Working of Civilian Governments During the Military Regimes: a Case Study of Zia & Musharraf Era

WORKING OF CIVILIAN GOVERNMENTS DURING THE MILITARY REGIMES: A CASE STUDY OF ZIA & MUSHARRAF ERA

THIS THESIS IS SUBMITTED TO THE UNIVERSITY OF THE

PUNJAB IN FULFILLMENT OF THE REQUIREMENT FOR THE DEGREE OF DOCTOR OF PHILOSOPHY.

Supervisor

Prof. Dr. Iramkhalid

Researcher

ZahidYaseen Roll

No 03

DEPARTMENT OF POLITICAL SCIENCE

UNIVERSITY OF THE PUNJAB, LAHORE, PAKISTAN

2015

CERTIFICATE

It is certified that present thesis entitled ‘working of civilian governments during military regimes: A case study of Zia and Musharraf era’ is written by Mr.ZahidYaseen lecturer of Political Science at government postgraduate college satellite town Gujranwala. For the requirement of Ph.D degree in Political Science, the knowledge of the thesis is based on original research.

Prof.Dr.Iram Khalid Department of political science

University of the Punjab,

Lahore.

CERTIFICATE

Prof.Dr.UmbreenJavid

Chairperson

Department of Political science University of the Punjab, Lahore.

DEDICATED

The layman of this state who is still hopelessly waiting for

the prosperity since its independence

Table of Contents Chapter Title Page

No. #

List of tables xi

List of abbreviations xii

Acknowledgement xvii

Abstract xviii

CHAPTER ONE 1-35

1 Introduction 1

1.1 Literature Review 3

1.2 Research Objectives 31

1.3 Research Questions 31

1.4 Significance 32

1.5 Statement of the Problem 33

1.6 Research Design And Methods 33

1.7 Place of Work and other Facilities Available 34

1.8 Tentative Plan of Research 34

CHAPTER TWO

2 Theoretical and Evolutionary Process of Civil Military 35-

Relations 91

2.1 Introduction 36

2.2 Views of Critics about Civil Military Relations(CMR) 37

2.3 Components and Variables 38

2.3.1 Military corporate interests 38

2.3.2 Professionalism 40

2.3.3 Politicization 41

2.3.4 The disposition and the opportunity to intervention 41

2.3.5 The international environment 42

2.3.6 Comparing relevant propositions 42

2.4 Typology of civil military relations 43

2.5 Evolutionary process of the military 44

2.6 Military Profession in historical perspective 46

2.7 Episode of Athens an Sparta 47

2.8 Roman episode 48

2.9 Categories of the military 48

2.10 First Military coup in the world 49

2.11 Rented Military 49

2.12 A new dimension of military 50

2.13 Democratization of war 51

2.14 The Origin of professionalism 52

2.15 Twentieth century & the Civil military relations 52

2.16 WW II (1939-45) and A new trend of Civil military relations 52

2.17 Classification of the States. 53

2.17.1Classical Nation States 53

2.17.2Colonizing Nation States 53

2.17.3Colonial Nation States 53

2.17.4National Liberation movement nation states. 54

2.18 Classification of the World 54

2.19 Status of obedience and legitimacy 56

2.20 Specification of Military loyalty 57

2.21 Military of third world States 58

2.22 Military case of USA & India 59

2.23 Civil Military relations of USA 59

2.23.1Liberal approach of US People 59

2.23.2Constitution of USA 60

2.23.3Theory of separation of Powers in USA 60

2.23.4The power of purse and sword 61

2.23.5 WW II and US army 62

2.23.6 Liberal approach &it’s changing 62

2.23.7 Committee system of congress 63

2.24 Civil Military relations of India 64

2.24.1Nehru’s Services 64

2.24.2Indra Gandhi’s Period 65

2.24.3Professionalism of Indian Army 66

2.24.4Factors of Indian Civil supremacy 66

2.24.5Ethnic composition of the military 67

2.24.6Security pacts of Indian Military 67

2.24.7Military services for the Civil government of India 68

2.24.8Constitution of India 68

2.25 How and why military intervene? 69

2.26 Effected states by the military intervention 72

2.27 Different Opinions about military coup in 3rd world 73

2.28 Nature of Military Governments 73

2.29 Military’s Enlightenment and the Society 74

2.30 Horizontal and Vertical Analysis of the Military States 74

2.31 Social Setup of the Third World States 74

2.32 Democratic Traditions of New States 75

2.33 Vision of the Political Leaders 75

2.34 Charismatic leaders 76

2.35 Role of the Religious Leaders 77

2.36 Level of Military intervention 79

2.37 Measures of the military after coup 79

2.38 Civil Actions of the Military Generals 80

2.39 Civil Military Relations of British India 81

2.40 Civil Military relationship Pattern 81

2.41 Military Services for Civil Government 82

2.42 A case study of Pakistan 82

References 84-

CHAPTER THREE

3 History of Civil Military working from 1947-1977 92-

127

3.1 Introduction 92

3.2 Civil military working (1947-1958) 92

3.3 Internal Political Instability in Pakistan and Military’s role 93

3.4 External Factors and Role of Military 99

3.5 Military’s Direct Role (1958-1969) 99

3.5.1Role of Judiciary in Military Coup 101

3.5.2Basic Democracies of General Ayub 102

3.5.3Limitize the Politicians 104

3.5.4Law Reforms 105

3.5.5Ethnicity issues 105

3.5.6Islamic Approach 105

3.5.7Land Reforms 106

3.5.8Constitution of 1962 106

3.5.9Pak-India War 1965 & Tashkent declaration 107

3.6 Deadlock of Civil Military Relations from (1969-1971) 110

3.7 Turn the tide form 1971-1977 114

3.8 Election of 1977 and the Down fall of Z.A. Bhutto 121

References 123-

127

CHAPTER FOUR

4 General Zia-ul-Haq’s hegemony from 1977-1988 127-

175

4.1 Introduction 128

4.2 Was Military Preplanned about the Coup? 129

4.3 Chaotic situation and the military strategy 138

4.4 Postponing the elections 139

4.5 Controversy of General Zia and Z.A. Bhutto 140

4.6 Legitimacy issue 140

4.7 The First Phase 1977-1979 141

4.7.1PNA joined Military 143

4.7.2Z.A. Bhutto’s victimization 144

4.7.3Climax of Jamat-e-Islami 144

4.7.4Nusrat Bhutto Case 146

4.8 Second Phase of General Zia’s regime 1979-1985 147

4.8.1Promises of elections 147

4.8.2Provisional Constitutional Order (PCO) 149

4.8.3Majlis-e-Shoora 150

4.8.4Restoration of Democracy 151

4.8.5Presidential Referendum 1984 152

4.9 Third Phase 1985-1988 153

4.9.1Dawn and Dusk of democracy under Zia-ul-Haq 153

4.9.2Revival of Constitutional Order 1985 153

4.9.3Council of Islamic Ideology 155

4.9.4A Federal Council Committee 155

4.9.5Constitution of Pakistan 1973 & 8th amendment with 156

P.M.Junejo

4.9.6Geneva Accord 158

4.9.7Explosion in Ojhari Camp 158

4.9.8Dissolution of Assemblies 159

4.10 General Zia’s Local Government system 160

4.10.1Kinds of Local Institutions 162

4.10.2Punjab Local Government Ordinance 1979 162

4.10.3Sindh Local Government Ordinance 1979 163

4.10.4Structure of Local Government system 164

4.10.5Rural and Urban Local Government Institutions 165

4.10.5.1Union Council 165

4.10.5.2Tehsil Council 165

4.10.5.3District Council 165

4.10.5.4Metropolitan Corporation 165

4.10.5.5Municipal and Town Committees 166

4.10.5.6Cantonment Boards 166

4.10.6The Duties of the Local Government Instructions 166

4.10.6.1Union Councils 166

4.10.6.2District Councils 167

4.10.6.3Metropolitan Corporation 167

4.10.7Elections 167

4.10.8Fiscal System 168

4.10.9Miscellaneous 168

References 171-

175

CHAPTER FIVE

5 General Pervez Musharrf’s Regime 1999-2007 176-

217

5.1 Introduction 176

5.2 First address of General Pervaz Musharraf to the Nation 178

5.3 Imposition of emergency 180

5.4 Provisional constitutional order of October,1999 180

5.5 Six point agenda of General Pervaz 182

5.6 National security council 183

5.7 Packing of the ex prime minister 184

5.8 Doctrine of necessity 184

5.9 Devolution plan (2000) 185

5.9.1District government or District Assembly 186

5.9.2District Nazim 186

5.9.3City District 187

5.9.3.1District Police 187

5.9.4Tehsil Council 188

5.9.5Union council 189

5.10 PCO & General Musharraf as a president (2001) 191

5.11 Referendum 2002 193

5.12 Legal frame work order 2002 194

5.12.1The main provision of LFO (2002) 195

5.13 The General elections of (2002) 195

5.14 The seventeenth amendment(2003) 197

5.15 President’s another office Act 2004 200

5.16 National accountability Bureau 200

5.17 National reconciliation ordinance (NRO) 202

5.18 Presidential elections 2007 204

5.19 State of emergency 2007 206

5.20 Provisional constitutional order 2007 207

5.21 Resignation from office 209

References 211-

217

CHAPTER SIX

Conclusion and Reflection 218-

247

References and Bibliography 248-

260

Appendices 261-

319

List of Tables

Sr # Pg. No.

2.2 Views of Critics about Civil Military Relations (CMR) 29

4.10.4 Structure of Local Government in Pakistan 126

List of Abbreviations

AL Awami League

ANP Awami National Party

APS Airport Services

AWT Army Welfare Trust

AZO Al-Murtaza Organization

BB Benazir Bhutto

BD’S Basic Democracies

BMR Balancing, Modernization and

Replacement

BNA Balochistan National Alliance

BNP Balochistan National Party

BoG Board of Governors

BPC Basic Principles Committee

CA Constituent Assembly

CDA Capital Development Authority

CE Chief Executive

CENTO Central Treaty Organization

C-in-C Commander –in-Chief

CJ Chief Justice

CJCS Chairman Joint Chiefs of Staff

CM Chief Minister

CMLA Chief Martial Law Administrator

CMR Civil-Military Relations

COAS Chief of Army Staff

COP Combined Opposition Parties

COS Chief of Staff

CSP Civil Service of Pakistan

DCC Defense Committee of the

Cabinet

DCO’s District Coordinator Officers

DMG District Management Group

DP Defense Policy

EBDO Elective Bodies Disqualification

Order

EC Election Commission(er)

ECP Election Commission of Pakistan

FATA Federally Administered Tribal Area

FC Federal Court

FCA Foreign Currency Account

FCCL Fauji Cement Company Limited

FF Fauji Foundation

FFC Fauji Fertilizer Company

FOTCO Fauji Oil Terminal (& Distribution)

Company

FP Foreign Policy

FSC Federal Security Council

FSC Federal Shariat Court

FSF Federal Security Force

FSP Foreign Service of Pakistan

FWO Frontier Works Organization

FY Fiscal Year

GDP Gross Domestic Product

GE General Elections

GG Governor General

GHQ General Head Quarter

GNP Gross National Product

GoP Government of Pakistan

HDI Human Development Index

HIPC Heavily Indebted Poor Country

IB Intelligence Bureau ICS Indian Civil Service

IFI International Financial

Institution

IJI IslamiJamhooriItthead

IJM IslamiJamhooriMahaz

IMF International Monetary

Fund

IPS Indian Police Service

ISI Inter-Services Intelligence

IV Independent Variable

JCAS Joint Chief of Army Staff

JCSC Joint chief of staff committee

JCO Junior Commissioned Officer

JI Jamat-i-Islami

JUI (F) JamiatUlema-e-Islam

(FazalurRehman)

JUP (N) JamiatUlema-e-Pakistan

(Noorani)

JWP JamhooriWatanParty

KPK Khyber PakhtoonKhwa

LFO Legal Frame Work Order

LGP Local Government Plan

LoC Line of Control

MAP Military Assistance Program

MD Managing Director

MI Military Intelligence

MILBUS Military Businesses

MMA MuttahidaMajlis-e Amal

MNA Member of National Assembly

MoD Ministry of Defense

MoU Memorandum of Understanding

MPA Member ofProvincial Assembly

MQM Muttahida (previously Mohajir) Qaumi

Movement

MRD Movement of Restoration of Democracy

NA National Alliance

NA National Assembly

NAB National Accountability Bureau

NADRA National Database Registration Authority

NAP National Awami Party

NATO North Atlantic Treaty organization

NCO Non-Commissioned Officer

NDA National Democratic Alliance

NDC National Defense College

NHA National Highway Authority

NLC National Logistics Cell

NRB National Reconstruction Bureau

NRO National Reconciliation Ordinance

NSC National Security Council

NWFP North Western Frontier Province

ODA Official Development Assistance

OGL Open General License

OIC Organization of Islamic co-operation

PAAS Pakistan Audits and Accounts Service

PAF Pakistan Air Force

PAI Pakistan AwamiIttehad

PAT Pakistan AwamiTehrik

PB Provincial (Assembly) ofBaluchistan

PCO Provisional Constitutional Order

PDA People Democrat Alliance

PEMRA Pakistan Electronic Media Regulatory

Authority

PFS Pakistan Foreign Service

PIA Pakistan International Airline

PIF Pakistan Islamic Front

PKMAP PakhtoonKhwaMilliAwami Party

PM Prime Minister

PMAS Pakistan Military Accounts Service

PMLCS Pakistan Military Lands and Cantonment Service

PML-F Pakistan Muslim League- Functional

PML-J Pakistan Muslim League- Junejo

PML-N Pakistan Muslim League- Nawaz

PML-Q Pakistan Muslim League- Quaid-i-Azam

PN Pakistan Navy

PNA Pakistan National Alliance

PNP Pakistan National Party

POW Prisoners Of War

PP Provincial (Assembly) of Punjab

PPC Pakistan Penal Code

PPO Political Parties Order

PPP Pakistan people’s party

PPP-SB Pakistan People’s Party- Shaheed Bhutto

PRODA Public Representativesand Officers Disqualification Act

PS Provincial (Assembly) of Sindh

PTV Pakistan Television

RCO Revival of Constitutional Order

SAARC South Asian Alliance for Regional Co-

operation

SAPs Structural Adjustment Programs

SBP State Bank of Pakistan

SC Supreme Court

SEATO Southeast Asia Treaty Organization

TMO Town Municipal Officers

TNSM Tehrik-e Nifaz-e Shariat-e Muhammadi

UDF United Democratic Front

UK United Kingdom

UN United Nations

UNA United National Alliance

US(A) United States (of America)

USSR Union of Soviet Socialist Republics

WB World Bank

WW I World War I

WWII World war II.

Acknowledgement Thanks to Almighty Allah, Who donated me patience, courage and perseverance to complete this laborious and difficult assignment. I believe that with the help of Almighty Allah I have completed my research work. It is also a fact that without active support of people around us, it would be difficult to do such kind of research.

First of all I am highly indebted to my supervisor Dr.Iram Khalid. I am grateful for her guidance, support and encouragement. I can’t forget her special attention, keen observation and very professional approach regarding this research. She checked the chapters thoroughly and proposed valuable suggestions which proved helpful for achieving this goal, she allowed me to grow as a researcher. I am also thankful to my honorable teacher Dr.UmbreenJavid who not only helped me in finding out different sources but also appreciated me with silent manners. Massive thanks to the other staff of this department like honorable Dr.HassanAskariRizvi (emeritus professor) Dr.RehanaSaeedHashmi, Dr.GulshanMajeed, Dr.RanaIjaz, prof. Mohammad Shabeer Khan and supportive clerical staff of this department who is civilized by the polite manners of the chairperson of this department. I am also thankful to those imminent personalities who co-operated with me during this research work, Dr.RasoolBakshRaees, Dr.SaeedShafkat, Dr.Pervez IqbalCheema, Dr.Rasheed. Dr.ZafarIqbal, a lot of Military, Judiciary, Bureaucracy, Politicians and other intellectuals who supported and encouraged me to complete my research work. I am grateful to the seminar library of department of political science especially Mr.Akram, Asad and Rahila. The Quaid-e-Azam library, Punjab Public library Lahore, the main library staff of the University, the library of National Defense University Islamabad, National Documentation Centre Islamabad and inter services public relations (ISPR) directorate, Islamabad. At the end my family deserves special praise. During this research work I can’t forget the prayers of my parents and valuable support of my bosom friends AbdulShakoor&IshfaqVirk. I must say that with the support of all these people I have completed this task, but all the errors to be found in this work will remain my own. ZahidYaseen Department of Political Science

University of the Punjab January, 2015. Abstract

Political history of Pakistan witnesses the approval of many civilian governments by military since its early years. After getting power to establish the de-jure status military governments formulated the setup which served their interests. To evaluate the working of civilian

22 governments under military setup, role of judiciary, religious elite, local government system and the role of external actors remained critical. The present study is based on the case study of General Zia UlHaq and General PervazMusharraf. General Zia ulHaq initiated the third military regime in Pakistan. All powers were constrained in the hands of General Zia ulHaq who was the Chief of Army Staff, Chief Martial Law Administrator and the Chief Executive as well as the President of Pakistan. During his eleven years rule he introduced civil government under the umbrella of non-party based elections. With the help of eighth amendment, he disturbed the pure parliamentary structure of the state.When controversy came in decision making,he himself demolished (the government of Junejo) his own creations. On 12th October 1999, the Chief of Army Staff General PervazMusharraf repeated the history and took the charge. GeneralPervazMusharraf manipulated the system and introduced his six point agenda. General PervazMusharraf rehabilitated the government of the civil people, amending the constitution of Pakistan, having the centre of decision making for his personal interests and strengthened his rule. The fact of the matter was that both efforts by the military rulers collapsed when their powers came to end. The research is based on primary and secondary sources, incorporated and extensive survey is compiled from military, judiciary, civil elites and intellectuals to know the views of these institutions about the nature of civil military relations. The research concludes that the structure of civilian governments during the military regimes was according to the desire of military rulers. The opportunities provided by the political leaders and judiciary to military also helped to gain legitimacy in the name of ‘doctrine of necessity’. Pakistan lacks the sincere efforts to introduce a mature democratic political culture. To improve the situation and to avoid any further involvement, it is recommended that there should be strong political institutions in Pakistan. Only democratic participatory political culture can facilitate such kind of political environment in which, real representative political leadership with the support of public can be the barrier in the way of any further adventure by military.

Introduction Military regimes practise the civilian forms of government to settle their crises of legitimacy. This has remained a common practice in many parts of the world.

Military regimes come to power whenever the institutions get weak through corruption and political backwardness alongwith threats regarding disintegration, wars, social and cultural illness, etc. Whenever military comes to powerand tries to establish its de-jure status adopting the ways of civilian government, the representatives of the people make their own governments but the military remains in power by making amendments in the constitution. The civilian government being named as a ‗limited form of government‘ exists parallel to the administration of the military. The dictators, after coming to power, introduce a system that is not familiar with and easily acceptable to the society. As a result military dictators are removed and their hybrid system gets collapsed.

Pakistan is the state which has been experiencing the removal of the civilian governments by military since its very beginning. After military intervention it legitimizes its rule by introducing a civilian setup. Such governments reinstall the amendments in the constitution. A case study of General Zia-ul-Haq and General

Pervez Musharraf can be discussed in this concern. Zia-ul-Haq‘s coup d‘état of 5th July

1977 initiated the third military regime in Pakistan. Martial law was imposed, elected legislative and executive bodies were dissolved and the constitution was suspended. All powers were concentrated in the hands of General Mohammad Zia-ulHaq, the chief of army staff, who claimed to be the chief martial law administrator, the chief executive as well as the president of Pakistan. General Zia‘s militarybureaucratic rule lasted for a

24 little more than eleven years and slightly shorter than the democratic gap between the military regimes during the period of 1988-1999.

General Zia‘s rule sustained due to a number of internal and external circumstances. He reintroduced the civil government with the help of non-party based elections. The military changed the total structure of parliament with the help of the 8th amendment made in the constitution and the semi parliamentary form was introduced in the shape of pseudo democracy. Zia legitimized his rule having been encircled by the civil government but this government always took decisions against the will of the Military so it was demolished.

On 12th October, 1999 the chief of army staff General Pervez Musharrf‘s coup challenged the future of democracy in Pakistan and showed the institutional response.He repeated the words uttered by General Zia-ul-Haq in 1977, who had declared that the armed forces had come to power out of sheer necessity. However, he professed the importance of ‗good governance‘ and the need for serving, rather than ruling the people. General PervezMusharraf manipulated the system in his own way with the label of guided democracy. The ringing phrases were accompanied by restoring national credibility and harmony. Furthermore, accountability, taking into confidence the investors, approval and improvement in the situation of law and order strengthened his ideas of a true spirit of democracy. Finally, the ultimate promise made by Musharraf was the empowerment of the local bodies through the process of decentralization. Elections were conducted and a new political party was introduced.

Military government introduced amendment in the constitution and the powers of the

Prime Minister were devoted to the President. The administrative rule under General

Zia-ul-Haq and General Pervez Musharraf rehabilitated the governments of the civil people, amending the constitution of Pakistan for their personal interests and

strengthening of their rule. They introduced a system that was not able to function for

long. Except the years 1972-1977, the civilians had never been allowed to have a

complete control of the country. Each military dispensation left the succeeding. A

comprehensive analysis portrays that military intervention as a frequent practice in

Pakistan fulfilled its desire of self prophecy.

The researcher is going to explore the steps undertaken by the military dictators in

setting up of so called civilian governments in Pakistan. After being defamed their

established system it also collapsed. Henceforth, the rule of the civilian governments

established by the military rulers and the drawbacks of their systems as well as the

vision of our politicians would be hi-lighted and discussed.

1.1 Literature review

• A research is conducted in which the author is of the view that Pakistan is the hub

of the intelligence agencies which play the vital role to change the situations,

judiciary always follows the principles of the Military rulers. Judiciary always

legitimized the Military with the principles of ‗Doctrine of necessity‘. Media

always favored the Military rulers to amend the realities. Failure causes of the 1956

and 1962 constitutions are elaborated. The role of democratic, political elected

leaders and the leaders of emergency like military dictators are differentiated. The

role of India and Afghanistan to derail the democratic structure of Pakistan is also

discussed. It is predicted that if the military rule is prolonged there would be two

major problems for Pakistan; one would be in the shape of horizontal and second in

vertical, with the name of provincialism and sectarianism. The above predictions

are going to be true. The books are helpful for present study.

Bhutto, Z. A.(1989).If I am assassinated. Lahore:Nafees printers.

• The writer details the military role of Pakistan, the military in Pakistan is the most

formidable and autonomous political actor capable of influencing the nature and

direction of political change. This, however, represent a major shift in Pakistan‘s

military heritage. For a while, strong military was the integral part to British

imperial rule and it served as ultimate shield, it avoided active involvement in

politics and accepted the primacy of civilian government. This changed gradually

in the post independence period as the top commanders expanded their role in the

top political arena. The changes in civil military relations were manifested in

different forms. These included an active role for the military in policy making,

collaboration with the bureaucracy, displacement of civilian government in October

1958, March 1969, July 1977 and October 1999, direct military rule, civilianization

of military rule, and the military‘s penetration in to the civilian state institutions, the

economy and society. The book endeavors to study the changing patterns of civil

military relations in Pakistan with the objectives of understandings of its causes and

dynamics, the impact on the polity and society, as well as the military itself. It also

examines the methods adopted by various military regimes to extricate themselves

from direct rule, the exercise of political clout by the military from the sidelines,

and the problems of the civilian regimes that replaced by the military regimes. These

issues have been studied with the references, the dynamics of the polity; the

institutional strengths and organizational resources of the military; interaction

across the functional boundaries between the military and the society, the

international factors and considerations. The long years of direct and indirect rule

have enabled the military to spread out to widely in to the government, the economy

and society that its clout and influence no longer depend on controlling the levers

of power. It is derived from its organizational strengths and its significant presence

in all sectors of government and society. The military prefers to pursue its interests

from the sidelines. The downfall of the Sharif government and its bow to the

military and judicial departments, the coupe of 1999 was an institutional response

to what senior commanders perceived as the threat to the professional and corporate

interests of the army and it is predicted that the problems are not going towards

solution in the coming century. The book is divided in eleven chapters and every

chapter has its own worth with its information.

Rizvi,H.A.(2003).MILITARY, STATE AND SOCIETY IN

PAKISTAN.Lahore:SangMeel Publications.

• The writer explores that perceptions and psychology play a major role in the logic

structure and stability of political system in Pakistan. The military remained a

formidable and autonomous political actors; In Pakistan this institution has gained

the status of centrality since independence. Although, it was an integral part to the

British in South Asia, these traditions of the British were transferred to Pakistan yet

these are not going towards the change. But military expanded its role and

established its primacy in the political process with different colors. They

introduced civil governments to provide a stamp of approval to their regimes and

implications of expended role of the military for polity and military itself. A

thorough study regarding this book, the disinterest of the scholars about the military

institution, the non co-operation of military about sharing information and the

changing situation is defined in this book. Personal information is found from

1947-1997 about the military rulers. The prominent among them are field marshal

Mohammad Ayub Khan, General Mohammad Musa, General K.M Arif, Air

Marshal Zulfkar Ali Khan, Air Marshal Asghar Khan, Air marshal Zafar Chahudry, General Faiz Ali Chisti, General Rahel Lateif, Major General Shahid

Lataif, and Major General Rao Farman Ali. The academicians Khalid Bin Syead,

Hamza Alwai, Lawrence Ziring, Ayesha Jalal, Sheeren Mazari,s prophetic views

are discussed about military in this book. This book undertakes a comprehensive

and documentary study of the role of the military in Pakistan‘s society and politics

with a view to explain why and how a professional military can acquire the political

disposition? .The book lists the salient causes which became a reason for the

military to acquire the civil government, the problem of the military regimes,

introducing the civil government and political-economic order has been discussed.

The major thesis is discussed with leading role of the military takeovers, various

military regimes and their politics, the legitimacy issues and the civil institutions

building by the military, military role and returning the military to barracks, civil

military relation in post withdrawal period, ethnic imbalance in the military and the

impacts of the military role on the society and the polity, the weakness of the

political institutions and their inability to cape with diverse demands of the political

system. The military comes to power not due to the demands of the people; rather

it is a product of the weak institutions and the political decay.

Rizvi.H.A.(1988). The Military and Politics in Pakistan. Lahore:Sang-e-Meel

Publications.

• This book deals with the issue of democracy, development and discontent of

Pakistan in general. Major challenges confronting democracy and development in

South Asia include the interface between multicultural identity, democracy and

development in India, movement of the restoration of democracy in Pakistan, and

the Maoist movement and its democratic accommodation in Nepal.All these issues

are the parts of the detailed discussions in the book. Democracy, development and

29 discontent in South Asia highlight the latest analysis of data by well known scholars in the field, clearconceptualization, and new theoretical framework, along with interpretations. The dimensions for the analysis include ethnicity, multiculturalism, democracy, authoritarianism, economic reforms, armed rebellion and movement for democracy and peace through confidence building measures, trade and development along with the federal pressures, constitutional and devolutionary draw backs in these countries. The book being a combination of ten contributions and the writers have defined the issues of South Asia, with fresh looks at the imperatives of democracy, development and discontent in South Asia today. The opening chapter by M.P. Singh addresses the multicultural identity and democracy in India. Civic nationalism can be better hermeneutically interpreted through multi cultural rather than ethnic national lenses. India has found it easier to accommodate linguistic identities rather than religious communalism, particularly in the colonial context. Being a secular state in terms of granting of religious freedoms, the constitution prompts the state to strive for a common civil code analogous to common criminal code. All these factors have prepared the ground for judicialzation of politics that would appear also to be in some ways uniquely Indian.

Chapter 2 provides a retrospective analysis of democracy & army rule in Pakistan discussing the politics of the country in its cultural & historical context. The writer implies that it is difficult to export democracy to Pakistan in the absence of supportive political culture & civil society institutions. Chapter 3 discusses the complex interplay of the forces of authoritarianism & democracy in Bangladesh since its bloody birth. Niraj Kumar takes up the issue of development in India. It‘s particularly significance is that it has a credible performance in both these domains like democracy and its performance. Chapter 5 analyses the societal response about

the reforms in Bangladesh. Chapter 6 illuminates the issue of ethnicity, tribalism &

politics of frontier province policy of Pakistan. In chapter 7

Kukreaja & Mahindra Persad Sing takes a detailed look at ethnic politics in Sri

Lanka. Chapter 8 provides an inside full account of the arms rebellion in Nepal. In

chapter 9 Sinha offers a historically, sociologically & economically well grounded

analysis of ethnic conflict in Bhutan. In the final chapter, Rajen Harshe takes up the

issue of India- Pakistan conflict over Kashmir. This chapter argues that the causes

of this conflict can be traced back to the process of state formation & nation building

in India & Pakistan that developed after the sub-continent was divided.

Kukreaja,V.and Prasad, M.S.(2008). Democracy,Development and Discontent in

South Asia. India: Sage Publications Pvt Ltd.

• Writer is an Ambassador to Pakistan who has portrait the picture of Pakistan

especially after the incident of 9/11. Musharrf‘s Coup & his approach to legitimacy,

his elections stunt & the return to democracy, Women‘s status in Pakistan, women

status in Islam. The light of the concept of the great game in Afghanistan, the

international response towards Islamabad is comprehensively discussed

Madalena,M.L.,Carvalho,F.&Fischer,M.(2004).Pakistan under Siege, Pakistan

after September 11th, 2001.USA:Michigan university press.

• The book is the combination of different articles. Every writer has contributed

beautiful chapters. Author like Adware Shills has defined the role of military for

the political developments of the new states. The writer has looked in to the role

played by the military for the country‘s political development and administration.

The writer divided the developing world where the military played a vital role in its political development or administration. The countries including Pakistan,

Malaysia, South Africa Nepal, Bhutan Middle East & Jordan etc are more affected.

In 2 chapters Lucian W. Pye wrote about the armies in the process of political modernization. In this chapter Pye has explored the army of Pakistan & India is totally established & trained by the advanced army of the UK. He has also stated that South Africa, Malaysia & Chinese army played a guerilla role for receiving their independence from the French & the British rule. Johnson collectively discussed the Latin American military. He states that the countries of Latin

Americans are far from democracy because there are very deep roots of monarchy

& tribal system; these tribes are not ready to rehabilitate the democratic culture.

Military & these elite classes will easily exploit the poor people. The Military establishments in Burma, Military in Thailand, Military in Korea, military in

Middle East have also been elaborated. When these continents became independent, these were totally unaware of the democratic structure, political status & awareness was absent in them. Having a single perfect, determined, disciplined, organized, the army collectively took over the political setup of the country and its political affairs.

In the recent era of democratization the military role is seen as a revolutionary force, it contributed towards the disintegration of traditional political order, as a stabilizing force they have kept some countries from falling prey to communist rule. Modern social science has made no serious & sustained effort to study the role of the military in the underdeveloped country on comparative bases. The lack of social typology of soldiers the relationship between the maintenance of internal order & the needs of national defense varies widely in the new state, but these variations have thus far eluded the political theory.

John,J.J.(1964.) The role of the military in underdeveloped countries.Princeton .

USA: New Jersey Princeton University Press.

• The book is a collection of the articles. The writer seeks primarily to explain the

breakup of the united Pakistan and the turbulent processes of political change in the

post liberation Bangladesh. While delineating the process of disintegration of the

old Pakistan, writer discusses the qualities of leadership of elite groups (West

Pakistan politicians & military-civilian bureaucrats), the extent of their skills in

nation building, and reasons for their particular policy choices which lead to the

gruesome events of 1971 and the ultimate bifurcation of Pakistan. The author brings

into focus the structure and role of the various types of group interests in Pakistan,

landlords, business and the industrial class, university students, refugees from India

and the linguistic, ethnic and regional groups and their dysfunctional effects on the

growth of a cohesive and congruent national identity. The last article traces the

growth of Bangladesh nationalism, discusses the country‘s political culture and

concludes on an assessment of the effects of Zia Rehman‘s death on the future of

nation and the region. Students of political science in Pakistan and Bangladesh,

scholars interested in nation or state formation or political social change, scholars

concerned with the study of civil military relationships all will find this work by the

leading political scientist of Bangladesh exceedingly stimulating and insightful.

Talkder,M.(1982). Group interest and political changes: Studies of Pakistan and

Bangladesh. New Delhi: South Asian publishers. • This book deals with a most interesting and rather unexplored problem, how India

became a robust democracy while Pakistan ended up. Being a military ruled

country both of them shared similar cultural features and emerged from the same

history including the same experience. The writer has not only chosen an excellent

33 topic but also described it in perfect manners , he has also very well informed and gets his facts right. The question of why some countries have democratic regimes and others do not is a significant issue in comparative politics. This book looks at

India and Pakistan, two countries which clearly contrasting political regime histories, and presents an argument on why India has democracy and Pakistan not.

Specifies and the nuances of each state system, the author examines in detail the balance of authority and power between popular or elected politicians and the state apparatus through substantial historical analysis. India and Pakistan are large, multi- religious and multi-lingual countries sharing a same geographical and historical space that was separated in 1947, when they became independent from British rule, gave them a virtually indistinguishable level of both extreme poverty and inequality.

According to most theories, and in Pakistan democracy, did indeed fail very quickly after independence. It was restored as a façade for militarybureaucratic rule for brief periods since then. In comparison, after almost thirty years of democracy, India had a brush with authoritarian rule, only during the 1975-6 emergency, and some analysts were perversely reassured that the exception of India had been erased. But instead, after momentous elections in 1977, democracy has become strong more than from last thirty years. This book providing a comparative analysis of the political system of India and Pakistan as well as a historical overview of both the countries, the book contributes an essential reading for students of this region. It has a useful and balanced introduction about the politics of India and Pakistan.

Olden Burg,P.(2010). India, Pakistan and Democracy: solving the puzzle of divergent paths.USA: RoutledgeTaylor & Francis.

• It is revelatory detail; The President of Pakistan General Pervez Musharraf has

firmly defined the incidents of his tenure and the history of Pakistan like that of the

President of Pakistan General Mohammad Ayub khan. Basically this book has

defined the two major roles of the President of Pakistan. First part is on the war on

terror and the second on the rehabilitation of democracy in Pakistan by him. He

started the book with his childhood, family and education, the second portion is on

his military job achievements problems are discussed till the status of chief of army

staff, the 3rd portion of the book is briefly on the kargil episode and gaining the

status of chief executive of Pakistan, the 4th part collectively defined the six

principles of democracy of Pakistan and the writer defended the democratic system

and confessed about the compulsion of democracy and the progress in this era

without democracy is impossible but not discussed to amend the constitution and

introduced a limited and controlled parliamentary structure. Part 5th is totally on war

on terror and Pakistan becoming a non NATO ally of the US, the last part of this

book portrays an optimistic image of Pakistan in the world.

Musharraf,P.(2006). IN THE LINE OF FIRE:A Memoir.USA,NY:Free press

• The version is the combination of different articles. The preparation of earlier five

chapters in this book was supported by the office of democracy and governance of

the US agency for international development (USAID). In the first chapter

democracy, its development, security and its objectives are discussed. In the

second chapter promise of third world states leaders about the decentralization of

the government and the real democracy its fruits and compulsions are discussed.

Glary Bland wrote third chapter of this book on elections its development of local

bodies is discussed in detail. Joseph Segal and Patrick O‘Mohony discussed upon

the decentralization and internal conflicts of the states.

Eaton,K. and Smoke, P.(2011).Making Decentralization work of Democracy,

Development, and security.India: Viva books private limited.

• The writer registers information about the role of the judiciary which was played in

the past. The theory ‗doctrine of necessity‘ was used by the judiciary and it ignored

the future results of it. The practices of the judges opened a gate for the military and

it evaluated the constitution, rules and regulations of the departments. Army

amended the constitution according to its own needs. It never allowed the

democratic trend to expand in this state. A profile picture of the military role is

presented in this book from 1947-1972. Its nature, mindset and characteristics are

defined clearly. Justice A.R.Conelius, Ayube‘s foreign policy and the Presidential

election against Miss Fatima Jinnah and his rigging is discussed. Thorough analyses

on the economic progress in Ayube‘s regime, Tashkent declaration and its results

for Ayub have also been exchanged. Yahiya‘s arrival and his works about the

rehabilitation of democracy in Pakistan present a clear picture with reference to

Pakistan.

Ahmad,S. S.(2004).History of Pakistan and Role of the Army.Karachi: Royal Book

Company .

• The writer expresses beautiful excessive information about the civil military

relations, the dichotomy of ‗civil‘ and military relation. The book is a contribution

of various experts. It is divided in to ten parts, in first part civil military relations

are defined with the help of the approaches of modern and traditional concepts. The

defense budget, along with the formation of foreign policy formulation is defined

in this book. In the II paradox of military politics in sub-Saharan Africa, Armed

force in Latin American politics, the politics of North African Armies the civil

military relations in Indonesia, China, USSR and the US are defined in this book, a

clear picture is seen of the civil military relations in developed and developing

states. The role of military in different ways and politico-military settlings are

comprehended. It also attempted in this book to bring together a collection of

studies of military and national security from different perspectives and providing

a base for comparative analysis of state institutions.

Coch,C. l. (1974). Civil Military relations changing concepts in seventies.USA:

Michigan University press.

• A meaningful discussion on the elections in Pakistan with the help of events, related

to politics, making of the constitution, works of democracy, the works of the

assemblies, role of judiciary, democratic norms of the society, role of politicians,

role of the rulers, role of the army, works of political parties and the democracy in

the country are discussed in this book. The history of Pakistan‘s elections is

presented as a chess-board. Discussion about the working of governments and

legislatures from independence to till is briefly discussed. A stay which affected the

democracy of Pakistan by Malik Gulam Mohammad and then by those Presidents

who did not like to accept their constitutional status and were not willing to follow

the norms of democracy. They were not ready to accept their status as titular heads

of the state. All of them behaved like powerful presidents and not surrendered. Book

portrays the character of Major Iskander Mirza, Ayub, Yahya, Zia-ul-Haq and

Musharraf in the form of ‗Presidents supra‘. All their activities for strengthening

their tenures are defined, general elections of 1970s, 1977, non party based elections

of 1985, civil governments elections from 1988-

1997, the military coup, Musharrf‘s reforms, local elections, establishment of

PML(Q), and their activities are explained in detail.

Muhammad, H. (2012).General elections in Pakistan some untold stories and

personal experiences, formersecretary election commission of Pakistan.

Lahore:Mavra Publishers.

• Defined the political culture of Pakistan. The book is the combination of various

articles, according to this book Pakistan is a country that is gaining crucial

importance with the fastest population growth rate, soon it would be the world‘s 6th

largest Muslim country outpacing Indonesia. No country is important to US than

Pakistan in this region. It has already the fastest growing nuclear arsenals in the

world producing more weapons today. The US and Pakistan have had a very

conflicted relationship for half over a century. Some have described it as a roller

coaster ride of highs and low, other as a very dysfunctional marriage that gone

through courtship. For most of the last century the US has perfect partnership with

the military dictators of Pakistan, enthusiastically embracing all four Generals who

have ruled Pakistan. President from Kennedy to Bush have invited them to the

White House for state dinners and intimate consultation. Jointly they have

embarked on great clandestine projects these have included the US base in

Peshawar in the last 1950s; Henry Kissinger‘s secret trip to Beijing from Islamabad

in July 1971, the covert was against Soviet Union in Afghanistan that helped to

destroy the USSR in the 1980s, and the battle against Al-Qaeda in this country. All

had been done with the help of involvements by the military dictators, despite the

proclaimed comments on democracy. He has provided little information on

Pakistan‘s civilian leaders who have ruled over the decades. The

US is not wholly responsible for Pakistan‘s unhealthy civil military relationship but

a lot of inner problems are also responsible for the weakened relationship.

Cohen, S.P. (2012). The future of Pakistan.Vanguard publishers.

• The late ex-prime minister of Pakistan has explored here political experience in this

book. She wrote this book in her exile life when she was watching the activities of

the government closely. She wrote boldly on different topics, the incorporated

economy of Pakistan, Pak- India relations, the role of the intelligence agencies ,

political structure of Pakistan, Judicial crisis in Pakistan, importance of democracy

and its rehabilitation for the third world states is found in this book. She also

suggested that all the activities of terrorism can be overcome with help of pure

democracy. Difference between civil and military governments is also hilighted-.

Perceptions for Musharraf government are presented in this book.

Bhutto,B.(2008).Military, Agencies and Democracies.Lahore.Roshan publications.

• The writer was the partner in the military coup which was implemented by General

Pervez Musharraf. All the activities were performed by his office. The writer has

chalked out various secrets of military which were still hidden in removing the civil

government of Pakistan. Kargil episode, the dialogues of the Prime Minister and

Military, role of the intelligence agencies, military training of hi-profile officials in

US and their activities are checked by the CIA. The personal repute of Musharraf

and his change after coming in power, agreements which were signed by the

Musharraf for airbases, NATO supply and handover the

wanted men to US is discussed. He exposed that in kargil episode the activities were

performed by the Pakistan military not a single man of lashkare taiba was involved

in it. The experience of 9/11, Kargil episode, It is always focused on the benefits of

US; military intelligence which was examined by him is seen in this book. Political

drawbacks, their causes, immature decisions of military dictators are defined and

suggestions are discussed about the political structure of Pakistan.

Aziz,S.(2013).Ye khamoshi kahan tk(urdu).Islamabad. Seven spring publishers.

• Writer is critical expert of interviews. In this book he interviewed the key Generals

in the political system of Pakistan. The military intervention is becoming so

powerful. According to the need of relevancy, 18 Generals are interviewed,

A.K. Niazi, General Tikka khan, Rao Farman, General Hamid Gul, General Asad

Durani, Javid Ashraf Qazi, are special. Qazi was the first friend of General

Musharraf and special links with the ISI and the religious groups. Major General

Naseer-ullah-Baber and Brigadier Imtiaz are interviewed for exploring some

sectors for civilians, students of political science. The role of General Aslam in the

elections of 1990s about distributing the money among the political parties against

Pakistan people‘s party for hug- parliament. The activities of General Zia and the

work of military have checked with the help of Zia‘s close companions like General

Faiz Ahmad Chisti and General K.M.Arif. The causes of military intervention, its

results and remedies are discussed in this book elaborated through the interviews.

Top secrets and the mind of the administrators are elaborated through interviews

which were conducted by the writer.

Sohail.W.(2006). Generlon ki siasit(Urdu).

• This book covers the initial stages of Pakistan‘s constitutional development, the

hindrances and factors which helped in making the process of constitution in

Pakistan. Constitution making process was so coercive and complicated. The first

constituent assembly which was set in 1947 was not able to complete its task of

framing the constitution; rather it was not permitted to finalize the work, which was

so near to complete. Importance has been given on detailing the problems which

had to be faced in framing the constitution of Pakistan. The period of nine year

spent in making the first constitution of Pakistan. How? And Why? All the reasons

are discussed in this book.

Chudhary,G.W.(1969). Constitutional development in Pakistan. USA: longman.

• The effort of these men brings together six chapters of various aspects on the rule

Of General Zia. Both the authors of this preface met Zia a number of times. He was

the man of principles, determined, without hesitation and with candor. This book

covers different aspects of Zia‘s era in the history of Pakistan. Kamal Azfar, Babert

Laporte also contributed in this book according to his own experiments. The book

not only covers the life of Zia-ul-Haq but also others who helped him to strengthen

the period of military rule in Pakistan, a new history was developed.

Burki discussed the Zia‘s works of eleven years against communism, economic

prosperity, democracy, important events which occurred during his tenure. Baxter

has discussed, restructuring the political system of Pakistan. How Pakistan gained

the status of international player against communism, the events of Zia is discussed

in detail. Robert Le Porte and Kamal Azfar also have discussed about the

constitutional amendments and political structure of Zia.

Burki S. J. and Baxter C. (1991).Pakistan under the military eleven years of zia

ulHaq. USA: Westview Press.

• An informative and interesting book, It has the latest updates and so informative

about the history of Pakistan. The geopolitical, social, cultural and economic fields

are covered. From the Muslims of the British till the period of 1999, the struggle of

the Muslims, and after receiving independence, the status and steps are discussed in

this book. Economic development, its hurdles and causes in its promotion are

touched briefly. The social development, its ratio, population, status of women is

disused in 4th chapter. In 5th chapter poor governance, corruption and misdeeds are

discussed in the manners of solution. In chapter 6 the foreign policy of Pakistan is

discussed not only with the Muslim world but also for the nonMuslim states. In the

last chapter the future of Pakistan is discussed, the historical prospects of Pakistan,

role of Islam, nation building, issues and its impacts are examined. Indications are

analyzed and translated.

Burki, S.J.(1999). Pakistan‘s fifty years of nationhood.USA:Westview Press.

• The writer has discussed and narrated collectively the political structure, federal

system of Pakistan, disinterest in Center and Provinces. Agreements of Pakistan

with other states, Pakistan has no stable political institutions, its party organizations

are also poor and it is struggling to establish a party based pure parliamentary form

of government. It has not been able effectively to integrate its provinces or distribute

the resources. Pakistan has relied on its civil services and ultimately for maintaining

the continuous functioning of the state. The institutional dominance, predominance

of Punjabis in army as well as in civil bureaucracy is discussed and its results are

also elaborated. A state structure dominated by non elected institutions, namely the

military and bureaucracy is not easily amendable or transformed in third world

states. The apparent move away from the state of martial rule has given a new twist

to the longstanding contradiction. The focus on institutional imbalances places the

questions of ethnicity and provincialism in an altogether. The work examines how

a state maimed and mutilated at birth, managed to survive and how it covered its

initial problems? Pakistan‘s sovereignty in the bureaucratic and military institutions

raised a position of dominance. The arguments distinguished between the

dominance and actual intervention by the military. Americans also have keen

interest in Pakistan‘s affairs; its diplomatic study is also presented in this book.

Jalal, A.(2007). The State of Martial Rule: the origins of Pakistan‘s political

economy of defense.UK: Cambridge University Press.

• In this book the writer has mentions why Pakistan has continued to oscillate

between military hegemonic rule and democratic propensities. It has explored and

analyzed why democratic processes and institutions have not gained firm base

grounds in Pakistan and military‘s hegemony continued to prevail. In this context

the study would aim to project the two alternatives but to compete the models of

development in Pakistan. It is argued that constraints and limitations of democratic

process and the successors of civilian regimes in Pakistan are not sincere and

competent, military is heavy over the political structure of Pakistan. The proponents

and benefits of two types of political system have hampered and not strengthened

or consolidated the democratic structure in Pakistan. Forces of modernization,

education, rural and urban system are also discussed in this book.

Shafqat, S. (1997).Civil Military Relations in Pakistan from Zulafkar Ali Bhutto to

Benazir Bhutto. USA:Westview Press,the University of Michigan.

• The writer has compared the political system of both the states. He has analyzed

and commented on why the political system is derailed in Pakistan and is successful

in India. Indian military never intervened in the political setup while the situation

in Pakistan is totally opposite. The political leaders had always welcomed the

military regimes, not only welcomed but also requested; letters were written to

invite and control the situation in Pakistan. The political drawbacks are discussed

with the help of logics and precedents. With the reading of this book writer can

easily understand the political structures of both the states and how India kept aside

the army from political structure. Political, social, economic, moral and ethical

values are discussed. Media and the national issues have also touched upon.

Bhymia,K.M.(2011).Civil Military Relations; A comparative study of India and

Pakistan.UK: Rand Corporation.

• The writer has divided the world in different regions and categorized the nations

according to the system of democracy. It is discussed that why the some people are

not sincere about the rehabilitation of democracy? Diamond discussed the causes of

recent democratic recession in the critical parts of the world, including the crime

infested oligarchy in Russia, the strong armed pseudo populism of Venezuela, the

pathological corruption in Nigeria, and the military security state of Pakistan. He

traces many of these failed and failure democracies to the curse of oil, which stifles

financial and electoral accountability as well as the willingness of established

democracies to hold a firm line in support of civil society. Diamond cautions that

arrogance and inconsistency have undermined many of these efforts, as in Iraq and

other fragile states. To spur a new democratic boom, he urges the US and its

democratic allies to vigorously support good governance, the rule of law, security,

and protection of individual rights and share economic prosperity, and free civic

organizations to inspire the spirit of democracy in nondemocratic states. Diamond

examines how and why democracy actually progresses. He demonstrates that the

desire for democracy runs deep, even in poor countries and in turbulent Middle East.

Furthermore, the extent to which democracy depends on the spirited grassroots

activism of citizens, as tactics and information often spread across the borders, as

well as on the increasingly empowered regional bodies like the European Union and

the African Union. He has discussed the changing monarchial regimes towards

democracy in countries like China and Iran.

Diamond,L.(2008).The Spirit of Democracy. New York:times books Henry Hot

land Company.

• A very important research is conducted on democracy, dictatorship, caste, subcaste

system of subcontinent. The dominant classes of this region. Democratic system of

Punjab and Bengal. The political structure and political roots of political parties

among the people of India, Pakistan and the Bangladesh. The panchiat system and

the positive response of the Congress in India till the quarter century. The

parliamentary system of India, Pakistan and Bangladesh, their merits and demerits

and causes of forward and reverse are discussed comprehensively. Political

experience of Pakistan and Bangladesh with the comparison of India is discussed.

Bureaucratic hegemony and response of landowners of Pakistan is considered major

cause of failing the civilian government in Pakistan.

Circumstances created by these above groups are responsible of the military coup. The drawbacks of these groups and classes are discussed which will be so helpful

for this research.

Stern,R.W.(2004). Democracy & Dictatorship in South Asia, dominant classes and

political outcomes in India, Pakistan and Bangladesh.London: Praeger publishers.

• A historical work is made by the writer. With the independence of Pakistan a game

of hide and seeks started of military and civil government in terms. The sketch of

British government is discussed and the causes are discussed which never allowed

pure political and democratic setup in Pakistan. The cold war in

Ayub‘s era and the economic reforms in his tenure, Yahya‘s friendship with Henry

Kissinger for China‘s recognition. The political mistakes of Zulafkar Ali Bhutto,

great game in Afghanistan and the blessing for Zia-ul-Haq, his Islamic system

slogan with the help of right wing political parties. After the removal of Zia, a

political and civil setup was introduced but it was never allowed to work properly

but a method with the name of ‗troika‘ was introduced. This historical work is

helpful for the research.

Yusuf, H.(1999). Pakistan: A study of political development 1947-97. Lahore.

Sang-e-meel publications.

• Research work of Punjab University Lahore on the hot issues is informative and

helpful for the research. There are a lot of secrets which are about to be explored,

the descriptive issues are giving information on national and international issues.

Suggestions and recommendations are given for changing the situation and not only

for the betterment of Pakistan but also for the third world states. Concepts of the

people about the military and civil government are obviously seen in this research.

The comparison of western democracy and third world states is seen collectively.

The developing concise is seen in this book which would be helpful for the research.

Saeed, A.(2007). Issues and realities of Pakistan. Lahore: Research society of

Pakistan, university of the Punjab.

• The book covers the Musharrf‘s works in Pakistan. his devolution plan and the

works about the democracy is discussed with the help of amendments and procedure

according to his own will. Foreign relations of Pakistan with India, the great game

in this region and the role of General Pervez Musharraf are discussed

comprehensively. War against terrorism, judiciary and the women status in

Pakistan is described in this book. The telephonic and paper works of general

Musharraf with the ex-prime minister of Pakistan Benazir Bhutto about returning

and benefits and the introduction of NRO is discussed in detail. BB‘s remarks about

the courts of Pakistan with the name of ‗Kangaroo courts‘ are seen in this book.

The book of Benazir Bhutto ‗Reconciliation: Islam, Democracy and the

West‘ is same like this book about the political system of Pakistan and its social

setup. The book is helpful for research fulfilling.

Razvi, Murtza (2009). Musharraf the years in power.India.Harper Collins publisher.

• Book is offering perfect information about the structure of military, its services,

promotion structure of military and the internal security plans are highlighted. The

armed forces and their politics in Pakistan, the drawbacks of their politics its

aftershocks, defense and procurements, poor performance of defense owing to

political interference is seen in this book. Nuclear and missile developments are also

touched and final findings are also seen in this book. A significant finding is present

about the relevant research topic.

Cheema, P. I.(2002). The armed forces of Pakistan. Karachi.Oxford university

press.

• A vital research is on the works of Musharraf in education, defense, democracy,

devolution plan, social capital and rural development is present in this book. A

structural adjustment for women is seen with the reference of Islamic teachings for

their rights with the slogan of enlightenment is present in this book. Kashmir cause

in Musharraf period is touched which is helpful for the research.

Khan, S.R.(2004). Pakistan under Musharraf (1999-2002), economic reforms &

political change. Lahore: Vanguard books.

• A joint military- parliamentary regimes from 1947-2007 are defined

comprehensively in this book. The causes of military intervention, military

introducing a limited civil setup and their drawbacks, why people dislike them, the

precedents for the political development in Pakistan and the heritance from the past

periods are seen. The in capabilities of the personnel to work under political and

constitutional institutions. The democratic gaps are defined which would be

beneficial for the researcher.

Belokrenitsky,V.Y. and Moskalenko,V.N.(2013). A political history of Pakistan.

Pakistan: oxford university press.

• The regime of General Pervez Musharraf is defined collectively. The manners in

which he controlled the departments of the state. Political, economic, social

institutions as well as the great game in this region and the appreciation of the

world leaders in remarkable manners. Restoring the democracy of general

Musharraf according to his own mind, a support of judiciary with the doctrine of

necessity is also presented. A hopeless future is defined with his misdeeds, LFO, &

PCO, the role of agencies are defined collectively.

