Company, 2006.

Khalid, Arif Mehmood. Khaki Shadows. Karachi: Oxford University Press, 2001.

Khan, Asghar. Generals in Politics: Pakistan 1958-1982. New Delhi: Vikas Publishing House, 1983.

Khan, Dr. Sultan. Pakistan Past, Present and Future. Lahore: Alameen Publication Press, 1998.

Khan, Hamid. Constitutional and Political History of Pakistan. Karachi: Oxford university press,, 2009.

Khan, Muhammad Ayub. The Evolution of Judicial Systems and Law in the Sub- Continent. Peshawar: Universal printers, 1987.

Lawton, J. P. Eddy and F.H. India’s New Constitution, a Survey of the Government of India Act 1935. London: Macmillan and Co, 1938.

Mahajan, Vidya Dhar. Constitutional History of India. Delhi: S.Chand and Co, 1960.

Mahajan, V.D. History of Medieval India, Sultanate Period and the Mughal Period. New Delhi: S.Chand and Co, 2009.

Mahmood, Safdar. Pakistan Political Roots and Developments 1947-1999. Karachi: Oxford University Press, 1999.

Mahmud, Tayyab. Kelsen, Constitutions, Coup D’états and Courts. United States: Seattle University School of Law, 1999.

Malik, Hafeez. Muslim Nationalism in India and Pakistan. Lahore: people‘s publishing House, 1980.

Maluka, Zulftikhar Khalid. The Myth of Constitution in Pakistan. Karachi: Oxford University Press, 1995.

Maluka, Zulfikar Khalid. Reconstructing the Constitution for a COAS President: Pakistan,

291

1999-2002, Pakistan on the Brink Politics, Economics and Society, Edited by Craig Baxter. Karachi: Oxford University press, 2005.

Manan, M. A. The Superior Courts of Pakistan the Development of Their Powers and Jurisdiction. Lahore: Zafar law Associates, 1973.

McGrath, Allen. The Destruction of Pakistan's Democracy. Karachi: Oxford University press, 1999.

Mirza, Humayun. From Plasy to Pakistan the Family History of Iskader Mirza. Lahore: Feroz sons Ltd, 2000.

Mukerjee, Ramkrishana. The Rise and Fall of the East India Company. Lahore: Book Traders, 1976.

Mushahid Hussain, and Akmal Hussain. Pakistan Problem of Governance. Lahore: Vanguard Books, 1993.

Nadim, Shafiq Malik. Research Papers on Pakistan. Lahore: National Book Foundation, 1998.

Nawaz, Shuja. Crossed Swords Pakistan Its Army and the War Within. Karachi: Oxford university press, 2008.

Newberg, Paula R. Judging the State, Courts and Constitutional Politics in Pakistan. UK: Cambridge University press, 1995.

Numan, Omar. The Political Economy of Pakistan 1947-85. London: KPI Limited, 1988.

Phillips, Leslie wolf. Constitutional Legitimacy, a Study of the Doctrine of Necessity. Lahore: Pakistan Law House, 1986.

Price, Powell. A History of India. London: Thomas, Nelson and sons, 1958.

Pylee, M.V. Constitutional History of India 1600-1950. London: Asian Publication House, 1986.

Qureshi, I.H. A Short History of Pakistan. Karachi: University of Karachi, 1992.

R.C. Majumdar. An Advance History of India. Lahore: Famous Books,, 1992.

Rabbani, Ikram. An Advance Study in Pakistan Affairs. Lahore: Carvan publisher, 2005.

Rabbani, Mian Raza. LFO- A Fraud on the Constitution. Karachi: Q.A Publishers, 2003.

292

Rafiq, Sh. Muhammad. Pakistan since 1947. Lahore: Stander Books, 2000.

Rais, Rasual Bakhs. Pakistan in 1995. Lahore, 1995.

Razvi, Murtaza. Musharraf the Years in Power. New Delhi: Harper Collins publisher, 2009.

Richard V. Weekes. Pakistan Birth of a Muslim Nation. Karachi: Royal Book Company, 2004.

Rizvi, Hassan Askari. The Military and Politics in Pakistan 1947-1999. Lahore: Sang-e- Meel publication, 2000.

Rizvi, Hassan Askari. Military, State and Society in Pakistan. Lahore: Sang-e-Meel publications, 2003.

Rizvi, Murtaza. Musharraf the Years in Power. India: HarperCollins publishers, 2009.

Sachau, Edward C. Alberuni’s India. New Delhi: Rapua and Co, 2002.

Selochan, Viberto. The Military the State and Development in Asia and the Pacific. United Kingdom: West view, 1991.