Jan, A.(2006). The Musharraf factor, leading Pakistan its inevitable demise.Lahore

:Jumhoori publications.

• Pakistan remained poor in political setup than India & the situation couldn‘t be

come back still. There are a lot of challenges to the democratic setup. Plaguing

problemsof poverty, hunger and illiteracy, growing role of money for gaining

powerare still unchanged. the absence of co-relationship and internal strife is

defined. A lot of other factors which never allowed the democracy to run

independently. The work would be helpful for the research project.

Ali, A.(1997). Pakistan today, burning issues, confronting society, economy &

politics. Lahore: Sethi books.

• The book is the combination of different issues related Pakistan like election

system, geo-strategic location of Pakistan, judicial independence of Pakistan,

sectarian and violence, Baloch liberation front, the objectives of right and left wing

groups, the overall political setup of Pakistanis put before the readers which is

helpful for the research.

Baxter, C. and Kennedy, C. H. (1998).Pakistan; 1997. USA: West view press.

• Writer takes the ideas about the democratic future of Pakistan which is

conditional. Some chances are given to the democracy of Pakistan but it is not in

the position to run itself permanently. Revisiting the explanations of democracy, its

causes, role of military, role of religious groups, political groups and their sincerity

about the rehabilitation of pure democracy. Transition of democracy in Musharraf

era, its perfection and drawbacks are collectively discussed. Ethnic conflicts and the

strategic doctrine of Pakistan is also discussed.

John, W.(2009). Pakistan the struggle within.USA: Pearson & longman

publishers.

• Writer collectively discussed the four martial laws of Pakistan. the martial dictators,

their objectives, works, political setup is comprehensively discussed. They

discovered their own system according to their own benefits for strengthening their

own powers. Zia coup and the Islamic propaganda, the coup of Musharraf with the

slogan of enlightenment, their promises about the democracy but it was in the shape

of roller coaster which couldn‘t gain its goals. The political system of Pakistan is

defined, amended constitution of Pakistan according to their will, role of judiciary,

the overall sketch of Pakistan as well as of the third world state is discussed. Writer

worked on South Asia, Chili, Hattie before joining the Washington post. She

expressed the political systems of these states collectively.

Constable, P.(2011 ).playing with fire; Pakistan at war with itself. New York:

Random house.

• Series of democratic and martial laws are defined term wise. Judicial system of

Pakistan is defined, its past, present, and future perceptions are collectively

discussed. The geo-strategic culture, drone attacks and the manners of Pakistani

government and the remarks of the people of Pakistan. the murder of democracy in

Pakistan is compared with Pakistan as India is considered ideal state with the status

of world‘s biggest democracy. Both the states were under the reign of the

British but Pakistan couldn‘t run itself in democratic field. The impact of NRO and

its results for the democratic and political structure of Pakistan. the other pillars of 50

the government are also touched for the future study of Pakistan and work will be

helpful for the research.

Talbot,I.(2009). Pakistan: A Modern History. London : Hurst & Company.

• Writer has concluded the works of three military rulers and one civil leader. This

book is so helpful for the researcher. Initially stages which paved the way for

military dictators and the role of the military is discussed. Yahya khan‘s activities

and the role of Mujeeb & Bhutto are elaborated. The interest of the people for

political gains in initial stages and its down fall gradually. In 1970 voter‘s turnout

was 61.45 percent while in 1997 was 35.42 percent. Military was backing all of

these elections and people disliked these manners. Public rejected the military

interference with the method of not to go for casting their votes. If military has so

interest to come in political setup, it should be retired or resigned persons like USA.

Pakistani generals have no patience; they come in politics with proper uniform and

forget their parent department duties. No lessons are learned from havoc past.

Writer explains military dictators whom put the base to promote their own kith &

kinks.

Korejo,M.S.(2004).Soldiers of Misfortune; Pakistan under Ayub, Yahya,Bhutto &

Zia. Lahore: Ferozsons (pvt) ltd.

• A very important work is made by the former prime minister of Pakistan Benazir

Bhutto. She explored the events and negotiated with the references. She

comprehensively defended the myth of democracy. Pure study of Islam, democracy

in the West. Sectarianism in Muslim ummah and its effects and aftershocks are

consulted briefly. Political, Pakistan and Bangladesh, situation of

Iran, Afghanistan, camros, Lebanon, Jordan, Palestine, turkey, Indonesia, Senegal,

Mali, central Asia, middle east, Africa, Persian gulf, Guatemala, Greece,

Argentina, Congo‘s problems about the democratic structure are defined and some

suggestions are recommended.

Bhutto,B.(2008). Reconciliation: Islam, Democracy and the West. New York:

Simon Schuster.

• A very important study is made on the politics of Pakistan and Bangladesh. Political

setup before the partition, post independence matters, bloody separation of

Bangladesh, failure policies of Mujeeb and Bhutto. Military coups in the states, its

causes, results, and controlled democracies are defined. The practices of General

Zia ul Haq and General Zia ul Rehamn, General Arshad are collectively defined and

suggestions are recommended.

Milliam,W.B.(2009). Bangladesh and Pakistan. London: Hurst& company.

• The work on the book of Samual p. Huntington ‗the soldier & the State‘ is defined

with different logics. The structure of US military, its nature, relations of civil

military setup are defined with the comparisons of 1950‘s and present with the

logics of current scenario. Perceptions of Huntington about the civil military

relations are criticized and some suggestions are chalked out. International role of

US and services of military and meetings of civil military appointed officers, their

suggestions and fulfilling objectives are elaborated. Book is useful for the

comparison of civil military relations of developed and developing states.

Nielson, S.C.& Snidder.D.M.(2009). American civil military relations; the soldier

& the state in a new era. USA:Baltimore.The John Hopkins university press.

• Writer collectively discussed the civil military relations, the nature and works of the

civil & disciplined departments. Political strength of the military not only in third

world states but also in the advance states. Political weaknesses and drawbacks of

the military intervention, causes and drawbacks of the military intervention. Direct

and indirect, quasi & soft intervention, all the categories are defined

comprehensively with logics. The culture of the countries, the level of political

awareness, level of military intervention, the results of military interventions with

the examples of past and perceptions about the future are given.

The book will be utilized and helpful for my research work.

Finer S.E.(1976). The man on the Horseback: the role of the military in politics.

USA:Penguin books.

• Writer collectively defined the historical materials about the US, Europe & Asia.

On civil military relations in particular aspects, it is the best way to define and look

the pure thinking about civil military relations, theoretical work, constitutional and

practical differences, the personal interest of the US president, people‘s interest

about electing the US president of retired military generals, the work of these

presidents. The military status of German & Japan in politics is also discussed

theoretically. The influence of military groups in politics & society are defined,

which is so helpful for the research.

Huntington, S.P.(1981). The Soldier and the State: the theory and politics of civil

military relations.USA: Harvard university press.

1.2Research Objectives

1. To evaluate & analyze the nature of theory and practice of the civilian

governments in Pakistan during the military regimes. 53

2. To highlight the causes of failure of civil governments during military regimes

in Pakistan as well as to compare with India.

3. To make a concrete analysis of General Zia and Musharrf‘s efforts in the favor

of and against the democracy.

4. To understand and evaluate the role of judiciary in the context of civil military

relationship during the regimes of Zia & Musharraf.

5. To evaluate the future role of the military establishments under the political and

constitutional works in Pakistan.

1.3 Research Questions

1. Why military dictators need the civilian setup?

2. Why non party based civil government introduced by Zia failed to strengthen

the democratic system in Pakistan?

3. How the controlled democracy introduced by Musharraf influenced the

democratic structure in Pakistan?

4. How the situation created by the military rulers influenced the nature of

relationship among the institutions of Pakistan?

5. How much the military and the political entities contributed to strengthen the

democracy in Pakistan?

1.4 Significance

The civil military relationship in politics of Pakistan is a highly precious suggestion for analyzing the foreign and the internal policy of a country, an important subject of study to be analyzed, and discussed as a part of research project. There are

54 certain dimensions remaining yet to be explored in the academic context of Pakistan‘s history of civil and military practices. Moreover, the military control over the civilian governments, its motives, objectives, theories and practices, rise and fall of the institutions will be examined in detail. To fill the gap of the existing literature and research, it is important that our policy makers and their practitioners understand the negative and positive implications regarding the establishment of the form of the government and the practice of democracy. The nature of civil and military governments will be compared and conclusive, reforms will be mentioned. The analysis for strengthening of the political system according to the will of the people and their promise for the restoration of democratic system would also become the study of this research. People of Pakistan along with the people of third world states are likely to benefit from this research, like understanding what is the meaning of democracy? There are different forms of democracies in the world; therefore a particular model of the system is not appropriate for the countries of the world.

Democracy simply meaning the ‗will of the people‘ is only to succeed under certain circumstances and its acceptance by the individuals. The research has incorporated extensive literature to support the arguments. The aim of the study is to make this research convincing and useful for future researchers and policy makers.

1.5 Statement of the Problem

The aim of the study is to examine the working of civil military relations of

Pakistan, poor performance of political leaders and their calling the military about to tackle the situation, the nature of the martial rulers, their mind sets and the pressure on

55 them to rehabilitate the democratic system. The military introduced the system of a controlled democracy for strengthening its own regimes. This purpose was completed with the help of amendments in the constitution of Pakistan. When the image of these dictators becomes poor among the people and they resign, the political structure introduced by these dictators also collapses. These martial dictators declare themselves as reformers. However, the situation and the environment invite

‗Presidential supremacy‘, becoming a hurdle towards the establishment of a parliamentary form of government. What needs to be analyzed why these dictators were not able to promote a true democratic system and why political leaders call the military to control the situation?

1.6Research Design andMethods

Research methodology determines the importance of a research. It provides a guideline to conduct a research in the context of a particular paradigm. Research methodology has two approaches; the qualitative and quantitative approach. The present study is based on the qualitative and quantitative approaches. The qualitative approach is applied by theorizing and theory formation while the quantitative approach is used to evaluate the interviews in the shape of bar graphs based questions regarding the interviews. Apart from these approaches both primary and secondary sources have been used for present study. Primary sources include interviews from the selective personalities, and government documents, while secondary sources are books, periodicals, journals, magazines, newspapers and internet. All these sources remain helpful to interpret data to reach a logical, realistic and practical conclusion.

1.7 Place of Work and other Facilities Available

The research would be conducted in the department of Political Science,

University of the Punjab, New Campus Lahore. Other localities would be used arethe seminar library of the Department of the Political Science, Central Library University of the Punjab, Pakistan study centre library, Centre for South Asian Studies Library,

Quaid-a-Azam library Lahore, Punjab Archives, Punjab public library Lahore,

National Documentation Centre Islamabad and the library of National Defense

University (NDU), Islamabad.

1.8 Tentative Plan of Research

The research has been divided in to six chapters. It is followed by chapter 1, which states the introduction, explains the literature review, objectives of the research, justification of the research, research methodology and the research plan. Chapter 2, titled the theoretical and Evolutionary process of civil Military Relations elaborates on nature of the civil government and its history,the civil government of Asia, Africa,

South and North America, their objectives, functions and their systems are discussed theoratically. The work of judiciary in the third world countries and the status of

Pakistan are reviewed. Their similarities and dissimilarities are evaluated. The 3rd chapter titled the History of Civil Military Working From 1947-1977, analyzes

Pakistan‘s democratic procedure, its civil military relations, the rule of the civil governments which were assembled under the civil and military rulers from 1947-

1977. The 4th chapter entitled, General Zia-Ul-Haq‘s Hegemony From 1977-88, is on

General Zia‘s non party based elections, local government, and amendments, along with the picture of his regime. The works of General Zia‘s regime discussed critically. This chapter also ornates the works of General Zia-ul-Haq‘s perceptions about the national

57 defense council of Pakistan. Amendment in the constitution and the main reasons for strengthening his regime are discussed critically. The 5th chapter entitled,

General Pervez Musharraf‘s Regime 1999-2007, describes the works of General Pervez

Musharraf. His amendments in the constitution and introducing the local systemare elaborated like that of General Ayub Khan & General Zia-Ul-Haq in 4th chapter. The sixth chapter summarizes the conclusion and its findings. Being a third world state

Pakistan remained a backward country in its economic and democratic developments.

Enquiring into the analysis of the civil and the military rule in Pakistan, the causes for the implementation of the martial law and the evolving political system of Pakistan is analyzed. Additionally, Pakistan‘s future for the establishment of democratic state is also put in writings.

2.1 Introduction

This chapter reviews the theoretical and evolutionary process of civil military nexus whichdetermines their explanatory powers not only in developed but also in

58 developing countries especially examining their relevance to Pakistan.Itfurther identifies specific variables that need to be analyzed to explain the differences between developed and developing states. The Westerns are called the pioneers of civil military relations. They explored many of the basic theoretical views based on experiences. But after World War II, the process of decolonization started and the scholars focused their attention on Africa and Asia (for new independent states where a series of military coupe started). This trend of coups in these continents motivated a number of scholars to work on the difference of civil military relations in developed and newly developing states. The varying patterns of coups in some former British colonies defined simplistic explanations. In third world states whenever the military dictators came into power, they determined to remain in power until they were ousted by internal or external uprisings. In Ghana, Libya and Nigeria the internal situation alternated between military dictators and civil transitions. The military intervention in domestic politics of newly independent states appeared with changing minds. Its (military) tendencies were totally towards the developed states. Policy makers (military men) in particular preferred security pacts but civil agreements were yet to be explored& promoted.

We, therefore, need to analyze carefully, a lot of theoretical propositions that explain military interventions in developing states. There is need to examine their internal and external behavior of these continentsin further . The researcher will be better able to identify the variables of particular interests in these propositions, a summary of variables that might be relevant to Pakistan and other military affected states.An analysis of propositions relating to military affected continents is given in table.

Table: 2.2 Views of Critics about Civil Military Relations (CMR)

S.N Internal External Lo- Critics Hi-Institutionalization Equilibrium o. Variables Variables Institutionalization 1 S.P. Never Disturb Makes the military Military feel jealous Developed the Huntington the CMR independent, it follows the from civilian‘s orders objectives of the civil objectives. Balance of civilian control CMR is seen

2 S.E. Finer Military feel itself the servant of the state not the govt. It has influence in decision making. Absolute commitment of civil supremacy will create political army

3 Morris Strong civilian control has Minimize the Janowitz poor CMR. Situation vary subjective and from country to country objective differences. Defended the military effectiveness and also democratic civilian control

4 TalukderMa Military aid Military interferes nir-U-Zaman motivate the directly or indirectly military to intervene 5 Hassan Military consider itself Military blackmail and Askari Rizvi the guardian of the displace the state. Situation varies government. A hybrid country to country. civil system is given. Divided politicians may drag the military top brass in politics

6 Benget Extra professionalism creates Abrahamson problems for departments 7 Donald Political Military is called to Horowitz elite call the intervene. military to Institutional vacuum call intervene the military 8 VeenaKukrj Factors Elements can Military fill the ea motivate the put pressure institutional gap military to intervene 9 Amos Elements favor Perlmutter their prominded ethno- religious groups and sects 10 RenceAdwar Motivate the Low institutions d military to make problems intervene in 3rd world Source: Writer explored these sources from the book of S.P.Huntington „The Soldier

and the state, S.E.Finer „The man on horse back‟ Moris Janowitz, „Civil military

relations in perspectives: strategy,structure & policy‟ Hasan Askari

Rizvi,‟Military,state and society in Pakistan, Benget Abrahamson, „Military

Professionalization and Political Power‟ Donolod Horowitz, „A Democratic South

Africa?: Constitutional Engineering in a Divided Society‟

Veena Kukerjea,‟Military intervention in politics:A case study of Pakistan‟ Amos

Perlmutter, „Politics and the Military in Israel 1967-1977‟ .

2.3 Components and Variables

A single variable cannot explain the causes of military intervention in civil setup. However, a lot of factors and variables are causes of this trend (Luckham,

1991.p.8),(Welch and Smith,1974.p.35). These factors and variables include corporate interests, politicizations and the disposition of military to intervene; all are the causes of military‘s interests in civil setup. ―In which the opportunities for armed forces to intervene successfully are maximized?‖(Finer, 1988.p.63). There are a lot of versions of these factors in specific literature and these interpretations interlink to military interventions are discussed below.

2.3.1 Military Corporate Interests

The corporate interests of military are very powerful, that helps to maintain the military‘s hegemony. Basically behind these corporate interests, military‘s departmental influence is seen. These interests become corporate when they have common concerns of the majority members of organizations. Therefore, in the corporate interests, organizations prefer their ends not means. The phenomena of third world states is that the military bureaucracy become jealous with the instructions and command by civil authorities, they ensure that non-military matters must be excluded

61 from decision making. Corporate interest is also the cause of organizational and interorganizational security and stability, the maintenance of formal and informal relationships and common philosophies in organizations. Scholars have derived varying interpretations of military involvement and military corporate interests. Moskowitz classifies corporate (institutional) interests of military in two forms; substantive and associative. Substantive has institutional continuity, while associative has corporate and indirect way to address such issues, as may be connected by group members or group interests, For example the pressure of Israeli military to retain in Golan heights and

West-bank(Moskowitz,1983.p.14).

The aggressive form of corporate interests of the military is the removal of civil setup and the direct control of the state. Donald Horowitz also emphasized on the corporate interests of the military as it can cut off ethnic, caste, class and other bonds. He quoted the military coups of Sri Lanka in 1962(Horowitz, 1980.pp.31-33). Finer also explored that corporate interests are the label of armed forces (Finer,1988.p.20).In this corporate form military institutions defend their status and privileges; they considered themselves arbitrators in internal and external matters of the states as whole. Such a belief of the military to intervene is called ‗serve the nation‘. Finer cites the example to illustrate above mentioned of German army under Hitler and Japanese army in 1930‘s. He argued that German and Japanese army had arrogance and individual careerism with corporate interests. Amos Perlmutter also mentions the corporate interests of military can‘t always carry on under civil setup but it also has two facets; professional integrity and corporate exclusivity. In corporate exclusivity he mentions

German and Japanese forces while French forces for professional integrity(Perlmutter,

1978.pp.281-296).

2.3.2 Professionalism

Huntington addresses the military attitude towards the domestic and international politics and military professionalism. He mentions that the professionalism keeps the army away from politics. He accepts David Segal‘s theory, that military is an autonomous and free from civilian control (Peri,

1983.pp.131),(Halevy,1996.pp.10-29) . Huntington identifies three main ingredients of professionalism; expertise, social responsibility and corporate loyalty (Huntington,

1957.pp80-83). Many scholars are seen disagreed with Huntington‘s assertions about military professionalism. Beget Abrahamson argued that perfect professionalism creates a powerful military and this will impair the civil structure (Abrahamson,

1972.p.72). Finer also observes that many hi-profile professional officers intervened in

German and Japanese political structure during the wars. M.D.Feld also opposed the

Huntington‘s theory with reference of Algeria(Feld, 1968.pp.53-59). Martin

Edmonds also attributes that the armed forces‘ involvement in politics is also due to their professionalism(Edmonds, 1988.p.99). Jacques Vandoorn concludes that the concept of professionalism is unsuitable for determining the limit of political involvement(Doorn, 1968.p.45). Huntington also defines the professionalism in his book with the name of ‗Third Wave‘ defines the professionalism of the armed forces.

He implies that professionalization and depoliticization are the opposite sides of the same coin(Huntington, 1991.p.243).

2.3.3 Politicization

Politicization is widely treated as the converse of professionalism. It also has several components: first the domain of public party, the group association and the

63 pressure group. The military may participate in one area without taking part in another.

Second, army may participate in decision making and policy formulation;internal and external policy formulation. Third is the direction of military control (peri, 1983.p.40). Moskowitz makes a common distinction of the military politicization with deliberate and spontaneous interactions.He concludes that

politicization in general need not to erode the civilian control(Moskowitz,1983.p.32),(Kukreja,1991.pp.19-27).

2.3.4 The disposition and the opportunity to intervention

The disposition of the military comprises on mood and motives. The opportunity to intervene is provided by the loss of legitimacy of the government in power. Finer defines the intervention opportunities are not without illegitimacy of the government.

He suggests two ways of interventions; first, overwhelming the power, second is the grievances (Finer, 1983.pp.74-75). Hopkins agrees with Morris Janowitz that military‘s interventions are often reactions not designed (Hopkins, 1966.pp.176177). The military coup of Pakistan in 1999 was the institutional reaction not predesigned. William

Thompson also suggests the motives and grievances of military intervention

(Thompson, 1977.pp.36-38).

Welch develops an important dimension of civil military relations; he focuses that military must be rightfully subordinated to the civilians. Eric Nordlinger reviews various methods of civilian control over the military; he concludes that grievances made the military to intervene (Nordlinger, 1977.p.57).

2.3.5 The international environment

Some scholars summarized that international environment made military‘s mind to intervene. Talukdar Maniruzzaman makes use of cross –national aggregate analysis,

64 he defines that the arms transfer of developed states to the developing states motivated the military to intervene in civil setup (Maniruzzaman, 1992.pp.733-755). Keith

Hopkins argues that military officers from developing countries consider themselves more competent than incompetent and corrupt civil administration, technologically superior and modernized than politicians. Thus they decide to take over the government relying on inherent cohesion of their organization(Hopkins, 1966.pp.176-177).While

Huntington negates the above mentioned theories with the reference of US and

Europeans appreciating the democracy in shape of

NATO(Huntington,1991.p.273). Nordlinger also favors the Huntington‘s assertions(Nordlinger, 1977.p.63).

2.3.6 Comparing relevant propositions

The specific literature reveals a clear interface between professionalism and corporate interests. The evidence is yet to be conclusive in this regard. The corporate interests for example may unite disparate groups and promote concerted actions; the attempted coups of Sri Lanka and Nigeria are its example.David Seguls observation about military intervention with the status of freer from civilian control, in various developing states civilian leadership is also relies on army to strengthen their semicivil rules. While dealing with internal disorders also strengthen the authority of the military(Rizvi, 2008.PP.10-11). Diversity is found in the nature of civil military relations across the time, it would never be true to say that existing theories are falsified by empirical record. But a perfect way of theories is needed that can help us to explain important puzzles.

2.4 Typology of Civil Military Relations

Prior to entering into the conceptual discussion, after theoretical perspective this part begins by elaborating the meaning of some of the definitional issues of civil

65 military relations. A simple definition of civil military relations is one that relates to the interaction between the armed forces and the civil society. Therefore, the interwoven relations are compulsory for each other. But these interwoven relations developed with the passage of time. These relations established with the origin of the society, and developed gradually with the progress of the society, civil military relations are different in developed and developing societies.

This chapter also deals with the evolution process of military; its relations with the societies and civil governments, civil military relations in developed as well as in developing states are discussed in particular. Specially two cases are taken in this chapter, US from advance states and India from developing states. Why did military support the civil government in advance states like USA, and why could these manners not be promoted in the third world states? How did India, being a developing state, managed military intervention in civil discipline? What were the motives of the military intervention in the political and civil setup of these developing states? It was the need of the hour to work on the civil military relations and it was tried to sort out a perfect way for defining the boundaries of every institution.Which would be helpful for the establishment of developing states? When institutions would work in its remaining boundaries, political culture would automatically be developed. Advance states institutions created such environment & received the title of civilized and advance states. This philosophy developed in this shape with the passage of time.

Before 19thcentaury a single person or a group of the people was running all the institutions of the state. In 19thcentaury civil and military institutions separated themselves gradually. But in the third world states where societies were conservative, this difference could not be promoted as compared to the developed states. Those societies, who accepted this difference, gained the status of advance states and

66 conservative societies were called 3rd world states because they never accepted the enlightenment and liberalism.

A controversy was present in 19thcentaury between the experts and the politicians about the limitations of the civil military departments. This relationship was examined or understood with the help of evolutionary process (Danopoulos,

Vajpeyi, Baror, 2004. P. 63).

2.5 Evolutionary Process of the Military

In past, military was multi-purpose institution, it offered services not only in battle fields but also in civil administration and lead the state politically as the rulers of the state. Military commander was also used to be the king of the state. The expert in the military affairs and having Martial mind, who saved the state from external aggression, was nominated king in German and Europe in 7th and 8th century, but gradually above mentioned culture lost its importance. Civil military relations had been the subject of extensive debate since its identification. It was considered as a separate and independent institution in 19th century. In 19th century civil and military institutions had their own identification. Theory of separation of power was dominated, military was acknowledged as a separate institution, gradually the concept of civil military institutions developed in that century while these institutions also organized themselves in perfect forms(Sills, 1979.p.433), (Downey, 1977. P.5).

In 20th century the debate of civil military institutions strengthened itself on permanent basis. Military technology, military experts and world wars forced the people to accept it as a separate institution. Civil governments depended on the military and weighted it equally. So, civil military relations were discussed with three basic dimensions in this century.

• Allocation of the state sources to the military, recruitment, supply of the

military forces, the quantitative issue of the size.

• The dynamic issue of how, why, and when military powers would be used.

• The qualitative issue of organization, composition, equipment anddeployment

of the armed forces and the types of the equipment to be given them

(Huntington, 1977. P.1).

The above mentioned reasons forced the governments to make plan for military.

How, why and when military would be called, in which shape it would be organized?

A theory with the name of balanced importance and weight was introduced. ―We also must keep in mind peculiar nature of the role performed by the military, trained in the management of violence; it is most powerful, disciplined cohesive institution in the state under the control of the civilian authority which is often plagued by political and economic weakness and instability.‖(Doorn, 1975.P.65).

Doorn‘s defined situation was suiting for the Asian, African, and LatinAmerican states. In Third World States military intervened and strengthened its powers, this intervention lost the morale of military and its institutional capabilities also decreased.

Huntington defined the civil military relations as, ―Civil-military relations suggest a juxtaposition of divergent interests between two vital pillars of the state‖(Huntington, op.cit. p. 487).

The above mentioned statement divided the state into two groups. One was civil group including sub institutions and the second was military. Military gained this status with the help of its disciplined, organized and independent ammunition dealings. Civil institutions used military to overcome the severe situation, the quality of the military of overcoming such a situation made it an independent institution and governments strengthened themselves with the help of military operations especially against the opponents of the governments in the third world states. So, it was necessary to mention

68 there that Civil-Military relationship was not one to one relationship but it was the multidimensional relationship (Fluri, Gustenau, Pantev,

2005. P.68).

2.6 Military Profession in Historical Perspective

A profession is a group work having special characteristics and particular functions.―Professional or regular military service, as contrasted with irregular or nonprofessional, is service in some sort of military force with stands ready in peacetime as in warto carry on military activity. Professionals serve long enough to become skillful in what it takes wage war.As soon as man in society had invented the division of labor, professional forces came into being‖ (Mills, 1974. P. 452).

From very start societies used the powers for gaining the status, defeating the opponents, but the statement of Huntington ‗Highly specialized characteristics‘ military established in 19th century after a long run of time.

―Man‘s use of bows & arrows preceded the sowing of the first wheat seeds by the farmers‖ (Thomas, 1989. P. 58).In Mesopotamia & Egypt states, military was used to gain water & land for cultivation. At that time there were four types of military.

• First, the guards of the King. • Second, Provincial military.

• Third, professional military.

• Common citizens who were called in emergency (Para military).

If these statements are analyzed it would be concluded that perfect military departments established on regular basis gradually. But this perfection had a long historical background, step by step it made itself important for the state in a separate form. Man realized the military importance from very start. This realization was completed in 19th century with the title of regular force.

2.7 Episode of Athens and Sparta

King was the military commander of all these four groups mentioned above. He was also the big boss in religious, political, social and in judicial affairs. At that time the basic purpose of the military was the defense of the country as well as to bring the economic prosperity (Byler, 2006. P. 144). In 7th BC Europe was busy to promote its military on regular basis. War was common practice for the Greeks in tribes and in private life. But this practice ended itself with the removal of Homeric Ages, and a disciplined form of military institution was established. It was compulsory for every citizen to get military training for two years and regular service was also compulsory for him (Cowley, Parker, 1996. P. 89). He could also be called at any time in emergency and for the safety of his own motherland (state).

The controversy between Athens and Sparta strengthened the military on ground floors. ―The system developed by Sparta was actually a response to the constant threat of war faced by the Spartans‖ (Hackett, 1983. P. 10). Sparta conquered its neighbor states and it became a garrison society, they deliberated that their safety was in powerful military. Every citizen was bond to pass his youth in military, Thirteen years were compulsory for military and he could also be called in emergency. Thesecircumstances presented the environment of military state.

―The values of the society became pro military one, and Spartan victories over the

Greeks were infect victories of a state organized above all far war over a state‖ (Thomas,

1989. P. 58). Spartan kings were military Generals; they were also the masters of political affairs. In this way Sparta was the combination of politicomilitary powers

(Whitby, 2002. P. 90).

2.8 Roman Episode

Romans had also unique qualities in their civil military relations. It is called that the ‗history of Rome was the history of the armies‘. In simple words military was all in all or the administration of the state. It could not be unattached from civil setup. Those persons, who lead the military in successful manners with minimum tenure of ten years, were appointed as administrators, magistrates, Governors and politicians.

Romans established a ‗Proconsul‘ it was created with the aim of placing the commander in chief in control, this office was used very effectively by subsequent emperors like

Caesar and Pompey. This set the trend to keep the army under civil setup (Jacobs, 1986.

P.24). The council could call the people for military purposes.

2.9 Categories of the Military

When this soldier was called in emergency, it was compulsory for him to bring his own ammunition and tools from his home. This trend created categories in the military because rich families had fast and healthy horses, latest ammunition, while the poor had nothing. As a result military was divided into three categories; first rider, second infantry and third was used for moving the ships in sea activities it was called

Navy later (Valpy, 1820, vol. iv. pp. 49-53).

2.10 First Military Coup in the World

King Gainus Marius introduced a new term of military in 107 BC; He handedover the military powers to the military commanders. Soldiers took their oath before the commanders; their contract of service with the commanders was for ten years. These commanders developed the military with new reforms, the classification of the military was abolished, and military established itself with a strong single pillar.

It was in perfect disciplined form. This powerful military created problems for the king.

An approach developed how to ‗control the controllers of the peace‘. A system which was created by the king to introduce a civil king, these Generating military commanders disturbed the poor civil system of that king. These military commanders changed the kings according to their own objectives at any time. This practice of the military created a civil senate. It was totally under the military. It was the first example of military coup in the history of the world (Matyszak, 2008. pp. 22-29). These military commanders were busy to gain the power, it decreased the professionalism in the military

―Thesoldiers insensibly forgot the virtues of their profession, and contracted only the vices of civil life‖(Gibbons, 1954. P. 109).

Servicemen became rulers and rulers became slaves. Military men were awarded with the land and ex-rulers served these military men to cultivate their lands.

A system of feudalism was introduced; military was in administrative class. When the common people were deprived, consequently this feudal system automatically collapsed. A new trend of military was established in form of rented military.

2.11 Rented Military

In 1360 a ‗treaty of Breting‘ was signed between France and England, so threat of war was decreased, these states retired a lot of military persons. In these days

Italy was disturbed from civil insurgency. These military men went Italy for earnings, theywere hired by Italy to overcome the problems, these military men played well but they always offered their services with heavy prices(Storrs, 2009. pp. 23-25).They preferred economic benefits and utilized their profession as a business(Katel, 1971. pp.

240-242).This form of military was defined by Machiavelli, ―Disunited, ambitious, without discipline, faithless, bold among friends, cowardly amongst enemies, they have no faith with them‖ (Machiavelli, 1952. P. 12). When military discipline became a

72 profession for earning money; it was immoralized by the society. So, the war of thirty years (1618-1648) paved the way of new professional standing army.

2.12 A New Dimension of Military

In 17th century it was clear that a rented army was used for war and it was dispersed after the wars. It was considered not good for the defense of the state. States took measures for the regular military in 17th century first time. A perfect system of recruitment, pay package, and a job structure was introduced. It was fully regular force and accountable to the government. Proper uniform and war laws were implemented. It was very first time that military was separated from civil setup. First of all, this procedure started from Sweden, and then Britain and France collectively followed it. It was structured that the military personal were promoted on merit. But in reality

Aristocratic hegemony was the merit: entrance, education and advancement in the army were based on birth, bribery and political influence. The concept of merit as criteria was non-existent. It was the case in Prussia, France and England in the 18th century. Infect, there was a major difference between the soldier of 18th and 19th century. Discipline and responsibility to luxury, courage and individualism, the reason being that for the aristocrat, officer-ship was the part of his life, it was not his profession but was an ― incidental attribute‖ of the status he enjoyed in society.

In very start military officers of US were elected, merit was not for highest posts of the army, the same situation was of the Navy. Political and personal influence was on the peak in selection. Promotion and retirement trend was absent, officers preferred to die in their duty boots. Juniors were deprived from promotion due to the lack of service structure.

2.13 Democratization of War

With the downfall of classified system and merging of feudalism in the 18th and

19th century a new approach of civil military relations developed. American Revolution in 1776, French revolution in 1789, Napoleonic War (1794-1815) all these incidents strengthened the military institution with patriotic passions (English, 1998. pp. 248-

250).

Another aspect of this opening up was that for hordes of citizen to some semblance of discipline, they had to be patriotically motivated. A motivation could not take place unless the citizen considered himself an important part of the state. At this time military was present in disciplined form with patriotic manners. Napoleon a common citizen promoted himself as a General and became the king of the state. In

1793 France persuaded its army with the slogans against Austria and Prussia.

On the other hand Prussia also had new rules for wars in 1808. ―The only title to an officer‘s commission shall be in time of peace, education and professional knowledge, in the time of war, distinguish valor and perception, all previously existing class performance in the military establishment are here by abolished and every man without regard to his origins has equal rights and equal duties‖(Huntington, op.cit. p. 32),(Burger, 2006. P. 42).

2.14 The Origin of Professionalism

Military profession undergone a lot of changing in 19th century, Military separated itself from civil setup and a perfect difference was visible in the 19thcentury.

Technologyintroduced modern reforms in every field of life. England separated military from police in 1829(Backet, 2007. pp. 5-8).

State fulfilled all the basic needs of the military. The birth of any national state was another majorimprovement in enhancing military profession. ―The introduction of the democracy also promoted the military department, ―The phenomenon of democracy was also another vital catalyst‖ (Hackett, op.cit. p. 133).

2.15 Twentieth Century and Civil Military Relations

In twentieth century military had only a single objective to save the state boundaries; all remaining issues were dealt by the civil administration. In USA and UK military was totally separated from civil setup, it was dealt through committees of the parliament and the congress. Russia also changed its strategy and gave a new idea of patriotism to the military. The military of Russia also gained the status of perfect military equal to the USA and UK. It was called red army on the basis of ethical values(Byler, op.cit. pp. 182-184).

2.16 World War II (1939-45) and A New Trend of Civil Military Relations A third wave of civil military relation came after WWII in Asia, Africa, and

Latin America. The belt ofAsia, Africa and Latin America was colonial. People were not organized. Only military in these colonies was in disciplined and well managed form. There were two ways of governing, one direct control of British and other colonial; they promoted colonial system for prolonging their tenure whereas Military helped these states to get independence. This awareness was called a ‗long drawn out evolution‘. Military of Egypt, Algeria, Indonesia and Burma helped their people to get independence from invaders (Cohen, 1976. P. 216).It improved the image of military.

Political backwardness and poor economic policies of the governments also motivated

75 military to intervene in some countries like Nigeria, Libya, Ghana, Burma, Pakistan and

Turkey. In some countries semi military government was introduced after the WWII, civil military relations were disturbed due to the poor political system of the third world states.

2.17 Classification of the States

Amos Perlmutter had classified the world; he mentioned four categories of the states.

2.17.1Classical Nation States

According to him classical nation state had strong social and institutional setup, it had three particular characteristics.

• first it had legitimate government,

• second it had perfect institutional framework,

• Third their government was according to their own wills (democratic).

Classical state had no disputed boundaries; mutual co-operation could be seen among the people of these states.Civil setup paid its total attention for its institutional perfection. UK was called a classical nation state where civil authority had total controlover the military.

2.17.2 Colonizing nation states

―The colonizing nation-state was set up in a new territoryon European pattern‖(Kaushik, 1987. P. 27).

Colonizing states were those states where government had total control of the state, political, social and financial affairs were dealt by the government. In very start of these states, military had vital role in state policies. Political and economic matters were dealt by the military but with the passage of time political setup became prominent and military adopted a separate way as in institution. Now, military

76 could pass only suggestions but decisions were made by the parliament and congress on the recommendation of the committees.

Colonizing state are America, Canada, Australia and Israel.

2.17.3 Colonial-nation states

Against the classical and colonizing states, colonial states also had political setup but this setup was too much poor, people had little political awareness, boundaries and provincial disputes were on peak, civil insurgency was found at every level, so military was used to overcome such problems. Military had immense importance in internal and external matters. Pakistan falls on the perfect definition of colonial nation state.

2.17.4 National liberation movement-nation states

Such states came into being after civil insurgency, Military established new boundaries of such states. Military played key role there, internal and external affairs were dealt by the military, it was in the power and it used various methods about its legitimization. Political and civil institutions were under the military. If there was civil setup, it was also in the form of semi military. Soviet Union, China, and Vatnam were its examples.

2.18 Classification of the World

Critics classified the world states with development of the relations according to their financial status, political rights, and civil liberties, humanity and freedom of expression.(Landman,2003.pp.3-7).

• First world; Capital states of the world like USA, Japan, Australia and

European Union were called first world states.

• Second world; Soviet Union and East Europe was called second world.

(Schmit, 1974. P. 1).

• Third world; states were poor in economic and social values than the advanced

ones. These states were in Asia, Africa and South America. The institutional

infrastructure, political organizations were poor, political leaders gained

personal benefits not national, they could not use the natural sources in perfect

manners, so to see such activities military intervened in the political setup of

these states because there was only a single department which was in disciplined

form only. ―The military has intervened either directly or indirectly in the

political process of 132 countries across the world and has ―shown a growing

tendency‖ (Kuashik, op.cit. p. 46). The poor institutional structure could not

define its boundaries. Lack of political infrastructure let the military to intervene

in third world states.

David Shimit wrote that some first world states also had the same political

system of third world states. As their economic system and prosperity was so

strong to disallow the military intervention. But the situation of third world

states was poor not only in economic field but also in all the institutions.

2.19 Status of Obedience and Legitimacy

In 20thcentury civil military relations were based on the following grounds.

• Political elite was informed about the national security concerns as well as the

military was ensured to allocate all the basic needs.

• Government was advised to adopt the certain policies from the military point of

view.

• Implementing the decisions takenby the political elite whetheror not military

accepted the wisdom of these decisions (Wyatt, Gal, 1990. pp. 76-78).

Military always demanded more and more sources, so controversy could be

found in the state‘s civil military relations. This controversy depended on the

professionalism of the military. It had great conflicting potential over the

civilian establishment. Jacques Van Doron also favored the above mentioned

statement, where democracy was in full form and military was also busy in its

own professional works. Military institutional perfection forbade it to interfere

in civil setup.

The second name of the military perfection was obedience; military top brass

was obedient to the civil setup. Huntington also mentioned the Shakespeare‘s

drama ‗Hennery V‘ a soldier believes that he needs neither ―know‖ nor ―seek

after‖ the cause (for what he fights). If the king is wrong his obedience to the

king wipes his all crimes.

In 20th century the single option kept before the military was to obey the civil

orders and not to criticize the government. Loyalty and obeying the orders were

considered the features of a good soldier. Political and ideological objectives

were changed but the military objectives remained the same at every time.

2.20 Specification of Military Loyalty

The question was there how much military would be loyal? Or what was the perfect meaning of obedience?

There could be many situations raised in which obedience became difficult to express.

There were some complications in obedience. If military realized that civil government was on the wrong way then what should military do? If political elite confessed its wrong policy, the matter could be solved otherwise situation would be against the civil setup. But In this matter universal principle could be adopted that military would always follow the civil setup. This is the base of such ruling powers that exercised powers with

79 the consciousness on the government‘s part and that it had the right to govern with some recognition.

Legality is the ability of a system to produce and maintain a general belief that the existing political institutions are the most appropriate one‘s for the society.Problems always occurred when military discouraged the legitimate right of political government.

In the west some critics also defended the military to handle the situation but the western societies disliked it, they always encouraged the civil setup.

Any person or group as well as the army that could be successfulin strengthening the support of people, it could claim the legitimate government. So it was an open way for military intervention and replacement of civil power, pretending that it was the will of people.But the developed societies discouraged the military intervention. ―Not only must the military learn to accept civilian supremacy as the norm, the civilians must also demonstrate their own effectiveness‖(Cohen, 1990. P. 179).

Further Cohen‘s statement was dampened with, in war and all defense related problems military considerations were just as important. Thus it follows that the performance of the political leadership is just as important. If the political leadership is unable to manage the affairs of the state, the military would consider intervention not only for the sake of the nation but to preserve its corporate interests as well as for the compensation of civilian incompetence.

Cohen also argued about the military intervention only in coercive situation and it must be limited.If the political leadershipgiving these orders has legitimate authority,then the actions of military become morally neutral. But if the legitimacy of political elite deteriorates the state then soldier must examine the morality of his actions.

Civilized citizens and perfect military never violated the limitations in the advance

states. Huntington quoted examples of such states in his book like the failing military

coup of Germany in1944 and France in 1961. Civilized societies always discouraged

such activities of the military. But the situation in the third world was totally different.

2.21 Military of Third World States

All the theories and approaches about the civil military relations in the third world states were totally opposite in advance states. The earliest predecessor of the term,

‗Third world‘ was the ‗Tiers stat‘ in January 1789, Abbe Emmanualsi eyse, a French priest and politician had heralded the emergence of the ―third Estate‖ in the pamphlet, titled ―Quest ceque le tiers stat‖ in July that year, the Bastille fell and in 1791 the new constitution of the French republic declaring the rights of man and of the citizen was presented while the birth of the third Estate announced a new order in the relationship between the citizen and the state, the birth of the third world in 20th century announces a new order in relationship among nation state(Patel, 1983. P. 59). The merging trend of the military intervention can be examined that in 1962 military intervened in the

Latin America with 1% but in 1973 this ratio was 10% in the same period this ratio also increased in Africa from 2 to 15%, in 1987 total 56 states of the world were under the direct army control (Smith, 2003. pp. 173-176). Military of some states had played vital role in independence movement like Qabris, vatnam, Burma, Iraq, Egypt, Sudan in freedom movement. The military of these states gained accidental benefits after independence when civil government couldn‘t manage the problems of the states. The only single example of India was seen which maintained the civil setup on permanent basis with the help of perfect political elite. But the societies of third world states, where politicians were unable to control the circumstances, provided opportunities of military intervention (Kaushik, op.cit. p. 46).

2.22 Military Case of USAand India

Two cases of civil military relations would be discussed there. First from advanced states second from third world states, Basic features and procedures would be examined.

2.23 Civil Military Relations of USA

With the emergence of US it had only 700 regular force, its geographic isolation did not force her to establish strong military. Instead Americans followed Europe and adopted the liberal manners. They completely strengthened the civilian control and virtually expelled the military from political cycle. Military commanders also remained politically neutral. They never challenged the civil writ and proved loyal to serve the ends of the state. With the help of this trend it was called a ‗democratic army‘. The democratic regime of US remained unchallenged. There were a lot of factors of civil supremacy in US but some of them are as below (Policy direction civil affairs, April,

2008).

2.23.1 Liberal approach of US people

This, approach of US people, defended the democratic setup, defense problems and foreign policy from very start. Political parties also defended the thinking of the US people. It concerned not the military personal. The military personal must assume the policy and think that it was the representation of all the interests of the state and he must obey it. (Huntington),(Segell, 1998.pp.23-26).

2.23.2 Constitution of US

Constitution had ambiguity about the military functions, it integrated the military affairs into politics and politics into military affairs, later it was decided to divide the civil and military responsibilities. Military affairs were dealt with the help of the higher civil setup. Constitution divided the powers in broader terms to president and the congress.

Congress had legislative functions while president had executive. But constitution also assigned some executive duties to the congress and some legislative to the president.

Impeachment of hi-profile was dealt by the congress. Funds could be doled out by the congress while president could run the administration with the help of the executive orders. In simple words a system of check and balance was introduced (Cohen,

1995.pp.141-142).

2.23.3 Theory of separation of powers in USA

Military control was divided between the president and the congress. President appoints the commander-in-chief of the army while all the military affairs are dealt by the secretaries. Theory of separation of powers introduced the three ways; first, it enhanced the role of the congress, second, it interlinked the hi-profile of the army and the congress, and third, it introduced the balance of the institutions. Theory of separation of powers made the congress and the president independent for each other. These separate sources of power further dampened with the help of the interest-groups of congress and the president. Both were considered highest authorities and both shared the ultimate powers to govern the system of the state.

2.23.4 The power of purse and sword

Congress was given the power to pass the defense budget, if commander-in-chief started the war against state‘s enemy, it was compulsory for him to take approval from congress. Turf and budget of military was dealt by the congress. Theory of separation of powers defined the powers of the authorities, no one has chance to violate these powers. With the help of it military is encircled, it was mentioned that military would be called to suppress and repel the invasions. The promotions of the military personals are confirmed by the congress. People considered it their fundamental right to keep the

83 army under civil setup. They do not far see the rise of the military profession. Before the civil war of US, military was not a significant institution in United States. Various presidents of US had little interest to strengthen the military department. Congress members also bounded the military with their abilities. The method of two chiefs was introduced. Congressional control over the military was introduced with the power of the purse and the power of the investigation of hi-profile. Congress rejected the three appointments of the military officials by the president Truman. There was unwillingness of the congress seen about the nominations of Eisenhower. Congress did not give attention to the military affairs; it always ignored the professional military advice. Consequently, the dealing of the military affairs was dealt by the president.

Military used the president to deal the defense affairs directly. Military officers also universally felt bound to the president‘s decisions. General MacArthur exclaimed in

1935, ―We are merely the agent of the president‖. In war period congress was prevented by the president to delay the funding to the military. Military budget was submitted by the president to the congress. To meet the security challenges military was made semi-independent under the supervision of the president with the title of the commander-in-chief of the army.

This function was called ‗safe play function‘. Supporters of the military were also present in the congress to manage the crisis for the security of the state (Congressional recordings and debates part12, p.17043),(Dewherst,2007.p.418).

General staff act of 1903 defined the role of the army chief and defense secretary.

Loyalties of the chiefs to the congress were mentioned in the constitution. It was proved by the military men with practice. According to HuntingtonMilitary officers were overall far more conservative in their attitudes than other major groups in American societies.

―The supremacy of the civil over the military is fundamental to the American system of government and whole heartedly accepted by every officer and soldier in the military establishment‖ (MacArthur, Reminiscence,p-393).

2.23.5 World War II and US army

Before WWII US military was not given as such authorities to tackle the emergency situation but in WWII military was given free hand, the military of US proved loyal to the constitution, it never challenged the authorities of civil writ. Military was proved loyal to the civil setup of US, policies were followed which were passed by the congress. Military devoted itself only for battle grounds. Military leaders preferred to define that ‗power remained here (in congress) it would must laid here

(Nielsen,Snider,2009.p.112).

2.23.6 Liberal approach and its changing

Although, people of US had liberal approach and they adopted the policy to limit the powers of the military but on various points military was given free hand to handle the situation directly. With the destruction of ‗Pearl Harbor‘ military was given the free hand to take ultimate victory. Military paid its services under the instruction of the president. It was said that the president of US (Roosevelt) had no such command over the military like the prime minister of UK (Churchill). But daily contact of the president and the military chief kept the situation in right direction. The attitude of the military was totally against the civil setup at that time. Admiral Leahy quoted, ―we felt joint chief of army staff should be permanent body responsible to the president and JCS should advise the president on national defense budget‖. During war a lot of military officers were appointed on civil posts, these appointments gave the sign of militarization of the government (Cimbala, 2012.p.83).

In emergency military carried on diplomatic negotiations and secretaries were bypassed. During war this maxim was famous, ‗trust in God and general Marshal‘. But after war this power was retaken by the congress. Congress had no absolute rules about the military. It changed its policies with the passage of time. Its basic function was to defend the strategic pluralism (Sharp, Wiseman, 2012.p.14).

2.23.7 Committee system of the congress

Congress discharged its duties through committees. All the administrative and political matters were dealt by the committees; these were independent in using their powers.

Congress had six committees about the military affairs; officer‘s promotion policy, universal military training, and selective services of the military organization, military pay scales, air force organization and services bills of the armed forces were managed by these congress committees. Members and chairmen of these committees showed their full interest to deal the affairs perfectly. Senate committees had additional powers of acting upon all the promotions in the armed services and appointment of the chief of the army staff.

On various points, committees refused to approve the promotions of the officers who had been publically criticized for negligence in their duties. The operation of the committees frequently consisted on detailed questions of administration and management in the armed services (Yalof, Newell, Prindle,

Shomaker, 2010.p.292).

2.24 Civil Military Relations of India

Military of British India kept itself at distance from political activities and in independence movement; political leaders were also kept away from the British India

86 military. The armed forces remained loyal to the government. In independence movements political leaders and military had their own ways.

At the time of independence political leadership of India was very mature and

experienced. National leaders like Mohan Das Karam Chand Gandhi and Jawahar Lal

Nehru were as famous as common men were ready to worship them. Nehru ruled over

17 years, in his tenure graph of political stability & maturity was very high. He ensured the political norms which were still impossible in the third world countries of that time(Cohen, 1984, p.106).Writ of the constitution was implemented in every department of the state. He settled every issue according to the constitution (Bruneau,

Matei, 2013. pp. 169-173).

Congress the political party of India developed the political culture in India; it never allowed anybody to derail the political system of India. Nehru started a movement of political social mobilization and arise the mass education in social & political manners specifically. Prospects of civilian rule increased in perfectly

(Kukreja, 1991.p.14).

2.24.1 Nehru’s services

Absolute political leadership of Jawahar-lal-Nehru kept the Indian army at arm‘s length. He relied on professional bureaucrats from Indian civil services than military.

These loyal and expert bureaucrats helped Nehru to restrict the military

(Palit, 1991. P. 18). He always showed timidity for military. He used the military to tackle the situation but in these operations military performed its duties under the supervision of civil administration. A specific culture in the Indian army was developed that every military officer preferred personal interest than corporate interests. In reward of their personal interests and loyalty they were rewarded with ambassadorial and gubernatorial appointments (Bhimya, 1997, p.68). After the death of Nehru, Lal-

Bahader-Shastri further strengthened this political system, it could not be derailed because the roots of political structure had been strong in that fertile land which was created by this loyal leader, coming leaders carried on these policies and institutions were not allowed to intercept in other‘s activities and worked according to their own limitations.

2.24.2 Indra Gandhi’s period

Political institutions were in trouble in Indra Gandhi‘s tenure. She disturbed the already managed political setup of her father with implementing emergency for almost

10 months. Basic rights were suspended by her, political opponents were tortured.

Situation of law and order was poor, India placed itself among the top 10 most corrupt countries of the world in her government, politicians became criminal, scandals of bureaucrats, businessmen were seen in corruption and other immoral activities (The

Times of India June,8, 1995). Political stability of the state had been fragile. Insurgency in Punjab, Kashmir, Utter Pardesh (due to demolition of an ancient Babri Mosque), and terrorist activities challenged the writ of the state. In spite of all these challenges, military had stood aloof from politics. The political situation of India was not much different than other third world states but military proved loyal to the civil government of India.

2.24.3 Professionalism of Indian Army

Indian army was fully professional and cohesive; it remained and believed under the civilian control and its supremacy. Indian people had firm belief in the political leadership of Nehru. He also proved loyal for the people; he divided the powers and developed pure political structure. Political chaos was imposed on the military

88 according to the constitution of India. Political parties of India showed perfect maturity and these never politicized the army.

On other hand, military was also active, it never allowed to out of turn promotion. In 1958-1962 Lt. General B. M. Kayl was promoted out of turn against the recommendations of the Chief of Army Staff. He was investigated by the intelligence agencies and losing of Sino-Indian war of 1962 was put on his incompetency.

Although, Nehru defended Kayl but Military forced him to resign and he had to do it

(Mutbiah, 2001.pp.19-21),(Fidelity, 1993. P. 476).The second incident occurred when

General Vidya (politically amenable) was superseded by Lt. General S. K. Sinha, a highly competent officer. It was criticized all over India. People showed their emotional attachment with General Sinha, media criticized the government. General Sinha resigned from army with soldiery obedience. When report published that

Vidya‘s appointment was on perfect professional considerations only then people changed their mind.

Military made it firmed that the rank of the Chief of the Army Staff must be on seniority and merit. Some factors were considered perfect about the civilian supremacy over the military in India.(Fiedelity,1993.p.476).

2.24.4 Factors of Indian civil supremacy

Political awareness of the masses.

• 40 years old habit of democracy. • Wisdom of national leaders.

• Sound belief of the masses in democracy.

• Hindu culture disliked the military rule.

• Large size of India.

• Political stability.

• Loyalty of military personnel.

• Professionalism of armed forces.

• Diversity in the language and cultures of the people (Ray, 2013.pp.393-395).

A single pay commission was established for the Indian Armed Forces, it kept

the pay package of Military officers equal to civilian counterparts.

Indian political leaders slowly and steadily created the tradition of civilian supremacy, bureaucracy worked as a buffer between the government and the army. This triangle (government, bureaucracy and army) countered the external and internal challenges successfully.

2.24.5 Ethnic Composition of the military

Indian army consisted on several casts and religions, neither a single group was dominant to show its dominancy and hegemony nor it thought to impose martial law in the country like other third world states (Dawn 16 November, 1995).

2.24.6 Security Pacts of Indian Military

All the security pacts of Indian military were exclusively dealt by the politicians and bureaucrats of India with other states. But this tradition could not be developed in other third world states of the world (Huntington, 1993.p, 273). First of all India kept itself away from security pacts and adopted a non aligned policy, this policy isolated the military officers from decision making process. After the Sino-Indian war of 1962,

Western Arms Aid started, whole basic necessities were managed by the ministers and bureaucrats. The same process was repeated when security pacts were signed with

Soviet Union and these traditions of civilian harmony are continuing till today.

2.24.7 Military services for the civil government of India

Frequently Indian Army was deployed to aid the civil power, it was called more than 476 times from 1950-1970 and 369 times from 1983-87 (Sinha, 1984.p.31). It was commonly called three times in a day for internal or external affairs especially it was

90 used to suppress the armed rebellions. Police strike in Bombay in 1981, a revolt in Utter

Pardesh and attack on Golden temple in 1984 all were tackled by the military (parasher,

2003, p.109), (Ganguly, 2009.p.34). All these operations were completed in the supervision of civil officers.

2.24.8 Constitution of India

It is mentioned in the constitution of India that Marital Law would be ultra virus; the employment of the army in civil insurgency would be as follows:

• Military action would be launched under the dually supervision (Military &

Bureaucracy)

• Function of the civil government would be weighted.

• Military‘s function would be used to restore the law and order. When police

would be satisfy it would be compulsory for military to go back in barracks.

• In search operation if military arrests offenders. It is compulsory on it to hand

over them to police.

• A lot of ordinances were issued like special power act 1956, National Security

Act 1980, Terrorist affected areas Act 1984. These ordinances gave special

powers to the forces but all these powers to the forces were exercised with the

consultation of ministers and bureaucrats.

After the attack of Golden Temple in 1982 by the military it was disliked all over India to call military in internal affairs. When the Babri Mosque was demolished in 1992 by Hindus, army was not called and insurgency was tackled by the civil law enforcement agencies.

On other hand, Indian politicians never used military against their opponents like Bhutto of Pakistan(Cohen, The Indian Army, 1990, p.203). These were some

91 factors and characteristics of the Indian constitution and politicians which prohibited military to intervene in the political affairs.

2.25 How and Why Military Intervene?

Third world got independence after a long struggle but after WWII some states were free after a little struggle. These states got independence but were far from political awareness. ―There was a thing that the new state lacked which they could neither make for themselves nor obtain from abroad, and this was a genuine political community‖(Gowint, 1960. p.64), (Luctwack, 1962. P. 48).

Political structure was in too much poor form so they could not manage the initial problems of the state. Political institutions were not as developed as military.

Political elite could not bring economic prosperity; consequently situation went from bad to worse. Political backwardness and unawareness was not the single cause of military intervention, it was multidimensional as below(Cochran, 1974.p.196),

(Gopher, op.cit. p. 102).

• Africa was run by the invaders with the policy of ‗divide and rule‘ after

independence every tribe and group considered it superior and was busy to gain

power as this situation attracted military to intervene because it was in organized

form. This situation was in Algeria, Uganda, Nigeria, Libya and

Zaire. • A culture was developed that people had no interest to elect their

representatives directly. They were selected from the foreigners. This trend also

motivated military to intervene. Because the invaders had gone back so a gap

was seen of perfect leadership to manage this system, it needed to be

filled.

• These states were classified in different groups. A culture of color and creed was

developed. Strong tribe‘s people were recruited in the military, after

independence these strong tribe‘s military men showed their interest intervene

in the political setup which was also waiting such men to sort out the problems.

• Lack of a perfect education system also developed such environment, which did

not allow them to think about their rights. A preplanned system was

implemented on them. A common person was not allowed to think or interfere

in the national affairs. The education of those countries was already settled only

for very common information; transcript was kept on changing many times, so

that their generation would forget their ancestor‘s works. A classification in

education was present, schools and colleges were different for the poor and the

rich people.

• When these countries were given a foreign aid, with a poor infrastructure,

projects could not be completed, corruption increased. State came under the

burden of foreign debt. Political institutions were already in poor form, only

military was in well managed and disciplined form which came to rescue the

country with reasonable interests and the desire to appear modern in the eyes

of the rest of the world‖ (Hussain, 2001. pp. 45-46)

• Military structure in the colonial state was strong; invaders controlled the people

of these areas with military. As military was trained from their own officers so

these military men knew the environment of the advance states better than

politicians. When these military dictators came in power, big powers supported

them because they already had proved loyal to them. The race of capitalist and

communist blocks proved blessing for these military leaders. The leaders of

these blocks invested there and supported them. The short term prosperity of the

people changed the mind of the people so they always welcomed the military.

Quality of judgment was not found in remaining people because invaders

divided them in various forms with

ideological, social, cultural and ethical values.

• Civil government in these countries was poor in scientific and technical field.

Military was rich in such manners to utilize the natural sources. Tragic under-

utilization of resources, human and materialistic resources was the

characteristics of civil politicians (Kukreja, op.cit. p. 68). Whereas Military

solved the problems according to their own experiences. In third world states a

good soldier, to some extent, proved a modern person so these were the armies

of newly emergent countries that played a key role to modernize and

westernized the ideas and practices to focus on acquiring technical skills for

economic development. (Rizvi, op.cit. p.73).

The above mentioned causes promoted the military and it kept the army involvedin the affairs of the states.―In most third world states, there existed a gap between the rich and the poor, the modern and the traditional, the metropolis and the village which was compounded by the absence of political society, and this gap prevented the dispersion of initiative and interest more widely throughout society‖ (Khan, op.cit. p.207).When military came in power it made cabinet with the combination of military and civil officers because all the civil affairs were dealt by these experts. A controlled civil setup was introduced which helped the military dictators to strengthen their rule.

It is said that military was not fond of power it was the political instability in these states, which forced it to intervene. But situation vary from country to country. Some critics agreed that military intervention was a regional phenomenon. But all the critics were also agreed on above mentioned common causes of military intervention. Social,

94 economic and cultural problems were so high; people had no care about the democratic culture they preferred to earn to live(Shills, 1968.p.13), (Subramanian,

1990, p.11).

2.26 Effected States by the Military intervention

In 20th Century Military assumed political power or it played political role in

collaboration with political elite. Out of twenty independent states of Asia, there had

been successful military coups in Pakistan, South Korea, Myanmar, Laos, Indonesia,

South Vietnam, Thailand, Turkey, Cambodia, Afghanistan and Bangladesh.

Insurgencies and uprisings were also in remaining countries. The picture of Africa was not different than Asia. The smaller armies carried successful coups though their loyal soldiers and trained officers, Upper Volta, Togo, Uganda, Nigeria, Sudan, Ethiopia,

Libya, Egypt, Ghana, Algeria &Burundi had witnessed successful coups. Military had also played a vital role in number of Middle Eastern countries. Military intervention in the civil setup of Latin-America was also very successful (Cohen, 1976.p.216). Haiti,

El-Salvador, Guatemala, Argentina, Bolivia, Cuba, Brazil, Dominican Republic,

Ecuador, Nicaragua, Honduras, Paraguay and Panama were those amongst Latin

American countries which had suffered in military coups repeatedly. Europe could also not escaped itself from military coup like Greece & Portugal(Rizvi, 2000.pp.15-

17)(Gutteridge,1964,p.1).

The trend of Military intervention specially increased after the WWII.Numerous patterns of civil military relations in Asia, Africa & Latin-America were introduced.

2.27 Different Opinions about Military Coup in 3rdWorld

Scholars were divided in two groups and haddifferent opinions about the military intervention in third World States. I. First group.

Pro-military group considered the coup an opportunity of prosperity and economic wealth for third world states. According to them all important developments in third world states were made by the military elites(Entelis,1996.p.13),

(MacMahoon,2013.p.111).

II. Second group.

This group of scholars criticized the military intervention (direct or indirect) in politics. They considered that the disintegration in the states was due to the military intervention. They considered basic rights were violated in the military coups(Kurtz,

Turpin, 1999.p.436).

2.28 Nature of Military Governments

Military regimes were hardly differing from non-military regimes in third world states. The period of 1960-70 concluded that reforms of military regimes were not different or extraordinary than civil government. Economic performance remained same. Mostly scholars were agreed that military interventions derailed the democracy in third world states. All these dictators adopted a controlled system(guided democracy) to defend themselves.

2.29 Military’s Enlightenment and the Society

After intervention military adopted the way of enlightenment, modernization and change. But this change and enlightenment was not too much different from the civilian regimes.

Political, social and professional constraints on old customs by the military with the slogan of modernization adversely affected the performance of the states. Statistics medicated after WWII that out of 73 states with per capita income was below than $330,

Forty five (45) of them faced the military coups(Painter, 1999.p46). While 25 states had

$ 330 to 899 and only 5 were under military coup. Out of 19 states with per capita income was $ 900 and there were only 2 under the stress of military (Clapham,

1985.p.182).

2.30 Horizontal and Vertical Analysis of the Military States

Third world states were marked by critics on horizontal and vertical basis.

Horizontal level was marked by linguistic, ethnic and regional diversities. It created problems for the political leaders. On vertical level there was a huge gap between rich

& the poor. On pecuniary basis People were living below the standard in these countries.

The dream of independence couldn‘t fulfill their objectives; class difference could not be decreased. People see towards the military to decrease the poverty, disease & misery.

But it also couldn‘tfulfill the objectives and wishes of the people(Lai,Lu.2012.pp.27-

29), (Holsti,1996.p.180).

2.31 Social Setup of the Third World States

New states lacked unity and leadership as people were divided in number of groups. Certain groups challenged the writ of the central government. They demanded a special safeguard for themselves, whichwas impossible for the new states to provide them maximum autonomy. These demands created distrust and lack of national identity.

The leaders of the new states did not pay their attention to remove these problems as uniformity couldn‘t be established from very start of these states. Lack of unity challenged the writ of the government in certain regions. On various occasions government fabric was challenged. Pakistan, India, Myanmar, Indonesia and number of other nations were seriously threatened by ethnic, regional and linguistic challenges.Pakistan‘s experiment of nation building in 1971 was failed due to ethnolinguistic problems(Halperin,1997.p.23),(Friedenfels,1998.p.300).

2.32 Democratic Traditions of New States

New states had limited democratic traditions, and these traditions were very weak. Political culture had authoritarian roots in it. Kinship and authoritarian norms of few families was present. Such developments did not allow the democratic norms to develop themselves in third world states(Mangala, 2010.p.210).

After independence these states adopted the norms of the developed states like democratic culture, while this culture in the west promoted after industrial revolution but unfortunately Asia, Africa and Latin America were far from such revolutions.

Liberty, equality, right of self determination, no class discrimination was found in the west while the situation was totally opposite in these new independent states(Roy,

1999.p.25).

2.33 Vision of the Political Leaders

Political leaders adopted agitated manners; they considered it an act of patriotism. Mostly political leaders adopted the manners of pre-independence which were used against the invaders after the independence. They did not eye to eye with the government and used all the tricks against the government like they used against the colonial government. Particularly, this problem was in those states which got independence through guerrilla warfare and armed rebellion. The habit of launching the civil insurgency and non-cooperation remained same after independence. In Myanmar and Indonesia political and armed forces gave tough time to the colonial administration.

Several groups refused to accept the authorities of the government of the invaders after independence these groups created problems in law and order and national integration

(Rotber , 2012.pp.6-9).

After gaining independence political leaders set the levels of power to build up the modern organization of the state to ensure development and political stability. They

98 adopted various manners of modernization, their model based on western society.

Modernization could not adopt the new manners of life, there was need to change the mind of the people and their attitude towards the life. It was also required to promote the people in democratic and political field. But unfortunately this chapter remained close(Thomas, 2001.p.137).

This way of modernization proved hazardous for these newly born states. There were a lot of obstacles in the way of their modernization. People always preferred the old norms; they were not agreeing to accept the change as early as their leaders thought.

Mostly ignored the enlightenment and technology on ideological basis, they emphasized on the glorious days of the past and preferred to remain in stagnant society.

Political leaders didn‘t motivate the people to adopt new manners of life; they also wanted to remain people un-aware about the new norms, because their writ & hegemony could be maintained if people were unaware (Thompaon,

1983.p.227).

2.34 Charismatic Leaders

The founding fathers of these states were charismatic personalities. It was the greatest asset of these newly independent states. These leaders served the people on equal basis. SekouToure in Ghana, Sukarno in Indonesia, Gandhi in India and Jinnah in

Pakistan were loyal and prominent personalities in the nationalist movements. After the death of these leaders a political vacuum disturbed the situation. The coming leaders developed personal and departmental jealousies. Regional and sectional political leaders came in front(Clapham, 1985.p.47). They encouraged the local issues and national thinking was ignored. These parochial and narrow approaches lead these states in blind alley(Mora, Hey, 2003.p98).

2.35 Role of the Religious Leaders

The religious leaders also not missed a single chance to exploit the situation. In third world states these (religious) leaders had great respect & prestige in the people.

People were habitually follower of these leaders. These leaders always showed distrust and hostility from the government. They were also divided in various classes & sects.

Their multi-dimensional thinking aggravated the impact of modernization. These regional & parochial forces reduced the effectiveness of the government to tackle the problems. These groups always showed disinterest on constitutional procedures, lack of technical and contemporary education in these religious groups reduced the cooperative capabilities(Malley, 1996.p.85).

These factors contributed the frustration and disillusionment in the society which increased alienation of the masses from the government and decreased the efficiency of the government, this environment created political instability and undermining economic development, and political leaders found it hard to improve the conditions of the masses. The frustration was added and a vicious circle went on.

There was the single institution in perfect and disciplined form that was army. It maintained a national outlook. These were trained by the officers of the advance military states. They had perfect technology and were able to control the violence.

Armed forces were more organized than civil institutions, they had disciplined centralized hierarchy. Military had three distinctive features which made it dynamic(Sargent, 2007.pp41-43).

Political leadership relied on the army & maintained it on perfect basis.

Military protected the territorial integrity as well as from internal & external threats.

100

Special funds were allocated for acquiring modern equipment & technological skills.

Modern equipment helped to tackle the situation easily. Such equipment & technology had no other institution in the society. As military proved perfect institution in relatively less developed societies(Haqqani,2013.pp,10-15).

Military of the third world-states promoted on the basis of developed militant states. It had its own recruitment criteria, recruits were taken from mostly rural areas, and they were trained & educated with particular skills. Officers were trained from western countries by the colonial powers. They learned principles & technology from advance states. In this sense, military in the new states might be interpreted as the beacon of savor.

Military was not a profession, it had complete code of life. It had multicultures in it. Members of different races & sects were remaining under the same principles.

They were habitual to follow the command. This disciplinary command & control kept the military at a distance from cast and creed of the society. The contribution in national reconstruction; constructing the roads, bridges, dams and the provisions of necessary help to the civil government in natural calamities. Military established & ran its own educational institutions. Ordnance factories also produced consumption for civilians.

Retired military officers were taken by the civil institutions. They were considered competent & highly administrative.

Military was considered honest, loyal, patriotic, and a symbol of national integration, it also proved it correct to overcome the civil insurgency & to help out in natural calamities. A message was sent to the masses that the armed forces had power

& ability to handle the situation whenever it went out of control of the civil government(woodhead, Fletcher, Kawanani, Smith, 2002.p.381).

101

2.36 Level of Military Intervention

Finer suggests that there are four levels of military interventions in the politics.

• Influence

• Blackmail

• Displacement

• Supplantment

These levels of intervention were attained by various methods. He considered the intervention was a legitimate method. These modes were common in the new states.

Military proved itself an institutional power block. In many new states coup was succeeded because public was narrow and weekly organized there. People‘s attachment with the political institutions was very low.

2.37 Measures of the Military after Coup

After assuming powers military leaders introduced some reforms.

• Steps were taken to eradicate the corruption.

• Nepotism, black marketing, smuggling and similar evils were eradicated in top

priority.

• Industrialization, revival of economy, better standards of living was

rehabilitated.

• A viable political system for the future was introduced.

After taking power military established firm control all over the country.

Military men got declared their coup legitimate by judiciary. After taking power military changed the political, social, and economic structure of the society, it introduced a suitable form of government according to their own minds. Military achieved its above mentioned objectives, but it curbed the political activities, freedom of speech and press was restricted.

102

Military leaders disliked the political bargaining. They firmly believed that if the dirty politicians were checked, the problems could be solved. They also had a mind that problems could be overcome if the right orders were issued.

Military had a perfect mechanism about the civil setup before coming in power. But soon military realized that civil society was not in disciplined form, people were divided in different groups & sects. It was considered compulsory to launch a puppet civil setup.

Bureaucracy guided the military to introduce such a system. The more interesting thing there was that bureaucracy was also trained by westernized sectors. Military had lack of administration experience it relied on the bureaucracy while on other hand bureaucracy also enjoyed from its extra powers which were devoted by military to it.

Military regimes faced problems in adopting measures of economic development, industrialization and reforms in social structure. Most of the military officers were from upper elite class they were reluctant to take the measures of reforms for local class, they collected a number of civil officers from middle & lower classes, a civil setup on non-political bases was launched(parshad,2007.pp.22-25).

2.38 Civil Actions of the Military Generals

When these military rulersrealized that alone military would never run the administration without the help of the civilians. So they adopted the civilian regimes according to their own wishes.

• Sometimes, ruling Generals resigned from their military ranks and civilianized

their regime with the co-operation of the civilians.

• Military commanders transferred the powers to the puppet civilians.

103

• Military amended the constitutions of these states and a legal guarantee of

supervisory was received, military kept pressure on the civil government and

adopted the policies of their own choices.

The story of the military intervention did not stop with one coup. Once the civilian supremacy was eroded by the military, it became a tradition of the military to assume a direct political role. This cycle of the military intervention could not be stopped by the civil setup. Further a case of Pakistan would be discussed, what was the political setup of Pakistan? Why military intervened there?

2.39 Civil Military Relations of British India

In 1895, Military was recognized on modern lines by the British government of

India Navy and Air Force was developed gradually in 1928 & 1933. Both these offered limited services till WW II. British emphasized on the supremacy of Army.

Military‘s control was in the hands of the British Government of London. In India,

Indian Government & Military both were equal partners. Civil government & military in India both were equally responsible for the peace of sub-continent (Cohen,

1968.pp.16-17).

2.40 Civil Military Relationship Pattern

According to the Charter Act of 1833, Commander-in-Chief (C-in-C) of Army was answerable to the Governor General of India. C-in-C the head of the army was also the head of Navy & Air force. C-in-C was the advisor of the Governor General in military affairs. But in 1909 C-in-C was assumed the power of full control of defense department.

Military affairs were dealt in Brittan by the Secretary of State of India. This ministry was especially established in the cabinet of the British parliament. Secretary was assisted by the C-in-C. Indian legislatures had no control over the military

104

&defense expenditures. Indian legislature council could discuss the matters of the army about how to control the political agitations. Executive council of India, Nehru Report, and Round Table Conference repeatedly claimed about ministry of defense but this demand of the Indian leaders could not be accepted. Simon commission also defended the upper philosophy of British Government, India Act 1935, also carried on the norms of ex-policies. Defense expenditures were not submitted to the executive council of

India. In 1946, after WW II an Indian were appointed as a Defense Minister for the first time but before the implementation of this change, British Government decided to leave

Indians with granting the independence to them(Journal of the parliaments of the empire,1927.pp.1930-31).

2.41 Military Services for Civil Government

Military of British India helped the civil government on various points and rehabilitated the law & order. Whenever communal riots occurred between the Hindus

& the Muslims, army was called to restore the law & order, passive resistance movements were launched by Mr. Gandhi, the incident of JalianwalaBagh (1919), martial Law in Lahore, Gujranwala & Lyallpur (now Faisalabad), Mopla rising (1921) and Civil disobedience movement (1930-31), were tackled by the military troops and

military restored the law & order in troubled areas successfully(keith,1936.p197),(Punjab administration report 1921-1922, vol. 1 p 20).

2.42 A Case Study of Pakistan

Pakistan‘s army was once the part of the British Army, after separation it adopted the same principles to follow the civil setup. As Pakistan was new state with a lot of problems which were faced by its army, Pakistani army tried its best to tackle the problems and it remained successful to counter the problems. Civil setup also relied on

105 military to overcome all such incidents like above mentioned of British government.

This trend developed the image of the army not only on national level but also on international level. Military made security pacts directly; it never consulted with the parliament. The whole scenario of this case would be discussed in next chapter.

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3.1 Introduction

The dynamics of power determines the dynamics of relationships. This chapter examines the historical background of Civil-Military Relationship in Pakistanwhich shaped the relations of both the pillars of the government, from 1947 to 1977. During that period (i-e. from 1947-1977) many governments changed and Military assumed power directly two times in 1958 and 1969. Civilian Governments also established power sharing relationship with Military because of the decline of party politics.

There had been many questions about Civil-Military relations in Pakistan during that period but some of them were; first, why did the military dictators intervene in the political system? Second, why did they introduce the controlled political system? Third,

114 after the breakup of Pakistan (1971), what were the policies and relations of civilian governments with military? Fourth, why Military again assumed power in 1977 from

Civilian Government? In spite of it, punishment of suspension of the constitution was defined in Article 6 of the constitution of Pakistan

1973.

3.2 Civil Military Working (1947-1958)

After the independence, Pakistan started its government with the help of amendments in India Act 1935 and Independence Act 1947 until framing of the new constitution. But unfortunately, Pakistan couldn‘t make the constitution till nine years due to the political instability. The bases of political parties were too much poor.

There was major difference of thoughts between the elites and the common people.

Political leaders changed loyalties and floor crossing also became the reason of the collapse of parliamentary system (Mehmood, 2000, p. 351). Pakistan had many other serious problems, one was of being a new state in which main problem was security threat from India and Afghanistan. Another problem was that Pakistan had two wings and they were too far from each other (Rizvi 2000, PP. 49-50). By birth Pakistan wasweak state, the actual shares were not received by it, including military at the time of partition (Pasha, 1995, P. 201).

The geostrategic location of Pakistan also made it important to take measures in security issues. India refused to accept Pakistan and further the Kashmir dispute created strained relations between the two countries (Chaudhry,1988, P. 31). Afghanistan, which shared 1/3 border of Pakistan created problems by supporting

Pakhtoonistan movement. Afghanistan declared that new state ―Pakhtoonistan‖ comprising NWFP and parts of Baluchistan must be independent or these provinces

115 would join Afghanistan (Wheeler, 1970. P. 31). All these problems created the domination of military and bureaucracy because these institutions were organized and systematic but on the other hand Political parties were neither well established to impress the people nororganized themselves. The political maturity was not present in political parties, neither in the political leadership nor in the party discipline (Shafqat,

1997. P. 21). But Military was playing its role in positive manners, it remained loyal to the government and it also helped to overcome the problems of a new state. So,

Civil-Military relationship started resulting in military‘s interference in politics.

3.3 Internal Political Instability in Pakistan and Military’s Role

Quaid-e-Azam Muhammad Ali Jinnah became the first Governor General of

Pakistan and also worked as the President of Muslim League, President of the

Constituent Assembly, as well as the minister of Kashmir affairs because leadership was not available at that time. He had defecto executive, dejure executive was for Prime

Minister and his cabinet according to the parliamentary system. He also enjoyed the confidence and popularity of the masses. The question of national language and separation of Karachi from Sindh couldn‘t evoke any agitation in his period. During an interview, Quaid-e-Azam said, ―The new state would be a modern democratic state with sovereignty resting with people and the members of the new nation having equal rights of citizenship regardless of their religion, caste or creed‖ (Munir, 1980. p. 29).

After the death of Quaid-e-Azam, Khawaja Nazim-ul-Din became Governor

General of Pakistan(Nizami, 1968. pp. 155-156). Power was distributed between

Prime Minister and the Governor General of Pakistan(Ibid. p. 156). But in reality Prime

Minister should use all the powers. Meanwhile, India attacked on Hyderabad and the

Prime Minister was not in the position to face all the sectors. There was the flood of

116 issues like Kashmir cause, water dispute, evacuee property, economic problems, refugees‘ rehabilitations and constitution (Rizvi, op.cit.p. 48).It was said that there was no trouble, remained on the haven, which did not befall on Pakistan. Liaquat Ali Khan introduced the Public Representatives Office Disqualification Act 1949 (PRODA) for dealing with corrupt leaders and appointed General Ayub khan as Commander in Chief

(C-in-C). He reached on this post luckily after the death of two most senior generals in airplane crash. The action of PRODA showed how many loyal leaders were available to Pakistan at that time. Quaid-e-Azam also said once regarding it in his life that all the pennies in his pocket were useless. Army was disagreed with Prime Minister of Pakistan on Kashmir Policy(Shafqat, op.cit. p. 29).

With the assassination of first prime minister of Pakistan Liaquat Ali Khan, the second Governor General of Pakistan Khawaja Nazim-ul-Din was appointed as the 2nd

Prime Minister of Pakistan, and the finance Minister (Gulam Muhammad) became the

Governor General of Pakistan. After the assassination of Khan there was not a single prominent leader to run the administration properly. It provided a chance to the

Governor General to run the administration according to his own mind.So, he created direct links with industrialists and bureaucrats. Military had a free hand in making foreign policy and dealing with security issues after Liaquat Ali Khan (Rizvi, op.cit. p.

189).

Observing this, Governor General Gulam Muhammad dismissed the Prime

Minister, although he had majority in the National Assembly (Anjum, 1997. p. 14).

Nazim-ul-Din‘s personality was unquestionable but he couldn‘t handle the situation, hoarding, corruption and black marketing was on the peak in Khawaja‘s Period. The speaker of National Assembly went to Court and the Chief Justice Sindh Hi-Court Mr.

117

George Constine with his two colleagues remarked that the act of Governor General to dismiss the constituent assembly was illegal but the Federal Court (Supreme Court) of

Pakistan nullified the decision of High-Court. Judiciary had already kept its hands with top bureaucracy of that time. With the help of this decision Governor General became the most powerful personality. Justice Muhammad Munir considered it that the provision under independence act, 1947, vests the powers to the Governor General to dissolve the assemblies. Justice Muhammad Munir had already given his finding as theGovernor General of Pakistan could dissolve the assembly. He further mentioned that Governor General could arrange another assembly. Inshort, Justice Muhammad

Munir uprooted parliamentary form of government with the Law of Necessity, it was propounded on the basis of maxims ‗salus populi suprema lex‘ (the welfare of the people is the supreme). This Maxim was ignored by the Chief Justice of Pakistan at that time, and ‗salus republica supreme lex‘ (the safety of the law is the supreme) was preferred by him.These examples were taken from the statement of Cromwell by the

Chief Justice. Cromwell was the dictator of England whose dead body was hanged for the punishment of his martial law. Justice Munir kept in mind that law must be followed but the National Integration could be ignored(Sami,2006. pp. 211-212). The role of

Chief Justice to derail the democratic setup of Pakistan will be further discussed in detail gradually. Bogra was called from US and handed over him the portfolio of Prime

Minister ship; he succeeded in getting the vote of confidence in the National Assembly

(Hussain, 1993. p. 18). He was loyal and hardworking; he introduced a formula (Bogra formula) for the establishment of the new constituent assembly. He worked devotedly to give the first constitution to Pakistan.

Muhammad Ali Bogra was appointed as the third Prime Minister of Pakistan.

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He amended the sections 9, 10, 10 (A) and 10 (B) of the Government India Act 1935.

These amendments reduced the powers of the Governor General and the powers were vested to the Prime Minister. According to these amendments Governor General was bound to act on the advice of Prime Minister. But, unfortunately Bogra was replaced with Chaudhary Muhammad Ali, a new Prime Minister, and he went back where from he was called (The ambassador of Pakistan to US). The ground was free for Governor

General to play independently. He called the Commander in chief of Army (c-in-c) and instructed to make the constitution within three month but he denied doing it. Governor

General delists the Prime Minister and new Prime Minister Chudhary Muhammad Ali was appointed as the prime minister of Pakistan (Mehmood, op.cit. p.358). Muhammad Ali was also replaced after one year (Butt, 1997. p. 224).

Parliament was not working well. So, democratic culture was not promoting itself in

Pakistan. In the meanwhile, Governor General fell ill and the powers vested to

General Iskander Mirza. The Political situation of Pakistan at that time was critical.

Mirza already had good relations with bureaucracy, military and Judiciary (in perspective of Chief Justice Muhammad Munir).

General Iskander Mirza followed the same policy of his predecessor and Mirza run the administration with the help of Military (Hashmi, 1985. p. 357). It is an old saying that power flows from the barrel of the gun. Governor General had already friendly relations with the military.Mirza used ultimate powersand ensured himself by constitution as the President of Pakistan (Saleem, 1997. p. 227). He introduced the controlled democracy with help of the constitution of Pakistan 1956. The First constitution of Pakistan was made by the hands of the ‗Gang of Four‘(Hussain, op.cit. p. 18). In this constitution four provinces were merged under ‗One Unit‘(Nizami, op.cit. p. 177).Commander in chief (who was also the Defense Minister)wrote in his book that

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Governor General called him to take over but it was ignored by him to do so in 1954

(Alexander, 1979, p.59). This statement was not recognized by any other sources except him. After the removal of Chudhary Muhammad Ali, Hussain Shaheed Suharwardiwas appointed as new Prime Minister of Pakistan. Commander in chief and Suharwardi were against each other on ‗Rawalpindi Conspiracy‘ but after coming in power Suharwardi made agreement that he will never interfere in the affairs of the military. After

Suharwardi Ibrahim Ismail Chandrigar and Malik Feroz Khan Noon became Prime

Ministers respectively(Lateef, 200, p. 134). The country was facing serious crises, Khan

Sahib(chief minister) had been killed and deputy speaker of East Pakistan was injured in an assembly proceeding (Bhardwaj, 1998. p. 4). World was watching the political immature manners of Pakistan. The prime minister of India Jawaher Lal Nehru exclaimed that he had not changed somany tunics as Pakistan changed the prime ministers.Language riots in East Pakistan and shortage of food, embezzlement, hoarding and black marketing encouraged the military to intervene

(Razzaq, 1976. pp. 159-163). The incidents in the provincial assembly of East Pakistan also led Army to intervene (Alexander, 1979. p. 59). These circumstances forced the

President of Pakistan to impose Martial Law (Mehmood, op.cit. p. 362).

President of Pakistan decided to take all the powers in his hand. So, he made a speech:

―If it rains too much it is the fault of the President and if it doesn‘t rain it is the fault of the President‖, (Broadcasting of Iskander Mirza on 7th act 1958). President claimed that Prime Minister and Parliament which was responsible of all the misdeeds like boarding, corruption. He said that he would never allow it. He decided,

(a) The constitution of 23rd March, 1956, was abrogated.

(b) The central and Provincial Governments were dismissed with immediate

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effect.

(d) Political Parties were abolished.

(e) Pakistan would be under Martial Law, until alternative arrangements

weremade.

He further mentioned:

―I hereby appoint General Ayub Khan, commander in Chief of Pakistan Army, as

Chief Martial Law administrator‖ (Proclamation of President of Pakistan on 7th October

1958).

Lack of political leadership forced the Military to intervene. Although, external

environment was peaceful, but the educated people were fed up from the daily political

change in Pakistan, people were looking towards military leaders. Even Mohtrma

Fatima Jinnah (Sister of founder of Pakistan) remarked that political leaders were failed

to run the civil setup. It was hoped that military would overcome the problems and new

and perfect system would be launched. The military authorities didn‘t face opposition

in consolidating their powers. Not a single fire was shot at the time of coup. Life was

normal in all the major cities, Public institutions were open freely. The country was

divided into three zones by military.

3.4 External Factors and Role of Military

Conflicts with Afghanistan and India forced Pakistan to get modern military equipments.

The race between communism and capitalism was on the peak. United

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States was also waiting for allies against USSR in 1950. Pakistan joined South East

Asian treaty organization (SEATO) and Baghdad pact (CENTO). United States supplied military equipments to Pakistan under military Assistance program (MAP).

Pakistan Military had direct links with US for military assistance (Hashmi, op.cit. p.

158). Commander in Chief of Army visited USA informally without the approval of the cabinet in 1953. Brigadier Mian Gilani went to US on assignment as a military attaché and he was instructed by C-in-C, ―Your basic task is to establish a military aid relationship with Pentagon. You must deal directly with them and don‘t take ambassador into confidence. After all we cannot trust these civilians in such sensitive matters‖ (Gohar, 1996. p.138). The coup in Egypt, Iraq, Burma, Political development in France also encouraged Military of Pakistan to intervene (Rizvi, op.cit. p.85).

3.5 Military’s Direct Rule (1958-69)

―You heard by now the declaration of the President of Pakistan abrogating constitution and imposed Martial Law throughout Pakistan‖(First broadcast of C-in-C to the nation 8th October, 1958). Army commander in Chief and the defense Minister of

Pakistan involved himself in political decisions. Martial Law was imposed with the consent of Military and Direct Military Rule was established. The constitution of

Pakistan 1956 was abrogated. He introduced many reforms and established planning commission and agencies (Aslam, 1991. p. 7). Samuel P. Huntington wrote about the achievements of Ayub Khan that after 1958, Ayub introduced incomparable projects.

All the third world states were absent to perform like Ayub. He compared Khan with

Plato, Rousseau, Solon and Lycurgus (Huntington, 1968. p. 252). He also mentioned that the operation of Martial Law would be proposed for the civilian agencies maximum. He defined that he had already mentioned some suggestions in 1954 that the

122 experiences of seven years proved horrible in the shape of democracy. Everybody said we should have democracy but no one could understand the nature of the people. It was not possible for them to define democracy. Where the lives of the people were changed according to the teachings of Holy Quran could it be called an Islamic democracy? It was in the mind of Ayub that Parliamentary form of government was not suiting to the people of Pakistan, he introduced a new system (Ayub in 1954 about democracy). He had already in mind about the political future of Pakistan to introduce the controlled democracy. After implementing the Martial Law, he was also in position to fulfill the objectives which had already mentioned by him in 1954. He introduced the presidential form of government. President would run the administration with the help of Provincial

Governors and these Governors could remove the provincial ministers on their own behalf. The law made by the constituent assemblies could not be implemented without approvalof the president. A strong Presidential form of government was introduced.

Manzoor Kadir as well as Zulfiqar

Ali Bhutto worked for Ayub and they showed him to the people as the Sulah-ul-Din

Ayubi and Abraham Lincon of Pakistan; Bhutto motivated Ayub to keep all the powers in a single hand. He also advised the president to strengthen the powers of the centre.

The military administrator constituted a cabinet after imposing Martial Law.

The combination of the cabinet was the mixture of Civil-Military people, it was consisted on Lt. Generals, three public servants, business men and educationist, a former diplomat and a lawyer. Civil machinery was working just as a puppet. Military hegemony was in the cabinet. He utilized the cabinet according to his own objectives.

The Chief Martial Law administrator mentioned that there should be more powerful

President than USA (Gohar, 2004. p. 54).

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3.5.1 Role of Judiciary in military coup

When the Martial Law was imposed on 7th October 1958, after abrogating the constitution of Pakistan 1956, President (self made) imposed martial law order1958 of

Pakistan, the order of 1958 had power that all the courts were under the proclamation to exercise their powers and jurisdiction would work under the regulation made by the

Chief Martial Law Administrator. It was on the record that Justice Munir was behind all these dictations, drafting of this order of 1958 was by him (Pakistan times 11th

November, 1968).The Law Order of 1958 was working under the instruction of Martial

Law Administrator and Justice Muhammad Munir was providing legal cover to the imposition of Martial Law. Justice Munir legalized the military coup and in other words

Chief Justice of Pakistan legitimized the illegal activities of military, this was the person who played a crucial role to derail the democratic structure of Pakistan. He had no idea that its results would be so horrible. He opened the way for the military to intervene in the future.Although, the judicial system was established by the British Raj on independent norms but no one knew why he made such decisions. It has already examined that irreparable losses were received by the judiciary to the civil government in case of Tamizuddin. Still, Justice Munir was on the seat and had close relations with

Iskander Mirza the President of Pakistan. When Ayub Khan was the defense Minister in the cabinet of both the Governor Generals, the Chief Justice had hand in gloves with the Ayub Khan (Sami, op.cit. p. 299). When Ayub Khan became the Martial

Administrator of Pakistan, the Chief Justice Muhammad Munir fully bended towards

Ayub Khan, he proved a loyal friend (McGrath, 1996. p. 213). Justice

Muhammad Munir wrote his decision in the favor of military coup with the help of

Keelson‘s theory and declared the military coup a successful revolution and rejected all the appeals (PLD, 1958, Supreme Court, 533. p. 534).

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3.5.2 Basic Democracies of General Ayub

Ayub Khan introduced the Basic Democracies and transferred the power on local

bases. But bureaucracy was directly controlled by him.(Hussain, op.cit. p. 19)

Heelected himself as the President of Pakistan by these basic democrats

(Rizvi,1980,pp.219-227). Basic democrats were asked the question for electing the

President by an answer of ‗Yes or NO‘. Ayub khan was elected president by 95.6 %

‗Yes‘ votes. Ayub khan‘s Basic Democracies system provided a base for dictatorship and military gained advantage from this system successfully (Kardar, 1998, pp.

2333).Basic Democracy was imposed on the people and adult franchise system was abolished. Ayub Khan and his company knew it very well that if the elections were held on the basis of adult franchise; there would be no space for them to rule. Ayub‘s constitutional plan was unfolded, discussed in conferences in Karachi in May 1959 about the basic democracies and later it was approved. In terms of basic democracies order 1959, the whole country was divided into 80 thousand units and each unit having the right to elect these members on the basis of adult franchise. In this way a special

Electoral College consisting of 80 thousands basic democrats were created for the presidential elections as well as for the parliament. These BDs members were further divided into two wings, 40,000 from East Pakistan and remaining from West

Pakistan. The idea was fulfilled under the suggestions by the President, that was given to the government when he was the defense Minister as well as commander in chief of the Army in 1954. To enforce the adult franchise BDs members were under the administration of Magistrates and police officers. The basic democracies order 1959 was passed in October 1959 and general elections were held in January 1960. The elected BDs members were illiterate and disorderly persons from their localities. These members were already wanted by police and administration. They could easily be

125 influenced by the machinery of the state. It was the misfortune for Pakistan that these illiterate persons were called competent and enlightened. Manzoor Qadir an eminent lawyer was the master mind of these BDs orders. It was under the advice of Qadir that the vote of confidence from 80,000 elected members of the BDs council was strengthened. It would be horrible to know that more than 85% of these members were not able even to read and write but irony is that they were selected as the policy makers of Pakistan. It was as clear as crystal that the government machinery would force them to elect Ayub Khan as a President of Pakistan. Qadir the foreign Minister as well as the legal adviser of the President suggested that 15% educated BDs members could hardly be expected to recognize any national issue (Sami, 2006. p.300). They would hardly to concise and consequently they would prefer the president to make decisions independently (Gohar, 1996, p. 165). With the help of this situation

President of Pakistan adopted internal and external policies independently. Military leaders introduced a number of measures like:

• A Political framework for the future.

• Measures for economic development, industrialization and better living

standards of people.

• Step to eradicate corruption, nepotism in Civil service, black marketing,

smuggling and similar evils in the society.

• President was not answerable to the Parliament. At that time Ayub was one of

the stronger rulers of the world states.

3.5.3 Limiting the Politicians

Ayub khan introduced Political Parties Act. He also established Elective Bodies Disqualification Order (EBDO), under it many political leaders were disqualified from election of assemblies for five years. Khan also assumed enormous powers and

126 suppressed the freedom of press. Publications were also banned under press ordinance on 28th March 1963. Eliminating of all the top ranking politicians of the country from politics, the legislation came into effect in August 1959. There were 98 politicians who were disqualified under this order. There was hardly anyone who was spared and most of them were the founding fathers of Pakistan. Some of them are listed here: Malik Feroz Khan Noon (Former Prime Minister)

Mr. Hussain Shaheed Suharwardy (Former Prime Minister)

Sardar Amir Azam Khan (Former Central Minister)

Mr. Yousaf A. Haroon (Former Ambassador)

Qazi Muhammad Essa (Former Ambassador)

Khan Iftihar Hussain Khan Mamdoot (Former Chief Minister Punjab)

Mumtaz Doltana (Former Chief Minister Punjab)

(Former Chief Minister of West Nawab Muzaffar Ali Khan

Pakistan)

Sufi Abdul Hameed (Former Provincial Minister) Mr. Muhammad Ayub Khoro (Former Chief Minister Sindh)

Col. Muhammad Amir Khan Hoti (Former Provincial Minister)

Syed Alamdar Hussain Shah Gillani (Former Provincial Minister)

Khan Abdul Qyuem Khan (Former Chief Minister NWFP)

Nawab Mushtaq Ahmad Gormani (Former Governor of WestPakistan)

3.5.4 Law Reforms

Military courts as well as the new acts were introduced to counter the political influence

(Shafqat, op.cit. pp. 362-364).Judiciary was also controlled by military to appoint the new judges (Mehmood, op.cit. pp. 362-364).

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3.5.5 Ethnicity issues

In Ayub era military became a modern institution. Bureaucracy with military

(combined) was using its powers independently. Both the institutions had majority of officers from Punjab and Khyber Pakhtoon Khwa (KPK) latter‘s name was Northern

Western Frontier Province (NWFP) at that time. This trend raised ethnic problems in

East Pakistan and Sindh. This issue created problems for Ayub. East Pakistani‘s mind was that their assists were used in West Pakistan and they were ignored(Noman, op.cit. p. 37).

3.5.6 Islamic Approach

Ayub khan adopted modern approach in interpreting Islam. He introduced

Muslim family laws which strengthened the right of women, approval of second marriage from first wife, divorce (khula) system to handle the problems those disturbed the society of Pakistan. So, Ulemas resisted these initiatives and became against him.

Ayub ensured them that the act would be reviewed by Director of Islamic

Research Institute (Kardar, op.cit. p. 40). He was also criticized in religious affairs.

3.5.7 Land Reforms

General Ayub introduced land reforms. He couldn‘t challenge the supremacy of the Feudalists. Only 0.2 % tenants could get benefits from these reforms. Ayub distributed land among Army Jawans (Soldiers) and officers(Shafqat, op.cit. p. 35).

Fauji Foundation Corporation (FFC) was also established, income was transferred in the hands of the rich (Rizvi, op.cit. pp.229-235).

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3.5.8 Constitution of 1962

General Ayub khan established his cabinet with three Lt. Generals and one exBureaucrat. He introduced the Presidential form of government, in which all the powers were in the hands of president. General Ayub khan wrote in his book ‗Friends not masters‘ ―I believed that the powers of the Pakistani President should more than the American President‖ (Khan, op.cit. p. 167). Ayub Khan was Martial Law

Administrator who had legitimized himself with the self made constitution of 1962; the people of new born state were greatly disappointed by him. According to the constitution of Pakistan 1962 it was necessary that the President would submit his resign to the speaker of the assembly, the transfer of power was not mentioned in that constitution. The article 12 of that constitution defined that after resigning the President, the acting President would conduct the elections only in 90 days it was compulsory for him, it was also mentioned in the constitution that the President could call the military to overcome the serious problems as well as to impose Martial Law (Constitution of

Pakistan 1962, article 12). Ayub Khan made the constitution acceding to his own will.

He couldn‘t be impeached easily. The masses of Pakistan were not negotiated freely and they disliked it. They considered that their servants became their rulers and the objective of making a new state was not going to fulfill its objectives. The Martial Law was lifted but the voice of the Pakistani People and media was still under the Military interests. The people of East Pakistan were already worst victimized under the rule of

Ayub Khan, situation was also not different in West Pakistan. The BDs system was against the adult franchise to elect the assemblies and president. Awami League in East

Pakistan was headed by Sheikh Mujeeb-ulRehman and National Awami Party headed by Maulana Bhashani. Both theseparties joined hand against Ayub Khan. In West

Pakistan situation was no more different from East Pakistan. All Political parties

129 including Jamat-e-Islami joined hands with the Political Leaders of East Pakistan.

These political parties put the foundation of

Combined Opposition, These Parties were known as COP. They wanted to remove the

President from his post. President was much powerful with the help of the constitution of 1962, it was self made constitution of President Ayub, it was not easy to remove him without the consent of president Khan. So, he had no care of parliament. But they couldn‘t be successful at that time. Still the military grip was too much tight.

First term of President was to end, so Presidential elections were conducted. General

Ayub khan encountered Fatima Jinnah (Sister of Founder of Pakistan). In these elections government machinery was used for General Ayub khan and consequently he defeated Miss Fatima Jinnah.East Pakistan rejected President Ayub in elections, after winning the elections president Ayub khan rejected the East

Pakistan in all the fields of life like welfare and prosperity(Khan, 1998. p. 14).

3.5.9 Pakistan-India War 1965 and Tashkent declaration

At the same time War of 1965 started between India and Pakistan. President of

Pakistan got popularity. Forces of both the States were on the borders, US and UK the allies of Pakistan were not taking interest to solve the issues.Prime Minister of USSR

Kosygin invited Pakistan to settle down the issue so Tashkent declaration was signed by India and Pakistan. The masses expressed anger against this step of General Ayub.

The insurgency was seen in the state (Gohar, Ibid. pp. 426-427). Foreign Minister of

Pakistan Zulifqar Ali Bhutto also gave statement against the President. Politicians were also waiting for such grounds. It was the great chance for them to remove president

Ayub khan. They claimed to restore the Parliamentary form of government. Meanwhile,

Military forced the President Ayub to resign. General Ayub again handed over the

130 power to the military on 24th March 1969.He wrote a letter to the Commander in Chief of Pakistan Agha Muhammad Yahya Khan to implement the Martial Law (Chaudhary,

1988. p. 29).

―It is with profound regret that I Have come to the conclusion that all civil administration and constitution authority in the country has become ineffective. If the situation continues to deteriorate at the present alarming rate, all economic life, indeed, civilized existence will become impossible‖.

He further mentioned.

―I am left with no option but to step aside and leave it to the defense forces of Pakistan, which represented today the only effective and legal instrument, to take full control of the affairs of the country. They are by the grace of God, in a position to retrieve the situation and to save the country from utter chaos and total destruction. They alone can restore sanity, and put the country back on the road to progress in civil and constitutional manners.‖

He mentioned that the law and order situation of the state forced him to take such steps.

―Strikes and rallies made it impossible for the government to maintain law and order, to protect the civilian liberties. Social ethical norms have been destroyed.‖

―The economic life of the country has been collapsed. There has been serious fall in exports and I am afraid of the country may soon find itself in the grip of serious inflation.‖

―I have exhausted all possible civil and constitutional means to resolve the present crisis. I offer to meet all those regard as the leader of the people.‖

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He intentionally violated the parliament & handed over the power to the military.

―The armed forces of Pakistan must save Pakistan from disintegration‖ (Text script was sent from Field Martial Ayub Khan to C-in-C Agha Muhammad Yahya

Khan on 24th March 1969).

On the next day he addressed to the nation:

―I am addressing you as the president of Pakistan last time. The situation of the country is fast deteriorating. The administrative institutions are being paralyzed: The mobs are restoring the crowds (Gheraos) at will. The economy of the country has been crippled. Factories are closing down and production is dwindling every day.‖

―The country which we nourished with our sweat and blood has been brought to a sad pass within a few months.‖

―I had announced that I wouldn‘t contest the next elections.‖

―I have always told that the solution of Pakistan by in the strong centre.‖

―The prevailing condition of the country is that the elected members have no dare

to attend the sessions. Those who come, they have no dare to express their real opinion

because of fear. There is also the danger of the national assembly becoming the bloody

conflicts.‖

―Every problem of the country is being decided in the streets.‖

―The whole Nation demands that General Yahya Khan, the commander in

Chief of Pakistan Army, should fulfill the constitutional responsibilities. The Pakistan

Navy and Air Forces are with him and the entire nation has faith in their valor and patriotism.‖

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―I have decided to relinquish the office of President.‖

―Every soldier is your brotherit will restore peace, economy and democracy.

President of Pakistan handed over the powers to the military. Ayub Khan gave a silent message in his speech that there must be a strong centre why his suggestion was ignored by the successor? According to the constitution of 1962 President was bound to hand over the power to the speaker but he ignored it incidentally‖(Field Martial Ayub Khan‘s last address to the nation on 25th March 1969).

President Ayub wrote in a letter to Agha Mohammd Yahya (Commander in

Chief) that there was no more organized institution than Army. Was it meant that he never allowed other institutions to strengthen themselves?

3.6 Deadlock of Civil Military Relations from 1969-71

The commander in chief General Agha Muhammad Yahya Khan who was also waiting in this day addressed the nation. My dear countrymen,

―You have already heard the President and read the letter in the press published on

24th March 1969. All the efforts didn‘t meet with success to negotiate with the protesters. He therefore called upon me to carry out my prime duty of protecting this country from utter destruction.‖

He further protected the military with saying.

―My sole aim in imposing martial law is to protect life, liberty and property of the people, put the administration back on the rail.‖

―The armed Forces belonging to the people, they have no political ambitions and will never prop up any individual or party.‖

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―Let everyone to go back to his post to repair the damage caused to the economy and well being of Pakistan‖ (General Agha Yahya Khan first broadcasting to the nation on

26th March 1969).

Pakistan again saw the direct Military Rule in 1969 but this time Military tried to let the politicians contest elections. General Yahya Khan adopted a different policy than General Ayub Khan. But unfortunately these politicians were totally unpopular in opposite wings. Pakistan People‘s Party (PPP) won only a single seat in East

Pakistan the same situation was in West Pakistan for the Awami League. General

Yahya Khan Chief Martial law administrator as well as the President (self made) of

Pakistan was supported by the Army. But he couldn‘t manage this situation like General

Ayub Khan. He couldn‘t handle the affairs of the state without the consultations of bureaucrats and Military top brass. So, he planned to develop the relations with the civilians and tend to transfer the powers to civilians. He imposed no restrictions on the politicians. He wanted to solve the administrative problems and to create a friendly atmosphere (Wheeler, op.cit. p. 276). But it was in his mind that there would be no majority for a single party, a hung parliament would work under military. General

Yahya was considering himself as President and let the election to be held.

A Legal Framework Order (LFO) was issued on 30th March 1970. The order was explained how the assembly would be constituted. Constitution making,

Parliament‘s functions were defined in this order. On 5th October 1970 nationwide elections were held on the basis of adult franchise.One unit was abolished in West

Pakistan and instructions of president Ayub Khan were ignored. It is said that president

Ayub Khan never compromised on dissolving the one unit and it was the single way to keep the state united.

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Political parties campaigned freely, there were two major political parties

Pakistan People Party (PPP) led by Zulafkar Ali Bhutto. Its manifesto was ‗Food, Cloth and Shelter‘, while Awami League, headed by Sheikh Mujeeb-ul-Rehman, and campaigned with the help of six points. Military kept it in mind the role of Sheikh in

Agratla Conspiracy (Zaman, 1982. pp. 20-21).

Military and bureaucracy had the predictions that no party could get majority so there would be a hung parliament and military would easily influence the decisions

(Ziring, op.cit. p. 216).It was also considered the manifesto of political parties was just a slogan. Both the predictions of the military proved wrong. Awami League got 167 out of 169 in East Pakistan while Pakistan People‘s Party (PPP) got 81 out of 148 in West

Pakistan. On international level these elections were declared free and fair(Kardar, op.cit. p. 5).

Army had no intentions to transfer the power to Mujeeb on the basis of Six

Principals& Agratla conspiracy. Mujeeb also did not show interest to compromise with army. It created problems to transfer the powers to the civilian leaders (Ahmad, 2001, pp. 145-146). Bhutto also did not compromise on these Six Points. So both the political leaders boycotted the meetings. General Yahya asked Mujeeb to publicize a draft about transfer of powers but Bhutto refused to recognize this proclamation. He called it execution of dismemberment of the country (Ziring, op.cit. pp. 116-119). On various occasions, General Yahya called Sheikh Mujeeb-ul-Rehman as Mr. Prime Minister.

Zulafkar Ali Bhutto knew it very well how to pressurize General Yahya Khan through ruling elite. Civil and military elite were also against Mujeeb from his six principles.

General Abdul Hamid, General Peerzada, General Gul Hassan, General Umer, General

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Tikka Khan were pro Bhutto and motivating General Yahya Khan according to their wishes. Power transfer issue was not going towards the solution.

Meanwhile, students shouted for independent state as Bangladesh. The flag of

Pakistan and the picture of Quaid-e-Azam Muhammad Ali Jinnah were burnt. Situation was out of control Martial Law was imposed in East Pakistan. Government arrested

Mujeeb-ul-Rehman. Political parties were restricted (Hurst, 1996. p. 45).

Situation became so sever and General Tikka Khan couldn‘t face insurgency against the government in East Pakistan. India got advantage from this situation, she trained and weaponised the Mukti Bahmni and attacked on East Pakistan. Military of

Pakistan couldn‘t face the multi sectors; it was considering itself one among the best forces of the world. The conflict between military and civil authorities divided Pakistan; the only ideological state of the world was dismembered. A new country with the name of Bangladesh emerged on the map of the world. (Mattinuddin, 1994. pp. 225-226).

This incident put bad impression of military. So, military handed over the power to civilian leader Zulfiqar Ali Bhutto. Bhutto was appointed as the Civil Martial Law administrator.The disciplined and organized institution (Military) of president Ayub was before the people, Military, political leaders and external powers became reason of disintegration of East Pakistan. It was said by Indra Gandhi that the Two Nation theory was drowned in Arabian Sea. On this statement by Indra Gandhi at the first time the desks were beaten for so long time in the parliament of India.