Shah, Sajjad Ali. Law Courts in a Glass House: An Autobiography. Karachi: Oxford University Press, 2001.

Shah, Syed Mujawar Hussain. Federalism in Pakistan Theory and Practice. Islamabad: National institute of Pakistan studies, Quaid-e-Azam University Islamabad, 1994.

Shahbaz, Chaudhry. The Man of Crisis. Lhore: Ilm-o-Irfan publication, 2010.

Shahid Imtiaz, Shahid Memoona. An Advance Study in Pakistan Affairs. Lahore: Carvan Book House, 2005.

Sharma, Sari Ram. A Constitutional History of India 1765 to 1954. Bombay: Macmillan and co, 1955.

Siddiqa, Aysha. Military Inc. Inside Pakistan’s Military Economy. Karachi: Oxford University press, 2007.

Siddiqi, Brig A.R. The Military in Politics, Image and Reality. Lahore: Vanguard Books pvt Ltd, 1996.

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Singh, Gurmukh Nihal. Landmarks in Indian Constitutional and National Development, Volume I160 to 1919. New Delhi: The Caxton press,, 1950.

Syed, Khalid Bin. The Political System of Pakistan. Boston: Houghton Mifflin Company, 1967.

Talbot, Ian. Pakistan, A Modern History, London: Hurts and Co. 1999

Talpur, Hamin Hussain. The Legal System of Pakistan. Lahore: Pakistan Law House, 2010.

Thomas, Barbara D Metcalf and Metcal. A Concise History of Modern India. second ed. New York: Cambridge University press, 2006.

Tylor, Meadow. Manual of the Indian History. London: Spotswood and co, 1935.

Vincent, A-Smith. The Oxford History of India. London: Oxford University Press, 1958.

Waseem, Muhammad. Pakistan under Martial Law 1977-1985. Lahore: Vanguard Books, 2002.

Wasim, Muhammad. The 2002 Elections: A Study of Transition from Military to Civilian Rule Edited by Saeed Shafqat in New prospective on Pakistan vision for the future. Karachi: Oxford university press, 2007.

Yaseen Muhammad , BanuriTariq. The Despensation of Justice in Pakistan. Karachi: Oxford University Press, 2004.

Yousaf, Hamid. Pakistan: A Study of Political Developments 1947-99. Lahore: Sang-e- Meel publication, 1999.

Zafar, S.M. Dialogue on Political Chess Board. Lahore: Brite Books, 2004.

Ziring, Lawrence. Pakistan at the Crosscurrent of History. Lahore: Vanguard Books, , 2004.

Ziring, Lawrence. Pakistan in the Twentieth Century, a Political History. Karachi: Oxford university press, 2007.

Books (Urdu)

Abid, Salman. Pakistan Ka Nia Siasi Nizam Aur Maqami Hukomat Ka Kirdar. Lahore: Jamhoori Publications, 2002.

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Akhta, Hamid Saeed. Riasat Siasat Aur Qiadat. Lahore: Sham ke Bad, 2002.

Ali, Akbar. Pakistan Gadeed Dawar Ke Taqazai. Lahore: Takhliqat,, 2000.

Ali, Sardar Shaukat. ,Pakistani Inqilab Ki Masail. Lahore: Fiction House,, 2002.

Ali, Zafar. Chaudhry,Pakistan Ki Siasi Tehriken Aur Tanzeemen: Gandhara Publication, 1994. Chaudhry, Zahid. Pakistan Ki Siasi Tarikh,Mutalia Tarikh,. Lahore, 1996.

Chiragh, Muhammad Ali. Mutalia Pakistan. Lahore: Sang e Mee, 1997.

Rana, Zubair. Pakistan Ka Muqaddar: Almatba Arabia, 2001.

Tahir, Sattar. Pakistan Ka Siasi Safar Nama. Lahore: Maqbool Academy, 1990.

Taqi-u-ddin, Hafiz. Pakistan;Badalta Samaj. Lahore: Umar Printers, 2002.

Ulvi, Hamza. Pakistan Riasat Aur Us Ka Buhran. Lahore: Fiction House, 2002.

Zafar, SM. Adalat Me Siasat. Lahore: Alfaisal Pub, 2002.

Websites http://en.news.bbc.co.uk. http://en.www.atimes.com. http://en.www.cfr.org. http://en.www.crisisweb.org. http://en.www.dailytimes.com.pk. http://en.www.dailytimes.com.pk. http://en.www.dawn.com. http://en.www.moe.gov.pk. http://en.www.moe.gov.pk. http://enwikipedia.org. htt://en.www. jstor.com.

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