Yahya Khan had lost senses during the last few days of war due to heavy drinking. The largest Muslim state of that time was divided because of the blunders committed by the political and military elites (Nawei Waqat, 30 Jan. 1972).

136

3.7 Turn the tide from 1971-77

Zulfiqar Ali Bhutto took oath on 20th December 1971. The pattern of civil military relations was totally changed. The hegemony of the civilians was seen in the country.

Bhutto tried to keep the military out of political affairs. The major issue for Bhutto was how to keep the Army out of politics on permanent basis. As it was recently demoralizeddue to the separation of East Pakistan so Bhutto wanted to take advantage from this military status. Supreme Court‘s decision against General Yahya Khan‘s coup was also in the favor of Bhutto. At that time Bhutto was the only single popular leader to manage the crisis. First of all he took steps against the military(Weinbaun, 1996. p.

642),(Gohar, 1995. p. 276).

He addressed to the nation:

―My dear friends, citizens, the interests of the country are supreme. It is in the interest of the country and in the interest of the Armed Forces of Pakistan. Commander-in-Chief of Army and Air Staff are replaced.‖

―The designation of C-in-C is changed with the head of Chief of Army Staff. This practice is also worked successfully in other countries.‖ He further emphasized.

―We must wipeout the Bonapartism from military. These tendencies must never again pollute the political life of this country.‖

―The tenure of Chief of Staff would be fixed. The new person would replace the incumbent, fresh ideas would be share. It would be beneficial not only for the forces but also for the nation‖. (Z.A.Bhutto‘s address to the nation on 4th March, 1972).

With the above mentioned advantages Bhutto took steps to keep a check on military‘s role in politics. He modernized the military and increased its budget. He changed the

137 command structure of the military, introduced the designation Joint Chief of Army Staff and created Federal Security Force. The current generals who were busy in political affairs were forced to retire. General Gul Hassan Khan and Air

Marshal Rahim Khan (close friends of Bhutto) with six air force officers were retired.

Bhutto extended the tenure of Air Marshal for four years and Naval headquarter was replaced from Karachi to Islamabad. The commission was headed by Hamud-Rehman

Chief Justice of Pakistan to investigate about the debacle of Dhaka. A report was submitted but the summary and findings were not published. Bhutto gave the tough time to the top brass of military, In the first time of Pakistan‘s history the military was pushed back in its traditional field by Political elites. The function of military was defined in the constitution of Pakistan 1973, ―Military will defend Pakistan against external aggression or threat of war and subject to law, act in aid of civil power when called upon to do so‖ (Constitution of Pakistan 1973, Article 245). With the help of this

Civil Government put an end to military involvement in the active politics.

Constitution defined the high treason for direct or indirect or to conspire about abrogating the Constitution of Pakistan. Parliament was authorized to make laws for the guilty of high treason. In September 1973 parliament passed a law providing death sentence or life imprisonment for subversion of the constitution (Nawai-Waqat, 15

September 1973). The constitution also laid down the oath for armed forces as ―I

…….. do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that

I will honestly and faithfully. Serve Pakistan Army (Navy or Air Force) as required by and under the law‖. (Constitution of Islamic Republic of Pakistan 1973, Third

Schedule).

138

Bhutto had a mind to strengthen the civilian security forces. After taking oath first of all, he signed an agreement at Shimla and the prisoners of wars(POWS) of 1971 war were returned, threat of trial of 195 POWS was also removed with negotiations. It was the great achievement of the Bhutto.

In the start Bhutto was harsh on military but some internal and external incidents forced

Bhutto to change his mind.

• Sardar Muhammad Daood became the head of Afghanistan in 1973. He picked

the issue of Pakhtoonistan.

• Second Pakistani intelligence agencies seized a large amount of ammunition

from Iraq embassy, from Baluchistan and Peshawer anti-Pakistan literature was

collected. All the equipments were Russian made( Rizvi, 2000, p. 218).

• India also experimented of nuclear explosions and it created a threat for

Pakistan. So Bhutto made his mind to get nuclear technology at every cost. He

devoted all his energies to gain nuclear technology. The people of Pakistan were

truly eating grass as the nation was close to bankruptcy but Bhutto eagerly

wanted to make Pakistan an Atomic Power at any cost against India so the entire

requirements of scientists were fulfilled.

With above mentioned incidents Bhutto changed his mind and became polite to overcome these problems. Military at this time was also loyal to Civil Government.

Military remained busy to regain its status, because the morale of military was down after the disintegration of East Pakistan.

Bhutto‘s Government obtained military equipments from external sources, US lifted embargo on the lethal equipments with the personal efforts of Z.A. Bhutto

(Pakistan Times, 26 February, 1975).

139

The military as an institution stood by the civil setup. The supremacy of civilian government was seen over the military. Throughout this period military offered invaluable services to the civil government. Military helped the civil government including maintaining law and order, rescue operations in natural calamities and Nation building activities.

These tasks of non-professional field helped to restore the military‘s image in the politicians of that time. The masses of Pakistan also changed their minds about the military which was made after the debacle of Dhaka. In various policies, army officers disliked Bhutto but Tikka Khan was supporting him. Prime Minister Bhutto vetoed the

Joint Chief of Army staff under Defense Minister (Himself). All these activities were disliked by the military (Arif, 2001. p. 175).

Prime Minister Z.A. Bhutto published a white paper in 1976; the salient features were as under.

• The constitution of Pakistan command and control of the Armed Forces vests to

the Federal Government. Chief executive (Prime Minister) would be responsible

to the nation for safeguarding the sovereignty, integration and independence of

Pakistan.

• Prime Minister would also be powerful in field of defense and supervise the

national efforts for achieving their national interests. In short, Prime Minister

was responsible to watch out the works about the defense interest of the state.

• Coordination among the institutions would be ensured.

• The requirements of the Armed Forces wouldbe fulfilled by Chief executive

(Prime Minister).

• Prime Minister would supervise the internal and external policies of Pakistan.

140

• In actual he (Prime Minister) would supervise all important matters directly,

those relating to defense, the defense committee would deal it under the

supervision of the Prime Minister of Pakistan.

• The chairman of the Joint Chiefs of Staff committee (JCSC), the three chiefs of

staff, the general secretaries of defense and finance and secretaries of defense

would be under the supervision of the Chief executive of Pakistan. The

supervision would be conducted during war and hostilities.

• The defense council was also established so defense committee of the cabinet

would determine and approve the policy. The defense council would be

responsible to act on this policy and it would be chaired by the Prime Minister.

• Minister of defense, Minister of finance, Minister of foreign affairs, the

chairman of Joint Chiefs of Staff committee, and the chiefs of staff of three

services, secretaries general of defense, finance and Ministries of defense may

be attended when it would be required.

• Minister of defense, the secretariat of the defense Minister would deal the

defense division, defense production division, aviation division, the joint chief

of staff committee and the heads of Army, Navy and Air Force.

• The Chairman of Joint Chiefs of Staff committee would play the role during

peacetime to make plan about the defense of the country including planning of

war. He would never exercise his powers during the peacetime.

• When Prime Minister would inform the nation about the war or war like

situation JCSC would assume his responsibilities on behalf of the Prime

Minister who would exercise the power of supreme commander of the forces.

141

• The JCSC would also be appointed normally for three years from any of the

three armed force services.

• The Chiefs of the Army and JCSC were bound to follow the decisions of

authorized defense minister.

• The Chiefs of the Army would be the advisers to the Prime Minister; they would

be responsible for the morale and discipline of the forces under their control for

conducting the operation. They would also have direct access to defense

minister (Prime Minister) when required.

P.M. Bhutto‘s foreign policy also influenced the civil military relations. He had

visionary independent foreign policy and had a mind about a perfect military to

help the Muslim World. He visited oil producing countries of Middle East for

gaining economy and oil. He kept in mind the relations with the third world

states, historical ties with the Muslim World, the geo-strategic location of

Pakistan. He recognized Democratic people republic Koria, East German,

Cambodia, and Government of Vatnam and also close relations with China,

normal relations with Soviet Union, supported the liberation movements of

Africa. These works were completed independently (Hashmi, op.cit. p.166).

When Bhutto was not in power he condemned the SEATO and CENTO pacts

but when he was in power he made agreements with US for obtaining

armaments to tackle the security issues.

P.M. Bhutto recognized Bangladesh and also invited President Mujeeb-

ulRehman to attend the summit in Lahore the Organization of Islamic

conference (OIC).

142

Bhutto framed the new constitution of Pakistan 1973. He introduced

Parliamentary form of government. He assured the independence of judiciary and the human rights. But the opposition in the parliament was not safe from the cruel manners of Bhutto; bullets were fired on parliament members. Those persons who supported him in gaining power they were poisoned by him. He amended the constitution; the 4th, 5th and 6th amendments in the constitution reduced the freedom of judiciary and media. Seventh amendment was made on 16th may 1977 within few minutes when Bhutto was under the pressure of rigging from opposition. This amendment provided the power of referendum to the prime minister to escape from reelection. It also prohibited the Hi-Courts from exercising jurisdiction over the people and their property of an area where the armed forces were brought in aid of civil power, fundamental rights of the people were curtailed. Provincial autonomy was reduced and military operations were conducted which proved to be poisonous for Bhutto and civil and military class took stand against him (Samual, 1996. p. 110).Baluchistan and Kalat operations changed the people in the favor of military and with the passage of time everything was against Mr. Bhutto. It was clearly mentioned that Bhutto was disliked by the military from various activities. Bhutto ignored the seniority and promoted the non-recommended Generals. The establishing of federal security force(FSF) in 1972 in favor of police to maintain law and order situation in the country but it was used to disrupt the political meetings of the opponents. Bhutto kept a strict check over his opponents; FSF was parallel force against the military to weaken its image. It was equipped with automatic weapons, rocket launchers, rifles and plan was handed over the tanks and helicopters to it. It had its own intelligence cell and secret service funds were allocated. FSF proved for Bhutto a gallows it was used against the opposition and it was the opposition which wanted to remove Bhutto at any cost. (Chishti, 1991. pp.

143

82-83). So, military considered Bhutto as a threat for military institutional autonomy.

Zulfiqar Ali Bhutto didn‘t rely on military and established Federal Security Force that

decreased the budget of military and changed the pattern of civil military relations.

Opposition parties also considered it threat against them and challenged its legitimacy.

It was claimed that FSF should be under the military control. Bhutto also dismissed 303

civil servants and appointed politically loyal bureaucracy. Bureaucracy was also

politicized so it was also not in the favor of Z.A.Bhutto. Z.A. Bhutto gave tough time

to President Ayub and it was also in mind of

Military.

3.8 Election of 1977 and the Down-fall of Z.A. Bhutto

Bhutto was defamed among the people and his graph of popularity was too much lower

than the elections of 1970s. As he announced that the elections would be held in 1977.

Opposition parties made alliance against PPP. Elections were conducted, opposition

claimed about rigging, with in no time situation became out of control. Bhutto tried to

suppress the situation by dialogue with the opposition but it was too late(Hauqani, 2002.

pp.116-117). Pro-Islamic groups were claiming about the pure Islamic system. Bhutto

ordered the military to launch operations in major cities, but military refused to do so

whereas Police and FSF had already surrendered (Mehmood, op.cit. pp. 368-370).

There was the danger of civil war in the country. Military took initiatives and the chapter

of civil setup again closed (Baxter,1991.p. 8).

Bhutto was arrested, in his late political statement he accused the US about supporting

military to intervene and PNA for preventing Bhutto to gain the nuclear measures.(Pakistan and India: Policies, personalities and foreign policy. Asian survey,vol.

144 viii, No.7, PP 717-725),(Kheli, 1982,pp. 127-128). Brigadier Tirmizi has no hastened to

add that foreign money was also used to destabilize the Bhutto

Government (Shafqat, 1997. P. 190), (Warriach, 2007. P. 264). He flew Saudi-Arabia,

UAE and Libya to settle the issue but all in vain(Khan, 2013, p. 137). This was 3rd time

military hegemony and it proved longest (Chaudhary, op.cit. p. 33).

Thirty years history of civil military relations is seen in this chapter, only three

points are concluded: One political immaturity in the elite class, Second, military and

right-wing political party‘s lust of powers, third, the annoying of big powers with Z.A.

Bhutto. Let see the works of General Zia-ul-Haq in next chapter.

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4.1 Introduction

When Z.A. Bhutto was blamed for rigging in elections in 1977, people stood against himthrough strikes and mass movements. Martial Law was imposed in major cities of Pakistan. Opposition hesitated to negotiate with the prime Minister. Two groups stood out in the country. One major group was led by Pakistan People‘s Party

(PPP) and Second by Pakistan National Alliance (PNA). Movement of Nizam- eMustafa also changed the situation. Both the groups got busy in letting each other down. Civil insurgency was about to start. Moreover, no one expected that military would come and stay for such a long time. In Bhutto era civil setup was strong political parties were well established.Military was habitual to follow the civil orders and even the people were also politically maturer than the past. General Zia‘s intervention was

150 no more different from General Ayub‘s and General Yahyakhan‘s. Anti-Bhutto agitation created the situation of civil insurgency. He imposed Martial

Law with ‗operation fair play‘ and not a single bullet was fired like the coups of past.

People remained busy as usual in their daily routine matters. No agitation was seen against military. But July 1977 coup had a dramatic ethos and intensity.

In this chapter the civil military relations from 1977-88 have been discussed. The third martial law from 1977 to 1988 was imposed for relatively a short history of thirty years since Pakistan‘s independence. In this period military took over and assumed the powers directly. Military applied many strategies and tactics to prolong its tenure so the non-party based elections were conducted. The constitution of Pakistan was amended to strengthen the powers of the President in uniform. The seats of civil bureaucracy were filled with the present and retired officers of military and quota of military was fixed in the civil setup. Many people settled in the Gulf States.

They were busy in their earnings and no one spoke against military government. There are a few questions about the civil military relations from 1977-88. First, had military intentions, in advance, to topple the elected government of Z.A. Bhutto?

Second, why PNA couldn‘t achieve its objectives? Third, was the doctrine of necessity by judiciary proved helpful for the democratic future of Pakistan or not? Why did Zia conduct the local elections on their due times while General elections were not at all?

These questions would be explained in the following.

4.2 Was Military Pre-Planned About the Coup?

The situation of 1977 was quite different from the coup of 1958 and 1969. The act of General Ayub in 1958 was long contemplation (Yusuf, 1999, p.172). The military coup by General Yahya Khan in 1969 was the act of usurpation of the authorities. The circumstances under the military coup of 1977 were quite different. 151

General Zia deposed an elected government, Bhutto‘s government that had encircled the military institutions successfully in the past. This act of General Zia was falling in treason according to the constitution of Pakistan 1973 Article. (6). As masses had already experienced that the martial-laws in the past could not proved fruitful for the state, so this time military was not commanding the public prestige that it enjoyed in

1958 and 1969. In the past political forces were weak and public was not well-aware.

But in 1977 people were conscious (Noman, 1988, p.117).

After the previous two military coups and the disintegration of East Pakistan, military had stigma for its humiliation in 1971. These factors forced military to legitimize the coup. These were the dilemmas which were faced by the third coup of military. The imposition of General Zia‘s martial law was the grim deposit of the movements of protest launched by the opposition against the Bhutto regime. Bhutto also implemented

Martial Law in three cities of Pakistan to encounter the situation.

The political polarization was going towards the civil war. Military was left with no choice other than intervening into politics (Yusuf, 1999, p. 172-173). This assumption was not totally correct. Both the groups PPP and PNA had reached to sort out the issue.

Having the knowledge of that agreement between the two political parties, military intervened because it did not want to miss the chance. Apart from military PNA could not be considered free from the blame, the ideological parties paved the way for the resumption of power by the military. Despite that availability of provision of

―Adequate constitutional remedies in the form of constitutional commission to go into case of irregularities and provide immediate redress, the PNA took the entire issue to the streets outside the legal framework‖ (Kukarji, 1984, p. 132). After debacle of

Bengal, the Civil Government was in a position to overcome the military. But the

152 political elites couldn‘t maintain it. The crisis of 1977 encouraged the military and street agitation decreased the morale of civil setup.

After the debacle of Dhaka, the military was under the command of civil setup and it was habitual to follow it. The inability of political elite and political crisis changed the situation in favor of military& military again utilized it freely.

Bhutto always relied on his charismatic leadership, he didn‘t trust on cabinet. He started operations against his friends. When police and FSF couldn‘t achieve his desired objectives he called military for support. First Army‘s role remained limited but later it was handed over more powers (The Times, April 22, 1977). Bhutto held a meeting with

Army Chiefs and they promised to be loyal according to the constitution. Military Chief was called in the cabinet meetings, he was sent to the PNA leaders for negotiations, and a message was given to the opposition that the government was still enjoying the military support. When the PNA did not achieve its objectives, it changed its policy and made a direct appeal to the military to intervene.

Written requests were sent by PNA leaders to the Army as:

―I am addressing this letter to the Chief of Army Staff and the officers of the

Defense Services of Pakistan‖.

―It is your duty to defend the territorial integrity of Pakistan and to obey lawful commands of superior officers placed over you. To differentiate between

‗lawful‘ and ‗unlawful‘ command is the duty of every officer. Every one of you must ask yourself whether what the army is doing is ‗lawful‘ activity and if your conscience tells you that it is not, and you still carry it out, you would appear to lack moral fiber and would be guilty of grave crime against your country and against your people‖.

153

Air Marshal Asghar Khan put the responsibility of disintegration of East Pakistan on

Z.A.Bhutto and mentioned al the actions of the government to counter the mobs.

―You shall be now having realized that the military action in East Pakistan was a conspiracy in which the present prime minister played a Machiavellian role. You know the circumstances in which military action in Baluchistan was engineered and how completely unnecessary this action had been. You are also probably aware of the utterly unnecessary military action last year in Dir in the NWFP. If you have any interest in the national affairs you must also be aware that during the election campaign, the nation expressed its powerful disapproval of the present regime.

Following the people‘s rejection of the government, you should have been surprised at the election result in which the PNA, which could muster much overwhelming popular support, only could get 8 out of 116 NA seats in Punjab. You must surely know that many people were not even allowed to file their nomination papers. Was it not too much of a coincidence that no papers could be filed against the Prime Minister and all the

Chief Ministers of the four provinces? That those who dared try ended up spending a few nights in police custody. One of them has still not been traced‖.

He described the rigging in these words.

―Those of you who were even remotely connected with duties in connection with the

March 7 election would also know of the blatant manner in which rigging took place, of the hundreds of thousands of ballot papers of PNA candidates that had been taken out of ballot boxes and were found in the streets and fields of Pakistan. You would also have seen the deserted polling stations of March 10, the day of the provincial polls, following the call for boycott of provincial elections by the PNA. Nevertheless, the

154 government media announced that an unprecedented number of votes had polled; surely you must have followed the movement which called for Mr.

Bhutto‘s resignation and re-election in the country‖.

He discouraged the Z.A.Bhutto‘s actions.

―The coming out of women in thousands on the streets in every city and town with babies in their arms was seen that no one will forget. The movement proved within a few days that he and his government had been completely rejected by the people. The death of hundreds of our youth and the beating of our mothers and sisters was a scene that may well have stirred you to shame and sorrow. Have you ever thought why the people put themselves to so much trouble? Why must mothers come out to face bullets with babies in their arms? Surely, it is only because they feel that they have been wronged; that they have been cheated; that their basic right to ‗hire and fire‘ their rulers has been denied to them. They understood when we told them the truth, that the constitution, which you as officers of the defense services are sworn to defend, had been violated. Article 218 (3) of the constitution of Islamic Republic of Pakistan, says, it shall be the duty of the election commission, constituted in relation to an election, to organize and conduct the elections and make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against‖.

He motivated the military to intervene with these words and not mentioned to conduct free and fair elections.

―This, my friend, was not just a fair election. Mr. Bhutto has vitiated the constitution and is guilty of a grave crime against the people. It is not your duty to support his illegal regimes, nor can you be called upon to kill your own people, so that he can continue a

155 little longer in office. Let not be said that Pakistan Armed Forces are degenerated police force fit only for killing unarmed civilians. How else can you explain the shooting of a spirited lad whose only fault was to show the ―V‖ sign to the army in Lahore the other day? The spirit of adventure, of defiance rather than servility, needs to be encouraged in our youth and this unfortunate incident is a bolt on the name of the army. It would be difficult to wipe it out. Similarly, shootings by the army in Karachi on an unarmed crowd in unpardonable. Did you not realize that the poor and hungry people of Pakistan, throughout 30 troubled years of our history, had shown only love and affection for our armed forces? That they wept when you had laid down arms in East Pakistan, they have always prayed for your glory and have literally starved themselves and their children so that you are fed well and our generals and senior officers can live a life that even their British and American counterparts would not dream of. It pains me to say that love is now gone. Pray do not let it turn to hate. For, should that happen, a tragedy would have occurred in the history of this nation which we in our lifetime may not be able to undo‖.

Air marshal not mentioned a single word about the safety of democracy but only to motivate the military to intervene.

―As men of honour, it is your responsibility to do your duty and the call of duty in these trying circumstances is not the blind obedience of unlawful command. There comes a time in the lives of nations when each man has to ask himself whether he is doing the right thing. For you, the time has come. Answer this call honestly and save

Pakistan, God be with you‖ (Letter written to Chief of Army Staff By Air Marshal (Rtd)

Muhammad Asghar Khan in May, 1977).

Strong public pressure of the masses was also present on the military not to start operation against the PNA. PNA women also made telephones to the wives of the senior

156 officers and requested to restrain their husbands from starting operation against the demonstrators (Rizvi, 2000, p. 238). Z.A. Bhutto had handed down before the military,

PNA was also calling military and the situation was totally in the favor of the military.

So, military indicated its impatience and third martial law was imposed (Daily Nawai-

Waqat, April 15, 1984), (Daily Jang, September 24, 1984).

PNA also could not realize that the politics of polarization with such great momentum would undermine the ―residual legitimacy‖ of Pakistan‘s only civilian regime in two decades. The agitated Politics of PNA forced Z.A. Bhutto to bring military to tackle the situation, to bring the law and order keeping role as it performed in the past and ultimately led the military intervention in the wake of fragile legitimacy of the civilian government (Kukarji, 1984, p.133). But it is clear that some internal and external forces wanted to remove Bhutto from stage at any cost. Mass movement was led by PNA.

Malpractices in elections was not the problem for Z.A. Bhutto, the reality was that the cabinet and his colleagues became anti-Bhutto. They encouraged such activities. The grievances against Bhutto came out which were hidden from last five and a half years

(Warriach, 2007. p. 264).

Nizam-e-Mustafa (Islamic system of government) Journalists, lawyers and some other groups were also in the field against Bhutto, all were claiming about their rights. The major role was played by the traders and the businessmen. These were against the socialist approach of Bhutto (Saeed, 1980, pp. 157-164).The casualties in a short time increased still there hundred thousands were wounded in these Processions (Khan,

2004, pp. 122- 123).

In such a catastrophic atmosphere of political deadlock and crucial state of both the groups (PPP and PNA), the single force was to replace the Bhutto regime was General

Head Quarter(GHQ). On the other hand, right wing political parties were not in the 157 position to manage the political system of Pakistan, so this group allied with military.

Z.A. Bhutto made a personal appeal to the people, arrested the PNA supporters. Police and FSF were active in this operation. He adopted a number of policies to counter the rivals but all in vain. He showed interest to impose restrictions on drinking, gambling and night clubs. He also emphasized on the ideology of Islamic Sharia. He visited

Saudi-Arabia, UAE, and Libya for help to negotiate with the embassies of these countries and these did well to negotiate between the PNA and PPP (New York Times,

April 18, 1977). PNA did not agree to negotiate and the dialogue procedure was very poor. They wanted to encounter Z.A. Bhutto, mass movement was all over the country,

PNA wanted not to miss the chance. PNA adopted the same policy of Z.A. Bhutto which was used by him against Ayub, ‗People want change‘. It was a logical vacuum for military to intervene which was self made by the opposition of Bhutto. In addition, some of the components of PNA, particularly the fundamentalist Jamat-e-Islami seemed to have been aware of this fact but this idea was quite throbbing. So, Jamat-e-Islami paved the way on the shoulders of PNA that

GHQ will topple the civil setup to see the insurgency which would be created by PNA.

So, ―they consciously adopted the strategy of supplanting the PPP by military rule, perhaps they knew well that PNA couldn‘t ready to come to power on its own and if even it did so, it could not hold together for very long because of the given charter and composition of the PNA‖ (Ayub, 1978, p. 18).

The military elites also believed that difference between the two political groups was unbridgeable (Chisti, 1989, p. 64). Such perceptions of military forced it to intervene.

Therefore, after concluding from all the issues, General Zia-ul-Haq had little choice except to overthrow the Bhutto‘s regime (Shafqat, 1997, p. 191). When the dialogues

158 were carried on, in this time military had completed its plan about the coup with the name of ‗operation fair play‘ (Arif, 2001, p. 288).

Above mentioned facts provide insight into the perceptions of 1977 military elites. But these arguments could not hold enough water on the following pretexts. General Zia and his collogues were fully informed about the negotiations process. As their negotiations prolonged and finally arrived at resolve. The military elite had developed the ambitions for power.

• Between March-May 1977, when political opposition and protests were not only

at the peak in their controversy between both the political groups but also the

position between Prime Minister and Chief of Army Staff was present (Bhutto,

1979, p. 34).

• GHQ changed its attitude when negotiations were going towards success.

The political leaders who were involved in the PPP-PNA negotiations conveyed the impression that military is about to intervene. Professor Ghafoor of Jamat-e-Islami claims that Bhutto had virtually accepted all the principal demands of the opposition, most importantly of holding fresh elections (Ahmad, 1998, p.213-256). So, the military intervention at this stage was unwarranted (Shafqat, 1997, p. 190). The military coup proved that the political novice was still present in the masses of Pakistan. Their political norms proved still too much poor.

In his opening speech after takeover, General Zia-ul-Haq mentioned various reasons for the military intervention.

He addressed to the nation that the government of Z.A Bhutto was ceased. The interim government established and this change was completed peacefully and smoothly. Z.A

Bhutto and PNA leaders were in custody. He mentioned that the army coup was not a

159 pleasant act, army of Pakistan always preferred to run the administration through its representations. Those were its real masters. He mentioned, ―I genuinely feel that the survival of this country lies in democracy and democracy alone‖. ―Martial Law had been imposed throughout the country, national and provincial assemblies were dissolved and Provincial Governors had also been removed‖. Some parts of the constitution were abrogated. Certain parts were in abeyance. President of Pakistan Fazal

Elahi Chaudhary was allowed to work with four members of military council. Council consisted of Chairman Joint Chiefs of Staff, Chiefs Staff of Army, Navy and Air Force.

He mentioned himself as chief Martial Law administrator. General Zia-ul-Haq further mentioned, ―I have met with Chief

Justice of Pakistan, he advised and guided me on legal matters‖. He explained that military had no interest in political affairs, after filling the political gap it will go back.

Further he mentioned that his sole aim was to organize free and fair elections which would be held in October of that year. Powers would be transferred to the public representatives. ―I give a solemn assurance that I will never deviate from that schedule‖. Martial Law order could not be challenged in any court of law. ―I have banned all the political activities from today to till further orders. Political orders,

Political activities will be allowed before the elections‖. Chief Justices of the

HighCourts were appointed as governors of related provinces. Harsh manners would be adopted for insurgency creators. Contracts of former government would be carried on.

In the end he emphasized. ―I must say that the spirit of Islam, demonstrated during the recent movement, was commendable. It proves that Pakistan which was created with the name of Islam will continue to survive only if it sticks to Islam. That is why; I considered the introduction of Islamic system as an essential pre-requisite for the

160 country‖ (General Muhammad Zia-ul-Haq‘s First address to the Nation on 5th July

1977). This multi-purposes speech of General Zia disarrayed the democratic future of

Pakistan.

4.3 Chaotic Situation and the Military Strategy

As the time passed Zia gradually entrenched himself into politics. He expanded the goals of the coup from election to accountability of the politicians. He introduced the Islamization in politics. Professor Hassan Askari Rizvi comments, ―He developed a savior or messiah complex and ruled the country with an aura of a God ordained missions to transform Pakistani society on Islamic lines‖ (Rizvi, 2000, pp.247-308). The claim of General Zia-ul-Haq was quite interesting to note that he was only accountable to Almighty Allah for his actions. Further, he spread the message in the masses of

Pakistan that no one could challenge the ruler of Islamic State to impose Islam in

Pakistan. He introduced that the lives of the people would be changed according to the teachings of the Holy Quran and Sunnah. He showed his ideological leaning towards the cause of PNA protest movement. He briefed the people of Pakistan about his agenda, ensured that his regime would determine to normalize the situation of law and order, the reduction of political tension among the competing groups, holding of free and fair elections and transfer of power to the elected representatives. This process would be of the 90 days operation. In a statement he declared, ―I will never accept (any) political office because I don‘t think to fit for that‖ (General Muhammad Zia-ul-Haq first address to the nation, 5th July, 1977). PNA also acclaimed that General Zia had solemn promise about implementing the pure

Islamic system, if PNA co-operated with the Army.

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4.4 Postponing the Elections

General Zia and his associates were quite aware that under the constitution of Pakistan

1973, it‘s treason to overthrow the elected government and the punishment of treason was sentence to death. Therefore, Military introduced the slogan of Islamization to handle the situation and to prolong the tenure of martial law. After 90 days the elections were postponed and the accountability of the politicians was emphasized. The right wing parties also appreciated the decisions of the government. With the passage of time

General Zia-ul-Haq emphasized that he would never hand over the powers as long as the mission of Islamization and purifying the politicians was completed. Later, General

Zia recalled that after taking over he clearly defined the priorities of his government, in which the Islamic order was on the top, the transfer of power to the civilians was secondary consideration. ―We have no intention of leaving power till the accomplishment of our objectives of Islamization of national polity and induction of decency in politics until then neither I will step down nor will let anyone rise‖(Huqqani,

2004, p. 41),(Shafqat, 1997, p.191).

General Zia prevented the elections at any cost and the present political system of Pakistan was called by him unsuitable for Pakistan. The ambiguity was seen from his first address to the nation, at the very first he said powers would be transfer to the people‘s representatives then he emphasized that the Islamic system would be implemented, it was essential for him.

4.5 Controversy of General Zia and Z.A. Bhutto

When Bhutto was released from jail there was big gathering in favor of Z.A.

Bhutto, it threatened not only PNA but also military. Military had no problem to hold 162 elections in 90 days but Z.A. Bhutto spoke against military in public processions about its accountability. So military decided to start a movement against Bhutto.

Political leaders‘ property and bank balance were checked. A tribunal was established under the supervision of Chief Justice of High-Court with Brigadiers and Session

Judges. Military used all means to demoralize the political parties and camouflaged the political structure (Hussain, 2010, pp. 210-222).

4.6 Legitimacy Issue

Anyhow, it was also quite awkward and difficult for military junta to deny the rights of the people to choose their own representatives according to their own wills.

International pressure for the legitimization of General Zia was also present specially, from USA. International aid was conditional about the rehabilitation of democracy. On other hand it was also against the manifesto of PNA which was used against the Bhutto.

So, military was busy in different ways to undermine the political process and the democratic institutions. Military excluded certain political segments from political process. General Zia, rather, deformed the political structure of Pakistan. It was quite imperative to analyze from his policies that all the strategies were adopted to strengthen the rule of military and civilians were not allowed to participate properly.

The political strategies of military regime can be divided into four phases.

1. 1977-1979 (Before the death of Z.A. Bhutto) 2. 1979-1983 (After the death of Z.A. Bhutto)

3. 1983-1985 (Promises of elections)

4. 1985-1988 (The light of democracy)

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4.7 The First Phase 1977-1979

During this phase the primary objective of this regime was to demoralize PPP and seek the co-operation of PNA leadership. It was the first example in the history of

Pakistan when the people of Pakistan showed their alignment with religion. It polarized and partisaned the Political culture of the state.It also ousted Z.A. Bhutto from politics, as it was the heartiest dream of PNA to do so. Slogans of islamization of General Zia regime set the process in motion to undermine the popular forces with the help of political religious groups who never popped in normal circumstances to get share in the power structure of the country. Some experts called it ‗Mullah Military nexus‘. It was the assumption of General Zia‘s regime that co-operation and interaction with anti-

Bhutto religious right shall legitimize their rule and ultimately shall narrow the base of

PPP. So, with the help of transform society on religious consecutive pattern it was used to remove the PPP Jialas (workers).

From 1977-79 General Zia opted for close interaction and co-operation of PNA parties.

When military regime offered to setup a civilian cabinet, the Muslim League (Pagara) was first to join in July 1978. It was told to the masses by PNA leadership that they have joined the cabinet under the shelter of military just to facilitate the process of islamization of country‘s system and prepare the polity for elections (Rizvi, 2003, p.174). During the first year rule of General Zia he selected his cabinet from the military elites, senior bureaucrats, lawyers, industrialists, technocrats and a segment of non- partisan feudal like Ayub Khan. But the decision making hegemony goes to the realm of civil military elites. General Zia was also desperately waiting for PNA co-operation against Bhutto. The decision of the court was also an initiative against Bhutto in the favor of General Zia and new cabinet 13 out of 21 were from various components of

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PNA. It was for the first time in the history of Pakistan that Jamat-e-Islami shared the power in the state apparatus. Jamat got the Ministries of Information and Broadcasting,

Water and Power, and Production. General Zia and his military colleagues either held the important port folios (Arif, 2001, pp. 171-172). As PNA leadership became the part of the military regime and its policies throughout the period of Bhutto‘s trial from

(August 1978-April 1979) the component parties of PNA remained the part of the cabinet. It was only after the Supreme Court‘s decision against Bhutto, the PNA cabinet decided to be distanced from General Zia. By getting the cooperation of PNA leadership, General Zia was able to convey the message not only to the masses of

Pakistan but also to the world that PNA was the partner in upholding the execution of

Bhutto (Shafqat, 1997, p. 193). A white paper was issued by the Martial Law authorities comprising more than 2771 pages on the rigging of Bhutto in March 1978 to demoralize him.

This cooperation of PNA with military proved useful to deal with political dissidents.

This inclusion of PNA leadership in General Zia‘s cabinet partly civilianized and humanized the military rule at least for the rightist elements. The patch up of political beradri in the government was also essential for the military regime for another reason.

When on 16 September 1978, the civilian president Fazal Elahi Chudhary resigned on his own. Giving the reason that current military regime did not have any intention to hold the elections in near future. He also revealed that in the future military was not only planning to amend the constitution but also this amendment would go beyond the

‗doctrine of necessity‘.

So, when the Civilian President resigned, the presence of PNA leadership in the cabinet got greater importance. But ironically PNA military nexus couldn‘t produce alternative leadership during that period, which could serve the purpose of General Zia‘s regime

165 as General Zia assumed himself the President as well as the chief of army staff.

Moreover, they proved incapable of culminating the support base of dissidents left along with those rightist politicians, those were not willing to cooperate with the military Junta (Cheema, 2003, p. 146).

4.7.1 PNA joined military

The PNA was the combination of right wing parties it was fond of to gain powers. Military required the co-operation of civilians in order to expand its political base along with facilitating its agenda to reform the political economic patterns of the society. PNA joined the military cabinet to share the credit of islamization of the polity.

They also wanted to utilize the state machinery and patronage to strengthen their political influence to cash it in coming elections. But the PNA‘s leadership which was the part of president Zia‘s regime soon realized that the ruling generals and senior bureaucrats bypassed them on important policy matters. PNA was also scattered in factional groups. There was also another source of annoyance in some stars of PNA and that was the military regime till towards the Jamat-e-Islami that was supporting the military policies.

After the opening phase of Islamic laws in Feb.1979, fixing date of elections and the execution of Bhutto in April, PNA leadership left the cabinet with the intention that their initial objectives had been achieved (the execution of Z.A. Bhutto). In this context, the right wing politicians from PNA decided to pretend in independent manner, so they disassociated themselves from General Zia regime by withdrawing from the cabinet in April. Yet they assured the ruling General of their continued support from outside. The PNA‘s decision to join the cabinet caused split within it. The NDP, Tehrek-

166 i-istiqlal and JUP decided to part its ways with alliance, which weakened PNA. It proved helpful for military to gain its objectives (Talbot, 2009, pp.

263-267).

4.7.2 Z.A.Bhutto’s victimization

Bhutto was released on July 8. It was a surprise not only for General Zia but also for PNA that he had not lost the public support. It seemed quite evident that if elections were held,

Z.A. Bhutto and his party would win the elections again (Milliam, 2009, pp.

73-76).

It was the turning point not only for Z.A. Bhutto but also for General Zia and PNA.

The anti-Bhutto forces realized that agitated and street powers would dominate in the elections to lead Bhutto. Z.A. Bhutto was still prominent force in the politics of the country. The fear of Z.A. Bhutto‘s returning to power, another kind of strategy was devised. Press began to portray Bhutto as criminal who had engineered the murder of his political opponents. So, deliberately an atmosphere was created in which anti-Bhutto political forces began to demand his trial and execution. Through his autocratic style and behavior Z.A. Bhutto had alienated many politicians from his support.

4.7.3 Climax of Jamat-e-Islami

• It was quite interesting to note that Jamat-e-Islami and ruling Generals were not

fully complementing the political goals of each other, yet they realized that

cooperation with each other would be mutually rewarding. Jamat-e-Islami was

not so popular among the masses of Pakistan. It decided to enhance its alliance

with military to cash on the crisis of legitimacy and dilemma of isolation with

which General Zia was confronting day by day. The free hand was given to

Jamat-e-Islami to engage itself in low-key political activities. So this party

167

penetrated the varying situations in bureaucracy, the military, and mass media.

Jamat-e-Islami also helped military in defusing the efforts of those forces which

were against the military regime. It was quite significant in the immediate

aftermath of Bhutto‘s execution.

• The other group, cultivated by military regime, was comprised of extremely

orthodox Islamic leaders who opposed the modern democratic institutions and

process, especially the existing electoral processes, political parties and

legislatures elected on the basis of adult franchise. They supported to maximize

the establishment of a Sharia based on Islamic system, which bordered on

theocracy. The military regime used them to dilute the pressure for early

elections and restoration of political process.

The political, social and economic issues were pushed to back and many nonissues began to dominate the political national horizon. Female announcers and artists were prohibited to appear on TV screen, the photograph of Jinnah on currency note was called un-Islamic and all civil servants were asked to have a beard. Arabic was selected as the national language and Non-Muslims were removed from the key-posts. Time for religious programs was increased on TV and radio. Military used Zakat funds to support these Islamic fundamentals. Zakat fund was provided to Islamic Madrasses. Madrasses degrees were evaluated. But it created more confusion regarding the political and social direction of Pakistan‘s future (Rizvi, 2003, p. 135144).

4.7.4 Nusrat Bhutto Case

Air Marshal Asghar Khan, Pir Pagara, Musheer Pesh- Imam and Sardar Sher Baksh

Mazari gave anti-Bhutto statements. After these statements of politicians Zia decided to devise a strategy against Z.A. Bhutto and his party. All the anti Bhutto political, 168 judicial and other forces made it their priority that trial and accountability of Bhutto should take place first and elections could be held later. After military coup the agitation had gone to silent. General Zia did not see any problem in conducting new elections within 90 days and transferring powers to PNA, which according to

General Zia‘s estimation was bound to win the elections. It was also the sensible perception of PNA regarding the result of the polls. But it was totally against the expectations of PNA and military when Bhutto was released from jail.Bhutto‘s trial was started, Lahore High-Court awarded him death sentence but it was appealed before the

Supreme Court. Judgment was written and favored by Justice Anwar-ulHaq, Justice

Muhammad Akram, Karam Elahi Chuhan and Dr. Naseem Hassan Shah. Justice

Daroob Patel, Gulam Safder Shah and Muhammad Haleem disagreed with this verdict

(Arif, 1995, pp.135-144).

Z.A. Bhutto‘s wife Nusrat Bhutto challenged the Martial Law in September 1977. She accused the treason under Article 6 of 1973 constitution. Supreme Court in its judgment announced that the military coup was on the basis of the ‗Doctrine of Necessity‘.

Judiciary gave its verdict in favor of General Zia and endowed his usurpation of power with legality. The court described the coup d‘état as ‗Phase of constitutional deviation‘.

By accepting the doctrine of necessity judiciary had undercut its own authority by making martial law legally superior to the constitution (Louis, 1986, pp. 260-261).

From 1977-79 General Zia skillfully cultivated judiciary. Chief Justices of High

Court were appointed as provincial Governors. Those judges who were hesitant to pursue the goals of General Zia regime were removed or allowed to seek premature retirement. All the High Courts of the country were facing dilemma either to uphold military take over constitutionally valid or invalid. In March 1978 Lahore High Court

169

Chief Justice Molvi Mushtaq sentenced Bhutto to death. Appeal was filed in the

Supreme Court; the verdict from 4 to 3 judges upholds the High Court decision.

Chief Justice Anwar-ul-Haq with three judges concurring wrote the judgment. On 4th

April 1979 at minutes past 2 am, ex-prime minister of Pakistan Z.A. Bhutto was hanged to death in the district jail of Rawalpindi.

With the death of Bhutto a U turn came in the politics of Pakistan. Political forces permanently divided between pro-Bhutto and anti-Bhutto forces. Mian Tufail, Chief of

Jamat-e-Islami met with General Zia before the execution of Bhutto. It was decided that if Bhutto was to be executed his party would favor the government (Arif,

2001, p. 189).

4.8 Second Phase of General Zia’s regime 1979-85

After the death of Z.A. Bhutto, Political parties were kept out of power. The systematic efforts were made to advance the interests of military aggregation of institutional interests and also the entrenchment of institutional hegemony of military in the state structure of Pakistan.

4.8.1 Promises of elections

Supreme Court legitimized the military government in the judgment of Begum

Nusrat Bhutto vs Chief of Army Staff, recognized the Martial Law under the ‗doctrine of necessity‘ with the instructions of free and fair elections but unfortunately time period was not mentioned. Court also granted power to the CMLA to amend the constitution to perform the duties in good manners for holding free and fair elections

(Begum Nusrat Bhutto vs Chief of Army Staff, etc. (PLD 1977, Supreme Court of

Pakistan PP-657-763). President Fazal Elahi Chaudhary resigned saying that

170 government was not sincere to conduct elections at any cost. Election promise was repeated from 1979 to 1983. The ruling elite offered various reasons for delaying the general elections and subsequent transfer of power. But the local elections were conducted on non party basis to keep the people busy on local basis. General Zia declared that ―Islam doesn‘t believe in the rule of majority and majority makes the wrong decisions. The correct decision is needed the minority‖. These were the views of

General Zia regarding democracy (Aziz, 2008, pp. 25-31).

General Zia established the military courts parallel to the existing of civil courts. First, these courts were trying to offend the martial law. But later the jurisdictions of military courts were expanded to add the article in the constitution of 1973. This article stated that no civil court including High court was granted an injunction to make any order or entertain any proceedings in respect of the matter to extend the jurisdiction of military court with the article of 212-A (Arif, 2001, p.299).Political parties act 1962 act was amended, system of separate electorate introduced, accounts record of the parties were made compulsory to submit before the elections commissions and party elections were made compulsory. Islamic system of democracy was introduced with non-political party basis. General Zia exclaimed that

Islam didn‘t believe in the rule of majority, only a correct decision needed to be honored even if it was supported by the minority (viewpoint, September 30, 1979). In reality,

Government was not sincere in implementing the Islam with its true spirit. Islamic council was also in the favor of the government. Supreme Court legitimized the government with the help of doctrine of necessity for restoration of democracy not

Islam. Shariat benches were created in all the High-Courts to adjust the anti military judges.

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4.8.2 Provisional Constitutional Order (PCO)

After Military coup 1977, constitution of Pakistan 1973 was in abeyance, the working was under the CMLA order No. 1 of 1977, and Provinces were working under provincial Martial Law Order. Elections were postponed on various points by

General Zia. Military courts‘ writs were going to lose it. High-Courts challenged its decisions. Administrative hurdles were increasing for the government. Military courts wanted a separate system to function without the interference of the High-Courts.

Article 212 (A) was included for the protection of the military courts. A meeting was held by General Zia with Justice Anwar-ul-Haq, Molvi Mushtaq and

Sharifudin Pirzada at president Zia‘s residence. They scrutinized the draft and modified it in a new order of 1979. With the help of this order civil and High-Courts were prohibited to interfere in the proceedings of military courts. Article 212 (A) served military and it became possible with the consultation of Judiciary to give more time to military.

When Judiciary was bridled with Article 212 (A), a full bench of Sindh HighCourt passed a judgment of judicial review. The confusion was again increased in the military government It came to conclusion that judiciary‘s interference in executive matters was horrible. It was controlled with the promulgation of a provisional constitutional order

(PCO). On 24th March 1981, judges of the Supreme, Federal Shariat and High-Courts were called to take a new oath and instructed to work under PCO.

Chief Martial Law administrator responded by issuing the Provisional

Constitutional Order in March 1981. The judge of Supreme and High Courts were required to take a new oath of office to uphold the PCO. It literally marginalized the effectiveness of judiciary not only in form but also in substance PCO replaced. It banned

172 all political parties and completely subordinated judiciary to the martial law administration. The same history of 1958 was repeated. Military had made its mind to expand the rule at any cost so it removed all the hurdles gradually. For prolonging its tenure it changed the constitution. President Zia assumed that judiciary was going out of his control (Burki, 1991, p. 53). He introduced the provisional Constitutional order

(PCO) to subordinate judiciary. Fifteen judges of Supreme and High-Courts refused to take oath under PCO as consequences they were removed from their jobs. These were

Anwar-ul-Haq (Chief Justice), Durab patel, Fakhurddin G. Ibrahim, Molvi Mushtaq

Hussain, K.M Samdani, Aftab Faruk, Amir Raza Khan, Khwaja Habibullah,

KhalilRehman, Khurshid from Punjab High-Court,G.M shah, Abdul Hafeez Mamin from

Sindh High-Court, Khuda Baksh Muree (Chief Justice) and M.A Rasheed from

Baluchistan High-Court(Rizvi, op.cit. , p.178). General Zia controlled the situations with the help of mature and competent team. The summary of PCO was kept top secret till its completion by Sarifuddin Pirzada. Plan was also ready if judges were not going to take a new oath, courts would be run with the appointment of military officers

(Constable, 2011, pp. 218-220),(Talbot, op.cit. p. 257), (Milliam, op.cit. p.

78), (Civil & Criminal Law Publication, 1983, Lahore).

4.8.3 Majlis-e Shoora

Provisional constitutional order established a Federal Council (Majlis-eShoora) to be nominated by the President. Article 4 of PCO on 11 January 1982. The president created the Federal Council Consisting of 288 members. With the formation of his council,

General Zia was able to impose large number of decisions. The Federal Council was accountable to president Zia alone in fact it had no representative‘s character. This altered the basis, style and recruitment process of political leadership. 173

The establishment of this Federal Council created political constituency.

Military‘s dominance remained in political affairs. But the new members of federal council proved a political nursery for coming elections (Huqqani, op.cit. p. 58).

4.8.4 Restoration of Democracy

Movement for Restoration of Democracy (MRD) was the combination of twelve political parties this movement claimed in 1981 to restore the democracy. This movement couldn‘t achieve its objectives.

The movement failed on the following accounts.

• The incident of PIA plane hi-jacking by Al-Murtza (Son of Z.A. Bhutto) an

undermined movement (Yusuf, 1999, p. 204).

• Mr. Jatoi the leading person of the movement was accused by PPP of

hobnobbing with the government.

• This movement was only on local basis.

• It was poorly planned.

• PPP kept itself at distance and without the alliance of the famous party at that

time.

• Political activities were banned strictly after the action of Al-Zulfikar

movement. These activities were encountered through different tactics,

publications were banned and harsh manners were adopted against the violators.

Intercity and Interprovincial travel of politicians was banned, and close door

meetings of Political leaders were strictly banned and some of them

were under house arrest.

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• The second way for military government was prosperity of the people. Majority

of the people settled in Middle East and Europe, foreign aid from capital bloc

from Russian intervention was also in the favor of military government. These

incidents favored military to strengthen its tenure and overcome the movement

of MRD (Zaidi, 2011, pp. 13-17).

• Military was also successful to implement the right wing group about

propagating of Islam(Bhutto, 2008, pp. 49-53).

4.8.5 Presidential Referendum 1984

When the right wing political parties and military made a plan to solve the issue of Z.A.

Bhutto, after it all the political matters would be dealed. The sentence of death for Z.A.

Bhutto kept all the political parties silent. US aid to Pakistan was also conditional on

General Zia‘s legitimacy. The US president pressurized General Zia about his legitimacy. Military made a mind to conduct elections in the country. Before the elections President General Zia decided to legitimize his presidency to seek the people‘s mandate. It was decided to organize a referendum on 19 December 1984, (Referendum order 1984, Gazette of Pakistan, Extraordinary, PI, 1st December 1984, No. F.17(2)/84

– Pub).

In referendum voters were required to reply the questions either ―Yes‖ or

―No‖. The referendum order provided that ―Yes‖ answer would be electing General

Zia as President of Pakistan for next five years. There was given no extra explanation or detail.

The Constitution of Pakistan 1973 provided indirect method of president‘s election in

Article 41but General Zia issued an order of President‘s order No II on December 1984.

No court, including the Supreme Court, tribunals or other authority could be called it in

175 question, or permit it to be called in question the validity of any provision of that order.

The deserted polling stations on referendum day showed turnout were 62.15% (Baxter, op.cit. p. 114).

4.9 The Third Phase 1985-88

4.9.1 Dawn and dusk of democracy under General Zia-ul-Haq

General Elections were being held after long period of eight years on nonparty basis.

So, much interest of the people was seen. The solution of local issues of the people was the slogan of the candidates in these non party based elections. The candidates were not prominent personalities. Most of them were General Zia‘s selected parliamentarians

(Majlis-e-Shoora). An official Muslim League was established from elected house.

General Zia nominated Muhammad Khan Junejo as the Prime Minister of Pakistan.

Junejo was Sindhi politician, a gentleman, humble and veteran politician. He was not famous out of his Province. He once served as the Provincial Minister in the West

Pakistan government of president Ayub Khan. After taking oath Junejo formed a cabinet which included five members of General Zia‘s cabinet out of 13 (Hamid, 1999, p. 207).

4.9.2 Revival of Constitutional Order 1985

The constitution of Pakistan 1973 was restored in 1985 with the Revival of

Constitutional Order 1985 (RCO), it was mentioned that National assembly would amend the constitution in the favor of General Zia. In October, assembly passed the 8th amendment and martial law was uplifted (PLD 1986 status, P-13). RCO provided a strong president and National Security Council (NSC) was introduced. Military was given powers in emergency. General Zia decided to form a national security council

(NSC) with the proclamation of Article 232 of the constitution of Pakistan 1973;

176

National Security matters were dealt by this committee. President could consult with the Prime Minister. It consisted of 11 members, President, Prime Minister, Chairman of Senate, Chairman Joint Chiefs of Staff Committee, Chief of Army, Navy and Air

Force. Military was given the right for direct intervention in national affairs. Military

Officers were in majority to veto the decisions of the committee. This decision of

General Zia made the political institutions very poor. President was the appointing authority and it made the President so powerful (Revival of the constitution 1973 order

No. 14, 1985 Article 152-A (1) & (2)). A quasi parliamentary form of government was introduced by him.

General Zia relied on his military officers in civil jobs mostly military officers were appointed. Federal and Provincial seats were filled with either present or retired military officers. Public or Semi Public seats were filled by them ten percent quota was fixed in

Central Superior Services for military, District Management Group

(DMG), Foreign Service of Pakistan (FSP) were filled with the majority of military in

Zia era. A number of materialistic benefits were provided in awarding house, shops and settled in foreign countries.

Like other military rulers General Zia also weakened the political system, he introduced a strong presidential form of government. To implement his mental approach he changed the constitution of Pakistan 1973, with the consultation of his private members and top bureaucracy (Baxter and Kennedy, 1998, pp. 61-65).General Zia issued the revival of the constitutional order (RCO) it amended the 57 articles, added 6 and deleted

2 Articles from constitution of Pakistan 1973 in 1985 and chapter 3-A of part vii about shariat Court was already added in 1979. A paralyzed parliamentary form of government let to remain to protect the powers of the PresidentAll the hi-profile appointments were in the hands of the President of 177

Pakistan General Zia, dissolving the assemblies with 58 (2)(B), insertion of Article 270-

A about to validating the marital law including the military courts with direct referendum president was allowed to remain in uniform as Chief of Army Staff

(Waseem, 1987, pp. 54-58).

4.9.3 Council of Islamic Ideology

The Council of Islamic ideology was established to set the political system of Pakistan on Islamic principles it submitted its report in April 1982 it recommended the separate electorate system, universal adult franchise, and it strongly recommended the parliamentary form of Government (The Muslim, 17 July 1982). President sent it back for reconsideration when it was submitted again. It was recommended with sanctions on political parties (Council of Islamic Ideology, Constitutional recommendations for the Islamic system of government, Islamabad, 1983).

4.9.4 A Federal Council Committee

A Federal Council Committee also recommended changing the constitution according to the situation. It also supported the right of the political parties but unfortunately the ruling Generals accept the report only to amend the constitution and remaining recommendations were rejected (Federal Council Islamabad, 1983). An

Ansari report was also not accommodated by the president which was submitted in 1982

(Ansari report on form of Government Islamabad Printing Corporation Pakistan Press,

1983). President Zia-ul-Haq wanted to remain in power at any cost. His colleagues also had same opinion about it. President Zia unfolded his plan gradually.

He introduced the ‗local bodies‘ elections on non political party basis. He took undertaking that power would be transferred if he would be elected as President

(Waseem, op.cit. pp. 3-10).

178

4.9.5 Constitution of Pakistan 1973 and 8th amendment with Prime Minister Junejo

The 8th amendment balanced the powers of the prime minister and the president of Pakistan. The most effective powers of the President were to dissolve the assemblies without any consultation, the appointment of Army and Naval Chief,

Admiral and Provincial Governors, powers were also assumed to the President. This amendment validated the military coup of 1977 and President could hold the office of

Chief of Army Staff (Article 66, Constitution of Pakistan 1973).

Junejo attempted to control military like Bhutto but could not succeed (Hussain, 2013, pp. 83-86). He insisted on the retirement of General K.M. Arif who was Vice Chief of

Army Staff and General Rahim Khan who was Chairman Joint Chief of Staff

Committee(JCSC) (relative of Zia) upon completion of three year tenure.The National

Assembly demonstrated its political will by electing Fakhar

Imam as its Speaker against General Zia-ul-Haq‘s candidate.Martial law was still imposed in the country and Junejo Promised to lift it. The National Assembly and

Senate passed resolution demanding removal of marital law. Three provincial assemblies (NWFP, Sindh, and Punjab) passed the bills against the martial law and

Junejo announced the end of martial law on December 30, 1985.General Zia-ul-Haq introduced 8th amendment in 1973 constitution after the withdrawal of Martial law. It enhanced the power of President and created balance of Power between the Prime

Minister and the President. According to it, the President could dismiss the Prime

Minister as well as dissolve the assemblies. However, Parliament could make some changes in the original draft of 8th amendment. For example, it removed a proposal, which gave the representation to the military in policy making. The National Assembly

179 was allowed to elect the Prime Minister from March 1990 and the provincial assemblies could elect their Chief Minister from March 1988. The

President could appoint provincial governors with the advice of the Prime

Minister.General Zia saved himself by nominating a peasant and a gentleman Prime

Minister. General Zia never transferred the power to the civilian leaders but it was just an eye wash. A shared formula of military and politicians evolved the relationship of client and patron. General Zia considered that his handmade parliament would work according to his own will. But it proved an unnatural alliance (Ali, 1997, p. 215). After taking oath Junejo announced on very next day that he would reinstall the pure democracy on political party basis. He encouraged the political parties to reunite themselves. Junejo did not feel well under the supremacy of Zia. But following events unabridged the alliance of General Zia and Junejo. Junejo exclaimed that he would put the Generals in SUZUKIS (Small Cars). It was an unpleasant for the Generals. The life style of the Generals was discussed in Media. A series of anti-military debates started which was not in the favor of military.Junejo started to make many decisions without consulting General Zia-ul-Haq. General Zia-ul-Haq appointed Director of Intelligence

Bureau (IB) Major General Agha Naik Muhammad was replaced by Junejo, without consulting General Zia-ul-Haq by Aslam Hayat, a civilian, after his successful visit to

America. He also removed Dr. Mahbobul Haq, Dr. Asad and Dr. Attiya Anyatullah from cabinet positions who had been appointed by General Zia-ul-Haq. Junejo appointed Yasin Watto a former PPP leader as Finance Minister. Junejo also started interference in military affairs and refused to extend the tenure of General Zia-ul-Haq‘s close associates General K.M. Arif and General

Rahim-ud-Din and played key role in the selection of General Mirza Aslam Beg as

180

Vice COAS. He removed General Sahibzada Yaqoob as Foreign Minister and appointed Zain Norani as Minister of Foreign affairs and General Majeed Malik as

Chairman of Public Account Committee of Parliament. He ordered the Federal Anti

Corruption Committee to check the corruption in civil services and armed forces

(Lamb, 1991, pp. 58-63).

4.9.6 Geneva Accord

An agreement on Afghan peace process was signed under the supervision of UN representatives. General Zia wanted to hold the dialogues till the permanent solution of

Afghanistan. Junejo held a meeting with the political parties including PPP for consensus, parties favored the early settlement. All the political parties wanted unattachment of Pakistan from Afghan issue as soon as possible. Benazir Bhutto

(daughter of Z.A.Bhutto) participated in this meeting with the condition if Zia would not come, it was accepted by Junejo. The domestic support and the encouragement of

US emboldened Junejo to sign on peace accord on Afghanistan on 14th April 1988. After coming back from US P.M.Junejo‘s intentions were totally against military. It annoyed

General Zia and there was total misunderstanding between civil and military authorities

(Lamb, 1991, pp. 223-227).

4.9.7 Explosion in Ojhri Camp

On 10th April 1988 an explosion blew the depot of ammunition at Ojhri Camp. It was the heavy loss of life and property. Pakistan army was criticized all over the world. The

Prime Minister of Pakistan adopted harsh manners against it. He exclaimed that concerned authorities would face the music. The two hi-profile military officers

(General Hamid Gull and General Akhtar Abdul Rehman) were expected to face the music. President Zia wanted to protect them at any cost. These were the major reasons

181 which set the stage for General Zia and P.M. Junejo (Wall Street Journal, February 16,

1988), (The missing millions, for Eastern Economic

Review, 5th March, 1987).

4.9.8 Dissolution of the Assemblies

The above mentioned activities of P.M. Junejo threatened President Zia. The interests of the military were going towards the brink. President Zia wanted to keep himself in power with the help of his colleagues. He preferred military and ignored the political setup. He came to the conclusion that civil government was ignoring his advice and interests of the military. So, in this context on 29th May 1988, he dismissed the civilian government. General Zia exclaimed ―The armed forces of Pakistan are responsible for not only safeguarding the country‘s territorial integrity but also its ideological basis‖

(The Muslim, 14 March 1984). It was not clear which was the benefit of the ideology in dissolving the parliament.

General K.M Arif used such words that military of Pakistan had right to intervene in domestic politics. General Zia also mentioned that constitutional provision allowed military commanders to take over the reins of the state in emergency (Defense journal

(Karachi) vol. viii, No. 12, 1982, PP-35-38).

It shows that military was not sincere about civil setup. It wanted its own hegemony at any cost. The same month a Gallup poll recommended P.M. Junejo an honest person.

He worked for the pure democracy in Pakistan but was not allowed.

General Zia made speech on TV that present government failed to introduce the Islamic reforms and elevate the poverty(Toor, 1994, p.199). Insurgency and starvation increasing were discussed. With the removal of present government, promise was made

182 about the new elections in six months. Political parties welcomed the dissolution and demanded new elections on party basis which was rejected byGeneral Zia-ul-Haq in last elections. Junejo was from Muslim League (Pagaro group) now it was disliked by

General Zia. He wanted to win his cronies. He had lost his options after dissolving the assemblies. He considered restoring the assemblies through judiciary. He was also considered to become the Ameer-ul-Mominin of the Islamic republic of Pakistan but his luck stopped to favor him more. On the other hand Junejo didn‘t challenge his dismissal and he silently went home. After the death of president Zia, Supreme Court decision came that General Zia‘s non party elections and dissolving of the Assemblies were illegal (Toor, 1994, p.202),(Hussain, 1990, pp.

241-249).

4.10 General Zia’s Local Government System

Basic democracies couldn‘t achieve its objectives in president Ayub era. After president Ayub this local system was completely freeze in General Yahya‘s Period.

After the debacle of Dhaka, P.M. Bhutto took the power. Bhutto converted the political system on the local basis. But he couldn‘t politicize the people in perfect manners. A lot of Policies of Bhutto were failed one of them was local government. He couldn‘t conduct the local elections in his tenure (Islam,2004,pp.38-43), (Badar, 1987. p. 134).

President Zia took the power, he was soldiers and his mind was to eliminate the political parties and to introduce the new system on ideological basis. He had some objectives in his mind which could be fulfilled only in this way. First, legitimization of his rule, second, divided the people on federal, provincial and local basis. Third, constitution of

Pakistan 1973 was in abeyance and he wanted to keep the people busy in local elections and no one would claim about its (constitution) revival.

183

It was more interesting that ‗local bodies‘ elections were conducted on their perfect time in 1979, 1983, and 1987 but general elections were conducted in 1985 on nonparty based after 8 years for first time and never allowed the parliament to work more than three years. It was preplanned to introduce the local bodies‘ elections on non political party basis. It was the same planning of General Zia as like of British in this region before the partition to prolong its tenure of ruling with ‗divide and rule‘, policy. General

Zia divided the people on rural and urban basis. He adopted the same policy of president

Ayub when in elections president Ayub was rejected by East Pakistan he ignored it in all fields of life. Urban areas disliked Bhutto and he was liked in rural areas. So, General

Zia promoted the urban areas (Anti-Bhutto) and ignored the rural areas (Pro-Bhutto).

On other hand political influence was more in rural areas (Baxter, 1985, pp. 111-119).

General Zia was against this trend.He chalked out his plan with slogan of welfare of the people (Badar, op.cit. p. 132). Political parties were banned. It was the single way to link with the people in the manners to legitimize him. He conducted the local elections on non-party basis. As after twenty years the local system was again implemented. For implementing this system round about nine ordinances were issued (Chaudhary, 2003, p. 202). ―In 1979 the induction of 17737 elected councilors in 84 district councils,

4100, Union Councils, 12

Municipal Corporations; 117, Municipal Committees, 285 Town Committees & 39

Cantonment Boards, all over the country with a mandate to develop the potential of their respective areas and solve day to day problems of their communities is a manifestation of this realization‖(Bukhari, 1985, p. 47),(Rizvi,1980,pp.219-226).

The total system was derived from Z.A. Bhutto‘s local government ordinance.

It was issued with the name of ‗Local Government Ordinance 1979‘ (Haq, 1992, pp.

14-15). This ordinance was also implemented in Kashmir & Federal Government

184

(Siddiqi, 1992, p. 107). 4.10.1 Kinds of Local Institutions

• Union Councils

• District Councils

• Tehsil Councils (These were established in Sindh & Baluchistan but in 1982

were abolished.)

• Town Committees.

• Municipal Corporations (For Cities)

• Metropolitan Corporation (For big cities it was only one in Karachi) (Badar,

op.cit. p. 140). Every Province, Federal, Territorial & Kashmir areas had

different names of this local government ordinance like.

• Punjab local government ordinance 1979.

• Sindh local government ordinance 1979.

• Baluchistan local government ordinance 1979.

• Federal Territorial local government ordinance 1979.

• Independent Kashmir local government ordinance 1979.

4.10.2 Punjab Local Government Ordinance 1979

Under this ordinance Municipal Corporation, Municipal Committees, Town

Committees, District and Union Councils were established for the remote control areas.

185

4.10.3 Sindh Local Government Ordinance 1979

Metropolitan, Municipal Corporations, Municipal and Town Committees for the cities,

Union and District Councils dealt with the remote control areas. The same method was adopted in Baluchistan and NWFP (Siddiqi, op.cit. p. 107).

The total strength of these institutions was as:

Teshil Councils were established only in Baluchistan (Akhtar, 2002, p. 70). In some Provinces Panchiat (Jirga) system was implemented on the local Community and village basis. This panchiat (Jirga) had powers to deal with the social and religious matters. Police was bound to own their decisions (Chaudhary, 1994, p. 210).

The tenure of this local government was four years (Chaudhary, 1988, p. 100).

186

Table-2 4.10.4 Structure of Local Government in Pakistan

Badar-ul-Zaman, Local governments and Institutions, Maktaba Fareedi, Karachi, 1987.P. 143.

164

4.10.5 Rural& Urban Local Government Institutions

4.10.5.1 Union councils

Rural matters were dealt by the Union Councils. It consisted on eight to ten villages with the population of 15000 to 25000. The numbers of members were different of Union

Councils in every Province. The Chairman and Vice Chairman were appointed by the members of the Union Councils (Siddiqi, op.cit. p. 111).

4.10.5.2 Tehsil councils

According to the ordinance 1979, the provinces were given the powers to establish Tehsil

Councils. Tehsil Councils were established only in Sindh and Baluchistan. These were abolished from Punjab with the amendment in Punjab ordinance local government 1979.

4.10.5.3 District councils

District Council was the biggest council of local setup. Chairman and Vice Chairman of the District Council were also appointed by its members. It was the first time that non- governmental officers were appointed to run the administration of the district (Ibid. p. 111).

4.10.5.4 Metropolitan corporation

According to the local government 1979, Metropolitan Corporation was established only in Karachi (Sindh) total members of this corporation were 150 with the population of 2500000. Its head was called Mair and Deputy Mair. Municipal Corporation was established only in Metropolitan cities. Special quota of woman, farmers, Labors and minorities was increased from 5% to 10% with an amendment in Local Government

Ordinance in 1983. 189

4.10.5.5 Municipal and Town Committees

Municipal committees dealt with those areas which had the population from 30 thousand to 5 lac. (Punjab Local Government Ordinance, 1979, A-11(c)) The areas which have the population from 10 to 15 thousand were dealt by the Town Committees (Local

Government Ordinance, 1979, A-11(1)).

4.10.5.6 Cantonment Boards

Cantonment Boards were established under the federal government and it consisted of 5 to 25 members. There were two categories of these members. First was elected and second was selected (Shahid,1980,p. 155). Cantonment Board was dealt by the Commander. This was selective body. The assistant was elected and it was the administrative structure of this

Cantonment Board.

4.10.6 The duties of thelocal governmental institutions

This structure was setup to facilitate the people on their door steps. The functions and duties of these institutions were as under.

4.10.6.1 Union Councils

Union Councils had three kinds of duties like Municipality, developmental and welfare.

27 Municipal and 8 welfare duties were assigned to them. Look after the streets, bridges, sanitations, Health and Cleaning, to take care the outdated and Okaf buildings.

Agricultural, Industrial and other relevant programs were launched by the Union Councils

(Siddiqi, op.cit. p. 111).

190

4.10.6.2 District Councils

District Councils had two major duties to construct the roads, bridges and public buildings.

Care taking the Hospitals,Schools and Colleges (Local Government Ordinance,

1979, A-40 Schedule (ii)).

4.10.6.3 Metropolitan Corporation

Metropolitan was functional only in Karachi. It had two types of duties, first compulsory second elective. Some of them were as:

• To create the welfare opportunities.

• To produce the health and care facilities.

• To maintain the death & birth record.

• Create the educational facilities.

• The arrangement of lighting and libraries for the citizens (Siddiqi, op.cit. p. 117).

4.10.7 Elections

The terms and conditions were already defined in the ordinance so the voters must

have such qualities.

• The resident of Union Council.

• Name in the voters list.

• Must not have unsound mind.

• The citizen of Pakistan.

• Must not involve in heinous crimes. • Not bankrupt (Punjab Local Government Ordinance, 1979, A-13,18,19).

191

4.10.8 Fiscal system

Finance department was very important in local government. This government had complete right on the income of its localities. Finance clauses were included in the local government ordinances. Income sources of this system were as under:

• Tax levies.

• Income from various new schemes.

• Funds from federal government.

A perfect annual budget was made and annual 85% property tax was received by this local government (Siddiqi, op.cit. pp. 129-130). A separate tax list for rural and city area was issued. Tool plazas were established on the roads and fee was imposed for carrying the goods from one city to another (Local Government Ordinance, 1979, A- 137, Schedule

2(ii)). Government controller authority was not made for it, it was independent (Siddiqi, op.cit. p. 112).

Provincial government could check the progress of local government, ‗Divisional Co-

Ordination Committees‘ were made under the supervision of the commissioner to supervise the work of the local government (Ibid. p. 135).

4.10.9 Miscellaneous

Provincial election authorities were established according to the local government ordinance 1979 in every province. A separate electoral system was introduced on nonpolitical party basis (Nawa-e-Wakat, 30 March, 2001).

First elections were conducted in 1979. Second in 1983 but political parties hegemony was seen in this election. Third elections were conducted in 1987.The basic function of these 192 elections was to keep the people busy on local basis and military to remain in power for long time on national basis (Ibid).

President General Zia-ul-Haq was so powerful dictator but legitimacy was also an issue for him. So, he used to adopt some manners for prolonging his period (Alvi, 2000, p. 106).

President Zia introduced the ‗Islamic political system‘. He was successful in maintaining his hegemony with the help of this system to exclude the political parties.

PresidentAyub introduced a strong central government with the help of local bodies but

President Zia transferred the powers on local basis. He promoted the provinces. Local government was very powerful to impose tax and could collect revenues(Chaudhary, op.cit. p. 214). Public officers had no power to remove them. Local community was powerful. This experience was better than basic democracies. Problems of the local community were solved on priority basis (Badar, op.cit. pp. 166-167).

This local government solved the problems of the people on their doors but caste system, sectarianism, color and creed system became strong with this system. Military gained its objectives with non-party based elections but national thinking was dispersed (Kareem,

1989, p. 343). People were deprived of national thinking and national leadership. Multi- cultural, and multi- lingual system was introduced. Political awareness was snatched and military used people to gain its objectives (Chaudhary, op.cit. p. 215).

―Military rulers always remained keen to create representative institutions on local level but no expected results of mass representation could be achieved. Because the frame works of devolution of power couldn‘t devolve powers to the people, rather they were the means to share powers with the elite and influential groups at the local level. The

193 basic democracy of president Ayub Khan and local bodies of General Zia-ul-Haq could not properly envisage executive authorities and financial liberalism. Furthermore, the local bodies institution were used to legitimize the military regimes and given them a political and democratic cover‖(Hussain, 2004, p. 364). Zia covered himself with this local system but his luck could not support him more and died in an air crash on 17th

August 1988.This hybrid system was delivered to the coming government in the shape of

‗Troika‘.

194

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Shahid, S.M.(1980). Local Government & Institutions.Lahore, Pakistan group for the study of local government.

Siddiqi, K. (1992). Local Government in South Asia. Dhaka, Publishing University Press.

Siddique, S. (1979). Withness surrender. Karachi: Oxford University Press.

Stanley, A. K. (1983). Interest Group and Development: Business and Politics in Pakistan. New Delhi, Oxford University Press.

Talbot, I. (2009). A Modern History of Pakistan.UK, Churst & Company Publishers (Ltd).

Thomson, W. R. (1973). The Grievances of Military Coup Markers.Beverly Hills, Sage Publications.

Waseem, M. (1987).Pakistan under Martial Law 1977-1985.Pakistan, Vanguard Books.

Waseem, M. (1994).Politics and State in Pakistan.Islamabad, National Institute of Historical Culture Research.

Zahid, S. A. (2011). Military, Civil Society and Democratization in Pakistan. Islamabad, Karachi, Lahore. Vanguard Books.

Ziring, L. (1980). Pakistan: The enigma of Political Development. London, Dawson.

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5.1Introduction

After the death of General Zia-ul-Haq, a paralyzed (troika) democratic system was introduced. This system envisaged the fourth martial law.Prime minister of Pakistan Mian

Mohammad Nawaz Sharif replaced chief of army staff General Jahangir Karamt, when he claimed about the national Security Council (an idea was given by the president of Pakistan

Farooq Ahmad Khan Lughari). P.M.Nawaz Sharifrehabilitated the status of prime minister with 13th amendment in the constitution of Pakistan. The controversy between the prime minister and the chief justice leading to the resignation of the chief justice, the electing of the new president, all these activities made the prime minister bold. Prime minister passed a bill from the parliament to be called himself an ameer-ulmomineen (commander of faithful) this ameer-ul-momineen could not be removed from his post till his death.(Article

2(B), the constitution of Pakistan 1973).

These activities were carried on; in the meanwhile Prime minister of Pakistan invited the Indian Prime Minister Attal Bahari Vajpai for establishing the cooperative relationship between states. This practice was disliked not only by the army but also by the right wing political parties of Pakistan.

Civil government was busy in itsworks. The kargil (disputed area between India and Pakistan) episode started. Pakistan military occupiedkargil sector. US president put pressure on the Pakistani Prime minister to call back the forces. Government claimed unawareness about the military activities but military replied that all the activities were carried on with the consultation of Prime minister(Musharrf,2006,pp,86-98),

(Khalid,2013,p.238),(khan,2013,pp.306-321). Government made its mind to take action

200 about the relevant officers of kargil issue through on enquiry. It was so horrible for the military (like the ojhri camp incident in Zia era). Prime Minister Nawaz Sharif wanted to appoint a new chief of army staff General Zia-ul-Din Butt (DG-ISI) after removing General

Pervez Musharraf (key player of kargil episode). Tussle was carried on between the prime minister and the military, chief minister of Punjab Mian Mohammad Shahbaz

Sharif(brother of prime minister Mian Nawaz Sharif) and federal Minister Nisar Ali Khan tried their best to bridge up the differences but all in vain.

Chief of army staff General Pervez Musharraf was on official visit to Sri Lanka when prime minister tried to replace him. On October 12, 1999 Chief of the Army Staff

General Pervez Musharraf was scheduled to return from Colombo after an official visit to

Sri Lanka. PIA flight Pk-805 was about to land at Quaid-e-Azam international Airport

Karachi. The estimated time of arrival of this fight was 18:55 hours. The plane could not land as the air traffic controller refused to landing anywhere in Pakistan; Prime Minister

Nawaz Sharif was busy in insidious conspiracies against the Army (Karachipage.com). His government wanted to arrest Chief of the Army Staff General Pervez Musharraf after diverting the PIA flight from Colombo to Karachi.

The nervous conspirators instructed Shahid Khaqan Abbasi Chairman of PIA to ensure that the flight carrying General Musharraf would not land at Karachi. When the PIA plane reached Karachi and told the control tower that it was short of fuel, the Civil Aviation

Authority personnel directed the pilot to take it to any neighboring country.

The corps commander Lieutenant General Mustafa Usmani, who was at the airport to receive the Army Chief under a contingency made a plan for army. The situation arising out of the sacking of the army Chief, the troops of 5 corps reserve arrived ‗at Jinnah 201

Terminal of Karachi Airport‘ (Ibid). Meanwhile, General Pervez Musharraf landed; he sacked Nawaz Sharif, and assumed control of the country. Army Chief General Pervez

Musharraf overthrew the Civilian Government of Mian Nawaz

Sharif in a ―bloodless coup on 12th October 1999, and became the state‘s fourth military ruler to control political power in Pakistan‖ (Cheema, 2002, pp, 151-153).

Karachi greeted the ousted of Nawaz Sharif, he was blamed by MQM for persecution, Sharif was called cruel & Fascist ruler. He was declared an authoritarian ruler like Bhutto. The most significant was a grand alliance against Pakistan Muslim League‘s authoritarian mind. This was the multiparty alliance of political & religious based including

PPP, MQM, Movement of Justice by Imran Khan; this alliance welcomed the dismissal of

Nawaz‘s government. A meeting was held under the supervision of Nawab Zada Nasrullah

Khan, a unanimous decision came that the Nawaz government paralyzed all the institutions and it was hoped that Musharraf‘s government would rearrange for perfection & rehabilitation of democracy (caps.af/strategic analysis3doc).

Jamate-Islami was also not on back foot to criticize the Nawaz government, it also welcomed the military as usual but it disliked imposing of emergency, demanded the implementation of pure Islam as usual.

Army always came in Pakistan with political instability & economic crisis; it was the common practice all over the third world states.But the situation in 1999 was totally unexpected, a tussle between the government & the military, with removing the Chief of

Army Staff an institutional response came and military intervened and suspended all the political institutions (Belokrinitsky, Moskalenko, 2013: PP 370-371).

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5.2 First Address of General Pervaz Musharraf to the Nation

After completing all the essential matters General Musharraf addressed the Nation on 14 October 1999: ―My dear countrymen the political & economic situation of Pakistan was much poor. Federation was going towards the disintegration. The credibility of the institutions lost & the economy was crumbling‖.

He further mentioned that Pakistan had no pure democracy, it had shamed democratic era, a new era of democracy would be started. Constitution of Pakistan as well as the Parliament, Senate & Provincial Assemblies was suspended. Its example was given by him that the Nation was like a body and constitution was like a limb. If limb was cut body could be saved and if body was wasted limb had no importance, so, constitution was for the Nation & Nation was not for the constitution. He exclaimed that he saved the nation from disintegration.

He mentioned that in past governments ruled over the people but now the governments would serve the people.

• Establishment of National Security Council.

• Revival of economy.

• Accountability.

• Carry on the foreign policy of ex-government.

He said that wrong polices being pursued by the Nawaz Sharif government had jolted the very foundation of the country. P.M. Nawaz‘s government tried to interfere with the armed forces, the last remaining viable institutions in which the nation take so much

203 pride and took tip to at all times for stability, unity and integrity of our beloved country(emergency.com: 1999). He further stated that he had wished to inform you that the armed forces had moved in as a last resort to prevent any further destabilization.

Military had done so with all security, loyalty and selfishness devotion to the country with armed forces firmly behind him. For the moment he only wished to assure the nation that situation in the country was perfectly calm, stable and under control (sketch from first address to the Nation on 14 October1999).

5.3 The Imposition of Emergency

After taking over the charge, General Pervez Musharraf imposed emergency,

Instead of martial law, he proclaimed emergency on October 14, 1999 (Dawn.com 14

October, 1999). The proclamation of emergency order declared that: ―The Constitution of the Islamic Republic of Pakistan shall remain in abeyance. The President of Pakistan shall continue in office, The National Assembly, The Provincial Assemblies and Senate shall stand suspended. The Chairman and Deputy Chairman of the Senate, the Speaker and

Deputy Speaker of the National Assembly and the Provincial Assemblies shall stand suspended, The Prime Minister, the Federal Ministers. Ministers of State, Advisors to the

Prime Minister, Parliamentary Secretaries, the Provincial Governor, Provincial Minister and the Advisors to the chief Minister shall cease to hold office. The whole Pakistan will come under the control of the Armed forces‖ (Dawn, October 15, 1999).

5.4 Provisional Constitutional Order of October, 1999

After the imposition of emergency, the Army Chief General Pervez Musharraf suspended the Constitution to the extent of its impact on the military action and issued the

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Provisional Constitutional Order on October 15, 1999. All these steps were taken to fill the constitutional gap. General Pervez Musharraf adopted for him the designation of Chief

Executive because he had filled the gap left by Prime Minister who was also chief executive of the country. The main points of provisional constitutional order of 1999 were as under:

• This Order might be called Provisional Constitution Order No. 1 of 1999; it was

extended to the whole of Pakistan and came into force at once.

• Notwithstanding the abeyance of the provisions of the Constitution of the Islamic

Republic of Pakistan. Hereinafter these were referred to as the Constitution.

Pakistan was the subject to this order and any other order made by the Chief

Executive is governed as nearly as might be in accordance with the Constitution.

• Subject as aforesaid all courts in existence immediately before the Commencement

of this Order were continue to function and for exercising their respective power

and jurisdiction Provided that the Supreme Court or High Courts and any other

court had no power to make any order against the Chief Executive or any person

exercising powers or jurisdiction under his authority.

• The Fundamental rights conferred by chapter I of Part II of the Constitution, Not in

conflict with Proclamation of Emergency or any Order made there under from time

to time should be continue in force.

• Under the provisional constitutional order of 1999 the President and provincial

Governors could act on, and in accordance with the advice and instructions of the

Chief Executive.

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• No court, tribunal or other authority could call or permit to be called in question the

Proclamation of Emergency of 14th day of October, 1999 or any order made in

pursuance thereof.

• No judgment, decree, writ order or process whatsoever would be made or issued by

any court or tribunal against the Chief Executive or any authority designated by the

Chief Executive.

• The Proclamation of Emergency issued on 28th day of May 1998, would be

continued but subject to the provisions of Proclamation of Emergency dated 14th

day of October 1999 and this Provisional Constitutional Order and any other

Order made there under (Dawn.com – October 15, 1999).

5.5 Six Point Agenda of General Musharraf

In his policy address to the nation on October 17,1999 General Pervez Musharraf announced his seven point agenda which signified that Pakistan would be a progressive, modern and moderate Islamic state, poised to take its place amongst the developed nations or the world, the country‘s development not exclusively in the economic sense, but rather in a more holistic manner to include social, cultural and political dimensions, Pakistan to grow in terms of national unity and social cohesion; democracy and political stability; social justice, quality of life, national morale and pride was proclaimed(jones,2002,pp,269-

271). His Agenda consisted of seven points:

1. Re-build national confidence and moral.

2. Strengthen the federation. Remove inter-provincial disharmony and restore

national cohesion.

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3. Revival of the economy and restore investor‘s confidence.

4. Ensure law and order and dispense speedy justice.

5. Depoliticize the state institutions.

6. Devolution of power to the gross root level.

It was basically the views which carried out and crystallized by General Pervez Musharraf about the future course to be adopted in Pakistan. The key objective of his agenda was to bring the country out of socio-economic and moral chaos (Frontier post,

October 15, 1999).

5.6 National Security Council

A National Security Council was announced by Chief Executive in his fist address to the nation on October 17, 1999. The National Security Council was the consultative body which headed by Chief Executive General Pervez Musharraf and comprising six other members i.e. ―Chief of the Naval Staff, Chief of Air Staff, a specialist each in legal, finance, foreign policy and domestic affairs. A national think tank would assist the

National Security Council‖(Pakspctor.com). Its basic function was to guide the workers in running the affairs of the state. Later on, National Security Council took practical shape on 6th November, 1999. President Rafiq Tarar administered oath of its members at the Awan- I-Sadr in Islamabad (Dawn October 18, 1999). General Pervez Musharraf the head and the members of the NSC these were as: 1. Air Marshal Mehdi Qureshi (Chief of Air Staff) (Chief of Navy 2. Admiral Abdul Aziz Mirza Staff) Dr. Din Muhammad (Ex Governor of 3. Yaqoob. SBP) 4. Dr. Attiya Inayatullah (Associate of UN activities at very senior level

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& Minister in Zia‘s cabinet) (A retired cabinet sectary in 5. Imtiaz Sahibzada 1996-1997) (Senior Advisor to C.E. and Ex 6. Sharif-ul-Din Prizada Official Member of NSC of Zia)

7. Aziz A. Munshi (Attorney General) 5.7 Packing of the Ex Prime Minister

Prime Minister Nawaz Sharif was kept under the house arrest. In December 2000, as a result of an agreement signed between General Pervez Musharraf‘s government and

Nawaz Sharif the ex P.M. was exiled to Saudi Arabia, along with his family members

(Dawn.com). Saudi-Arabia took serious efforts to save Nawaz Sharif, Hussain Nawaz (son of Nawaz Sharif) also requested the prime minister of India Atal Bahari Vajpai to save his father this practice was disliked by the masses of

Pakistan(Strategicanalysis.com),(Talbot,2005,p.381).

5.8 Doctrine of Necessity

Pakistan Muslim League filed a suit in the supreme court of Pakistan and challenging the military coup on November22, 1999. The petition was filed by the 12 persons including the former speaker of National Assembly, chairman senate Elahi Baksh

Sumroo, Raja Zafar-ul-Haq a PML (N) leader. On May 12, 2000 court justified it under the ‗Doctrine of Necessity‘; further court gave three years to the military to restore the democracy in the country (ciaonet.com).

Military government amended the Anti-terrorism Act of 1997, under this

amendment anti-terrorist courts could hear the cases under several additional

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sections of Pakistan penal code(PPC), criminal conspiracy& hijacking was

brought under it. Court was also authorized to award the death sentence. Charge

sheet was filed against Nawaz Sharif with the objections of attempt to murder,

hijacking, kidnapping and criminal conspiracy. Accountability court sentenced

Nawaz Sharif to 14 years imprisonment and barred him from holding public office

for 21 years (Human Rights Watch Report on

Pakistan, 2001),(Ciaonet.Org/ sa-Jan 01 Kus 01.html), (Warriach, 2007, pp, 57-60).

5.9 Devolution Plan (2000)

General Pervez Musharraf was under tremendous international pressure about the restoration of democracy especially from SAARC & commonwealth. Before the arrival of two days of US president Clinton on March 23, 2000, General Pervez Musharraf addressed that Democracy in Pakistan would be rehabilitated in the end of this year .Military government came out with fairly detailed proposals regarding a new system and structure for local bodies on March 23, 2000. That was aimed at transfer of administrative and financial powers to the local Governments. The devolution Plan, envisioned building the genuine democratic institutions, to empower the people at the grassroots level, that system allowed public participation in the decision making and ensured the provision of speedy justice. Under this system the elections were held on non-party base (National reconstruction Bureau, 2000). The vote age was reduced to 18 years from the previous 21, while fifty percent seats were reserved for women in union council and joint electorates were proposed for minorities in order to address long-standing demands and rights from women and minorities. Fresh voter lists were in the process of preparation by the National

Database and Registration Authority (NADARA) on the basis of the 1998 census. The

209 system provided a three-tier structure of local Government bodies these were the District

Government, the Tehsil Government, and union council (Dawn, March, and April 24,

2002). After 9/11 when the sanctions were removed from Pakistan, the aid was conditional to restore the democracy in Pakistan (Rizvi, 2009, pp.32-35). So Musharraf made this plan speedy like General Zia to legitimize himself before the world.

5.9.1 District Government or the District Assembly

Under this plan the district government included, the Zila Nazim and Naib Zila

Nazim, the Zila council and district administration. The Naib Nazim was the speaker of the council and the Zila Nazim was not its member. The Zila Nazim was the Executive head of the district and the administration and the police was responsible to him.

Therefore, each union had one representative in the Zila council and thirty three percent seats were reserved for women, five percent for workers or peasants and five percent for minorities. All the union councilors of the district were the members of Electoral College for these reserved seats. The union councilors of the district elected their Zila Nazim and

Naib Zila Nazim as joint candidates. The Zila Nazim and Naib Zila Nazim had academic qualification of at least matriculation or secondary school certificate (Islam, 2011, pp,

3546). The Zila Nazim was bound to provide political leadership for the development of the district. The district assembly‘s legislation powers were to levy taxes made rules and regulation and to prepare district budget.

5.9.2 District Nazim

Under the devolution plan the District Nazim was the Head of district administration and as such a highly important person in the district and was responsible for all the sectors

210 of a district He was also responsible to develop a vision for the development work to be carried out in the villages. Thus the District Nazims were provided the necessary leadership for the execution of development projects of the private sector civil and the local institutions

(Dawn.com, 26 April, 2002).

5.9.3 City District

The program of local government was given an outline of raising the government structure at the district levels which had been introduced in Pakistan for the first time. The city District was comprised on a number of towns divided on the basis of population and having characteristics of an urban area. The newly formed towns of the city district had powers and authority to perform municipal functions and provided facilities to the residents of the area (Shahid, 2011, p. 334).

5.9.3.1 District Police

In the new local government‘s bodies, the law and order was the responsibility of the provincial government, the district Nazim was empowered to select the head or the district police from a panel and the appointment of the head of the police was confirmed by the district Assembly. The head of the police was performing his duties under the supervision of District Nazim due to which the police department highly politicized. The performance of the police official was monitored by the citizen community boards, the unions, Thana. Tehsil and District police safety and justice committees could take action or removed of the district police chief or any of his subordinated it could be initiated by the

District Nazim on the recommendation of the district police safety and justice committee.

However, the action against the district police could be effective only of approved by 2/3

211 majority of the district assembly The Annual Confidential Reports (ACRs) of capital police officers (CPO‘s) were written by District Nazims.

The colonial power centers of the Deputy Commissioners (DCs) were abolished. In this system, new post of district co-ordination officer (DCO) created who were answerable to and work under district Nazims. The heads of the provincial departments of operating in the district would also be under the committee members (CM) and report to him. The DCO and District officers were appointed on the recommendations of the CM, subject to rectification by a simple majority of the district assembly. (Rabbani, 2010, p. 388).

5.9.4 Tehsil Council

The Tehsil government was included the Tehsil Nazim, the Naib Tehsil Nazim, the Tehsil council and the Tehsil administration. The Tehsil council was directly elected body comprising Naib union Nazims of all the unions of the Tehsil. Under this arrangement, all the union of the tehsil could get representation at the tehsil level. As the union Nazim and

Naib union Nazim could be elected on a joint tickets, both could be operating in harmony in the interest of their union at all the three levels of the local government i.e. the union local government, the union council, the Tehsil and the district council (

Zaidi,2011,pp,125-133).

The number of general seats in a Tehsil council would be the same as the number of union in that tehsil. In addition 33% of the general seats were reserved for women, five percent for workers / peasants, and five percent for minorities. The Electrol College for elections to the reserved seats would be the union councilors of the tehsil. The tehsil Nazim and Naib Nazim would be elected as joint candidature with the union councilors of the

212 whole tehsil serving as the Electoral College. The Tehsil Nazim would be the executive head of the tehsil government, while the Naib tehsil Nazim would act as the speaker of the tehsil council. The tehsil Nazim and Naib Nazim had academic qualification of at least matriculation for secondary school certificates. The tehsil office would lead the Tehsil government. Under the Nazims were the tehsil municipal officers

(TMO) those were the coordinator officers of the Tehsil administration. There were four tehsil officers (Tos) reporting to the TMOs, one each for

(i) Finance budget and accounts.

(ii) Municipal standards and coordination.

(iii) Land and revenue control.

(iv) Rural urban planning.

• The primary function of the tehsil government was the provision and coordination

of municipal services to both urban and rural areas across the whole tehsil.

• The second function of the tehsil government was the development through land use

control and master planning for every town and village.

• The third function of the tehsil government was to monitor the work of the tehsil

administration and district government official located in the Tehsil (Ibid: pp.

134-145).

5.9.5 Union Council

The people who were living in villages, cities and towns elected the union councilors. The members of the union council could be elected through adult franchise.

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The union government comprised on the union Nazim and the Nab union Nazim. The total number of seats in a union council was twenty one. It was comprised on twelve general seats of which four (33 percent) were reserved for women. There were fixed seats for workers and peasants, of which two were also reserved for women. In this manner out of eighteen union councilors six were women. The remaining three seats were for the union

Nazim and Nab Nazim, and one reserved seat for minorities. Women‘s seats, even if left uncontested and vacant, could not be held every year (Journal of law, July 2002, pp. 22-

23). The union Nazim and Naib Nazim must have academic qualification of Matric. They directly elected union Nazim and Naib Nazim were also the members of the District council and Tehsil councils. Every union council had three secretaries under the executive control of the union Nazim. The union council could carry out their functions through the union government and Monitoring Committees. As minimum there were monitoring committees for municipal services, finance, literacy, works and service and justice. The union council was also able to levy taxes from a specified list. It might perform the functions related to conciliation of disputes in civil criminal and family matters (opcit: pp. 34-35).

Military launched the district government plan (August 2001) was unique development in the history of local government in Pakistan. Local government institution had for the first time been assigned with unprecedented powers and tremendous responsibilities. The plan would prove its worth if the new system fulfills the expectations of the masses in term of ensuring an efficient delivery of services at the grassroots level.

This was dependent, inter alia upon the local councils demand not only the strengthening of the present financial status but also the exploring of additional resource. Self-reliance and self-sustainability which was supposed to be the cardinal features of any system of

214 local government was yet to be materialized in Pakistan. On account of the substantially poor financial condition, local councils had not been able to fulfill the basic expectations of the local population let alone the development of local infrastructure. (Guardian.com.

2001).

• One major reason as was evidence from this study, the widening gap between the

potential resources and those actually realized.

• The problem of local finance assumed many dimensions. There were examples

where despite wide taxation powers, local bodies had not utilized them full. There

was generally reluctance by the local councils to impose taxes. This reluctance was

visible in all local councils of both urban and rural areas.

• Local councils in general were confronted with an imbalance in their income and

expenditure. Despite vested with adequate taxation powers local councils had been

reluctant to make full use of these powers for reasons such as local pressure,

inelastic tax rates and defective collection machinery.

If local government in Pakistan was to play its legitimate role commensurate with the aspirations of local population a serious effort would sustainability of local government it would have to be addressed with the same spirit and enthusiasm with the devolution of power plan had been launched(Daily Dawn,1 May,2002).

5.10 PCO &Musharraf as a President (2001)

Chief Executive General Pervez Musharraf assumed the office of the President under the provisional Constitutional Order by removing Rafiq Tarar who was due to complete his five year tenure on June 20, 2001 and also decided to retain the office of the chief executive

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(Fazal Elahi resigned from his office but Tarar was removed). He immediately dissolved the suspended senate, National and the four Provincial Assemblies and sack the Chairman of senate and Speaker of National assembly. He implemented order to retake oath to

Supreme Court and relevant Hi-Court judges under Provisional constitutional order (PCO).

Some of them refused to do so, those judges refused to do so they were as Mr.Justice Saeed- ul-Zaman Siddiqui,Mr.Justice Wajihu-ul-Din

Ahmad,Mr.Justice Nasir Aslam, Mr.Justice Khalil-ul-Rehman, Mr.Justice Kamal

Mansoor Alim, they were dismissed on 26th January 2000 including chief Justice Saeed

Zaman Siddique. Who took oath under PCO were as Mr.Justice Arshad Hasan Khan,

Mr.Justice Bashir Jahangir, Mr.Justice Abdul-Rehman Khan, Mr.Justice Sheikh Riaz

Ahmad, Mr.Justice Muneer A. Sheikh,Mr.Justice Ejaz Nisar, Mr.Justice Ch.M.Arif

(kundir,2003.p.31). Mr.Justice Saeed-ul-Zaman Siddique was replaced by Mr.Justice

Arshad Hassan Khan. Chief justice Irshad Hussan Khan Administered the oath to new president. General Pervez Musharraf issued the Chief Executive Order Number Three under which it was decided that the chief Executive would hold as president until his successors enters upon his office(Dawn, 15October 2002). After the ceremony, General

Musharraf said that his decision to take over as President was led by constitutional, political and economic consideration. He said that he held national interests supreme, he hada job to do here and therefore he couldn‘t and would not let the nation down. He kept his word to restore democracy and Supreme Court ruling directing to the Government to hold general elections by October 2002 was very clear(storyofpakistan.com2001),(Imtiaz,2002.pp.11-13)

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5.11 Referendum 2002

In 2002 President General Pervez Musharraf announced that referendum would be held to restore democracy in the real sense. He said that ―I have no wish to remain on the chair of president but I want to restore democracy in Pakistan. So this compelled me to take part in politics. For this purpose referendum is the cry off the day‖, the same slogan of GeneralZia (Dawn, 18 October 1999). Chief Election Commission, Chief Justice

Irshad Hassan Khan was given the task to fix date for referendum. The Chief Election

Commissioner fixed 30th April, 2002 for referendum. On April 14, 2002 a meeting was held under the Chief Election Commissioner to discuss the issue related to referendum,

CEC provided all the requirements, Ballot papers were issued all over the country (Daily

Dawn 4May,2002).

President General Pervez Musharraf visited to every corner of the country to take the people in confidence. He assured that he was working according to his own agenda and he want to introduce new reforms (like president Ayub who visited the country in train),(The Daily Nation, April 15, 2002). President claimed that general elections would be held in October 2002. All of the major political parties, except PML (Q), were against the President Referendum as it was against the Constitution of Pakistan 1973. Maulana

Fazlur Rehman rejected the Presidential referendum. He said that president General Pervez

Musharraf was legitimizing his rule through unconstitutional acts. He requested all the political and religious forces to boycott this move of the military regime, Aamir

Jamat-e-Islami also protested against the presidential elections.Jamat-e-Islami, Muttahida

217

Majlis-e-Amal, challenged the conduct of Referendum‘ in the Supreme Court of Pakistan.

According to the Supreme Court decision referendum was considered a lawful and constitutional matter (as usual). So the referendum was held on due date April 30, 2002.

The chief election Commission of Pakistan used the resources to facilitate people‘s voting in referendum. There were 87,000 polling stations; separate polling booths had also been established for female voters in each polling station (Frontier post April 23, 2002). The referendum result was announced on PTV, 1May 2002. About 97.97% votes were cast in favor of General Musharraf to remain on the chair of president for the next five years .The

Nazim and councilors were threatened to withdraw from their posts if they were not going to support for referendum within their constituencies (News lines, 2002).

President General Pervez Musharraf exclaimed that the result of the referendum was primarily the victory of reforms process initiated by his government. He said that the reforms process would continue with full devotions and all the development projects would also continue. He assured the nation that he would fulfill his promises and eradicate extremism fromsociety (Frontier post, May 3, 2002).

5.12 Legal Framework Order 2002

Chief Executive General Musharraf issued the Legal Framework Order 2002, On August

24, 2002 General Musharraf said he had been empowered by the Supreme Court of

Pakistan for amending constitution of 1973(Bakhtiar, 2010, p. 358). It was assumed to be an integral part of the Constitution and would come into force, the legal frame work order or any part of it could not be questioned in any court of law for its legal validity through this order imposition of emergency, provisional constitutional order, referendum order

2002, laws, appointments, orders, instructions and all ordinances issued by General Pervez 218

Musharraf from October 12 to August 2002 were declared legal and constitutional safeguards. The announcement of general elections for the National and provincial

Assemblies would be held in October 2002. Constitution‘s provisions were amended for smooth and orderly transition of power from the Chief Executive to the newly elected

Prime Minister after the elections (Maluka, 2004, p.67).

5.12.1 The Main Provision of Legal Framework Order 2002

Under the Legal Framework Order General Elections of both the National and Provincial

Assemblies were held on October 10, 2002. The senate of Pakistan was elected on

December 21, 2002. All the four provincial assemblies had been enlarged in their strength according to the ratio of their population, there were 342 seats in the National Assembly and 272 were general seats filled on the basis of universal joint electorate system and single member constituency basis, 60 seats were reserved for women and 10 for non-Muslims, which filled on proportional representation basis. Any Pakistani whose name was in the electoral list and if his age was not less 18 year could cast his vote if his or her age in not less than 25 year could contest elections of provincial or National assembly

(Belokrenitsky&Moskalenko, 2013, pp, 373-377).

5.13 The General Elections 2002

After three years of military rule, the General Election for the National and Provincial

Assemblies were held in October 2002About seventy (70) major and minor political parties contested the eighth national parliamentary elections (Daily Dawn,1 October,2002). The major parties contested the elections; these were Pakistan People‘s Party Parliamentarians

219

(PPP-P), Pakistan Muslim League-Nawaz Group, Pakistan Muslim League-Quaid-e-Azam

(PML-Q) and the Muttahida Majlis-e-Amal (MMA), alliance of six religious political parties. Other political parties contested election at the national level included the six-party National Alliance, Pakistan Tehrik-e-Insaaf and

Tehrik-ul-Qadri‘s Pakistan Awami Tehrik. Several regional parties, with strongholds in their own provinces included the Sindh-based Muttahida Qaumi Movement, Awami

National Party, Jamhuri Watan party, factions of Baluchistan National Movement and

Pashtunkhwa Mili Awami Party ( khan,2002,pp.94-96).

There were more than 72 million registered voters the age limit was reduced from 21 year to 18 year and it formed a population of 140 million, these voters elected 342 members of

National Assembly and 728 members of four Provincial Assemblies against those allocated seats. The number of total contesters was 2,098 contesting for 272 general seats of the

National Assembly. The remaining 60 seats were reserved for women and 10 for non-

Muslim minorities.

The Condemned people were barred from participations in elections under the

Representation of the People‘s Act. Several other politicians were unable to contest the elections, as they did not have a Bachelor‘s Degree, which was a mandatory qualification in the elections. Pakistan‘s leading political personalities Benazir Bhutto(ex-prime minister of Pakistan) of the PPP and Nawaz Sharif of the Pakistan Muslim LeagueNawaz Group were barred from standing in the elections under the new electoral laws. And for the first time since 1977, the minority communities that included Christians,

Hindus and Parsees contested and voted for all general seats in the National and Provincial

Assemblies. Bachelor degree was first time introduced in Pakistan and was the new term

220 in Asia Continent; it was liked & disliked collectively(Waseem,2002,pp.36-38). The election result issued and no one political party got an overall majority in the new National

Assembly. ―Pakistan Muslim League (Q) was at top with 126 seats and PPPP stood second majority in the national assembly with 81 seats. The religious alliance was known as Muttahida Majlis-e-Amal (MMA) secured 63 seats, emerging as the third largest party in the National Assembly elections. With no party emerging with a simple majority

Pakistan faced menace of a hung parliament. A coalition government was, however, set up with Mr. Zafarullah Khan Jamali, the candidate of PML (Q) as the Prime Minister of

Pakistan with the help of MQM, a number of independent candidates and 10 members of the Pakistan People‘s Party Parliamentarians who defected from the party to form their own Forward Block, Musharraf conducted these elections under LFO(General

Elections results,2002).

5.14 The Seventeenth Amendment (2003)

It was basically a modified form of legal framework order 2002. After an astonishing deal between PML (Q) and MMA it became part of the 1973 constitution after the conventional confirmation of president Musharraf, it enable General Musharraf to serve out his term as president which ended in 2007. It gave him the right to pack Prime minister and dissolving parliament by decree. The seventeenth amendment not allowed the provision for vote of confidence for further affirmation of the president in office by of the members present and voting, by division or other method as prescribed in the rule made by the federal government under clause (9) of the electoral college consisting of members of both the houses of parliament and the provincial assemblies. Accordingly a vote of confidence was passed in of the president Musharraf on January 1,

221

2004 by members of both national assembly and the senate the approval of the

Seventeenthamendment and the vote of confidence represent a major political background for president Musharraf. He achieved most of his goals in exchange for the minimum possible concession to the Muttahida majlis-e-amal (MMA)(Khan, Pakistan. Vision, Vol.

9 no 2).

• Under 17th Amendment article 41, Musharraf was elected as president for five years

under the division of vote procedure and the procedure provided under constitution

for election, the president did not follow the valid procedure of presidential

election. The election remained unchallengeable in any court of law.

The new procedure was declared valid for the current term of presidential election

(Daily Dawn,2014).

• Article 58(2) (b) was added in the constitution of Pakistan 1973, with the help of it,

president was given the powers to dismiss the assemblies (parliament). This article

was deleted from the constitution of Pakistan 1973 under 13th Amendment but it

was reinserted by General Musharraf. This time with a slight difference it was

produced like within fifteen days of dissolution of national assembly the president

of Pakistan could refer the dissolution matter to the Supreme Court of Pakistan. The

Supreme Court decision was final in all circumstances. In other words, the power

of dissolving the national assembly was made operational with president.

• Under 13th Amendment the powers of dissolving the provincial assemblies by the

provincial governors were omitted. But the 17th Amendment reinserted those

powers. It was added in article 112 clause (2) that the Governor in case of

222

dissolution of provincial assembly under paragraph (b) of clause (2) could within

fifteen days of the dissolution refer the matter to the Supreme Court with the

approval of the president and the Supreme Court could decide the reference

within thirty days, its decision was final(sehri,2011,pp.320-32 ).

• General Zia-ul-Haq inserted the article 152-A for the establishment of National

Security Council. But under elected representative pressure he did not press for the

National Security Council setting up. The 17th Amendment completely omitted this

article through an act of parliament. The first ever meeting of this council was held

on June 21, 2000.

• Article 170: This article readjusted the retirement age of the judges of Supreme

Court of Pakistan. It was inserted under 17th Amendment that judge of Supreme

Court of Pakistan could hold office until he attains the age of 62 years, until he

sooner resigned or removed from office in accordance with the constitution.

• Under the Article 195, the retirement age of a judge of High Court was fixed at 62

years, unless he sooner resigned or removed from office in accordance with the

constitution.

• Article 243: Prior to the 17th Amendment, the president of Pakistan was

empowered to appoint in his discretion the chairman, joint chief staff committee,

the chief of army staff committee, the chief of army staff, chief of naval staff and

the chief of air staff, and could determine their salaries and allowances. After 17th

Amendment, the words in clause (3) substituted with the words ‗in consultation

with the Prime Minister‘.

223

• Article 172A: this article states that all laws made between 12 October 1999 and

the date on which his article came into force, had been duty made or accordingly

affirmed, adopted and declared validby the competent authority and could not be

called in any court or forum on any ground whatsoever(Bakhtiar, Pakistan‘s Past

and Present),(Dawn 27 October,2004).

5.15 President’s another Office Act 2004

The bill was called as president to hold another office act 2004, which had enabled the

President Musharraf to hold the office of the Chief of Army Staff beyond December 31,

2004. This bill was passed by senate of Pakistan with simple majority in voice voting in spite of forceful protest by the opposition members of the parliament. It was submitted to the president to get his assistant after that it became an act of the parliament and had come into force on December 31, 2004(Shahid, 2011, p.345). It was also necessary that his provision was only valid for President Musharraf to hold position at a time, it was stated that the bill was responsible to safeguard the national interest, to combat terrorism, disrupted law and order situation in the country, providing continuity in economic policies and reforms in the country (C.P.L.A. NO.927-L/2003).

5.16 National Accountability Bureau

President Muhammad Rafiq Tarar promulgated the ―National Accountability Bureau

(NAB) ordnance 1999 for setting up accountability courts for speedy disposal of cases involving corruption, corrupt practices, misuse of power and misappropriation of property, kickbacks and commissions, the responsibilities of investigation and proceedings against the accused had been given to the NAB which could seek assistance of any law enforcing

224 or investigation agencies to complete the task within 75 days. The accountability courts used to hear the case on day to day basis and dispose it off within

30 days. The appeal against the final judgment given by the accountability court could be filed within ten days of the judgment, in the high court of the province where the court was situated (Dawn, 12 February,2001), (Icac.org). The appeals could be heard by a bench of not less than two judges and it must be disposed of within 31 days. No appeal against any interlocutory order of the accountability court could be held in any court. A law was also mentioned that no court could pass stay order to suspend the proceedings of the accountability court. According to the schedule of offences and punishment, Corruption and corrupt practices would be liable for 14 years or less in imprisonment along with fine.

The embezzlement punishment was 14 years or less in imprisonment, and for misuse of power in committing any offence above by any person holding a public office, the punishment was 14 years or less in imprisonment. For committing fraud the punishment was also 14 years in imprisonment. Administratively the NAB was headed by a Chairman, he was appointed by the President, and The Chief Executive might appoint the Deputy

Chairman, in the consultation with the Chairman. After a brief amnesty period, it generated repayments the government estimated at nearly Rs10 billion ($ 192 million),(Current Affair

Digest, December 1999, P.82). The prosecution started government also claimed that banks, repayment records improved.

The prosecution started somewhat slowly, the military and the judiciary were exempted from the process on the grounds that these institutions had their own discipline. Another new provision empowered the National Accountability Bureau (NAB) to demand from persons possessing wealth beyond his visible means of income proves that likely to take

225 much longer than people expected because so many prominent former officials and businessmen were targeted.

During the first year of military government about ten thousand officials of various grades of the provinces were found involved in different cases out of them about

2000 were dismissed, 1500 suspended and over 6000 awarded minor penalties. The

Federal level 490 officers of grade 17 and above had been penalized since October 12,

1999 in addition, NAB was assisted in speedy identification, investigation and preparation of cases for accountability out of over 2,100 major cases of corruption unearthed. About

700 were referred to NAB and over 750 to respective departments and about 256 cases were disposed off (Fortier post, December 31, 2000),(Annual report of NAB,2005).

Monitoring mechanism assisted the departments concerned recovered government land, shops, plots, houses etc. just to give an idea, about 30,000 acres of land belonging to forest, over 10,000 canals in urban belonging to schools and municipal corporations, over 7,000 plots, shops and houses and about 800 vehicles of different categories had been recovered.

The National Accountability Bureau (NAB) had forwarded a list of 105 persons, who stuck plea-bargain deals with the Bureau, to Election Commission of Pakistan (ECP) and State

Bank of Pakistan (SBP) for necessary action as they stand disqualified from contesting elections and seek loans from financial institutions under the NAB Ordinance. According to the NAB official, the government had recovered billions of rupees from them through plea-bargain (Gauhar, 2005, pp.11-14).

When Musharraf came to power in 1999, he claimed that the corruption in the country would be cleaned up. According to a survey conducted by Transparency

226

International Pakistan ranked in 2001 as the world‘s eleventh most corrupt nation but in

2007 Pakistan ranked as the 41st most corrupt nation(Wikipedia.org/Pervez Musharraf).

5.17 National Reconciliation Ordinance (NRO)

The supporters of Musharraf were called political orphans by Benazir Bhutto.

After military coup General Pervez Musharraf started to negotiate with Pakistan People‘s

Party, Musharraf and Benazir Bhutto(BB) met in Abu Dhabi, Bhutto demanded to give up the post of Army Chief and to conduct the elections in monitoring of international observers, open to all individuals and political parties, setup an impartial election commission, remove the ban of third time on Prime Minister ship, remove all the pending cases on the politicians. The trialing courts of those cases were called Kangroo courts by

Banazir Bhutto. In 2007 General Pervez Musharraf accepted all the demands of BB and introduced National Reconciliation Ordinance (NRO) and allowed to take part in the elections of 2008 (Bhutto, 2008, pp. 227-228). In the manners of General elections

Musharraf adopted an opposite policy than General Zia; he conducted the elections on party basis. A day before the presidential election, President Musharraf promulgated the

National Reconciliation Ordinance on October 5, 2007, for the purpose to remove the trace of victimization of the past. It authorized the government to terminate the prosecution of holder Public offices between 1 January 1986, to 12 October 1999 (ibid. 12), who were unjustly implicated in criminal cases. Musharraf said that the ordinance was conviction based; it was general and applied to all politicians to ensure free and transparent elections.

Generally the people stood and agree that the accountability process had been exploited to persecute the political opponents, they believed that there was a need to undo the wrong

227 caused to many political figures and to develop a genuine, fair and effective accountability mechanism that would enable all section of the society to join the crucial struggle for the nations redemption (The News international, 2007).

The main objective of this ordinance was to eliminate corruption amongst the political circles of the county. However, many viewed it as a step toward further promoting the culture of looters and plunders. The most confusing point was whether National

Reconciliation Order really aimed at providing relief to those who falsely implicated in political cases between the January 1, 1986 and October 12, 1999 or granting pardon to the looters of national purse. It was firmly believed that act was the measure to allow the former

Prime Minister Benazir Bhutto to return to Pakistan without any legal consequences due to pending politically motivated corruption cases (Rabbani,

2010, p. 243). It was considered as part of dealing between General Musharraf and

Pakistan people‘s party by which all corruption cases against Benazir Bhutto and other

Pakistan People‘s Party prominent member were withdrew (Pildat,2007).

The critics apprehend that it was the pick and choose exercise giving further leaver ages to the government, to entertain the corrupt politicians who were willing to serve the interest of military men. They also believed that it was the mockery of rule of law and a blatant violation of the supreme law of the land, throwing the country into a political crisis.

Therefore, on these grounds National Reconciliation Order was challenged in the Supreme

Court and High Courts of two provinces. Later on it was declared unconstitutional by the

Supreme Court of Pakistan on 16 December

2009(Dawn.com),(petition no76 to 80 of supreme court of Pakistan, 2007).

228

5.18 Presidential Elections of 2007

The tenure of the president Musharraf was due to expired on November 15, 2007. He announced that he would be re-elected from the current assembly. He made it clear that election would be contest under seventeen amendment which allowed him to keep both offices, i.e. Chief of Army Staff as well as the President at the same time, he mentioned that constitution allowed him to do so(Constitution petition no. 13, 14, 39 & 40 of 2004 &

2 of 2005 and C.P.L.A. no.927-L/2003).

The Opposition parties strongly criticized this announcement and declared that they would never let General Musharraf to contest election. While on the other hand the ruling party

Pakistan Muslim League (Q) asserted that General Musharraf would be reelected by the current assemblies in uniform but it was compromised that Musharraf would left the designation of Chief of Army Staff and he left it on 28 November 2007(Daily times 29

November, 2007).

General Musharraf filed his nomination paper which was declared valid by election commission of Pakistan the opposition parties nominated Justice Rtd. Wajihuddin Ahmad;

Pakistan people‘s party Makhdoom Amin, Fahhim with Faryal Talpur as the covering candidate ( Daily Dawn, 2007).

President of MMA Qazi Hussan Ahmad and Imran Khanthe Chairman of Pakistan

Tehrik-e-insaf filed a writ petition in Supreme Court, requested to disqualify General

Musharraf as candidate in the coming election and also claimed that General Musharraf being an Army Chief could not contest election as it was in violation to the constitution of

Pakistan 1973. But Supreme Court of Pakistan dismissed the petition challenging the

229 eligibility of Musharraf and allowed him to contest election. Immediately, Supreme Court ordered that the election would be held on October 6, 2007. The presidential election was held on October 6, 2007 (BBC, September, 20, 2007). General Musharraf won the election and was elected for another five years. He got 96% (671) of the total votes polled

685 and over all he got 57% out of 1170 votes of the parliament and four provincial assemblies(Rabbani, 2010, p.240). The opposition political parties criticized it thoroughly.

The President Musharraf requested the nationto reject the opposition‘s policies, not to support those who created turmoil in the country by calling protest and strikes and only to help the government in its efforts to bring the country on the path of development and progress. He further mentioned that the domestic situation required conciliation(khalig times, January, 27.2007).

5.19 State of Emergency 2007

In November 2007 once again the law and order worsened, a suicidal bombing and while on the other hand Supreme Court of Pakistan delayed in announcing its decision on presidentMusharrf‘s candidacy also added fuel to fire. The situation was slipping out of hand and left the president Musharraf with no option other than to impose emergency in the country. General Pervez Musharraf declared a state of emergency on November 3, 2007 in Pakistan and issued a Provisional Constitutional Order under which, the Constitution was suspended, the federal cabinet ceased to exist, and the justices were ordered to retake a fresh oath according to the new provisional constitutional order (Daily Dawn,6 september,2007). He also declared that those who failed to do so would be dismissed. He replaced the Chief Justice Iftikhar Muhammad Chudhary with Justice Abdul Hamid

Dodger as the defecto Chief Justice of Pakistan.

230

After the imposition of emergency, the political situation in the country changed. There were wide scale agitation and protests against emergency .Several political activists of major political parties, lawyers, journalists and members of the civil society were arrested.

It was also announced that the state of emergency would end in late

November or early December 2007 (New York Times, 3 November 20007). 5.20 Provisional Constitution Order 2007

After the Proclamation of Emergency, General Pervez Musharraf issued a

Provisional Constitutional Order on November 3, 2007.

Following the text of the Provisional Constitutional Order

• This order might be called the Provisional Constitutional Order No. 1 of 2007. It

extends to the whole of country, and it came into force at once.

• Notwithstanding the abeyance of the provisions of the Constitution of the Islamic

Republic of Pakistan, hereinafter referred to as the Constitution. Pakistan should,

subject to this Order and any other Order made by the President, be governed, as

nearly as might be, in accordance with the Constitution.

• It provided that the President might, from time to time by Order amend the

Constitution, as is deemed expedient: Provided farther that the Fundamental Rights,

under Articles 9, 10, 15, 16, 17, 19 and 25 were remained suspended.

• In spite of anything contained in the Proclamation of the 3rd day of November,

2007, or this order any other law for the time being in force, all provisions of the

Constitution of the Islamic Republic of Pakistan embodying Islamic injunctions

231

including Articles 2, 2A, 31, 2O3A, 227 to 231 and 260 (3) (a) and (b) were

continue to be in force.

• Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all courts

in existence immediately before the commencement of this Order were continue to

function and to exercise their respective powers and jurisdiction.

• It provided that the Supreme Court or a High Court and any other court could not

have the power to make any order against the President or the Prime Minister or

any other person who was exercising powers or jurisdiction under their

authorities.

• All persons who immediately before the commencement of this Order were in

office as judges of the Supreme Court, the Federal Shariat Court or a High Court,

were bond to take the new Oath of Office (judges) under Order 2007, and such

further Orders as the President might be passed( sixty judges refused to take new

oath). Those judges who refused to take new oath according to the Provisional

Constitutional Order were sent to back home.

• Subject to clause (1) above, the Majlis-e-Shoora (Parliament) and the Provincial

Assemblies were functional.

• All persons who, immediately before the commencement of this Order, were

holding any service, post or office in connection with the affairs of the federation

or of a province, including an All Pakistan Service, service in the armed forces and

any other service declared to be a service of Pakistan by or under Act of

232

Majlis-e-Shoora (Parliament) or of a Provincial Assembly, or Chief Election

Commissioner or Auditor General, were continue in the said service on the same

terms and conditions and could enjoy the same privileges, if any, unless these were

changed under Order of the President.

• No court, including the Supreme Court, the Federal Shariat Court, and the High

Courts, and any tribunal or other authority, could call or permit to be called in

question this Order, the Proclamation of Emergency of the 3rd day of November,

2007, the Oath of Office (Judges) Order, 2007, or any Order made in pursuance

thereof.

• No judgment, decree, writ, order or process whatsoever could be made or issued by

any court or tribunal against the President or the Prime Minister or any authority

designated by the President.

• Notwithstanding the abeyance of the provisions of the Constitution, but subject to

the Order of the President, all laws other than the Constitutions, all ordinances,

orders, rules, regulations, notifications and other legal instruments in force in any

part of Pakistan, whether made by the President or the governor of a province, were

continued in force until altered, or repealed by the President or any authority

designated by him.

• Any ordinance promulgated by the President or by the Governor of a province had

nosubject to any limitations as duration prescribed in the Constitution.

233

• The provisions of clause (1) could also apply to an ordinance issued by the

President or by a governor which was in force immediately before the

commencement of the Proclamation of Emergency of the 3rd day of November,

2007 (Dawn 11 November,2007,Dawn.com),(BBC News 29th November, 2007).

5.21 Resignation from the Office

When President Musharraf was sworn in for a second presidential term, he immediately declared that the state of emergency would end on December 16, 2007.

Although the state of emergency ended one day earlier, on December 15, 2007, with an announcement by president Musharraf(New York times.com), (Pakistan times,2007).

After that the constitution was restored and the general elections were scheduled to be held in February 2008. The general elections were held on February 18, 2008 in which the ruling party Pakistan Muslim League (Q) was clearly defeated and Pakistan

People Party and Muslim League (N) won the majority of seats in elections. PPP and

PML (N) made new coalition government with Yousaf Raza Gillani as Prime Minister of

Pakistan. On 7 August 2008, both political parties PPP and PML (N) decided to force president Musharraf to step down and began his impeachment through parliamentary process. On 18 August 2008, president Musharraf resigned, he defended his nine-year rule in an hour-long speech to the nation on August 19, 2008 (New York times, 2008),

(Washington post,2008). US and Saudi Arabia were going to start dialogue with the

Taliban, office was established in Dubai, War against terror was going toward the end,

US considered Musharraf useless, so he was not more protected by her(Rizvi,2009,pp.35),(Economic & political weekly,2007,pp,8-9). President Musharraf also secured himself by amending the constitution, both (president Zia & president

234

Musharraf) secured themselves not to promote and strengthen the democracy of Pakistan.

Musharraf promised to introduce a pure democracy (against sham democracy) but he could

not introduce the same status but also uprooted the situation with amending in the

constitution and electing himself as president in uniform. Problems remained same for the

poor masses of Pakistan.

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241

Conclusion and Reflections

Quest for civil military relations and building cohesive remarks is not an easy task.

It has ever been a grave challenge to all the third world states. There are multiple reasons

and challenges to the civil military relations which developed with the passage of time.

Military is considered the most powerful institution not only in the developing states but

also in the developed states. The case of Pakistan is not different from other developing

countries.

At the time of independence, Pakistan had to face many problems. One of the major

problem was the security threat from India and Afghanistan. This problem gave rise to the

ascendancy of military because it was more organized and systematic institution as

compared to other civil institutions of Pakistan. Military strained relations with civilian

government of Liaqat Ali Khan. It was dissatisfied over the Kashmir policy of the

government and appointment of the C-in-C. Military realized that the instability of the

civilian government, chaotic political parties and the poor economic situation would

threaten its professional and corporate interests. So, it began to influence the decision

making process. Political parties were immature at that time these were consisting only on

feudal not pure political leaders. At the death of Liaqat Ali Khan a gap of political

leadership was seen. This gap of civilian leadership kept the civil military relations

strained; leading to the military take over. These military rulers felt the problem of getting

legitimacy; which they tried to get, for example, through the referendum of General Ayub

Khan, General Zia-Ul-Haq and General Pervaz Musharraf. Every military ruler adopted his

own policy. Some of them tried to make alliances with political parties or bureaucracy

242 who worked as their subordinates to support their policies. The exchange of Ayub Khan is quite obvious in this connection.He promoted economy as well as bureaucracy. Zia-ul

Haq‘s slogan was Islamization while General Musharraf propagated enlightenment with the help of PML (Q). Pakistan remained under civilian rule from

1988-1999 but decision making was used on ‗Troika‘ (President, Prime minister and chief of army staff). The civilian leaders of this period also tried their best to get support of military in all domestic and foreign policy decisions. Presidents dismissed the parliaments with the consultations of chiefs of army staff. Military is seen dominant in internal and external matters of the state. Civilian governments could not succeed in controlling military. Both civil government and military took contrary stances on many issues like

Kashmir, Nuclear and Kargil policy with India and US. One reason of military involvement in the politics is that the trend of democracy is not linear in Pakistan. The civil society of

Pakistan does not show active resistance to the military‘s involvement in the politics and it has never been denied or challenged by the civilian governments. Supreme court of

Pakistan always justified the military take over on the basis of ‗doctrine of necessity‘.

There is need to introduce real democracy for which political parties must be strong to run the administration of the state.

The prediction of the democracy in Pakistan is not really positive apparently.

Pakistan is becoming weaker on moral, ethical, political, social and economic grounds.Because bribery, terrorism, cultural and ethnic differences are promoting itself.

Pakistan‘s democracy is not more than a word ‗Islamic Republic of Pakistan‘practically, in the entire history of Pakistan. She faced four elected governments and military governments. It is considered that parliamentary government is according to the nature of

243 people‘s minds. It has functioned well among similar communities which can pay for quarrel without restoring the violence or civil war. It was truly tragic that the country faced frequent problems soon after independence by the ruling classes that belong to the feudalists, bureaucrats and military generals who transformed it into an elitist system.

There is a need to awake people of Pakistan and to get to light against this feudal system by acquisition of direct success to political and economic rights by freeing our political culture from the exploitative elitist and feudal political structure.

The culture of polarized politics in Pakistan spread non-democratic and political instability in country after its establishment but it rose on its peak in General Zia-ul-Haq &

General Musharraf era. The reason is that General Zia abolished the political parties while in GeneralMusharrf‘s rule country was moving towards one party rule and both the rules were in uniform. So forth, the politically conscious people of Pakistan cannot agree that

Pakistan needs such a planted democratic model under the supervision of military dictators who only work for themselves by staking Pakistan‘s prosperity. The people of Pakistan and their leaders need to believe that controlled and guided democracy is no more Pakistan‘s destiny. They believe that their advancement lies in constancy of true democracy.

This research discusses on five main research queries; firstly, it proves with evidence by exploring the history of Pakistan politics that is really difficult to attain democratization in real sense because of huge difference between its theory and practice.

Theory gives a complete procedure to attain democracy but the method of implication is

244 still controversial not only in Pakistan but also in third world states. Secondly, it discusses the absence of political culture in transition of democratic culture of Pakistan.

After doing research its answer is yes. A third world country like Pakistan is considered as fragmented society where political law and order, social values, cultural norms and economic upheavals cannot be treated or solved in proper way. This sectional fragmentation causes dispersion and uncertainty in people‘s lives and becomes a reason of political instability. Lack of participant political culture is also one of the main reasons.

People are not united; they are divided into different sects, languages, norms and culture values. They don‘t care about their Pakistani identity; they just preferred to call themselves

Punjabi, Sindhi, Balochi and Pathan. Democracy in such a fragmented society is indeed tough to attain. The first requisite to attain democracy is to create a path for proper functioning of democratic values and rule of law. After that, it can be pondered that democracy may play its effective role for betterment of society, without; it‘s really very difficult to solve all problems of fragmented society. Thirdly, it elaborates the answer of third question; will the present trend toward more democratic states result in a more stable government. As we all know that developed democratic states are fully stable governments so it is obvious that to be more stable and flourished, all countries need to be democratic in true sense. The next two questions show the importance of parliament in democratic government. Without majority consent (parliament) no government can be democratic.

Free and fair elections and rule of law are also one of the most important pillars of democracy. Parliament plays its role more effectively when opposition parties collaborate with each other and try to resolve state issues instead of leg pulling and using unfair means to scatter government.

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The most important factor that may influence future of democracy in Pakistan, is the structural change in the nature of democracy that needs major authorities must be in the hands of parliament for the stabilization and authentication of election system. The council for defense and national security and capability of president to dissolve the national assembly has damaged the powers of elected leaders. So, there is a dire need to sustain the elected governments instead of frequent military takeovers. It quite clear now that once army gained powers, it never lets the politicians work properly. It has been major cause of lack of democratic culture in Pakistan since its creation. A number of examples can be traced from the politicians who repeatedly collaborated with the illegal forces to protect their interests. Pakistan‘s democratic failure lies with military constant rebuff of contingent itself on legitimate civilian authority. Apart from necessary reconstruction of civil military relations, it shows the prediction for significant democratization stay uninviting. Pressure from external forces played significant role in monopolizing General Zia-ul-Haq and

General Pervez Musharrf‘s policies, and autocratic forms of decision making without approval of parliament and senate. The concluding remarks of this research are that the immature attitude of political leaders and constraint policies of military dictators never allowed the democratic culture grow up. Both military & civilians inhibit the growth and development of their own agendas. The paradox is that on one hand a civil setup is introduced by military dictators, while on other hand the functioning and development of this civil setup is conditioned and controlled. Consequently, party building, associational activity and competitive party politics remained low. Authoritarian and hegemonic tendencies became first priority. Social and democratic norms and values took the status of second priority. Political parties of third world states are organized to enhance personal

246 powers. All the problems start from there in democratic structure. Pakistan‘s viable political system produced two developmental patterns. First, political leadership always relied on military to sort out the problems, second, anti-political-activities by the military. Military did not award the already privileged groups in society. Controlled political system, policies of political exclusions, discouraging the associational groups, restrictions on political parties‘ functions, discouraging the interest groups, are formed by the military. These things become the symbol of social ills. Thus mass movement emerges as a response to the military hegemonic system. But these movements are already loosely organized and are scattered easily, due to the lack of proper political leadership.

Political parties and their leadership are always fond of developing the intellectual and policy content. The debate on crucial issues is absent; such as how to reform the education, improve human skills, eliminate corruption, reduce deficit, control governmental expenditures, rationalize defense expenditures, reduce the burden of debt, etc. Consequently, political parties and their leadership prefer to escape them. They do not focus on developing policies of economic development and good governance. After coming in power, they resort to rely on same authoritarian structures of the state which they had defied while in opposition. These political parties consider the bureaucracy and parliamentary institutions as instruments of governance. Resultantly the democratic dispensation and tolerance of dissent remain weak in the civil society as well as authoritarian structure acquires stability. The ruling party attempts to establish political hegemony by distributing patronage and rewards its supporters, and coalition partners.

While the parties in opposition spend their energies in mobilizing groups against the government in under to weaken the democratic development. A third party (military) takes

247 the benefit from this situation. In turns military hegemony lingers on and rusticates the political authorities.

The breakdown of political and social order in Pakistan has occurred due to the lack of political awareness, as well as the working and attitude of political leaders both in opposition and the government political parties. Neither of them contributed towards strengthening the democratic processes and institutions. Bureaucrats are used to expand their powers. Opposition does not playing a responsible role. It challenges the electoral process, and agitations are started for the removal the party in power. The situation enhances the significance of military. Consequently, the military‘s hegemony continues to persist. In this situation military also plays the role of ‗king‘, what should be the expectations from military where democratic consensus is inapplicable. If these political leaders adopt mature manners, military has no need to interfere in political process. It is only due to the political immaturity. But we must hope about the betterment of present political structure. The political development in developed states also crossed the same way like us.

For purifying these views, a survey is compiled by the researcher with the help of questioner from military, judiciary, political elites and intellectuals. These classes are selected because military intervened in political setup, and it was legitimized by the judiciary, third why was political elite not in the position to handle the situation, the forth class is of intellectuals (professors) especially because a layman has not interest in such issues. In sample sixty fifty candidates are taken from each group (military, judiciary, politicians and intellectuals). The response of these groups has been assessed in the form of bar graphs with the help of questioner. Questioner consists of eight main questions and

248 each question has further three sub-questions all these sub-questions are evaluated with the statement of strongly agree, agree, disagree and strongly disagree. Each class is examined individually first intellectuals are taken.

Intellectuals.

Q.1 what should be the nature of civil military relations?

1.A

35 30 25 military must follow the civilian 20 government 15 mutual understanding is better 10 5 0 government must follow the military approved policies strongly agree agree disagree strongly disagree

Answering the question No.1 with the help of sub-questions from intellectuals 30 intellectuals responded strongly agree that military must follow the civilians, 19 are agree,

16 are disagree & 13 are strongly disagree. Mutual understanding according to them is not good, they are showing their interest that limitations must be defined and every institution must never cross its boundaries. With the help of 3rd sub-questions they preferred that military must follow the civil setup.

Q.2. why did civil military relations remain strained in past (in Pakistan)?

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2.A 40 35 lack of political leadership 30 25 20 military showed interest in 15 politics 10 5 0 both departments(military & civil) crossed their limitations strongly agree disagree strongly agree disagree

In this question views of intellectuals are in agree form that strained situation is due to the lack of political leadership. Some intellectuals are agree that military is fond of politics some are disagree, while in third portion intellectuals views are that such poor situation is due to crossing the limitations of every institution.

Q.3. Why did military introduce such controlled democracy?

3.A 35 30 political elites were not in the 25 position to run the administration 20 15 military secured itself with this system 10 5 the controlled political system 0 was suitable to the masses of strongly agree agree disagree strongly pakistan disagree

After intervening why military introduced such controlled system? 10 to 25 intellectuals replied that political elites are not able, 20 to 33 replied that military secured itself with this system. Controlled political system is disliked by them, intellectuals are willing about pure democratic system not hybrid. 250

Q.4. Why did Zia-ul-Haq conducted non party based elections?

4.A 40 35 30 25 zia had no trust over the political parties 20 At that time PPP was famous and 15 Zia did not like it 10 Afghan war could not be 5 managed by the political leaders 0 strongly agree agree disagree strongly disagree

Intellectuals are saying that Zia had no trust over the political parties as he conducted non-party based elections. PPP disliked by Zia, according to them Afghan war could be managed and handled by the politicians.

Q.5. The enlightenment of Musharraf was?

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5.A 40 35 30 25 the need of the hour (like islamization of Zia) 20 just a slogan 15 10 A tool for strengthening the 5 democracy 0 strongly agree agree disagree strongly disagree

Intellectuals are not satisfying about Musharrf‘s policies; he used every tool to strengthen himself.

Q.6. Why retired military officers of US are successful in politics but not in Pakistan?

6.A 40 35 30 25 political culture of pakistan is not developed 20 Retired military officers had no 15 interests in politics 10 people never accepted these 5 military men in politics 0 strongly agree agree disagree strongly disagree

Perceptions of the intellectuals are that political culture of Pakistan is not developed, while people also welcomed the retired military men.

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Q.7. Doctrine of necessity was?

7.A 40 35 30 25 the safety of the federation 20 protection of military 15

10 reintroduction the free and fair 5 political culture 0 strongly agree agree disagree strongly disagree

Intellectual‘s response shows that ‗Doctrine of necessity‘ was just a tool to protect the military; it had no interest about the safety of the federation and free and fair political culture.

Q.8.Military did not interrupt in India because?

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8.A 40 35 30 political institutions and 25 leadership are strong 20 15 militay is loyal to the 10 government 5 people do not like the military 0 intervention strongly agree agree disagree strongly disagree

Intellectuals are agree that political culture of India is strong, military is loyal to civil government and people are also aware about their rights.

Military

Q.1. what should be the nature of civil military relations?

1.B 60 50 military must follow the civilian 40 government 30 20 mutual understanding is better 10 0 government must follow the strongly agree agree disagree strongly military approved policies disagree

The same questions are asked from military department 5 to 35 people of army showed interest only in agree figure but mutual understanding is acceptable for them which is against the nature of intellectuals according to 1.A chart. While 2 to 3 percent people of army showed interest that government must follow the military approved policies.

Remaining 3 to 35 percent are agreeing with the intellectuals.

Q.2. why did civil military relations remain strained in past (in Pakistan)?

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2.B 60 50 40 lack of political leadership 30 military showed interest in 20 politics 10 both departments(military & civil) 0 crossed their limitations strongly agree agree disagree strongly disagree

Military is also agreed with the intellectuals that these strained relations are due to lack of political leadership. While military officers are not agree to accept that military showed interest in politics. In 3rd portion military is divided in agree and disagree statement.

Q.3. why did military introduce such controlled democracy?

3.B 40 35 political elites were not in the 30 position to run the administration 25 20 military secured itself with this 15 system 10 5 the controlled political system 0 was suitable to the masses of strongly agree agree disagree strongly pakistan disagree

After entering in power military introduced controlled democracy. According to them such system is introduced due to lack of political leadership. Military is totally disagreeing that military secured itself.

Q.4. Why did Zia-ul-Haq conducted non party based elections?

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4.B 40 30 zia had no trust over the political parties 20 At that time PPP was famous and 10 Zia did not like it 0 Afghan war could not be managed strongly agree agree disagree strongly by the political leaders disagree

Military is agreed according to the intellectuals that Zia was not satisfied from political parties. Military responded that Afghan war could not be managed by the politicians. This is against the statement of the politicians. Q.5. The enlightenment of

Musharraf was?

5.B 40

30 the need of the hour (like islamization of Zia) 20 just a slogan 10 A tool for strengthening the 0 democracy strongly agree agree disagree strongly disagree

According to military the enlightenment of Musharraf was the need of the hour, military considered it a tool for strengthening the democracy.

Q.6. Why retired military officers of US are successful in politics but not in Pakistan?

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6.B

40 35 30 political culture of pakistan is not 25 developed 20 15 Retired military officers had no 10 interests in politics 5 people never accepted these 0 military men in politics strongly agree agree disagree strongly disagree

Military compared the US political culture with Pakistan that the culture of US is so fertile than Pakistan. They are not agreeing with the statement that people never accepted these politicians.

Q.7. Doctrine of necessity was?

7.B 40 35 30 the safety of the federation 25 20 15 protection of military 10 5 reintroduction the free and fair 0 political culture strongly agree agree disagree strongly disagree

Military is agreeing with the purpose of ‗Doctrine of Necessity‘, it is not willing to accept that it was the protection of the military which is totally against the statement of the intellectuals.

Q.8.Military did not interrupt in India because?

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8.B

50 40 political institutions and 30 leadership are strong 20 militay is loyal to the 10 government 0 strongly agree agree disagree strongly people do not like the military disagree intervention

Both the classes (intellectuals & military) are agree that the masses of India is democratic, civilized & military is loyal to the government.

Politicians

Q.1. what should be the nature of civil military relations?

1.C 50 40 military must follow the civilian 30 government 20 mutual understanding is better 10 0 government must follow the strongly agree agree disagree strongly military approved policies disagree

Politicians are agreeing like the intellectuals that military must follow the civilians.

Every institution must never cross its boundaries; military must follow the civilians not to hesitate in obeying. While, the military men are totally against the politicians and intellectuals in this statement.

Q.2. why did civil military relations remain strained in past (in Pakistan)?

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2.C 60 50 40 lack of political leadership 30 military showed interest in 20 politics 10 both departments(military & civil) 0 crossed their limitations strongly agree agree disagree strongly disagree

Politicians are also agreeing that strained relations remained due to lack of political leadership. While politicians are also agree that military is fond of politics on other hand military response showed that it comes to escape Pakistan from disintegration. Q.3. Why did military introduce such controlled democracy?

3.C 50 40 political elites were not in the 30 position to run the administration 20 military secured itself with this system 10 the controlled political system was 0 suitable to the masses of pakistan strongly agree agree disagree strongly disagree

Politicians are not agree to accept that politicians are incompetent, they are strongly agree that military secured itself with this controlled system while military is against this statement. Politicians focus is that there must be pure political system not controlled or hybrid.

Q.4. Why did Zia-ul-Haq conducted non party based elections?

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4.C 40 35 30 zia had no trust over the political 25 parties 20 15 At that time PPP was famous and 10 Zia did not like it 5 Afghan war could not be managed 0 by the political leaders strongly agree agree disagree strongly disagree

Politicians are seeing strongly agree that Zia had no trust over the political parties.

Zia was against the PPP, according to them Afghan war could be managed by the politicians.

Q.5. The enlightenment of Musharraf was?

5.C 40

30 the need of the hour (like islamization of Zia) 20 just a slogan

10 A tool for strengthening the 0 democracy strongly agree agree disagree strongly disagree

Politicians are strongly disagreeing with all the statements of this question, politicians are seen totally against the response of military. According to their views in chart politicians considered Musharrf‘s policies just a slogan not sincerity.

Q.6. Why retired military officers of US are successful in politics but not in Pakistan?

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6.C 40 35 30 political culture of pakistan is not 25 developed 20 15 Retired military officers had no 10 interests in politics 5 people never accepted these 0 military men in politics strongly agree agree disagree strongly disagree

In this question statement of the politicians are totally equal with the military& intellectuals.

Q.7. Doctrine of necessity was?

7.C 60 50 40 the safety of the federation 30 protection of military 20 10 reintroduction the free and fair 0 political culture strongly agree agree disagree strongly disagree

According to the politicians ‗Doctrine of Necessity‘ was only for military‘s legitimacy. Views of the politicians are same like the intellectuals and are totally against the military.

Q.8.Military did not interrupt in India because?

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8.C

40 30 political institutions and leadership are strong 20 militay is loyal to the government 10 0 people do not like the military strongly agree agree disagree strongly intervention disagree

All the classes are equally agreeing on Indian case.

Judiciary

Q.1. what should be the nature of civil military relations?

1.D 50 40 military must follow the civilian 30 government 20 mutual understanding is better 10 government must follow the 0 military approved policies strongly agree agree disagree strongly disagree

Adopted manner of judiciary is same like army in 2nd sub-question other options are same of judiciary like intellectuals and politicians.

Q.2. why did civil military relations remain strained in past (in Pakistan)?

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2.D 60 50 lack of political leadership 40 30 20 military showed interest in politics 10 0 both departments(military & civil) crossed their limitations strongly agree agree disagree strongly disagree

Judiciary is also seen agree that Pakistan faced problems due to the lack of political leadership, military showed interest in politics & both the departments crossed their limitations and this response of judiciary is totally against the nature of military.

Q.3. Why did military introduce such controlled democracy?

3.D 40 35 30 political elites were not in the 25 position to run the administration 20 military secured itself with 15 this system 10 5 the controlled political system 0 was suitable to the masses of strongly agree agree disagree strongly pakistan disagree

Judiciary remarks are that politicians were unable to run the administration.

Military secured itself with this controlled democracy. Judiciary is also seen disagree about the controlled political system of the military.

Q.4. Why did Zia-ul-Haq conducted non party based elections?

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4.D 40 35 30 zia had no trust over the political 25 parties 20 15 At that time PPP was famous and 10 Zia did not like it 5 0 Afghan war could not be managed by the political leaders strongly agree agree disagree strongly disagree

Judiciary is also agreeing that political parties including PPP were disliked by Zia.

Politicians could handle the Afghan war.

Q.5. The enlightenment of Musharraf was?

5.D 40

30 the need of the hour (like islamization of Zia) 20 just a slogan 10 A tool for strengthening the 0 democracy strongly agree agree disagree strongly disagree

Judiciary‘s response about Musharrf‘s policies is just a tool to run the administration it was not a sincere attitude for the democracy of Pakistan. Judiciary is also seen with the class of politicians and intellectuals and against the response of military.

Q.6. Why retired military officers of US are successful in politics but not in Pakistan?

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6.D 40 30 political culture of pakistan is not developed 20 Retired military officers had no 10 interests in politics 0 people never accepted these strongly agree agree disagree strongly military men in politics disagree

All the classes including judiciary agree that political culture of Pakistan is not developed. People accepted these retired military men but these military men did not show serious interest in politics. Q.7. Doctrine of necessity was?

7.D 60 the safety of the federation 40

20 protection of military 0 reintroduction the free and fair strongly agree agree disagree strongly political culture disagree

Judiciary‘s response is also that ‗Doctrine of Necessity‘ was just a tool to secure military which is against the nature of military response.

Q.8.Military did not interrupt in India because?

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8.D 40 political institutions and 30 leadership are strong 20 militay is loyal to the 10 government 0 people do not like the military intervention strongly agree agree disagree strongly disagree

All the classes are blindly agreed on India case that India is advance than Pakistan in democratic culture.

After compiling the results of survey from four classes (intellectuals, military, politicians & judiciary), military is seen different in its objectives, it secured itself and kept at distance, and its response is seen institutional response as usual. But the response of intellectuals, politicians and judiciary is seen almost same. Institutional thinking is still unmatchable which is harmful for future of democracy; democratic culture can be promoted with the help of unique thinking.

Findings

• A gap between the theory and practice is seen in the political system of Pakistan.

• Absence of political culture is seen

• Non-organized political parties remained the main reason of this severe situation.

• Lack of political leadership allowed the militaryto intervene.

• After coming in power military showed interest to remain in power.

• Provincialism not allowed the democracy to prop up.

• Big powers not relied over the civilian governments to fulfill their objectives. • Institutions could not realize their powers they remained reluctant to improve

themselves.

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Suggestions &Recommendations

From very early years of independence, Pakistan faced enormous setbacks in

political system which also became a reason of weakness of all other institutions except

the military. Pakistan military inherited strong institutional traits from ex-colonial masters.

This landmark difference with other institutions slowly and gradually drew military to civil

affairs and after a short period of eleven years. Military derailed the already trembling

political setup and controlled the political powers. It was the first experience of Pakistan

military to taste the political power and then for several times intervened in politics

derailing the existing political setup. In contemporary era of the democratic setup, it is

necessary that political power should be under the control of people‘s representatives to

encourage and strengthen this trend in Pakistan. The researcher suggests the following

recommendations for the promotion of democratic system.

1. There should be strong political institutions in Pakistan to prevent the country from

further destabilization. It is necessary to make our institutions strong and stable.

Political institutions should show maturity in their spheres to discourage further

military intervention in Pakistan. Only strong participant political culture in the

country can do it. The strong political governments in the world are the best

examples where military can not intervene in politics so far. It is necessary to make

Pakistan strong on political basis through co-operation of all the politicalparties,

constructive opposition, dispassionate political leaders, good and seedy delivery to

people demands, these are the main requisites on political institutional level to make

it bold against any malpractices.

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2. Media is considered as the fourth pillar of the government. For the successful

democratic system, it is very important that media should play its due role. Media

is that agent which creates awareness among the people and provides knowledge

about their rights and duties. Media has a strong check on government activities

and suggests feedback of these policies. It is an important tool of the information

of public opinion. Media should play its constructive role in propagating its political

culture so that non-democratic forces must be discouraged. In current Pakistani

volatile political culture, it is the need of the hour that media must be unbiased and

neutral so that democratic system can flourish and military may not get a chance to

intercept once again.

3. In Pakistan, since its independence, foreign elements always remained active,&

Pakistan remained host in the international issues which attracted big powers

especially US to have its stay in the state affairs of Pakistan. Pakistan being on

strategic position created many enemies; to overcome enemies, it involves with

super power military camps. This encourages them to have stay in Pakistan politics.

Under this shadow military always justified its takeovers that there was an external

danger to the state sovereignty. Traditional and old time enmities must be changed

into friendship for better future of the poor masses of this state.

4. Organized political parties are the spirit of pure democracy; political parties can

play an important role in the democratic setup of the state. Political parties

aggregate the interests of the peoples and act according to the wishes of the people.

For the successful democratic setup of the state it is very important that the political

parties must be well organized and strong enough to act according to the wishes of

268

the people. Unfortunately, Pakistan‘s political system lacked gross root level

political parties are personality based groups that control political power for a short

period; they lacked clear cut character and agendas to attract masses and bring

massive change into the existing traditional political culture. Enormous corruption,

nepotism and inter party revelries have created an atmosphere of hatred among the

people. This instability and absence of political morality provide a chance to

military to intervene in politics. Therefore, it is necessary that Pakistani political

parties must be organized and shall made people oriented. When political parties

are strong and people have trust on them then non-democratic forces would be not

in position to get away democratic process.

5. Pakistan since the demise of Quaid-e-Azam Mohammad Ali Jinnah and Liaqat Ali

Khan, faced sever dearth of political leadership. The echelon of power has been

mostly remained in the hand of the corrupt and incapable political leaders. This has

been the main problem which always attracted the military to intervene in politics.

To bring the talented and able political leadership to the national scene is the

urgency of the time. Therefore, it is necessary to educate the masses and make them

aware on all respects to choose the rights. To choose the patriotic leaders who cope

with the situation. If there were strong and patriotic leadership in the country, the

political system would never fell into the debris of the military coups. Only a strong

and well educated leader can manage the situation and can

put the state on right direction, both eternally and externally. Graduation condition

for parliament candidates must be reinstalled.

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6. Strong and independent judiciary is compulsory for the survival of the state.

Judiciary is the main organ of the government. It is the judiciary which can play the

main role to declare any unconstitutional move illegal and to save the constitution.

But unfortunately, the weak judiciary from beginning molded the way and legalized

every military coup. All these favors of judiciary to the military role make debris

of the laws. If there were strong, free and independent judiciary, there had been no

such menace of military adventurism and democratic setup would flourish well in

the country. It is the need of the hour to make the judiciary strong, impartial, free

and fair independent judiciary to resist strongly any unconstitutional move by the

army in the country.

7. Party elections must be according to the procedure.A psychological test of the

politicians must be for their recruitment like public employees. Military officers

must come in politics after retirement or resignation.

8. Government must develop open forum in which the military issues may be

brought to light.Oath script must be revised for civil and political leaders only for

the safety and service of Islamic Republic of Pakistan.

9. Government should not call the military to perform internal security and avoid

using military as a domestic political instrument.Only professional officers must be

promoted in civil and military departments.Civil bureaucracy must never bear the

military pressure.Pay package of Pak military must be like the Indian army.

Military must be answerable to the civil government like other developed states. 10. National Security Council must not be more than advisory council like the patterns

set by India and Turkey. The main duty of parliament is legislation. Parliament can

improve its functioning by making new laws according to the situation. For this, it 270

can make an advisory body which can consist of literate youths for innovations of

ideas.Encourage the multi-partisan collaboration for defense and prosperity of this

state.National security should have an exclusive session weekly about the problems

of the country. All parliamentary sessions should be live on television for further

suggestions and implementations. There must be a proper supervision of

government agendas, bills and budget sections for economic wellbeing of society.

After studying the structure of the civilian governments during the military regimes

it has become clear that political leaders were not able to handle the situation, military came

to fill this gap. When military came to power, it always made its mind to remain in power

for longer times. For gaining this objective, it pressurized the judiciary to legitimate it,

amended the constitution. In short, not a sincere effort has been made to strengthen and

cultivate the pure democratic culture of Pakistan from both the groups (military &

politicians).

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xxxvi, no. 7

Appendix-1

CONSTITUTION of Pakistan, 1973 (EIGHTH AMENDMENT) ACT, 1985

An Act further to amend the Constitution of the Islamic Republic of Pakistan [Gazette of Pakistan, Extraordinary, 11th November, 1985] The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 9th November, 1985, and is hereby published for general information:-

Whereas it is expedient further to amend the constitution of the Islamic Republic of Pakistan for the purposes hereinafter appearing;

It is hereby enacted as follows:

1. Short title and commencement. (1)This Act may be called the Constitution (Eighth Amendment) Act, 1985. (2)It shall come into force at once, except section 19 which shall come into force on the day on which the Proclamation of the fifth day of July, 1977, is revoked. 2. Amendment of Article 48 of the Constitution. In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution in Article 48,- (a) In clause (1),-(i)for the commas and words ",the Prime Minister, or appropriate Minister" the words "or the Prime Minister" shall be substituted; and(ii)for the proviso the following shall be substituted, namely :"Provided that the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."; 284

(b) In clause (2), after the words "do so", at the end, the words "and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever" shall be added; (c) Clause (3) shall be omitted; and (d) Clause (5), in paragraph (a), for the words "one hundred" the word "ninety" shall be substituted. 3. Amendment of Article 51 of the Constitution. In the Constitution, in Article 51, in clause (4), for the word "second" the word "third" shall be substituted. 4. Amendment of Article 56 of the Constitution. In the Constitution, in Article 56, for clause (3) the following shall be substituted, namely: "(3)At the commencement of the first session after each general election to the National Assembly and at the commencement of the first session of each year the President shall address both houses assembled together and inform the Majlis-e-Shoora (Parliament) of the causes of its summons. 5. Amendment of Article 58 of the Constitution. In the Constitution, in Article 58,-- (a)in clause (1), in the Explanation, for the words "resolution for a vote of no confidence has been moved" the words "notice of a resolution for a vote of no-confidence has been given" shall be substituted; and (b)for clause (2) the following shall be substituted, namely: "(2)Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion, (a) a vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the member‘s of the National Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose; or (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. 6. Amendment of Article 59 of the Constitution In the Constitution, in Article 59- (a)in clause (1), in paragraph (c), for the word "chosen" the word "elected" shall be substituted: (b)in clause (3), (i)for paragraphs (a), (b) and (c); the following shall be substituted, namely "(a)of the members referred to in paragraph (a) of clause (1), seven shall retire after the expiration of the first three years and seven shall retire after the expiration of the next three years; (b)of the members referred to in paragraph (b) of the aforesaid clause, four shall retire after the expiration of the first three years and four shall retire after the expiration of the next three years; (c)of the members referred to in paragraph (c) of the aforesaid clause, one shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years; (d)of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the first three years and three shall retire after the expiration of the next three years". (ii)in the proviso, the words "or chosen" shall be omitted; and (c)clause (4) shall be omitted. 7.Amendment of Article 60 of the Constitution. In the Constitution, in Article 60, in clause (2), for the word "two" the word "three" shall be substituted. 8. Amendment of Article 75 of the Constitution. In the Constitution, in Article 75,- (a)in clause (1), for the word "forty-five" the word "thirty" shall be substituted; and (b)for clause (2) the following shall be substituted, namely ;- "(2)When the President has returned a Bill to the Majlis-e-Shoora (Parliament), it shall be reconsidered by the Majlis-e-Shoora (Parliament) in joint sitting and, if it is again passed, with or

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without amendment, by the Majlis-e-Shoora (Parliament), by the votes of the majority of the members of both Houses present and voting, it shall be deemed for the purposes of the Constitution to have been passed by both Houses and shall be presented to the President and the President shall not withhold assent therefrom." 9. Amendment of Article 90 of the Constitution. In the Constitution, Article 90 shall be renumbered as clause (1) of that Article and, after clause (1) renumber as aforesaid, the following new clause shall be added, namely:- (2)Nothing contained in clause (1) shall— (a)be deemed transfer to the President any functions conferred by any existing law on the Government of any Province or other. Authority; or (b)prevent the Majlis-e-Shoora (Parliament,) from conferring by law functions on authorities other than the President.". 10. Amendment of Article 91 of the Constitution. In the Constitution, in Article 91,- (a) after clause (2), the following new clause shall be inserted, namely:- "(2-A)Notwithstanding anything contained in clause (2), after the twentieth day of March, one thousand nine hundred and ninety, the President shall invite the member of the National Assembly to be the Prime Minister who commands the confidence of the majority of the members of the National Assembly, as ascertained in a session of the Assembly summoned for the purpose in accordance with provisions of the Constitution." (b)in clause (3), after the brackets and figure "(2)", the words, commas,brackets, figure and letter "or, as the case may be, invited under clause (2-A)" shall be inserted; and (c)for clause (5) the following shall be substituted, namely :- (5)The Prime Minister. shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime- Minister. does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly,". 11. Amendment of Article 101 of the Constitution. In the Constitution, in Article 101,- (a) in clause (1), for the words "in his discretion" the words "after consultation with the Prime Minister." shall be substituted; (aa)in clause (2), the proviso shall be omitted; (b)clause (2-A) shall be omitted; and (c)in clause (5), after the word "Governor", at the end, the words "in any contingency not provided for in this Part" shall be added. 12. Amendment of Article 105 of the Constitution. In the Constitution in Article 105,- (a)in clause (1),- (i)for the comma and words ", Chief Minister or appropriate Minister" the words " or the Chief Minister" shall be substituted; (ii)for the first proviso, the following shall be substituted, namely:- "Provided that the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall act in accordance with the advice tendered after such reconsideration." and , (iii)the second proviso shall be omitted ; (b)in clause (2), for the comma and words ", the Cabinet or a Minister" the words "or the Cabinet" shall be substituted; and (c)in clause (5), for the brackets and figure "(3)" the brackets and figure "(2) shall be substituted.

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13. Amendment of Article 106 of the Constitution. In the Constitution in Article 106, in clause (4), for the word "second" the word "third" shall be substituted. 14. Amendment of Article 112 of the Constitution. In the Constitution Article 112 shall be renumbered as clause (1) of that Article and:- (a)in clause (1), renumbered as aforesaid, in the Explanation, for the word "resolution for a vote of no-confidence has been moved" the words "notice of a resolution for a vote of no-confidence has been given" shall be substituted; and (b)after clause (1), renumbered and amended as aforesaid, the following new clause shall be added, namely:- "(2)The Governor may also dissolve the Provincial Assembly in his discretion but subject to the previous approval of the President, where, in his opinion,- (a) a vote of no-confidence having been passed against the Chief Minister, no other member of the Provincial Assembly is likely to command the confidence of the majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the Provincial Assembly summoned for the purpose ; or (b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. 15. Amendment of Article 116 of the Constitution. In the Constitution in Article 116,- (a)in clause (2) for the word "forty-five" the word "thirty" shall be substituted and (b)for clause (3) the following shall be substituted, namely; "(3)When the Governor has returned a Bill to the Provincial Assembly, it shall be reconsidered by the Provincial Assembly and, if it is again passed, with or without amendment, by the Provincial Assembly, by the votes of the majority of the members of the Provincial Assembly present and voting, it shall be again presented to the Governor and the Governor shall not withhold assent therefrom.". 16. Amendment of Article 130 of the Constitution. In the Constitution, in Article 130,- (a) after clause (2), the following new clause shall be inserted, namely:- "(2-A) Notwithstanding anything contained in clause (2), .after the twentieth day of March, one thousand nine hundred and eighty-eight, the Governor shall invite the member of the Provincial Assembly to be the Chief Minister who commands the confidence of the majority of the members of the Provincial Assembly, as ascertained in a session of the Assembly summoned for the purpose in accordance with the provisions of the Constitution: Provided that nothing contained in this clause shall apply to a Chief Minister holding office on the twentieth day of March, one thousand nine hundred and eighty eight, in accordance with the provisions of the Constitution." (b)in clause (3), after the brackets and figure "(2)" the words, commas, brackets, figure and letter "or, as the case may be, invited under clause (2-A)" shall be inserted; and (c)for clause (5) the following shall be substituted, namely .- "(5)The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly, in which case he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly." 17. Amendment of Article 144 of the Constitution.

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In the Constitution, Article 144, clause (2) shall be omitted. 18. Omission of Article 152-A of the Constitution. In the Constitution, Article 152-A shall be omitted. 19. Substitution of Article 270-A of the Constitution. In the Constitution for Article 270-A the following shall be substituted, namely:-- "270-A Affirmation of President's Orders, etc. (1?) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances. Martial Law Regulation Martial Law Orders, including the Referendum Order, 1984 (P.O. No 11 of 1984), under which in consequence of the result of the referendum held on the nineteenth day December 1984, General Muhammad Zia-ul-Haq became the President the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order 1985 (P.O. No. 14 of 1985), the Constitution (Second Amendment) Order, 1985(P.O.20 of 1985) the Constitution (Third Amendment) Order, 1985 (P O.No.24 of 1985) and all other laws made between the fifth day of July, 1977and the date on which Article comes into force are hereby affirmed, adopted and declared notwithstanding a judgment of any court, to have been validly made by competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court on any ground whatsoever; Provided that a President's Order', Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977. (2)All order‘s made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done between the fifth day of July, 1977, and the date on which this Article comes into force in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notification rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever. (3)All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactment, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. Explanation. In this clause, "competent authority" means, - (a)in respect of President's Orders, Ordinances, Martial Law Regulation Martial Law Orders and enactments, the appropriate Legislature; and (b)in respect of notifications, rules , orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law. (4)No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or. act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with order's made or sentences passed in exercise or purported to exercise of such powers. (5)For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purposes intended to be served thereby. (6)Such of the President's Orders and 0rdinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws. Explanation. In this Article, "President's Orders" includes "President and Chief Martial Law Administrator‘s Orders" and "Chief Martial Law Administrator‘s Orders.". 288

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20. Addition of new Schedule to the Constitution. In the Constitution after the Sixth Schedule, the following new Schedule shall be added, namely:-

SEVENTH SCHEDULE [Article 270-A(6)] Laws to be amended in the manner provided for amendment of the Constitution. PRESIDENT’S ORDERS (1)The Zulfiqar Ali Bhutto Trust and Peoples Foundation Trust (Re-naming and Administration) Order, 1978 (P.O. No. 13 of 1978). (2)The Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 (P.O. No. 13 of 1979). (3)The Pakistan Defence Officer's Housing Authority Order, 1980 (P.O.No.7 of 1980). (4)The Foreign Currency Loans (Rate of Exchange) Order, 1982(P.O.No.3 of 1982). (5)The Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O. No. 1 of 1983). (6)The Agha Khan University Order, 1983 (P.O. No. 3 of 1983). (7)The National College of Textile Engineering (Governing Body and Cess) Order, 1983 (P.O. No. 11 of 1983). (8)The Lahore University of Management Science Order, 1985 (P.O.No.25 of 1985).ORDINANCES (1)The International Islamic University Ordinance, 1985 (XXX of 1985).

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Appendix-2

P L D 1989 SC 166 FEDERATION OF PAKISTAN V/S MUHAMMAD SAIFULLAH KHAN (a) Constitution of Pakistan (1973), Articles 58, 199 & 48:

Articles 199 & 58(2)(b) — Superior Judiciary is not prohibited to interpret and enforce the Constitution — Action has to be taken in facts objectively — When an action is taken or power is exercised without any ―basis‖ or beyond the power conferred, or for extraneous consideration or a consideration has been taken into account which was impermissible, the order as a whole would be without lawful authority. [p.756]B

Articles 58(2)(b) & 48(2) — Dissolution of National Assembly by the President — Satisfaction of the President — Nature of — Whether satisfaction is ―subjective‖ or ―objective‖ or it is his ―discretion‖ or ―opinion‖, the President cannot exercise his powers under the Constitution on wish or whim — Blanket coverage of validity and unquestionability of discretion under Article 48(2) not available — Court‘s jurisdiction not expressly excluded.

The crux of the controversy in the present case was whether the order of the President dissolving the National Assembly on 29.5.1989 was in accordance with the powers conferred on him under Article 58(2)(b) of the Constitution. [p.756]C

Whether it is ―subjective‖ or ―objective‖ satisfaction of the President or it is his ―discretion‖ or ―opinion‖, this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representatives of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of Law. No doubt, the Courts will be chary to interfere in his ―discretion‖ or formation of the ―opinion‖ about the ―situation‖ but if there be no basis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution. While doing so, they will not be entering in the political arena for which appeal to electorate is provided for. [p.757]

It was contended that in spite of the fact that Article 58(2) states that ―Notwithstanding anything contained in Clause (2) of Article 48″, the President may also dissolve the National Assembly in his discretion under Article 58(2) and when he does exercise his discretion to dissolve the Assembly, the validity thereof cannot be questioned on any ground whatsoever as provided for under Article 48(2). If the argument be correct then the provision ―Notwithstanding anything contained in clause (2) of Article 48″ would be rendered redundant as if it was no part of the Constitution. It is obvious and patent that no letter or part of a provision of the Constitution can be said to be redundant or non-existent under any principle of construction of Constitution. The argument may be correct in exercise of other discretionary powers but it cannot be employed with reference to the dissolution of National Assembly. Blanket coverage of validity and unquestionability of discretion under Article 48(2) was given up when it was provided under Article 58(2) that ―Notwithstanding clause (2) of Article 48….‖, the discretion can be exercised in the given circumstances. Specific provision will govern the situation. Caesar while declining to go to the Senate for reason extraneous to public office when asked by the person directed to communicate his decision the cause thereof, said: ―The cause is in my will: – I will not come: That is enough to satisfy the Senate‖. He lost his life. Therefore, however, powerful the person or the office of the President may be he has to act like a reasonable person with common prudence

291 and take his steps in life on solid foundations and reasons understandable by common people. Therefore, it is not quite right to contend that since it was in his ―discretion‖, on the basis of his ―opinion‖ the President could dissolve the National Assembly. He has to have reasons which are justifiable in the eyes of the people and supportable by law in a Court of Justice. The ―discretion‖ and formation of the ―opinion‖, of course, which are objectives realities. The ―discretion‖ or formation of ―opinion‖ cannot be based on illusions, fancy or whim. It is understandable that if the President has any justifiable reason to exercise his ―discretion‖ in his ―opinion‖ but does not wish to disclose, he may say so and may be believed or if called upon to explain the reason he may take the Court in confidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is not confined to the office-holder for the time being. He cannot simply say like Caesar it is my will, opinion or discretion. Nor give reasons which have no nexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects. Even if one reasons for the action is invalid. It does in its entirety. [p.759]E

Article 58(2)(b) — Dissolution of National Assembly by the President on the ground that ―the objects and purposes for which the National Assembly was elected had not been fulfilled‖ — Reason given by the President being too wide does not hold water. [p.760] F&G

Dissolution of National Assembly by the President on the ground that the law and order in the country had been broken downs to an alarming extent resulting in tragic loss of innumerable lives as well as loss of property. — Held, law and order problem was to be tackled under the Constitution by Emergency Power provided under Part X of the Constitution; law and order problem was perennial and dissolution of National Assembly on such as ground was a big dose for a minor disease.[p.760]H

Dissolution of National Assembly by the President on the ground that ―the life, property, honour and security of citizens of Pakistan had been rendered totally unsafe and integrity and ideology of Pakistan had been seriously endangered‖ — Held, ground was patently too wide and generally which could be advanced any time. [p.760]I

Dissolution of National Assembly by the President on the ground that public morality and deteriorated to an unprecedented level — Held, on such a general ground which keeps changing from generation to generation drastic action of dissolving the highest representative legislative body could not be upheld. [p.760]J

Dissolution of National Assembly by the President on four different grounds — Grounds given for dissolution of National Assembly were vague, general or non-existent and could always be passed at any time — Effect — Constitution does not envisage dissolution of Assembly at will — Held, even if one ground was wide, vague, general, non-specific or non-existent, the whole order had to fall and order of dissolution could not be sustained.

The grounds given for dissolution of National Assembly and the Provincial assembly of Punjab were so vague, general or non-existent that the orders were not sustainable in law. Such like orders could always be passed at any time. The Constitution does not envisage dissolution of Assemblies at will. [p.751]NNN

Even if one ground is wide, vague, general, non-specific or on-existent, the whole order has to fall. If a person takes into account, any three factors for coming to a decision and one is faulty or non-existent there is no way of knowing that how much part the faulty or non-existent fact had played in the formation of the judgment or opinion. Therefore, the whole order has to go. A perusal of the grounds mentioned for the dissolution of National Assembly by the President would make it quite clear that these can be urged any time for dissolving the National assembly. Such a Draconian discretion is not envisaged by the Constitution which provides for free people. Only on 25th May, 1988, the President had called for the Session of the National Assembly. On 29th May, just four days later, he orders dissolution of the Assembly. What has happened within four days, has not been disclosed. Court cannot fathom the hidden real reason. In these circumstances, it is not possible to sustain the order of dissolution. [p.760]K

292

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Word ―dissolution‖ — Meaning and import — Dissolution though having been held as not sustainable, High Court, declined the request of petitioners that dissolved Assemblies or the Cabinet be restored. – [Words and phrases] What is to be done now? Should the dissolved Assemblies with pulsating heart the cabinet be restored as contended by the petitioners? The word ‗dissolution‘ means per Chamber‘s Twentieth Century Dictionary: ―the breaking of an assembly; loosening, melting, break up, death‖. What has been done to death nobody on earth can bring it to life. Fatal blow was struck. with no declaration the dead can come to life. Another fact may be taken note of. The Assembly was elected by avoiding political parties from participation in the process of election. All were demanding fresh elections. After the dissolution, everybody accepted the fact of dissolution. No responsible person challenged the action, neither the leader of the House nor its Speaker. The latter‘s support of the petitions is too belated. The entire nation is looking forward to the ensuring election, including the leading members of the dissolved Assemblies. Petitioners were asked whether anywhere in the world, dissolved Assemblies have been restored by a Court? They cited no example. We cannot be innovative to frustrate the will of the people who are all geared to go to polls. It would be very unwise, unjudicious exercise of discretion. It will be seen that the struggle of supremacy of principles — parliamentary form of Government and federalism, over personal opinion of individuals — has been unremitting. In the process liberty was lost by the majority of people living in what was East Pakistan. Submission to principles was avoided but at what cost — humiliating defeat and surrender to enemy forces. Principles are again, seeking acceptance, adoption and submission. Let no person coose to submerge them to satisfy his will. The Chairman of the Senate, which body has survived the revenges of life, has taken over under the Constitution as Acting President. He is the first person to come to power under a Constitution made not by him or under him but by the people of Pakistan. He has promised that he would go by the Constitution. He will hold election on 16th of November, 1988. He will transfer power to the elected representatives of the people. Here is a chance for the nation to uphold principles and live peacefully with dignity. ―There is a tide in the affairs of men Which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life Is bound in shallows and in miseries. On such a full sea are we now afloat, And we must take the current when it serves, Or loss our venture.‖

293

Sakespeare, Jullus Caesar Act IV - Scene III

Articles 199 & 58(2)(b) — Dissolution of National Assembly by the President — Invocation of Constitutional jurisdiction of High Court against dissolution of National Assembly — Laches — Effect — Petition raised fundamental questions relating to interpretation and enforcement of the Constitution — Duty of Court, to determine questions arising under the Constitution cannot be declined or abdicated because the judgment may require consequential steps which call for political action or solution.

It may, however, be noticed that his plea not to examine the impugned orders as that would involve determining political questions is not quite sound for the simple reason that the Courts have to interpret and enforce the Constitution. May be the result of the examination would lead to political action but the examination of the question relating to Constitution cannot be refused on the ground that it may lead to consequences requiring political action. It is the primary duty of the Court to determine questions arising under the Constitution and this function cannot be declined or abdicated because the judgment may require consequential steps which call for political action or solution. Therefore, having examined the questions raised and determining the same, the restoration of the dissolved Assemblies and Cabinets was not allowed without entering into the political arena.

Articles 48 & 58 — Dissolution of National Assembly by the President — Exercise of powers by the President — Immunity — Extent — Whilst immunity from justiciablity is intended to attach to all action of the President, which he may take in his discretion. If so empowered by the Constitution, the particular action which he may take in his discretion, as stated in Article 58(2), is not immune from justiciability.

Under clause (1) of Article 48, the President, in the exercise of his functions, has to mandatorily act in accordance with the advice of the Cabinet, or of the Prime Minister. By virtue of clause (2). This Article, notwithstanding the fact that the President has to mandatorily act in accordance with the advice of the Cabinet or the Prime Minister, the President can also mandatorily act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, in which case the validity of anything done by the President in his discretion cannot be called in question on any grounds whatsoever. Thus, in respect of functions which the President can exercise under clause (1), immunity from questioning the validity of the action is not provided. Where he acts under clause (2) of Article 58(2)(b), notwithstanding anything contained in clause (2) of article 48, the President can also dissolve the National assembly in his discretion, where, in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The question that arises is: What do the words ―notwithstanding anything contained in clause (2) of Article 48″ mean? Do they take away the immunity provided in clause (2) of article 48, or they only clarify by way of abundant caution that the power is within the general category to the immunity. It is true that a non obstrante clause can create an exception, where there is a conflict between two provisions, or it may be clarifying of the original position and introduced only by way of abundant caution. Clause (2) of Article 48 does not delineate any specific power, but refers to a general category of powers designated as discretionary, where the President acts in respect of any matter in respect of which he is empowered by the Constitution to do so. In respect of such discretionary powers, immunity from questioning their validity is provided. If the power given to the President under sub-clause (b) of the clause (2) of Article 58 was intended to be within the general category provided by clause (2) of Article 48, there was no necessity to prefix the non obstante clause with sub-clause. By adding the non obstante clause, it cannot be said that the object of the legislature was to clarify the general category and that the addition was only by way of abundant caution, so as not to limit the scope of the general category. This reasoning would apply if the two provisions relate to two specific powers. Since clause (2) of article 48 only illustrates a general category and clause (2) of Article 58 refers to a specific power, the non obstante clause was obviously intended to create an exception to the immunity provided in clause (2) of Article 48. This is also obvious from the proceedings of the Debate held in the National Assembly on 16th October, 1985, in respect of the Constitution, (8th Amendment) Bill. [p. 772]

294

The reference from the speech of the then Prime Minister, in the National Assembly, therefore, is clear that the power under clause (2) of Article 58 was not intended to fall within the category of clause (2) of Article 48, but rather was to be treated as exclusive of that power, in short, what was sought by the then Prime Minister in the National Assembly was the freedom from immunity, as provided by clause (2) of article 48. Thus shorn of all complexities, clause (2) of Article 58 means that notwithstanding the general power of the President, as contained in clause (2) of Article 48, to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, which act is immune from judiciability, he can also dissolve the National Assembly in his discretion under this clause, for reasons given in sub-clause (a) and (b) thereof, and since no immunity as in clause (2) of Article 48 is provided, in this case no immunity shall apply. Comparing both the provisions, it is obvious that whilst immunity from justiciablity is intended to attach to all actions of the President, which he may take in his discretion, if so empowered by the Constitution, the particular action which he may take in his discretion, as stated in clause (2) of Article 58 of the Constitution, is not immune from justiciability. This is the effect f the non obstante clause contained in clause (2) of Article 58. It appears that when the Majlis-e-Shoora (Parliament) granted the President power under the Constitution to dissolve the National Assembly in his discretion, it made sure that the President‘s action would be justiciable. This is the effect of the opening words ―notwithstanding anything contained in clause (2) of Article 48″ pre-fixed to clause (2). But for these words, immunity from justiciability would have attached to the President‘s action under clause (2) of Article 58. [p.772]

Article 48(2) — Exercise of powers by the President under Article 48(2) — Immunity from judicial scrutiny is not available in respect of actions under Article 48(2). [p.774]Y

Article 58(2)(b) — Dissolution of National Assembly by the President — Justiciability of action — Opinion of the President under Article 58(2)(b) is a condition precedent to the exercise of discretion — If it can be shown that there were grounds, having a nexus with the Constitutional requirements, however, slim or flimsy they may be, the Court would not interfere — When it can be shown that there was no material, or extraneous material on the basis of which the opinion was reached, the exercise of the power by the President would be unconstitutional. The next question whether the immunity from challenging the validity of the action provided under clause (2) of Article 48 is immunity inter se the President, on the one hand, and the Cabinet, or the Prime Minister, on the other, or immunity from the action being called in question in a Court. Where immunity from legal action is provided, it is explicity mentioned that the validity of the action will not be called in question in any Court. Thus, immunity from judicial scrutiny of Courts is thus not available in respect of actions under clause (2) of Article 48. Certain facts and circumstances have to be present before an opinion can be framed by the President. Since the satisfaction of the President under Article 58(2)(b) of the Constitution is subjective and cannot be tested by reference to any objective tests, it may lead to the interference that the opinion perhaps cannot be challenged, but there is no dispute to the general rule that facts and circumstances on which the opinion has to be formed can be subjects to judicial scrutiny. [p.774]Z

Just because the question is of a political nature, the Court cannot hold its hands off, but it can go into the question whether the person or authority under the Constitution that has the power to form the opinion has acted within the limits of its power or exceeded it. [p.774]AA

The rule that political question, as far as possible, should not be decided by Courts, has primarily sprung up from decisions of Courts taken in respect of cases under Article 234 of the Constitution, where the action of the President is subject to the ratification of Parliament, and where it is generally felt proper to leave the decision of such questions for the decision of Parliament, or where election has been ordered, to the will of the people. even otherwise, this rule is losing ground, due to the reason that Constitutional mechanism in a democratic polity does not contemplate existence of any function which qua the citizens may be designated as political, so that orders made in exercise thereof cannot be tested for their validity before the Courts. [p.774]BB

Where a political question is tied up with the question of constitutional rights or obligations, the Court must look into it. If it is not so tied up, the Court may abstain from enquiring into it. [p.7725]CC

295

Article 58(2)(b) — Exercise of powers by the President to dissolve the National assembly — Legal requirements.

Sub-clause (b) of clause (2) of Article 58 of the Constitution of Pakistan, 1973 clearly shows that before the President can exercise his discretion to dissolve the National Assembly, he must first form an opinion that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and that appeal to the electorate is necessary. It is obvious that before any such opinion can be formed, circumstances should be present which show that a situation has arisen in which the Government of the Federation cannot be carried out in accordance with the provisions of the Constitution and that it is also necessary and desirable that the country should go to the polls, because an appeal to the electorate is necessary. The legal requirements, therefore, appear to be: First, that certain facts and circumstances raising a political issue concerning the future existence of the life of the National Assembly have arisen; Second, that such facts and circumstances are so apparent, visibly verifiable or manifest that on the principle of res ipsa loquitur they can be accepted, or that they are known to the President through verifiable sources‘s or that some summary or report or written information prepared for or at the instance of the President has been submitted to or seen by him, which discloses the same; Third, that in the opinion of the President honestly formed as to the existence of such facts, they in the fair judgment, disclose that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and that it is also necessary that an appeal to the electorate is necessary and the whole of the nation must be plunged into election fever and the country must be burdened with the huge expense of going to the polls; and Fourth and last, that in the discretion of the President, it is necessary to dissolve the National Assembly. [p.776]GG

Article 58(2)(b) — Dissolution of National Assembly by the President — Situation in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution.

The main question that arises in this case is when can it be said that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. The expression ―Government of the Federation‖ is not limited to any one particular function, such as the executive, the legislative, or the judicial, but includes the whole functioning of the Federal Government in all its ramifications. It cannot be forgotten that sub-clauses (a) and (b) of clause (2) are juxtaposed together and, therefore, sub-clause (b) has to be read in harmony with the intention behind sub-clause (a), in short, whether a political issue has arisen demanding the ascertainment of the will of the people as regards the continuance of the National Assignably. Thus, where the National assembly is beset with internal dissensions and problems and the party allegedly in power does not have a clear majority, or having tenuopus support from its members, is not able to carry on the functions of the Government with confidence, and is avoiding to take important decisions, which require to be taken, for fear that it may be outvoted, in case a debate is held in respect thereof, a situation can be stated to have arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. A few further instances can also be given, such as, where the Government has been defeated in the Assembly and the Prime Minister does not want to step down, or political groupings are such that even attempts by the President to form a coalition Government and get a working majority have not been successful and as alternative Government can be formed. It is difficult to conceive of a case where a major party having a stable Ministry in the saddle can be stated to have lost its functional ability, but in a rare case where the national mood has changed, it may be so figuratively treated, such as where a quick shift in the national mood placed party in power at the Centre and the Provincial assemblies which had stable Governments controlled by the ruling party, were dissolved to give the people in the said Provinces a further right to express their current feelings due to the recent shift in their mood. What is intended by the language of subclause (b) of clause (2) is the failure of the functional working of the National Assembly, through Ministers belonging to the majority party, because they are not able to run the Government with confidence and courage. Nothing can be read into clause (b) to show that the failure on the part of the party in power in the National assembly to effectively carry out the directions or recommendations of the President, or any particular policy or programme promised by them in their manifesto, or to satisfactorily enforce some of the provisions of the Objectives Resolution or Principles of Policy, can be taken into consideration for the dissolution of the National Assembly, for these are abstract matters on which 296 no honest judgment can be formed and otherwise too they would be dependent on facts which are relatively variable and which have no nexus with the functional working of the Assembly. What is covered by sub- clause (b) is the functional working of the party in power, for where it has strength, it effectively controls legislative and executive functions, and where it is weak, it cannot effectively do so. The primary condition, therefore, is whether the circumstances are such that the functional working of the National Assembly is impaired; for if the party in power commands the widest support in the National Assembly. It has the right to run the Government, and where it has no such support, or has lost sit, it must leave, whatever supportive conditions are there, by themselves they have no value, unless they serve the primary condition. [p.777]HH

Article 58(2)(b) — Dissolution of National Assembly by the President — Circumstances prevalent on the date of dissolution and question of a political issue of a nature facing the country threatening the life of the National assembly judicially examined — Held, primary basis on which the National assembly could have been dissolved was non-existent.

The most important question that arises in the present case is what were the circumstances prevalent on or before 28th May, 1988, when the National Assembly was dissolved, was the a political issue of a nature facing the country threatening the life of the National Assembly. It cannot be forgotten that the members of the National Assembly represent four provinces, the Federally Administered Tribal Areas and the Federal Capital, on the basis of population, and some seats reserved for the minority communities and women. The Pakistan Muslim League party, after it decided to run its affairs on a party-based system, had the support of an overwhelming majority of the members of the House. The party was not beset with internal dissensions sour friction. Council of Ministers that had been installed had not suffered any major change. The popular character of the party had not been disturbed nor compromised. On the contrary, it had won the byeelection held in 1987, which showed the mood of the electorate in the Punjab, at least in having faith in the Pakistan Muslim League. The President himself in his addresses to the National Assembly on 19th April, 1985, and 7th April, 1988, waxed eloquent about the purpose of the National Assembly amend the fact that it was running the Government in accordance with the Constitution. The President, in exercise of his powers under Article 54 of the Constitution, had also on 25th May, 1988, summoned a session of the National Assembly for 8th June, 1988. The President would not have summoned the session, if the party was in the midst of any turmoil the life of the National Assembly, one would expect many things to have happened, such as the Ministry in power has lost its majority amongst the members, or internal dissensions and divisions have raised their ugly head or prolific companying has begun among members for support to form a majority party, etc. Such matters do not remain hidden. They are so apparent that they find full expression themselves in a thousand ways. Nothing of the sort was present, either manifest or unmanifest. The political scene was stable and placid like a frozen lake, with not a ripple of disturbance on its surface, all these are facts which the Court can take judicial notice. It was held that the primary basis on which the National Assembly could have been dissolved, was not there. [p.781]II

Article 58(2)(b) — ―Basic structure‖ theory — Scope of Article 58(2)(b) cannot be enlarged by any ratio of rule similar to the ―Basic structure‖ theory, said theory having not been accepted by superior Courts of Pakistan. Thus the scope of sub-section (b) of clause (2) of Article 58 cannot be enlarged by any ratio or rule similar to the ―basic structure‖ theory, as pronounced in India. Even otherwise, this theory has not been accepted by the Supreme Court or Pakistan in Fauji Foundation‘s Case – PLD 1983 SC 457.

The arguments of the learned Attorney-General on behalf of the Federation invoking this theory to expand the horizons of sub-clause (b) of clause (2) of Article 58 cannot be accepted. Rather, the horizons of this sub- clause can only be limited by the Parliamentary practice prevailing governing dissolution of assemblies, if not by the limitation of the object for which it was made available to the President.

Article 58(2)(b) — Dissolution of National Assembly by the President — Order to be passed with extreme caution by the President — Grounds for dissolving National Assembly being vague, based on extraneous grounds and having no basis in law must be treated as not furnishing any reasonable grounds on which the President could have formed an honest opinion, as required by the Constitution — Dissolution order being

297 ultra vires and unconstitutional was void and unsustainable and must be struck down. The National Assembly was dissolved for the gounds given in the President‘s dissolution order itself, which states the reasonss as follows:-

(i) That the objectives and purposes for which the National Assembly was elected had not been fulfilled;

(ii) that the law and order situation in the country had broken down to an alarming extent, resulting in tragic loss of valuable lives as well as loss of property;

(iii) that the life, property, honour and security of the citizens of Pakistan had been rendred totally unsafe and integrity and ideology of Pakistan had been serioursly endangered; and (iv) that public morality and deteriorated to an unprecendented level; as a result whereof, in the opinion of the President, a situation had arisen in which the Government of the Federation could sot be carried on in accordance with provisions of the Constitution and an appeal to the electorate was necessary. [p.782]KK

All the four grounds stated in the dissolution order have no nexus with the political question covered by sub- clause (b) of clause (2) of article 58, namely, whether a situation has been whereby the functional working of the National Assembly had become impaired and ascertainment of the will of the people has become necessary. No further grounds have been stated. Thedissolution order, therefore, is based on extraneous grounds and having no bais in law, must be treated as not furnishing any reasonable grounds on which the President could have formed an honest opinion, as required by the Constitution. This being so, he could also not have exercised his just discretion in the matter. A dissolution order under sub-clause (b) of clause (2) of the ARticle 58 requires tos be passed with extreme caution, where the President, acting as a neutral and being moderator, reasonably believes, from unchallenged facts within his purview, that the functional working of the National Assembly is impaired and ascertainment of the will of the people has become necessary. The dissolution order appears to have been passed in gross and disrespect or the mandatory provisions of the Constitution. The dissolution order being ultra vires and unconstitutional, is void and unsustainable and must be struck down. [p.783]LL

Articles 58(2)(b) & 199 — Dissolution of National Assembly and four Provincial Assemblies declared as ultra vires and unconstitutional — Factors preventing Court from grant of relief detailed.

Articles 58(2)(b) & 48(2) — Order of dissolution of National Assembly by the President — Immunity — Extent — Discretion of President is circumscribed by the object of the law that created it — Condition precedent for exercise of discretionary powers in pursuance of Article 58(2)(b) — Power of President to form an opinion under Article 58(2)(b) is not unfettered and discretion vested in him is not absolute.

Under sub-Article (2) of Article 48 the discretionary power exercised by the President in any matter, he is permitted by the Constitution, to do so, is immune from challenge on any ground whatever. But this immunity cannot be stretched to action taken by him under Article 58(2)(b) and there are weighty reasons for it. Sub- Article (2) of ARticle 58 is prefixed with the expression ―Notwithstanding anything contained in clause (2) of Article 48″, which gives Article 58(2)(b) an overriding effect over the provisions mentioned in the non obstante clause. Ordinarily the purpose of employing such a non obstante clause is that the provision embodied therein shall not be an obstacle to the full operation of the provision following it. It is, however, noticeable that both Articless 48(2) and 58(2) more or less operate in the same field and both begin with the non obstante clause. In such like cases it becomes the kduty of the Court, in so far as possible, to construe the two conflicting provisions in a manner that they harmonise, there are two tests for resolution of such a conflict. The inconsistency may be resolved on consideration of the purpose underlying the enactments and theobject of appending non obstante clause thereto. The other rule usually applied is that the later enactment cuts down the ambit of and prevails over earlier one. The extension of the later test to the case in hand would

298 irresistibly lead to a conclusion thast Article 48(2) does not control Article 58(2) as both cannot co-exist. For ascertaining the object of incorporation of non obstante clause in Article 58(2) a reference to the language of this clause as sit existed before its amendment by the Constitution (Eighth Amendment) Act, 1985 appears to be inapt. This clause when initially inducted into the Constitution under the revival of the Constitution Order, 1973, runs as under:―The President may also dissolve the National Assembly when, in his opinion an appeal to the electorate is necessary‖.

It is discernible from the extract of the debate of the National Assembly, that an ineradicable fear of the exercise of an absolute dominance by the President as to the dissolution of Assembly loomed large in the minds of the members. In this behalf the Independent Parliamentary group placed before the House a proposal for amendment of ARticle 58(2).[p.788]PP

A speech made in the course of passing of an enactment does not carry much weight as an extrinsic aid to the interpretation thereof as it does not reflect the inarticulate mental processes behind the majority vote which carried the Bill. But the speech by the Prime Minister in the House was seemingly made by the Prime Minister as a result of some agreement between the party in power and the opposite group and sheds light on the reasons for the change in the language of Article 58(2). [p.789]QQ

There is no legal bar to make reference to the speech of the Prime Minister which unequivocally shows that non obsdtante clause was added to Article 58(2) with the sole object of excluding the application of ARticle 48(2) granting immunity to exercise of discretionary powers by the President, there is thus, no merit in the objection to the reviewability of the impugned orders on the plane of Article 48(2). [p.789]RR

The power to dissolve the National Assembly is explicitly recognised in the Constitution. To dissolve the sovereign elected body like the National Assembly is the highest power, vesting in an individual, particularly when sit is to be exercised at his discretion. But the discretion vesting in the President is not absolute; it is qualified one. The discretion vesting in a public authority is always circumscribed by the object of the law that creates it. [p.790]SS

There are conditions precedent for exercise of the discretionary powers in pursuance of ARticle 58(2)(b). In the first instance the President has to formulate an opinion as to whether or not (i) the Government of the Federation cannot be carried on, in accordance with the provisions of the Constitution, (ii) and an appeal to the electorate is necessary. Needless to state that both the conditions must co-exist. The law-maker has used expressions i.e., ―discretion‖ and ―opinion‖ in the same clause and that is not without any object. When in relation to the same subject-matter two different words are included in the same Statute, there is a presumption that they are not used to carry the same sense. The word ―opinion‖ conceiveably has been inducted to delimit the scope of the discretionary powers. The President has to first form his opinion, objectively and then, it is open to him to exercise his discretion one way or the other, i.e. some immunity envisaged by Article 48(2) is available to the action under Article 58(2) that can possibly be only in relation to ―discretion‖ and the ―opinion‖. A constitutional obligation is cast on the President, that before exercising his discretion he has to form his ―opinion‖. [p.790]UU

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Grounds — Where grounds are disclosed, their validity can well be examined through judicial intervention — When grounds are vague, unintelligible and not germane to Article 58(2)(b), and also suffer from malice in law, order of dissolution deserves to be struck down. [p.792]XX

GHULAM MUSTAFA KHAR V. PAKISTAN PLD 1988 LAHORE 49. Ref.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Discretion of President — Power of judicial review by the Courts.

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The dissolution order pased in exercise of power under Article 58(2)(b) is not open to scrutiny before any representative body such as Senate. This would furnish another ground for judicial review of the unconstitutional orders of the President. [p.793]ZZ The ouster of jurisdiction of Courts cannot readily be inferred because the provision seeking to oust their jurisdiction even by a constitutional provision is to be construed strictly with pronounced leaning against ouster. [p.793]AAA

FEDERATION OF PAKISTAN V. SAEED AHMAD KHAN PLD 1974 SC 151. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Judicial review — Whre some functionary acts against the provisions of the Constitution, within the limits of jurisdiction conferred on him under the Constitution. Courts may inevitable have to step in — Situation may arise that no relief other than the judicial relief may be avaiable to the petitioner.

The Judges have to interpret law, without being motivated by political considerations. But, the Constitution being supreme, all organs of the State owe their existence and derive their authority from it. Where some functionary acts against the provisions of the Constitution. Constitution, the Courts may inevitably have to stepin. A situation may arise that no relief other than the judicial relief may be available to the peoples. The Judges do not decide cases in vacuum and at times their determinations may imperceptibly be shadowed by political atmosphere with which the country is charged. But in some political situations a judicial duty to rule upon the legal merits of the case may have to be accepted as an inescapable obligation or as the least of evils.Despite the unsustainability of the orders of the President and the Governor, no relief by way of restoration of Assemblies can be granted. [p.793]BBB

Article 199 — Laches — Few weeks delay, in cases involving Fundamental Constitutional issues, is hardly of any significance. [p.793]CCC

Articles 48(5)(b), 58(2)(b) & 91(8) — Dissolution of National Assembly by the President — Care-taker Government, envisaged in Article 48(5)(b), has to be headed by the Prime Minister — Amendment in the prescribed Oath of Ministers of Caretaker Government, or adaptation thereof so as to substitute ―President‖ for Prime Minister is not permissible unless theConstitution is amended in accordance with the procedure prescribed in Part XI of the Constitution.

Article 58(2)(b) — Dissolution of National Assemblly by the President — power of President in regard to dissolution of National Assembly is hedged in with limitation. Whereas, the Prime Minister has a final say in the matter of dissolution of the National Assembly the President is also given the power to dissolve it subject to the all important formation of an opinion showing that a situation had arisen wherein the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate for fresh poll was necessary. Power of the President in regard to dissolution of National Assembly is hedged in with limitations. [p.797]HHH

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Actiion of President dissolving National Assembly is justiciable and can be examined whether the stated grounds had nexus with the specified situation in Article 58(2)(b).

Articles 48(5), 58(2)(b) & 91 — Dissolution of National Assembly by the President — Appointment of Caretaker Cabinet — Term ―Caretaker Cabinet‖ — Definition — To make the Caretaker Cabinet complete, fresh appointment of Prime Minister is necessary — Function of Caretaker Cabinet — Limitations. [words and phrases] [p.799]JJJ&KKK

MADAN MURARI VERMA V. CHAUDHRY CHARAN SINGH & ANOTHER AIR 1980 CALCUTTA 95; SIR IVOR JENNINGS-CABINET GOVERNMENT, THIRD EDITION P.85. Ref.

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Article 199 — Constitutional jurisdiction — Laches — Question relating to coinstitutionality of actions — Grounds of laches cannot prevail — [Laches] On question relating to the constitutionality of actions the grounds of laches cannot prevail, for there can be no estoppel against the Constitution and an act which is unconstitutional cannot become constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act. [p.801]LLL

FAZLUL KADER CHOWDHRY & OTHERS V. MUHAMMAD ABDUL HAQUE PLD 1963 SC 686. Ref.

Articles 58(2)(b), 112 & 199 — Dissolution of National Assembly by the President and Provincial Assembly by the Governor on the stated grounds not sustainable — Prime Minister in the Caretaker Cabinet is essential component — Consequent upon dissolution of the Assemblies, process set in motion in accordance with the provisions of the Constitution and steps taken thereto not to be interrupted and interfered with — Relief for restoration/reinstatement of dissolved Assemblies could not be made despite unsustainability of the order dissolving the Assemblies and interference was declined and no direction was issued by the Court under Article 199 of the Constitution of Pakistan. [p.801]MMM

Appendix-3 Text of Ordinance XX of 1984 - A law made by Zia-ul-Haq TEXT OF MARTIAL LAW ORDINANCE XX OF 1984 Ordinance No. XX of 1984The Gazette of PakistanIslamabad, Thursday, 26 April 1984No.F.17(1)84Pub. The following Ordinance made by the President is hereby published for general information: An Ordinance to amend the law to prohibit the Quadiani group, Lahori group and Ahmadis from indulging in anti-Islamic activities WHEREAS it is expedient to amend the law to prohibit the Quadiani group, Lahori group and Ahmadis from indulging in anti-Islamic activities: AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action: NOW, THEREFORE, in pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance: PART I. PRELIMINARY

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1.Short title and commencement. (1) This Ordinance may be called the Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984. (2) It shall come into force at once. 2.Ordinance to override orders of decisions of courts. The provisions of this Ordinance shall have effect notwithstanding any order or decision of any court. PART II. AMENDMENT OF THE PAKISTAN PENAL CODE(Act XLV of 1860) 3.Addition of new sections 298B and 298C, Act XLV of 1860. In the Pakistan Penal Code (Act XLV of 1860), in Chapter XV, after section 298A, the following new sections shall be added, namely: 298B. Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places. (1)Any person of the Quadiani group or the Lahori group (who call themselves ‗Ahmadis‘ or by any other name) who by words, either spoken or written, or by visible representation, (a)refers to, or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as ‗Ameer-ul-Mumineen‘ [Leader of the Faithful], ‗Khalifa-tul-Mumineen‘ [Caliph of the Faithful], ‗Khalifa-tul-Muslimeen‘ [Caliph of the Muslims], ‗Sahabi‘ [Companion] or ‗Razi Allah Anho‘ [May God Be Pleased With Them]; (b)refers to, or addresses, any person, other than a wife of the Holy prophet (peace be upon him), as ‗Ummul-Mumineen‘ [Mother of the Faithful]; (c)refers to, or addresses, any person, other than a member of the family (Ahle-bait) of the Holy Prophet Muhammad (peace be upon him), as Ahle-bait; or (d)refers to, or names, or calls, his place of worship as ‗Masjid‘ [Mosque]; shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. (2) Any person of the Quadiani group or Lahori group (who call themselves ‗Ahmadis‘ or by any other name) who by words, either spoken or written, or by visible presentation, refers to the mode or form of call to prayers followed by his faith as ‗Azan‘, or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 298C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith.- Any person of the Quadiani group or the Lahori group (who call themselves ‗Ahmadis‘ or by any other name) who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. PART III.- AMENDMENT OF THE CODE OF CRIMINAL PROCEDURE, 1898 (ACT V OF 1898) 4. Amendment of section 99-A, Act V of 1898.--In the Code of Criminal Procedure, 1899 (Act V of 1898), hereinafter referred to as the said Code, in section 99-A, in subsection (1),- (a) after the words and comma., "of that class,", the words, figures, brackets, letter and commas "or any matter of the nature referred to in clause (J) of subsection (1) of section 24 of the West Pakistan Press and Publications Ordinance, 1963," shall be inserted ; and (b) after the figure and letter ":95-A", the words, figures and letters "or section 298-A or section 298-B or section 298-C" shall be inserted. 5. Amendment of Schedule II, Act V of 1898.--In the said Code, in Schedule II, after the entries relating to section 298-A, the following entries shall be inserted, namely :- "298-B. Misuse of epithets, descriptions and titles. etc., reserved for certain holy personages or places. Not Bailable

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Imprisonment of either description for three years, and fine. 298-C. Person of Quadiani group, etc., calling him* self a Muslim or preaching or propagating his faith. Not Bailable Imprisonment of either description for three years, and fine. PART IV AMENDMENT OF THE WEST PAKISTAN PRESS AND PUBLICATIONS ORDINANCE, 1963 (W. P. ORDINANCE No. XXX OF 1963) 6 Amendment of section 24, West Pakistan Ordinance No.. XXX of 1963.--In the West Pakistan Press and Publications Ordinance, 1963 (W. P. Ordinance No. XXX of 1963), in section 24, in subsection (1), after clause (j), the following new clause shall be inserted, namely :- (jj) are of the nature referred to in section 298-A, section 298-B or section 298-C of the Pakistan Penal Code (Act XLV of 1860), or".

Appendix-4

Full Text of Gen. Musharraf's Speech to Pakistan Monday, 18 October 1999, 9:53 am TRANSCRIPT FROM DAWN.COM Speech; 17 October, 1999 MUSHARRAF S SPEECH TO THE NATION COMPLETED AT 2054 HRS DATED 17 OCT (PST) Full Text (draft) of the speech of the Chief Executive of Pakistan General Pervez Musharraf delivered today at 20:30 PST (15:30 GMT) Bismillah -Ar-Rehman-Ar-Rahim My dear countrymen, Asalam O Alaikum: Pakistan today stands at the crossroads of its destiny - a destiny which is in our hands to make or break. Fifty-two years ago we started with a beacon of hope. Today that beacon is no more and we stand in

303 darkness. There is despondency, and hopelessness surrounding us with no light visible anywhere around. The slide down has been gradual but has rapidly accelerated in the last many years. Today, we have reached a stage where our economy has crumbled, our credibility is lost, state institutions lie demolished, provincial disharmony has caused cracks in the federation, and people who were once brothers are now at each other's throat. In sum, we have lost our honour, our dignity, our respect in the comity of nations. Is this the democracy our Quaid-e-Azam had envisaged? Is this the way to enter the new millennium? Let us not be despondent. I am an optimist I have faith in the destiny of this nation; belief in its people and conviction in its future. We were not a poor nation as generally perceived. In fact we are rich. We have fertile land that can produce three crops a year. We have abundant water to irrigate these lands and generate surplus power. We have gas, coal and vast untapped mineral resources - and above all a dynamic and industrious people. All these await mobilization. We have only to awaken, join hands and grasp our destiny. For Allah helps those who help themselves. My fellow Pakistanis, as you are aware I took over in extremely unusual circumstances - not of my making. It is unbelievable and indeed unfortunate that the few at the helm of affairs in the last government were intriguing to destroy the last institution of stability left in Pakistan by creating dissention in the ranks of the armed forces of Pakistan. And who would believe that the Chief of Army Staff, having represented Pakistan in Sri Lanka, upon his return was denied landing in his own country and instead circumstances were created which would have forced our plane either to land in India or crash. Providence ultimately intervened. Praise be to Allah that the plane landed safely when barely seven minutes of fuel was left. I salute my soldiers and men for acting courageously in the supreme interest of the nation. Most of all I salute our people who stood solidly with their armed forces at that critical hour. Quite clearly, what Pakistan has experienced in the recent years has been hardly a label of democracy not the essence of it. Our people were never emancipated from the yoke of despotism. I shall not allow the people to be taken back to the era of sham democracy, but to a true one. And I promise you I will Inshallah. My dear countrymen. The choice before us on 12th October was between saving the body - that is the nation, at the cost of losing a limb - which is the Constitution, or saving the limb and losing the whole body. The Constitution is but a part of the nation therefore I chose to save the nation and yet took care not to sacrifice the Constitution. The Constitution has only been temporarily held in abeyance. This is not martial law, only another path towards democracy. The armed forces have no intention to stay in charge any longer than is absolutely necessary to pave the way for true democracy to flourish in Pakistan. Ever since 12th October I have deliberated, carried out consultations and crystallized my views about the future course to be adopted. I wish to share these with you today. My dear countrymen, our aims and objectives shall be:

1.Rebuild national confidence and morale. 2.Strengthen the federation, remove inter provincial disharmony and restore national cohesion. 3.Revive the economy and restore investor confidence. 4.Ensure law and order and dispense speedy justice. 5.Depoliticise state institutions. 6.Devolution of power to the grass roots level. 7.Ensure swift and across the board accountability. Good governance is the pre-requisite to achieve these objectives. In the past, our governments have ruled the people. It is time now for the governments to serve the people. The government I plan to institute shall comprise: Firstly - The President. On my request, President Rafique Tarar has very kindly agreed to stay. Second - A National Security Council headed by the Chief Executive with six members. These members will be Chief of Naval Staff, Chief of Air Staff, a specialist each in Legal, Finance, Foreign Policy and

304 national affairs. A think-tank of experts shall be formed as an adjunct to the National Security Council to provide institutionalised advice and input. Third - A Cabinet of Ministers who will work under the guidance of the National Security Council. Four - The Provinces to be headed by a Governor, functioning through a small provincial cabinet. All these appointments shall be made purely on the basis of professional competence, merit and repute.The revival of the economy is critical. Our economy is in deep trouble and revolutionary steps are needed to put it back on track. The Pakistani people were subjected to betrayal of trust. Their hard-earned money was frozen or taxed in violation of State commitments. We need to restore this trust. To revitalize our economy in addition to measures like recovery of the looted national wealth - a task that will be ruthlessly pursued, I am identifying policy guidelines. Some of which are: • Rebuilding of investors' confidence through stability and consistency in economic policies, and economic security. • The objective is to encourage the local investors, overseas Pakistanis and foreign investors. • Increase domestic savings.

• Carry out pragmatic tax reforms.

• Turn around the state enterprises towards profitability.

• Boost agriculture and revive industry.

• Strict austerity measures. The next aspect is accountability. Lack of accountability has resulted in corruption of horrendous proportions, threatening the very basis of our society. The term `ehtesab' has been abused to an extent that it has lost its meaning. There is thus a need to re-establish faith in the process of accountability. The process of accountability is being directed especially towards those guilty of plundering and looting the national wealth and tax evaders. It is also directed towards loan defaulters and those who have had their loans re-scheduled or condoned. The process of accountability will be transparent for the public to see. My advice to the guilty is to return voluntarily national wealth, bank loans and pay their taxes before the hand of law forces them to do so with penalty. As a last chance I urge all defaulters to come forth and settle their debts within a period of four weeks, after which their names will be published and the law will take its due course. They owe this to Pakistan and I expect their spirit of patriotism to guide them. Cementing the Federation is very vital. This will be achieved through devolution of power, from the centre to the provinces and from the provincial to the local government as actually enshrined in the constitution. Media forms an integral part of statehood in this era of information. I have great regard and respect for the media; I trust it to play a positive and constructive role. I am a firm believer in the freedom of the press and am even considering liberalising the policy on the establishment of private television and radio channels. And now a few words on exploitation of religion. Islam teaches tolerance not hatred, universal brotherhood and not enmity, peace and not violence, progress and not bigotry. I have great respect for the Ulema and expect them to come forth and present Islam in its true light. I urge them to curb elements which are exploiting religion for vested interests and bringing a bad name to our faith. I would like to reassure our minorities that they enjoy full rights and protection as equal citizens in the letter and spirit of true Islam. I wish to reassure the international community that there is no change in our foreign policy. We will continue to honour international obligations and commitments, as in the past. It will remain our constant endeavour to promote peace and stability in our region. We would like to maintain our abiding policy of friendship and co-operation with all countries. The strengthening of brotherly ties with the Islamic countries will be a central pillar of our foreign policy. We shall continue our efforts to achieve a just and peaceful solution in 305

Afghanistan. We wish to see a truly representative government in Kabul. We will maintain and further reinforce our traditional and time tested friendship and co-operation with China. We attach the highest importance to our friendly relations with all major powers, especially the United States. Here I would like to mention two key areas of our external relations; International security and disarmament and our relations with India. Pakistan has always been alive to international nonproliferation concerns. Last year, we were compelled to respond to India's nuclear tests in order to restore strategic balance in the interest of our national security and regional peace and stability. In the new nuclear environment in South Asia, we believe that both Pakistan and India have to exercise utmost restraint and responsibility. We owe it to our people and also to the world. I wish to assure the world community that while preserving its vital security interests Pakistan will continue to pursue a policy of nuclear and missile restraint and sensitivity to global nonproliferation and disarmament objectives. As for relations with India, let me at the out-set congratulate Mr Atal Bihari Vajpayee on assumption of office as the Prime Minister of India. I welcome his offer for friendly relations and positively reciprocate. At the turn of the century, South Asia stands at a crucial juncture of its history, 20th Century saw our transition to independence but the region has unfortunately remained mired in conflicts and economic deprivation. Together Pakistan and India can change this scenario. For this objective both must sincerely work towards resolving their problems especially the core issue of Jammu and Kashmir. The people of Kashmir have made great sacrifices for the achievement of their rights promised to them by the United Nations. We shall continue our unflinching moral, political and diplomatic support to our Kashmiri brethren in their struggle to achieve their right of self-determination. India must honour the UN resolutions and its own commitment to the people of Kashmir. It must also end its repression of the Kashmiri people and respect their fundamental human rights. Pakistan would welcome unconditional, equitable and result-oriented dialogue with India. While, our armed forces are fully equipped and ready to defend our national sovereignty and territorial integrity, it is our desire that the situation on our borders with India and on the Line of Control should remain clam and peaceful. I take this opportunity to announce a unilateral military de-escalation on our international borders with India and initiate the return of all our forces moved to the borders in the recent past. I hope this step would serve as a meaningful confidence building measure. My dear countrymen, to conclude my address let me say that, we have hit rock bottom. We have no choice but to rise, and rise we will, Inshallah. Our actions shall Inshallah speak louder than words. Therefore, my countrymen let us rise to the occasion and seize the opportunity. Before I close I would like to give you a personal commitment. I hereby undertake to declare my tax returns and my assets to be documented, and open for public scrutiny. And now I would like to share a prayer that I wrote for myself: O Allah I promise my nation sincerity, honesty, integrity and unflinching loyalty. Give me the vision to see and perceive the truth from the false. The wisdom to comprehend the problem and find its solution. The courage to do justice and the and the strenght to do right. May Allah be with us all. Aameen Pakistan Paindabad.

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Appendix-5

Constitution (Seventeenth Amendment) Act, 2003

A Bill further to amend the Constitution of the Islamic Republic of Pakistan

WHEREAS it is expedient further to amend the Constitution of the Islamic Republic of Pakistan for the purposes hereinafter appearing;

It is hereby enacted as follows:-

1. Short title and commencement: (1) This Act may be called the Constitution (Seventeenth Amendment) Act, 2003 (2) It shall come into force at once.

2. Amendment of Article 41 of the Constitution: In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, in Article 41, (1) In clause (7), in paragraph (b), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely; Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004."; And (2) After clause (7) amended as aforesaid, the following new clauses shall be added, namely:- "(8) Without prejudice to the provisions of clause (7), any member or members of a House of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, individually or jointly, may, not later than thirty days from the commencement of the Constitution (Seventeenth Amendment) Act, 2003, move a resolution for vote of confidence for further affirmation of the President in office by majority of the members present and voting, by division or any other method as prescribed in the rules made by the Federal Government under clause (9), of the electoral college consisting of members of both Houses of Majlis-e-Shoora (Parliament) and the Provincial Assemblies, in a special session of each House of Majlis-e-Shoora (Parliament) and of each Provincial Assembly summoned for the purpose, and the vote of confidence having been passed, the President, notwithstanding anything contained in the Constitution or judgment of any court, shall be deemed to be elected to hold office for a term of five years under the Constitution, and the same shall not be called in question in any court or forum on any ground whatsoever.

(9) Notwithstanding anything contained in the Constitution or any other law for the time being in force, the proceedings for the vote of confidence referred to in clause (8) shall be regulated and conducted by the Chief Election Commissioner in accordance with such procedure and the votes shall be counted in such manner as may be prescribed by the rules framed by the Federal Government: Provided that clauses (8) and (9) shall be valid only for the forthcoming vote of confidence for the current term of the President in office."

308

3. Amendment of Article 58 of the Constitution: In the Constitution, in Article 58, after clause (2), the following new clause shall be added, namely:- "(3) The President in case of dissolution of the National Assembly under paragraph (b) of clause (2) shall, within fifteen days of the dissolution, refer the matter to the Supreme Court and the Supreme Court shall decide the reference within thirty days whose decision shall be final".

4. Amendment of Article 112 of the Constitution: In the Constitution, in Article 112, after clause (2), the following new clause shall be added, namely:- "(3) The Governor in case of dissolution of the Provisional Assembly under paragraph (b) of clause (2) shall within fifteen days of the dissolution refer the matter to the Supreme Court with the previous approval of the President and the Supreme Court shall decide the reference within thirty days whose decision shall be final."

5. Omission of Article 152 A of the Constitution: In the Constitution, Article 152 A shall be omitted. 6. Substitution of Article 179 of the Constitution: In the Constitution, for Article 179, the following shall be substituted, namely: "179. Retiring Age- A judge of the Supreme Court shall hold office until he attains the age of sixty five years, unless he sooner resigns or is removed from office in accordance with the Constitution."

7. Substitution of Article 195 of the Constitution: In the Constitution, for Article 195, the following shall be substituted, namely: "195 Retiring Age- A judge of the High Court shall hold office until he attains the age of sixty-two years, unless he sooner resigns or is removed from office in accordance with the Constitution."

8. Amendment of Article 243 of the Constitution: In the Constitution, in Article 243, in clause (3), for the words ―in his discretion‖ the words ―in consultation with the Prime Minister‖ shall be substituted. 9. Amendment of Article 268 of the Constitution: In the Constitution, in Article 268, in clause (2), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely: Provided that the laws mentioned at entries 27 to 30 and entry 35 in the Sixth Schedule shall stand omitted after six years".

10. Substitution of Article 270-AA of the Constitution: In the Constitution, for Article 270 AA, the following shall be substituted, namely:- "270- Validation and affirmation of laws etc. AA (1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 of 2000), Chief

309

Executive's Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002), the Legal Framework (Amendment) Order , 2002 (Chief Executive's Order No. 29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been duly made or accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever. (2) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court or forum on any ground whatsoever. (3) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendments in the Constitution, notification, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force, until altered, repealed or amended by the competent authority. Explanation: In this clause," competent authority" means,- (a) in respect of President's Orders, Ordinances, Chief Executive's Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and (b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.

(4) No suit, prosecution or other legal proceedings, including writ petitions, shall lie in any court or forum against any authority or any persons, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken , appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby".

Statement of objects and reasons:

310

This Bill seeks to amend Article 41, 58, 112, 152A, 179, 195, 243, 268 and 270 AA of the Constitution as under:- (a) Article 41 is sought to be amended to add a proviso to paragraph (b) of clause (7) and after clause (7) amended as aforesaid, new clauses (8) and (9) have been added. Clause (8) provides for vote of confidence in the President and clause (9) empowers the Federal Government to make rules for conducting vote of confidence.

(b) Article 58 is sought to be amended to the effect that on dissolution of the National Assembly in terms of paragraph (b) of clause (2) of Article 58, the President shall refer the matter to the Supreme Court. (c) Article 112 is also being amended on the lines of amendment proposed in Article 58. (d) Article 152 A is proposed to be omitted.

(e) Article 179 is proposed to be substituted.

(f) Article 195 is proposed to be substituted.

(g) The amendment in Article 243 substitutes the expression "in his discretion" with the expression "in consultation with the Prime Minister".

(h) The amendment in clause (2) of Article 268 seeks to omit entries 27 to 30 and entry 35 in the Sixth Schedule after six years.

(i) Article 270 AA is to be substituted for providing affirmation and continuation of all laws made and actions taken between the twelfth day of October , 1999, and the day on which this Article comes into force. 12. The Bill seeks to achieve the aforesaid objects.

Source:: The Daily Times, http://www.dailytimes.com.pk/, December 30, 2003 Source:: Dawn - Internet Edition, http://www.dawn.com/, December 30, 2003, quoting APP.

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Appendix-6

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction).

PRESENT:

Mr. Justice Iftikhar Muhammad Chaudhry, CJ.

Mr. Justice Javed Iqbal

Mr. Justice Sardar Muhammad Raza Khan

Mr. Justice Khalil-ur-Rehman Ramday

Mr. Justice Mian Shakirullah Jan

Mr. Justice Tassaduq Hussain Jillani

Mr. Justice Nasir-ul-Mulk

Mr. Justice Raja Fayyaz Ahmed

Mr. Justice Ch. Ijaz Ahmed

Mr. Justice Ghulam Rabbani

Mr. Justice Sarmad Jalal Osmany

Mr. Justice Muhammad Sair Ali

Mr. Justice Mahmood Akhtar Shahid Siddiqui

Mr. Justice Jawwad S. Khawaja.

CONSTITUTION PETITION NO. 09 OF 2009

Sindh High Court Bar Association through its Secretary.

….PETITIONER

CONSTITUTION PETITION NO. 08 OF 2009

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Nadeem Ahmed Advocate ….PETITIONER

VERSUS Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others. ….RESPONDENTS

For the petitioner: Mr. Hamid Khan, Sr. ASC. (Const.P.09/2009) Mr. Rashid A. Razvi, ASC. Mr. M. S. Khattak, AOR Assisted by M/s Waqar Rana, Waheed Khalid Khan & Haq Nawaz Talpur, Advocates.

For the petitioner: Mr. Muhammad Akram Sheikh, Sr. ASC. (Const.P.08/2009) Assisted by Barristers Ms Natalya Kamal & Syed Shehryar, Advocates

For respondent No.1 Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan. Agha Tariq Mehmood Khan, DAG Mr. Shah Khawar, DAG. Ch. Akhtar Ali, AOR.

For respondent No.2. Mr. Muhammad Yousaf Leghari, A.G.Sindh. Raja Abdul Ghafoor, AOR.

For respondent Nos.3 & 4. Nemo. Respondent No.5. Not represented. Dates of hearing: 20th to 24th and 27th to 31st July, 2009.

JUDGEMENT

IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- The above Constitutional Petitions bearing Nos. 9 of 2009 and 8 of 2009 involve common questions of facts and law and are disposed of by this single judgment.

2. In the first mentioned petition, the petitioner while referring to several provisions of Constitution and the case law, beside making other contentions, legal and factual, has stated, in para No.5, that:

―The removal of Judges of Supreme Court and High Courts on 3.11.2007 was not only violative of Article 209 of the Constitution, 1973 but was against the rule laid down by the bench of twelve (12) Judges of Supreme Court in the case of Syed Zafar Ali Shah (PLD 2000 SC 869). The subsequent validation in the case of Tika Iqbal Khan (PLD 2008 SC 178) a smaller bench of the Supreme Court is per-incuriam and in any event, is not by a Supreme Court that is de jure. It is respectfully submitted, that Justice Abdul Hameed Dogar could not be treated as Constitutional head of the Supreme Court even after the decision in the case of Tika Iqbal Khan (supra) as he himself was the real beneficiary of the said Judgement and contrary to one of the cardinal principles of Natural justice, ―no person should be judge in his own cause‖ had headed the Bench. Hence, in view of the facts and reasons stated above Justice Iftikhar Muhammad Chaudhry is still the Chief Justice of Pakistan as per Constitution and all 313 appointments and re-appointments made in the Supreme Court and High Courts without consultation of de jure Chief justice of Pakistan are unlawful, illegal, ultra-vires of the Constitution as well as malafide‖.

3. Having made above averments, the petitioner has, inter-alia, sought a declaration to the effect that the respondents Nos. 3 and 4 namely Justice Zaffar Ahmad Khan Sherwani and Justice Abdul Rashid Kalwar are and continue to be Judges of High Court of Sindh and that they would continue as Additional Judges till 25.8.2010 and that their term of appointment has not expired as opined by Mr. Justice Abdul Hameed Dogar, as then he was called. During the course of his submissions, learned counsel appearing for him prayed further that following declarations be also granted: i) that the purported acts done by General Pervez Musharraf, (Rtd) between 3.11.2007 to 16.12.2007 aimed at to suspend and amend the Constitution through several instruments are unconstitutional, invalid and without any legal consequence; ii) that on account of his acts taken during 3.11.2007 to 15.12.2007 relating to superior judiciary, General Pervez Musharraf (Rtd) became a usurper;

1. all the appointments of Judges of superior judiciary on or after 3.11.2007 up till 22.3.2008 which were without consultation of de-jure Chief Justice of Pakistan are/were unconstitutional, invalid and without any legal consequence; 2. that the two (so called) Judgments dated 23.11.2007 and 15.2.2008 on Constitutional Petitions No. 87 and 88 of 2007 filed by Tika Iqbal Muhammad and WATAN Party and the Review Petition No.7 of 2008 filed by the former are/were nullity in law, being decisions per incuriam, corumnon-judice, without any legal basis and based on mala-fide proceedings rendered by biased persons of Tribunal (then calling themselves as Judges of this Court) fraudulently, collusively and lacking in bona-fides;

4. In the other petition No. 8 of 2009 which has been filed by Nadeem Ahmad, a practicing Advocate, while criticizing the judgement delivered in case of Tikka Iqbal Muhammad Khan versus Federation of Pakistan (PLD 2008 SC 178), the petitioner has, inter-alia, averred as follows: ―All the persons who were not judges on 3rd November 2007 but who were brought into Supreme Court and High Courts as ‗judges‘ despite the fact that the Honourable Chief Justice of Pakistan was never consulted before their appointment which meant that they were never appointed under the Constitution.‖ AND ―On the night of 22 March 2009, issuance of cause lists comprising persons who have not been appointed in strict adherence to Article 177 and who are therefore complete strangers to the Supreme court, is a serious matter and it is incumbent on the Honourable Chief Justice, before proceeding with any other judicial work, to forthwith stop all these persons from hearing any cases till such time that he, along with other validly appointed judges, are able to look into and judicially determine validity of their appointments as judges.‖

5. The petitioner has, among others, sought a declaration that all those persons, both in Supreme Court and High Courts, regardless of whether they have taken oath under PCO or the Constitution, who have been appointed without ‗consultation‘ of Honourable Chief Justice of Pakistan as not judges and therefore, not entitled to function as such.

6. On 22.7.2009 a notice was issued to General Pervez Musharraf (Rtd) on his available address intimating him about the proceedings in this case and 29.7.2009 as the date fixed therein before this Court. The Process Serving Officer reported on the same day that he had gone to the residential place viz: C-1, B Park Road, Chak Shahzad, Islamabad where a person identifying himself as Muhammad Hussain son of Amir and that on formers offer the latter refused to receive the notice. The factum of issuance of the afore-referred notice was widely televised through National and International T.V. channels. Also, it was widely published in National and International print media, but, on the date so fixed no one entered appearance.

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7. We have heard learned counsel for petitioners and learned Attorney General for Pakistan.

8. Before dilating upon the pleas taken in the arguments by learned counsel for the parties, in our view, some of the facts/events which took place before 3rd November, 2007 touching the very basis of the issues involved in the matter are brought on record.

9. In our country, during sixty years of its independence after partition, to the misfortune of people, several times, the Constitutions framed by Legislative Bodies were desecrated. Sovereignty of people was not allowed to flourish and get deep-rooted in the polity of our country. Prior to 3rd November, 2007, the Constitutions were either abrogated or put in abeyance and the democratic system of governance was put to an end. For the first time, Constitution of 1956 was abrogated on 7th October, 1958 and Martial Law was imposed by the then President, Sikandar Mirza who dismissed the Central and Provincial Governments; dissolved the Parliament and Provincial Assemblies and abolished all Political Parties and appointed General Muhammad Ayub Khan, the then Commander in Chief as Martial Law Administrator. Sikandar Mirza was soon, within few days, replaced by the latter. On 25th March, 1969, again the then head of Army, General Agha Muhammad Yahya Khan, abrogated the Constitution of 1962 and by proclamation (PLD 1969 Central Statutes 42) Promulgated Martial Law followed by Provisional Constitution Order (Gazette of Pakistan, Extraordinary 4th April, 1969). On 5th July, 1977 once again Martial Law was imposed throughout the country by the then head of Army Chief viz. former General Muhammad Zia-ul-Haq, who, vide Proclamation of Martial Law (PLD 1969 Federal Statutes 326) dissolved the National Assembly, the Senate, the Provincial Assemblies etc. and put the Constitution of 1973 in abeyance followed by Laws (Continuance in Force) Order, 1977. When the Constitution was revived, it was undeniably, in a mutilated form by the notorious Eighth Amendment.

10. Later, there was another onslaught on the ongoing democratic system of governance. On 12th October, 1999, the then Chief of Army Staff, General Pervez Musharraf, now retired, once more, put the Constitution in abeyance and the whole of Pakistan was brought under the control of Armed Forces. The National Assembly, the Senate and the Provincial Assemblies were suspended, so also, the Chairman and Deputy Chairman of Senate, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies were suspended and it was declared that the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors, the Provincial Chief Ministers and the Advisor to the Chief Ministers would ceased to hold offices, followed by issuance of Provisional Constitution Order and the Oath of Office (Judges) Order 2000. General Pervez Musharraf (Rtd), self styled himself as Chief Executive and started ruling the country under the new dispensation. Later, he, unceremoniously, occupied the office of President and in the coming years revived the Constitution with Seventeenth Amendment.

11. Again, on 3rd November, 2007 the General Pervez Musharraf, (Rtd), in his capacity as Chief of Army Staff, in the garb of declaration of emergency, put the Constitution in abeyance, issued Provisional Constitution Order No.1 of 2007 followed by the Oath of Office (Judges) Order, 2007, making as many as sixty one (61) Judges of superior judiciary including Chief Justice of Pakistan and Chief Justices of three Provinces dysfunctional for many of them either did not agree to take or were not given the oath. Of them were; from Supreme Court 13 out of 18 (17 permanent and one ad-hoc) Judges including Chief Justice of Pakistan, 18 out of 31 Judges of the Lahore High Court, 24 out of 28 Judges including Chief Justice of High Court of Sindh, 6 out of 13 Judges including Chief Justice of Peshawar High Court. It is quite saddening that all the five Judges including the Chief Justice of Balochistan High Court took oath under the Oath of Office (Judges) Order, 2007.

12. An independent and strong judiciary is a back bone of viable democratic system all over the world. The time tested experience has proved that independent and strong judiciary provides strength to the institutions running government particularly, those who roll on the wheels of democracy. Equally

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the independent and strong judiciary acts as an arbiter striking balance among various segments of Democratic system. It helps State organs, such, as, Legislature, Executive and the judiciary itself to function smoothly maintaining balance inter se. The constitution of Pakistan, of 1973, too, provides the judiciary guarantees enshrined in it and states that the judiciary shall be fully secured, but, unfortunately, to its great dismay, this organ of State has, all along been under the wrath of adventurers imposing their dictatorial terms obviously for their ulterior designs. The history of this country witnessed that in a set up of one government tenure of a Chief Justice of Pakistan was curtailed with ulterior motives and was restored to its original position when the designs were stood achieved. Likewise, through various instruments, the favourites and pliant members of superior judiciary were out rightly given underserved benefits while the others were shown doors. This happened during the era of the then Martial Law Administrator General Zia-ul-Haq and following the same foot steps, General Pervez Musharraf (Rtd) did the same in the year 2000. Many judges of superior judiciary who declined to toe his line of action were unceremoniously sacked.

13. General Pervez Musharraf (Rtd) through his 1999/2000 action, declared that the national Assembly, the provincial Assemblies, Senate, Chairman and Deputy Chairman of Senate, Speaker of National Assembly and the Provincial Assemblies were suspended and the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors and the provincial Chief Ministers and the Advisors to the Chief Ministers, to have ceased to hold offices. However, his November, 2007 action was a singular in nature, in that, the onslaught was on judiciary alone. All other institutions were in tact. The independence of judiciary was given a serious blow. In order to save the judiciary from being destroyed, for the first time in the history of this Country, a seven member bench of this Court headed by the de jure Chief Justice of Pakistan, passed an order, inter-alia, restraining the President and Prime Minister of Pakistan from undertaking any such action, which was contrary to the Independence of Judiciary. So also the Judges of this Court and that of the High Courts including Chief Justice (s) were required not to take oath under the Provincial Constitution Order or any other extra Constitutional step and on the same day viz: 3.11.2007, the order was served on the members of superior judiciary through the respective Registrars of the Courts by way of Fax. It was also sent to all the relevant Executive functionaries.

14. The action of General Pervez Musharraf (Rtd) was, undeniably, taken to prevent the 11 member Bench of this Court which was hearing the Petition No. 73 of 2007 filed by Mr. Justice (Rtd) Wajihuddin Ahmad and others in which the qualification of the General was in question, and perhaps, he was not expecting a favourable decision. The reasons shall, in that behalf be found in the detailed judgement. Be that as it may, Justice Abdul Hameed Dogar, as then he was called, alongwith four other Judges of this Court took oath in pursuance of unconstitutional Provisional Constitution Order and the Oath of Office (Judges) Order, 2007 and by that he also violated the order of seven member Bench of this Court which was headed by de jure Chief Justice of Pakistan. Mr. Justice Abdul Hameed Dogar took the oath of Chief Justice of Pakistan, although, the office was not vacant. Some of High Courts Judges too took oath likewise violating the constitution and the order of seven member Bench, legally and lawfully passed. Besides, many other Judges in this Court and in the High Courts were appointed and they took oath in violation of constitutional provisions and the order of seven member Bench of this Court.

15. Subsequently, in order to dilute the effect of afore-referred 7 member Bench order, Mr. Justice Abdul Hameed Dogar, the CJP, as then was called, constituted a Bench of 8 Judges including those appointed afresh in pursuance of Provisional Constitution Order and took up CMA bearing No.2874 of 2007 in Constitution Petition No.73 of 2007 and by their order dated 6.11.2007 illegally and unlawfully, without the mandate of the Constitution, declared the order dated 3.11.2007 to be illegal and without jurisdiction. Later, a 10 member Bench was also constituted which was headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called. This Bench again illegally and unlawfully took up and dismissed the petition No.73 and Original Criminal Petition No.51 of 2007 filed by Justice (Rtd) Wajihuddin Ahmad calling in question the eligibility of General Pervez Musharraf to contest election to the office of President although, it already stood

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dismissed for want of instruction. Further details in this behalf shall be given in the detailed judgment.

16. Also subsequently, an other 7 member bench headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called, took up hearing the case of Tikka Iqbal Muhammad Khan and WATAN Party and decided the same on the principle of ‗ Salus Populi Supreme Lex‘ and granted that relief which was even not prayed by the petitioner. This judgement is/was, ex-facie, per incuriam, corumnon-judice illegal and unlawful. Later, a time barred Review Petition was filed by Tikka Iqbal Khan which was heard by 13 member Bench and was dismissed, palpably to give impression that a larger Bench decided the matter to dilute the effect of a previous judgment handed down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).

17. It may be noted that the chosen representative of the time, too, did not extend validation to the unconstitutional acts taken upto 3rd November, 2007 as is universally known. It is, however, quite heartening that, for the first time, in the history of our beloved country, the chosen representative of people, who took their offices as a result of election taking place on 18th February, 2008 have, commendably, stayed their hands off and have not sanctified the unconstitutional acts, such as, the Declaration of Emergency, the Provisional Constitution Order No.1, the Oath of Office (Judges), Order, 2007, the Constitution (Amendment) Order, 2007 (President‘s Order No.5 of 2007), the Constitution (Second Amendment) Order of 2007 (President‘s Order No.6 of 2007) and many other instruments made and declared by General Pervez Musharraf (Rtd). In this, their restraint not extending validity to all these unconstitutional and illegal instruments and other steps taken by retired General are laudable. Evidently, this was done by the present representatives of people believing firmly that the prosperity of the country lies in the strong and independent democratic system which can alone flourish and survive with democratic steps to be taken in the better interest of people always apt and keen to choose them in such a viable system of governance. We are sanguine that the current democratic dispensation comprising of the President, the Prime Minister, Ministers and the Parliament shall continue to uphold the Constitution, its institutions and sacred values.

18. From above, the conclusions drawn are that: i) The General Pervez Musharraf (Rtd) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired the powers which all are unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences;

1. Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3.11.2007 passed by a 7 member Bench headed by de-jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rtd), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant;

1. Also, the Judges who were either retired or were not holding any judicial office, beside those in High Courts took fresh oath on their appointment on and after 3.11.2007 till 15.12.2007 in Supreme Court where the full strength of Judges alongwith an Ad-hoc Judge appointed under the Constitution were already working and thus there was no vacancy. Similarly, many Judges took oath in Provincial High Courts. All of them did so in violation of order dated 3.11.2007 passed by 7 member Bench headed by de-jure Chief Justice of Pakistan. Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd);

317 iv) The Petition No.73 of 2007 filed by Mr. Justice (Rtd) Wajihuddin Ahmad challenging the eligibility of General Pervez Musharraf (Rtd) to contest for the office of President in uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed otherwise;

1. The decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd) were per incuriam, corum-non-judice, without any legal basis hence, of no legal consequences;

1. The amendments in the Supreme Court (Number of Judges) Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court from 17 (1+ 16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges is unconstitutional because the strengths of Judges of Supreme Court is be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defines the acts of Parliaments;

1. Surprisingly, in the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by the General Pervez Musharraf (Rtd) himself through the PCO and brought a host of unconstitutional amendments for his own benefits; and

The present representative of people firmly believe in strong and independent judiciary and the democratic system which is evident that the deposed Judges of Supreme Court, High Courts and the dejure Chief Justice of Pakistan were restored with effect from 3rd of November, 2007 implied that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd) taken from 3.11.2007 to 15.12.2007 during which the Constitution remained suspended.

19. Considering the above, in the light of submissions of learned counsel for the parties and on examination of the material brought before us and for the detailed reasons to be recorded, we dispose the above petitions as follows. 20. The judgment purported to have been delivered in Constitutional Petitions bearing No: 87 and 88 of 2007 in the case titled as TIKA IQBAL MUHAMMAD KHAN VS.GENERAL PERVEZ MUSHARRAF AND OTHERS (PLD 2008 SC 25 and PLD 2008 SC 178) and the judgment dated 15.2.2008, purported to have been passed in C.R.P.No.7 of 2008 titled as TIKA IQBAL MUHAMMAD KHAN VS. GENERAL PERVEZ MUSHARRAF AND OTHERSand any other judgment/judgments passed on the strength of the said two judgments are hereby declared to be void ab initio.

21. The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President‘s Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President‘s Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President‘s Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being Presidents Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President‘s Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal e.

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22. As a consequence thereof:- i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration; ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional; void ab initio and of no legal effect; Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office; iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, un-constitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be un-constitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith; Provided that the Judges so un-constitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and like-wise, the Judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation; iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in dis-obedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly; Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan; v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, are protected on the principle laid down in MALIK ASAD ALI‟S CASE (PLD 1998 SC 161); vi) since the Constitution (Amendment) Order, 2007 being the President‘s Order No.5 of 2007 and the Islamabad High Court (Establishment) Order being President‘s Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, have been declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court before the passing of this order shall revert/stand

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transferred to the courts which had jurisdiction in the said matters before the promulgation of afore- mentioned President‘s Order No.5 of 2007 and President‘s Order No.7 of 2007 promulgated on 14th December, 2007. The Judges of the said Court shall, as a consequence thereof, cease to be Judges except such Judges or the Chief Justice of the said court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said Court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other court or department or office, such officers or employees shall revert to their respective courts, departments or offices to which they belonged before joining the service in the Islamabad High court, subject again to their age of superannuation; we would like to mention here that establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but it is unfortunate that such a step was taken in an unconstitutional and a highly objectionable manner. We may, therefore, add that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution/the law. vii) the Ordinances promulgated by the President or a Governor of a Province before 3.11.2007 which were given permanence by the Provisional Constitution Order No.1 of 2007 as also the Ordinances issued by the President or a Governor between 3.11.2007 and 15.12.2008 (both days inclusive) which were also, like-wise given permanence through the same instrument and which legislative measures alongwith the said Provisional Constitution Order had been validated by the afore-mentioned judgment delivered in TIKA IQBAL MUHAMAD KHAN‟S CASE, stand shorn of their purported permanence on account of our afore-mentioned declarations. Since on account of the said judgment in TIKA IQBAL MUHAMMAD KHAN‟S CASE purporting to be a judgment of this Court, the presumption that the said Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution and since it is today that this Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law; viii) since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It is resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen. ix) in the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any un-constitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution; x) in view of our findings above regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26.8.2008 and the notification dated 15.9.2008 extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Mr. Justice Zafar Kalwar Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be un-constitutional and of no legal effect.

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xi) that the court acknowledges and respects the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th February, 2008 and would continue to jealously guard the principle of tricotomy of powers enshrined in the Constitution, which is the essence of the rule of law. Any declaration made in this judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions. These acts are fully protected in terms of the age old of principle of Salus Populi Est Suprema Lex reflected in PLD 1972 SC 139.

xii) Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, ―wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ...... wherein the independence of judiciary shall be fully secured.‖ While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths.

23. A copy of this judgment shall be sent to the Secretary Law and Parliamentary Affairs, Government of Pakistan, for compliance.

Islamabad, July 31, 2009. APPROVED FOR REPORTING

Appendix-7

Legal Framework Order, 2002

Chief Executive's Order No. 24 of 2002

(Gazette of Pakistan, Extraordinary, August, 2002)

WHEREAS general elections to the National Assembly and the Provincial Assemblies are scheduled to be held on October 10,2002, and to the Senate on November 12, 2002;

AND WHEREAS it is necessary to provide for a smooth and orderly transition;

NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, read with the Provisional Constitution Order No. 1 of 1999, and in pursuance of the powers vested in him by and under the judgement of the Supreme Court of Pakistan, dated the 12th May, 2000, and in exercise of all the powers enabling him in that behalf; to revive the Constitution with the amendments made herein, the Chief Executive of the Islamic Republic of Pakistan is pleased to make the following Order:-

1. Short title and commencement. (1) This Order may be called the Legal Framework Order, 2002. (2) It shall come into force at once.

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2. First meetings of National Assembly, Senate and Provincial Assemblies. (1) The first meeting of the National Assembly shall be held on a day to be specified by the President for the election of the Speaker and Deputy Speaker, the members of the Senate from the Federal Capital, and for the transaction of such other business as the President may specify.

(2) The National Assembly shall meet on a day to be specified by the President to ascertain which one of the members of the Assembly commands the confidence of the majority of the members for the purposes of clause (2A) of Article 91 of the Constitution and the President shall invite such member to be the Prime Minister.

(3) The first meeting of a Provincial Assembly shall be held on a day to be specified by the President for the election of the Speaker and Deputy Speaker, the members of the Senate and for the transaction of such otherbusiness as the President specify.

(4) Every Provincial Assembly shall meet on a day to be specified by the President to ascertain which one of the members of the Assembly commands the confidence of the majority of the members for the purposes of clause (2A) of Article 130 of the Constitution and the Governor shall invite such member to be the Chief Minister. (5) The first meeting of the Senate shall be held on a day to be specified by the President for the election of the Chairman and Deputy Chairman and for the transaction of such other business as the President may specify.

3. Amendment of the Constitution and removal of difficulties. (1) The Constitution of the Islamic Republic of Pakistan, 1973, referred to in this Order as the Constitution, is hereby amended to the extent and in the manner specified in column (3) of the Schedule. (2) If there is any necessity for any further amendment of the Constitution or any difficulty arises in giving effect to any of the provisions of this Order, the Chief Executive may make such provisions and pass or promulgate such orders for amending the Constitution or for removing any difficulty as he may deem fit. (3) The validity of any provision made, or orders passed, under clauses (1) and (2) shall not be called in question in any court on any ground whatsoever.

4. Revival of Constitution of 1973:- The provisions of the Constitution, as amended by this Order and by such other Orders as may be promulgated hereinafter, shall stand revived on such day as the Chief Executive may, by notification in the official Gazette, appoint; and different days may be so appointed in respect of different provisions. 5. Order to override other laws:- The provisions of this Order shall have effect notwithstanding anything contained in the Constitution or any other Order or law for the time being in force.

THE SCHEDULE

(See Article 3)

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Serial Article / No. Chapter Amendments made (3) (1) (2) 1. 17. (1) In clause (2).- (a) after the words "integrity of Pakistan", occurring twice, the words "or public order" shall be inserted; and (b) for the full stop at the end a colon shall be substituted and there after the following proviso shall be added, namely:- Provided that no political party shall promote sectarian, ethnic, regional hatred or animosity, or be titled or constituted as a militant group or section." and

(2) after clause (3), the following new clause shall be added, namely:- (4) Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders.

2. 41. For clause (7) the following shall be substituted, namely:- (7) The Chief Executive of the Islamic Republic of Pakistan- (a) shall relinquish the office of Chief Executive on such day as he may determine in accordance with the judgement of the Supreme Court of Pakistan of the 12th May, 2000; and (b) having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, Notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly."

3. 51. (1) For clause (1) the following shall be substituted, namely:- (1) There shall be three hundred and forty-two seats of the members in the National Assembly, including seats reserved for women and non-Muslims.

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(1A) The seats in the National Assembly referred to in clause (1), except as provided in clause (2A), are allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital as under- General Women Total Balochistan 14 3 17 NWFP 35 8 43 The Punjab 148 35 183 Sind 61 14 75 FATA 12 - 12 Federal Capital 2 - 2 Total 272 60 332

(2) in clause (2), in paragraph (b), for the word "twenty-one " the word "eighteen" shall be substituted;

(3) for clause (2A) the following clause shall be substituted. namely:- (2A) In addition to the number of seats referred to in clause (1A), there shall be, in the National Assembly, ten seats reserved for non-Muslims.

(4) for clause (4) the following shall be substituted, namely:- (4) For the purpose of election to the National Assembly,- (a) the constituencies for the general seats shall be single member territorial constituencies and the members to fill such seats shall be elected by direct and free vote in accordance with law; (b) each Province shall be a single constituency for all; (c) the constituency for all seats reserved for non-Muslims shall be the whole country; (d) members to the seats reserved for women which are allocated to a Province under clause (1A) shall be elected in accordance with law through proportional representation system of political parties' lists of candidates on the basis of total number of general seats secured by each political party from the Province concerned in the National Assembly [Click here for amendment]; : Provided that for the purpose of this sub-clause the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates. (e) members to the seats reserved for non-Muslims shall be elected in accordance with law through proportional representation system of political parties lists of candidates on the basis of total number of general seats won by each political party in the National Assembly[Click here for amendment]; :

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Provided that for the purpose of this sub-clause thetotal number of general seats won by a political party shallinclude the independent returned candidate or candidates who may duly join such political party within three days ofthe publication in the official Gazette of the names of the returned candidates. Provided that a politcal party securing less than five per centum of the total number of seats in the National Assembly shall not be entitled to any seat reserved for women or non-Muslims.

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;and (5) Clauses(4) to (6) shall be omitted.

4. 58. In clause (2), after paragraph (a), the following new paragraph shall be added, namely:- (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary."

5. 59. (1) For clause (1) the following shall be substituted, namely:- (1) The Senate shall consist of one-hundred members, of whom, - (a) fourteen shall be elected by the members of each Provincial Assembly; (b) eight shall be elected [Click here for amendment]by direct and free vote from the Federally Administered Tribal Areas, in such manner as the President may, by Order, prescribe; (c) two on general seats, and one woman and one technocrat including aalim shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe; (d) four women shall be elected by the members of each Provincial Assembly; (e) four technocrats including ulema shall be elected by the members of each Provincial Assembly."

; and (2) In clause(3),- (a) for paragraph (c) the following shall be substituted, namely:- "(c) of the members referred to in paragraph (c) of the aforesaid clause,- (i) one elected on general seat shall retire after the expiration of the first three years and the other one shall retire after the expiration of the next three years, and (ii) one elected on the seat reserved for technocrat shall retire after first three years and the one elected on the seat reserved for woman shall retire after the expiration of the next three years;"

; and (b) for paragraph (d) the following shall be substituted, namely:- "(d) of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the three years and two shall retire after the expiration of the next three years; and (e) of the members referred to in paragraph (e) of the aforesaid clause, two shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years:".

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6. 62. For clause (b) the following shall be substituted, namely:- "(b) he is, in the case of the National Assembly, not less than twenty -five years of age and is enroled as a voter in any electoral roll in- (i) any part of Pakistan, for election to a general seat or a seat reserved for nonMuslims; and (ii) any area in a Province from which he seeks membership for election to a seat reserved for women."

7. 63. (1) In clause (1):- (a) for paragraphs (h), (i) and (j) the following shall be substituted, namely:- "(h) he has been convicted by a court of competent jurisdiction on a charge of

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corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or (i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or

(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or" ; and (b) for paragraph (p) the following shall be substituted, namely:- "(p) he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force; or

(q) he has obtained a loan for a an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or (r) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers[Click here for amendment] [Click here for amendment] (s) he is for the time being disqualified from being electedor chosen as a member of the Majlis-e-Shoora (Parliament)or of a Provincial Assembly under any law for the timebeing in force.";

(2) for clause (2) the following shall be substituted, namely:- "(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, within thirty days from raising of such question refer the question to the Chief Election Commissioner." ; and (3) after clause (2), substituted as aforesaid, the following new clause shall be added, namely:- "(3) Where a question is referred to the Chief Election Commissioner under clause (2), he shall lay such question before the Election Commission which shall give its decision thereon not later than three months from its receipt by he Chief Election Commissioner."

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8. 63A. For Article 63A the following shall be substituted, namely:- "63A. Disqualification on grounds of defection, etc. (1) If a member of a Parliamentary Party composed of a single political party in a House-

(a) resigns from membership of his political party or joins another Parliamentary Party; or (b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relations to- (i) election of the Prime Minister or the Chief Minister; or (ii) a vote of confidence or a vote of no-confidence; or (iii) a Money Bill;

he may be declared in writing by the Head of the Parliamentary Party to have defected from the political party, and the Head of the Parliamentary Party may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the Head of the Parliamentary Party shall provide such member with an opportunity to show cause as to why such declaration may not be made against him. (2) A member of a House shall be deemed to be a member of a Parliamentary Party if he having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing.

(3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner. (4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant.

(5) Any party aggrieved by the decision of the Election Commission may within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within three months from the date of the filing of the appeal.

(6) Nothing contained in this Article shall apply to the Chairman or Speaker of a House. (7) For the purpose of this Article - (a) "House" means the National Assembly or the Senate in relation to the Federation and a Provincial Assembly in relation to the Province, as the case may be.

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(b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

9. 70. (1) In clause (2) for the words "considered in a joint sitting" the words and figure "referred to a Mediation Committee constituted under Article 71 for consideration and resolution thereon" shall be substituted; and (2) for clause (3) the following shall be substituted, namely:- (3) Where a Bill is referred to the Mediation Committee under clause (2), the

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Mediation Committee shall, within ninety days, formulate an agreed Bill which is likely to be passed by both Houses of the Majlis-e-Shoora (Parliament) and place the agreed Bill separately before each House and if both the Houses pass the Bill, it shall be presented to the President for assent.

10. Part III. After Article 70, amended as aforesaid the following new Article shall be added namely: Chapter 71. Mediation Committee. 2. (1) Both Houses of Majlis-e-Shoora (Parliament) shall, within fifteen days from the date of referral of the Bill by the House in which it was originated for consideration and resolution by the Mediation Committee under clause (2) of Article 70 nominate eight members each as members of a Mediation Committee.

(2) The House in which the Bill was originated shall nominate a member of the Mediation Committee as Chairman of the Committee and the other House shall nominate a member as the Vice-Chairman thereof. (3) All decisions of the Mediation Committee shall be made by a majority of the total number of members of each House in the Committee. (4) The President may, in consultation with the Speaker of the National Assembly and Chairman of the Senate, make rules for conduct of business of the Mediation Committee.

11. 73. For clause (1) the following shall be substituted, namely:- (1) Notwithstanding anything contained in Article 70, a Money Bill shall originate in the National Assembly. Provided that simultaneously when a Money Bill, including the Finance Bill containing the Annual Budget Statement, is presented in the National Assembly, a copy thereof shall be transmitted to the Senate which may, within seven days, make recommendations thereon to the National Assembly. (1A) The National Assembly shall, consider the recommendations of the Senate and after the Bill has been passed by the Assembly with or without incorporating the recommendations of the Senate, it shall be presented to the President for assent.

12. 75. In clause (2) - (a) the words "in joint sitting" shall be omitted; and (b) for the words and comma "by the votes of the majority of the members of the both Houses present and voting," the words, figure and comma "in accordance with Article 70," shall be substituted.

13. 101 In clause (1), for the words "on the advice of" the words "after consultation with" shall be substituted.

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14. 106. (1) For clause (1) the following shall be substituted:- "(1) Each Provincial Assembly shall consist of general seats and seats reserved for women and non-Muslims as specified herein below. General Non- seats Women Total Muslims Baluchistan 51 11 3 65 The North-West Frontier 99 22 3 124 Province The Punjab 297 66 8 371 Sind 130 29 9 168

(2) in clause (2), in paragraph (b), for the word "twenty-one" the word "eighteen" shall be substituted;

(3) for clause (3) the following shall be substituted, namely:- (3) For the purpose of election to a Provincial Assembly - (a) the constituencies for the general seats shall be single member territorial constituencies and the members to fill such seats shall be elected by direct and free vote. (b) each Province shall be a single constituency for all seats reserved for women and non-Muslims allocated to the respective Provinces under clause (1); (c) the members to fill seats reserved for women and non- Muslims allocated to a Province under clause (1) shall be elected in accordance with law through proportional representation system of political parties' lists of candidates on the basis of the total number of general seats secured by each political party in the Provincial Assembly: [Click here for amendment] Provided that a political party securing less than five per centum of the total number of seats in the Provincial Assembly shall not be entitled to any seat reserved for women and non-Muslims." Provided that for the purpose of this sub-clause,the total number of general seats won by a political partyshall include the independent returned candidate orcandidates who may duly join such political party withinthree days of the publication in the official Gazette of the names of the returned candidates.

; and (4) Clauses (4), (5) and (6) shall be omitted.

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15. 112. (1) In clause (2), after paragraph (a), the following new paragraph shall be added, namely:- "(b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary."

16. Part IV, After Article 140, the following new Article shall be inserted, namely :- Chapter 3 "140A. Local government. Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments."

17. Part V, In Part V, in Chapter 3, before Article 153, the following new Article shall be inserted, Chapter 3 namely:- "152A. National Security Council. (1) There shall be a National Security Council to serve as a forum for consultation on strategic matters pertaining to the sovereignty, integrity and security of the State; and the matters relating to democracy, governance and inter-provincial harmony. (2) The President shall be the Chairman of the National Security Council and its other members shall be the Prime Minister, the Chairman of the Senate, the Speaker of the National Assembly, the Leader of the Opposition in the National Assembly, the Chief Ministers of the Provinces, the Chairman Joint Chiefs of Staff Committee, and the Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force.

(3) Meetings of the National Security Council may be convened by the President either in his discretion, or on the advice of the Prime Minister, or when requested by any other of its members, [Click here for amendment]within the time frame indicated by him regularly ."

17A 179 In clause (1), for the words "sixty-five years" the words "sixty-eight years" shall be substituted. 17B 193 In clause (2), for the words "forty years" the words "forty-five years" shall be substituted. 17C 195 In clause (1), for the words "sixty-two years" thewords "sixty-five years" shall be substituted. 18. 199 (1) In clause (4A) for the words and commas "unless the case is finally decided, or the interim order is withdrawn, by the Court earlier" the comma and words "provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made" shall be substituted: and (2) clause (4B) shall be omitted.

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19. 203C. In clause (9),- (a) for the word, "salary", occurring twice, the word "remuneration" shall be substituted: and (b) for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely:- Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan, the amount of such pension shall be deducted from the pension admissible under this clause."

20. 209. In clause (5) - (i) for the words and comma "received from the Council or from any other source," the words and comma "from any source, the Council or" shall be substituted: and (ii) after the words "Council to", the commas and words" ,or the Council may, on its own motion," shall be inserted.

21. 218. (1) For clause (1) the following shall be substituted, namely:- "(1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election of such other public offices as may be specified by law or until such law is made by the Majlis-e-Shoora (Parliament) by Order of the President, a permanent Election Commission shall be constituted in accordance with this Article.".

(2) in clause (2), in paragraph (b),- (i) for the word "two" the word "four" shall be substituted; and (ii) after the words "High Court", occurring for the first time, the words "from each Province" shall be inserted.

22. 224. In Article 224,- (a) in clause (1),- (i) for the word "preceding" the word "following" shall be substituted; and (ii) for the full stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely:- Provided that on dissolution of an Assembly on completion of its term, the President, in his discretion, or, as the case may be, the Governor, in his discretion but with the previous approval of the President, shall appoint a caretaker Cabinet.";

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(b) in clause (4), after the words and comma "Provincial Assembly, a", the word "general" shall be inserted; (c) after clause (5), the following new clauses shall be added, namely:- "(6) When a seat reserved for women or non-Muslims in the National Assembly or a Provincial Assembly falls vacant, for death, resignation or disqualification of a member, it shall be filled by the next person in order of precedence from the party list of the candidates submitted to the Election Commission for the last general election by the political party whose member has vacated such seat. (7) When a care-taker Cabinet is appointed, on dissolution of the National Assembly under Article 58 or a Provincial Assembly under Article 112, or on dissolution of any such Assembly on completion of its term, the Prime Minister or, as the case may be, the Chief Minister of the care-taker Cabinet shall not be eligible to contest the immediately following election of such Assembly.".

23. 243. (1) In clause (2),- (a) in paragraph (a), after the semi-colon at the end. the word "and" shall be added; (b) in paragraph (b), for the word and semi-colon "and;" a full stop shall be substituted; and (c) clause (c) shall be omitted; and

(2) After clause (2), amended as aforesaid, the following new clause shall be added, namely:- "(3) The President shall, in his discretion, appoint- (a) the Chairman, Joint Chiefs of Staff Committee; (b) the Chief of the Army Staff; (c) the Chief of the Naval Staff; and (d) the Chief of the Air Staff, and shall also determine their salaries and allowances."

24. 260. In clause (1), after the expression "clause", the following new expression shall be inserted, namely:- "consultation" shall, save in respect of appointments of Judges of the Supreme Court and High Courts, mean discussion and deliberation which shall not be binding on the President.". 25. 268. In clause (2),- (a) after the word "amended", the commas and words ", expressly or impliedly," shall be inserted; and (b) after the word "President", the words "accorded after consultation with the Prime Minister" shall be added.

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26. Part XII, After Article 270A. the following new Articles shall be inserted, namely:- Chapter 7 "270AA. Validation of laws.- (1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including the Provisional Constitution Order No.1 of 1999, the Oath of Office (Judges) Order, 2000 (No.l of 2000), the Referendum Order, 2002 (Chief Executive's Order No. 12 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force, are hereby affirmed, adopted and declared notwithstanding any judgment of any court, to have been validly made by competent authority and notwithstanding anything

contained in the constitution shall not be called in question in any court on any ground whatsoever. (2) All orders made, proceedings taken, appointments made,including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.

(3) All Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, notifications, rules, orders or byelaws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. Explanation.- In this clause, "competent authority" means, (a) in respect of President's Orders, Ordinances, Chief Executive's Orders and enactments, the appropriate Legislature: and (b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.

(4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person

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shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.

27. 270B In Article 270B, after the figure and comma "1977,", the words commas, the figures, brackets and letters "and the Conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002)," shall be inserted. 28. Part XII, After Article 270B, amended as aforesaid, the following new Article shall be inserted, Chapter 7 namely:- "270C. Oath of office of Judges, etc.- Notwithstanding anything contained in the Constitution, all persons appointed as Judges of the Supreme Court, High Courts and Federal Shariat Court who have taken oath under the Oath of Office (Judges) Order, 2000 (1 of 2002), or not having been given or taken oath under that Order have ceased to continue to hold the office of a Judge shall be deemed to have been appointed or ceased to continue to hold such office, as the case may be, under the Constitution and such appointment or cession of office shall have effect accordingly.".

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29. Sixth After entry 24, the following new entries shall be added, namely:- 25. Schedule The State Bank of Pakistan Act, 1956 (XXXIII of 1956). 26. The National Accountability Bureau Ordinance, 1999 (XVIII of 1999). 27. The Balochistan Local Government Ordinance, 2001 (XVIII of 2001). 28. The North-West Frontier Province, Local Government Ordinance, 2001 (XIV of 2001). 29. The Punjab Local Government Ordinance, 2001 (XIII of 2001). 30. The Sindh Local Government Ordinance, 2001 (XXVII of 2001). 31. The Election Commission Order, 2002 (Chief Executive's Order No.l of 2002). 32. The Conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002). 33. The Political Parties Order, 2002 (Chief Executive's Order No.18 of 2002). 34. The Qualification to Hold Public Offices Order, 2002 (Chief Executive's Order No. 19 of 2002). 35. The Police Order, 2002 (Chief Executive's Order No.22 of 2002).".

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Appendix-8

P L D 2000 SC 869 SYED ZAFAR ALI SHAH AND OTHERS V/S GENERAL PERVEZ. MUSHARRAF, CHIEF EXECUTIVE OF PAKISTAN AND OTHERS (a) Constitution of Pakistan (1973), Arts. 91(4) & 184(3)

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999— Constitution of Pakistan 91973), Arts. 184(3) & 91(4), (5)—Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan—Suspension of Assemblies and the Senate through extra-constitutional measures by the Chief of Army Staff—Factors– Validity—Doctrine of State necessity—Applicability—Role of public representatives—Principles of joint and ministerial responsibility in Parliamentary system—Rest of the members of representatives bodies cannot be absolved of their responsibility if, despite wrongdoings by the cabinet, they remained silent spectators— Suspension of the Assemblies and the Senate through extra-constitutional measures taken by the Chief of Army Staff, warrants validation on the ground of State necessity and State survival. [p. 1152] Z

(b) Provisional Constitution Order (1 of 1999)—

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999— Constitution of Pakistan (1973), Arts. 184(3) & 63(2)— Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan—Factors—Validity—Ridiculing the Judiciary and tapping of telephones of Judges of superior Courts—Debates of parliament of the relevant period clearly demonstrated that integrity and independence of the judiciary of Pakistan were challenged by the Members of Parliament which had the effect of defaming and bringing the Judges into ridicule and disparaging remarks against the Judiciary crossed all limits and no Reference was made to the Chief Election Commissioner for their disqualification as Members of the Parliament under Art. 63(2) of the Constitution of Pakistan (1973)—Such acts of tapping the telephones of Judges of the superior Courts and maligning the judiciary were most detestable, immoral, illegal and unconstitutional. [p. 1168] BB

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Mohtarama Benazir Bhutto‘s case PLD 1998 SC 388 ref.

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—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999— Constitution of Pakistan (1973), Arts. 91 & 184(3)—Term ―Chief Executive‖, import of— Constitution of Pakistan (1973) envisages Parliamentary form of Government where the Prime Minister acts as the Chief Executive of the country—By means of Proclamation of Emergency dated 14-10-1999 as also the Provisional Constitution Order, 1999 the Constitution has been only held in abeyance and the country is to be run as nearly as may be in accordance with the Constitution, therefore, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff while taking over the affairs of the country assumed to himself the title of ―Chief Executive‖—Validity—Since practically the Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff was performing the functions of the Prime Minister, he held the position of Chief Executive in the scheme of the Constitution of Pakistan.

The term ―Chief Executive‖ means President where there is a Presidential form of Government and Prime Minister in a Parliamentary form of Government. The Constitution of 1973 envisages Parliamentary form of Government where the Prime Minister acts as the Chief Executive of the country. By means of the proclamation of Emergency as also the PCO 1 of 1999, the Constitution has only been held in abeyance and the country is to be run as nearly as may be in accordance with the Constitution, therefore, General Pervez Musharraf, while taking over the affairs of the country, assumed to him the title of ―Chief Executive‖. Since practically, he is performing the functions of the Prime Minister, he holds the position of Chief Executive in the scheme of the Constitution. [p. 1208] MM

Indian Constitutional Law by H.M. Seervai, 4th Edn., p,20; Fazalul Qadir Chaudhry‘s case PLD 1963 SC 486 and American Constitutional Law, 1995 Edn., p.204 ref.

(d) Provisional Constitution Order (1 of 1999)—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Constitution of Pakistan 91973), Art. 184(3)— Extraconstitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan— Nature— Coup d‘etat or revolution—Coup d‘etat and revolution are interchangeable in the context of step of taking over the affairs of Pakistan by the Armed Forces and nothing substantial would turn on considering it from one angle or another.

In coup d‘etat as well in revolution, power changes from one man to another from one clique to another depending upon the facts and circumstances of each case. Coup d‘etat is generally undertaken to achieve a particular objective motivated by various considerations. [p. 1210] NN

In the context of the present case the terms coup d‘etat and revolution are interchangeable and nothing substantial would turn on considering it from one angle or another. [p. 1210] OO

Farzand Ali v. province of West Pakistan PLD 1970 SC 98; Madzimbuto v. Lardner Burke (1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at p. 733), 1868; Madzimbuto v. Lardner Burke 1966 Rhodesian L. Rep. 228 (General Division); Revolution and Political Change by C. Welch and Bunker Taintor; Attorney-General v. Mustafa Ibrahim 1964 Cyprus LR 195 Sup. Ct.; Revolutions, published in the Irish Jurist, 1977 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref.

(e) Provisional Constitution Order (1 of 1999)—

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999— Constitution of Pakistan (1973), Art. 184(3)—Extra- constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan–Validity—Grant of power to Chief Executive of Pakistan to amend the Constitution–Extent—Power of the Chief Executive of Pakistan to amend the Constitution is strictly circumscribed by the limitations laid down by the Supreme Court—Limitations with regard to amendment of the Constitution by Chief Executive of Pakistan as laid down by the Supreme Court enumerated.

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If the Parliament cannot alter the basic features of the Constitution, power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of ‗State necessity‘. The Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of Judiciary, federalism and parliamentary form of Government blended with Islamic Provisions cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down by the Supreme Court. [p. 1211] PP

Mahmood Khan Ackakzai‘s case PLD 1997 SC 426 ref.

Following are the limitations laid down by the Supreme Court with regard to the powers of Chief Executive of Pakistan to amend the Constitution: (i) The Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:—

(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it.

(b) All acts which tend to advance or promote the good of the people.

(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.

(ii) That Constitutional Amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6), sub-clause (i)(a) ibid is controlled by subclauses (b),(c) and (d) in the same clause.

(iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions.

(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 &24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof.

(v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinance on his advice;

(vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged, in the light of the principles underlying the law of State necessity as sated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf.

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(vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures, shall also be subject to judicial review by the superior Courts. [p. 1220] QQ

(f) Provisional Constitution Order (1 0f 1999)

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Oath of Office (Judges) Order (1 of 2000), preamble— Constitution of Pakistan (973), Arts. 209 & 184(3)— Extra-constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan — Validity—Supreme Court Judicial Council–Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Art. 209 of the Constitution— Cases of the Judges who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000, however, was hit by the doctrine of past and closed transaction and could not be re-opened. [pp. 1211, 1212] RR & SS

(g) Provisional Constitution Order (1 of 1999)—

—Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Oath of Office (Judges) Order (1 of 2000), Preamble— Constitution of Pakistan (1973), Preamble, Arts. 209 & 184(3)—Past and closed transaction, doctrine of—Applicability—Cases of former Chief Justice and judges of Supreme Court who had not taken oath under the Oath of Office (Judges) Order, 2000 and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, could not be reopened being hit by the doctrine of past and closed transaction. [pp. 1219, 1220, 1222] QQ & BBB

The cases of former Chief Justice and Judges of the Supreme Court, who had not taken oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not given oath, cannot be reopened, being hit by the doctrine of past and closed transaction.

The practical effect of the above observation is that the action of the Chief Executive in this behalf has been validated. It is a well-settled principle that in such situations the Court may refuse relief in respect of a particular decision, but go on to determine the general question of law or interpretation that the case raises. Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right to practise law and thereby acquiesced in the action. Furthermore, the appropriate course of action for supreme Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions. The Courts can refuse relief in individual cases even though the action is flawed, depending upon the facts and circumstances of each case. The action of Chief Executive in the context given above has not encroached on the judicial power or impaired it in the process. However, the observations made herein as to the declaration of law under Article 209 of the Constitution would not entitle the relevant authorities or Supreme Court to reopen the cases of the above Judges which have become final. [p. 1211] RR

The Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000

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(Order 1 of 2000) is hit by the doctrine of past and closed transaction and cannot be reopened. [pp. 1212, 1219, 1220, 1222] SS, QQ & BBB

(h) Constitution of Pakistan (1973), Arts. 209 & 184(3)

—Provisional Constitution Order (1 0f 1999), Preamble—Proclamation of Emergency by Chief Executive of Pakistan dated 14-10-1999—Oath of Office (Judges) Order (1 of 2000), Preamble— Constitution of Pakistan (1973), Preamble and Arts. 184(3) & 209—Accountability, process of— Government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law— Judges of superior Courts were subject to accountability only, in accordance with the methodology laid down in Art. 209 of the Constitution of Pakistan (1973). [pp. 1219, 1220, 1222] QQ & BBB

(i) Constitution of Pakistan (1973) Arts. 243 & 184(3) —Command of Armed Forces—Removal of Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee—Procedure—Chief of the Army Staff and Chairman, Joint Chiefs of Army Staff Committee being a holder of constitutional post, his arbitrary removal in violation of the principle of audi alteram partem was ab initio void and of no legal effect. [pp. 1219, 1220, 1222] QQ & BBB

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Appendix-9

PROVISIONAL CONSTITUTION ORDER, 1999

(P.C.O.1OF1999) October 14, 1999

In pursuance of Proclamation of the 14th day 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 (hereinafter referred to as the Chief Executive) is pleased to make and promulgate the following Order:-

1. (1) This Order may be called Provisional Constitution Order No. 1 of 1999.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. (1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, by governed, as nearly as may be, in accordance with the Constitution.

(2) Subject as aforesaid, all Courts in existence immediately before the commencement of this Order shall continue to 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.

(3) The Fundamental Rights conferred by Chapter I 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.

1[(4) Notwithstanding anything contained in the Proclamation of the Fourteenth day of October, 1999 or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic Injunctions including Articles, 2, 2A, 31, 203A to 203J, 227 to 231 and 260 (3)(a) and (b) shall continue to be in force and be deemed to have always so continued to be in force and no provisions aforesaid shall remain in abeyance or be deemed to have remained in abeyance at any time.]

3. (1) The President shall act on, and in accordance with the advice of the Chief Executive.

(2) The Governor of a Province shall act on, and in accordance with the instructions of the Chief Executive.

4. (1) No Court, tribunal or other authority shall call or permit to be called in question the Proclamation of Emergency of 14th day of October, 1999 or any Order made in pursuance thereof.

(2) 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 the Chief Executive. 5 2[(1)]. Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution 3[all Ordinances, Orders, Rules, Bye Laws, Regulations, Notifications, and other instruments in force in any part of Pakistan whether made by the President or the

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Governor of a Province] shall continue in force until altered, amended or repealed by the Chief Executive or any authority designated by him.

2[(2) In all laws including all Acts, Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and all other legal instruments in force in any part of Pakistan whether made by the President or the Governor of a Province the words "Prime Minister" and the words "Chief Minister", wherever occurring, shall be deemed substituted by the words "Chief Executive of the Islamic Republic of Pakistan" and "Governor" respectively.]

4[5A (1). An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the Constitution.

(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by the Governor which was in force immediately before the commencement of the Proclamation Order of Chief Executive of the Fourteenth day of October, 1999.]

6. The Proclamation of Emergency issued on 28th day of May, 1998, shall continue but subject to the provisions of Proclamation of Emergency dated 14th day of October, 1999 and this Provisional Constitution Order and any other Order made there under.

7. All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution and those persons who immediately before such commencement were in office as Judge of the Supreme Court, the Federal Shariat Court or a High Court [or Chief Election Commissioner] or Auditor-General or Ombudsman and Chief Ehtesab Commissioner, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any.

Appendix No 10: Questionnaire Working of civilian governments during the military regimes:

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A case study of Zia & Musharraf Era Characteristics of respondents:

In Service  Retired

Designation______

Politician Minister 1. What should be the nature of civil military Strongly Agree Disagree Strongly relations? Agree Disagree A. military must follow the civilian government. B. Mutual understanding is better. C. government must follow the military approved policies.

D. Remarks………………………………………………………………………………………

……………………………………………………………………………………………………

Q.2. why did civil military relations remain strained S/A A D S/D in past (in Pakistan)? A. Lack of political leadership. B. Military showed interest in political affairs. C. Both (civil & military) departments crossed their defined limitations.

D. Remarks…………………………………………………………………………………………

…………………………………………………………………………………………………… Q.3. Why did military introduce such controlled S/A A D S/D democracy? A. Political elites were not in the position to run the administration. B. Military secured itself with this system. C. The controlled political system was suitable to the masses of Pakistan.

D. Remarks…………………………………………………………………………………………

……………………………………………………………………………………………………

Q.4. Why did Zia-ul-Haq conducted non party based S/A A D S/D elections?

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A. Zia had no trust over the political parties. B. At that time PPP was famous and Zia did not like it. C. Afghan war could not be managed by the political leaders.

D. Remarks…………………………………………………………………………………………

…………………………………………………………………………………………………… Q.5. The enlightenment of Musharraf was? S/A A D S/D A. The need of the hour(like islamization of zia) B. Just a slogan. C. A tool for strengthening the democracy.

D. Remarks…………………………………………………………………………………………

…………………………………………………………………………………………………… Q.6. Why retired military officers of US are successful S/A A D S/D in politics but not in Pakistan? A. Political culture of Pakistan is not developed. B. Retired military officers has no interest in politics. C. People never accepted these military men in politics.

D. Remarks………………………………………………………………………………………

…………………………………………………………………………………………………… Q.7. Doctrine of necessity was? S/A A D S/D A. The safety of the federation. B. Protection of the military. C. Reintroduction of the free and fair political democratic culture.

D. Remarks……………………………………………………………………………………… …………………………………………………………………………………………………… Q.8.Military did not interrupt in India because? S/A A D S/D A. Political institution and leadership are strong. B. Military is loyal to the government. C. People do not like the military intervention. D. Remarks…………………………………………………………………………………………

…………………………………………………………………………………………………….....

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Appendix No 11

Respondents of Questionnaire from each class Intellectuals Politicians Judiciously Military

Professors Associate Lecturers MPA MNA Senators Civil Not Mentioned Advocates Brigadier Colono Not ls Professors Judges Designation (Rtd) Mentioned (Rtd) (Rtd) Designation

20 22 23 23 19 23 04 10 51 03 02 60

I. Total Respondents are 260 with 65 from each class with different designations.

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Appendix No.12

List of respondents

Those have permitted to mention their names Sr.No intellectuals politicians Judiciary Military 1 Prf.Dr. Iram Khalid Ishaq Dar Addit-session Brgd F.K.Khan JudMalik M. Asif Burki(rtd) 2 Prf.Dr.Rehana Saeed Raja Zafar-ul-Haq Mr.Justice Ali Brgd.M.Aslam Hashmi Nawaz Ghuman(rtd) 3 Prf.Dr.Gulshan Majeed Ch.Shujat Mr.Farhan Nabi Brigd Noor Mahi(rtd) 4 Prf.Dr.Mubeen Adnan Mushahid Hussain Mr.Malik Ahsan Colo. Sultan Syed Sakinder(rtd) 5 Prf.Ali Naqvi Javid Hashmi Mr.Ijaz Raza Colo.Abdul- Kareem(rtd) 6 Prf.Ch.M.Ashraf Ahsan Iqbal Mr.Musanif Ali Joia 7 Prf. Fiaz Ikram Usma Ibrahim Mr.Zakir Husain Gaddi 8 Prf. Mian Ashraf Khwaja Asif Mr.Safder Mahmood 9 Prf. M.Riaz Khwaj Saad Rafique Mr.Haq Nawaz 10 Prf.Fiaz Bouter Khurram Dastgir Mr.M.Shabeer 11 Prf. Asgar Nasir Mian Javid Latif 12 Prf.Dr.Tahir But Mahmood Bashir Virk 13 Prf.Dr.Zafar Iqbal Ch.Rafaqat Ali 14 Prf.Masood Sarwar Ch.Arfan Bashir Ghuman 15 Prf. Malik Muddasir Qume AbdulRasheed Nahira 16 Prf.Raffi Mumtaz 17 Prf.M.Nasir Mehmood

Those have not allowed mentioning their names Sr.No intellectuals politicians Judiciary Military 1 48 50 56 60  Specially in-service persons not allowed to mention their names & designation

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