CIVIL-MILITARY RELATIONS IN PAKISTAN AND THE ROLE OF JUDICIARY (1977-1999) Supervised By PROF. DR. TAJ MOHARRAM KHAN Dean Faculty of Social Sciences Submitted By ASHFAQ UR REHMAN Ph.D Scholar DEPARTMENT OF POLITICAL SCIENCE UNIVERSITY OF PESHAWAR (2016) DEDICATION This research work is dedicated to the one and only;; my late father,, Mr.. Fazal-i-Rehman and loving family.. Although,, my father left us when I was much younger,, however,, his guiding principles and advices have been playing an active role in my life,, mainly,, because I am very much inspired from his sound character and decent personality.. 1 Acknowledgement In fulfilling requirements of this research study, I am honoured to have the supervision of Professor Dr. Taj Moharram Khan, whose reputation as a scholar is well known and respected in social sciences, especially in the field of Political Science and Local Government. I am greatly indebted to him for steering me through this difficult task, tolerating my weaknesses, and sparing time to fit my demands. I am particularly grateful to him for the critical but constructive comments on my studies. I am sure that without his valuable suggestions, proper guidance and thorough review of my dissertation, this research study could have hardly been completed. I did a partial research study of dissertation at The University of Texas at Austin (UT Austin) United States as Visiting Scholar. It’s an honour for me to have renowned Professor Paula R. Newberg from Department of Government and Fellow of Wilson Chair in Pakistan Studies as my foreign supervisor. I am very much thankful for her supervision of my research work and professional support. Special thanks are extended to Professor Kamran Asdar Ali, Director South Asia Institute, UT Austin and Dr. Abdul Haq Chang (Research Fellow) for their wholehearted welcome and support for my participation in the seminars, events and other academic activities at the said institute. I also acknowledge the financial support of Higher Education Commission Pakistan for this visit along with the support and cooperation of the staff especially Director Jehanzeb Khan. I am very much thankful to Professor A. Z. Hilali Chairman, Department of Political Science for his continuous support and cooperation right from the beginning of this study till completion. I am pleased to acknowledge the support of other faculty members of the Department of Political Science; especially Professor Ghulam Mustafa, Professor Abdul Rauf, Professor Zahid Anwar, Dr. Ayub Jan, Dr. Sami Raza, Dr. Muhammad Zubair, Dr. Aamir Raza, Dr. Shahida Aman and Dr. Noreen Naseer who guided and supported me on different aspects of this study. My special thanks also go to Mr. Shahzada Gulfam, Librarian and Atif Matloob, Assistant Librarian for allowing access to research material. I am much thankful to Admin & Finance Officer Murad Khan, Saeed Khan, Shams ul Islam and 2 all other staff members of the Department of Political Science, University of Peshawar. I owe profound thanks to all the faculty and staff members of the Department of History, University of Peshawar, especially Dr. Altaf Qadir who fully cooperated and helped me during my routine visits when my supervisor moved there as Chairman of the Department. I have to pay special thanks to Dr. Amna Mahmood, Associate Professor International Islamic University Islamabad. She had been very helpful in providing valuable inputs in my thesis thus streamlining my understanding for this write up in an effective manner. I am also thankful to my classmates Mr. Arif Khan and Mr. Bakhtiar Khan for their support and cooperation from time to time. I would like to pay special thanks to all military personnel, lawyers, politicians and intellectuals, who shared views on important aspects of this research work. I am indebted to my wife Shughla Ashfaq for her cooperation and encouragement, and who suffered her family life due to my engagements in pursuing completion of this research work. I am also indebted to my daughter Fatima Ashfaq and Muhammad Rehman; I spent precious moments on this work which were purely for them. I very much value their willingness to accompany me to the United States. Lastly, I appreciate my family members whose moral support enabled me to complete this thesis. I am much thankful to my mother, brothers and sisters who have been waiting anxiously for this day. They were the source of my inspiration, motivation and drive to finish this task. I thank them from the core of my heart. I am also thankful to my nephews and nieces for their prayers. 3 TABLE OF CONTENTS Acknowledgment i Abstract vi Chapter-I INTRODUCTION 1 1.1 Introduction 1 1.2 Military Interventions and its Withdrawals in Pakistan 9 1.3 Statement of the Problem 17 1.4 Aims and Objectives of the Study 19 1.5 Research Questions 19 1.6 Hypotheses 20 1.7 Significance of the Study 21 1.8 Methodology 22 1.9 Organisation of the Thesis 24 Chapter-II LITERATURE REVIEW 30 2.1 Why the Military Intervenes in Politics 30 2.1.1 Kinds of Military Intervention in Politics 35 2.1.2 Reasons of Military Withdrawal from Politics 36 2.1.3 Processes of Military Withdrawal from Politics 40 2.2 Judiciary and the Military Regimes 43 2.2.1 Powers and Functions of Judiciary in Military Regimes 47 2.2.2 How Military Regimes Contain the Judiciary 52 2.2.3 The Power of Judicial Review and the Judicial Restraint 57 Chapter-III HISTORICAL BACKGROUND (1947-1976) 66 3.1 Institutional Imbalance in Pakistan: A British Legacy 66 Inefficiency of the Governments and Constituent-cum-Legislative 3.2 69 Assembly 3.3 Dissolution of First Constituent Assembly and Validation by the Judiciary 73 3.4 First Martial Law of General Ayub Khan 1958 76 3.5 Validation of Martial Law by Justice Muhammad Munir 79 3.6 Ayub Khan’s Handling of Political and Constitutional Issues 82 3.7 Mass Movement and Imposition of Second Martial Law 1969 88 4 3.8 General Elections of 1970 and the Outcome 92 3.9 Verdict of Supreme Court on 2nd Martial Law 97 3.10 The Military under Fire and Reforms by Z. A. Bhutto 101 3.11 Z. A. Bhutto’s Handling of Political and Constitutional Issues 104 THIRD MARTIAL LAW AND CONSOLIDATION OF Chapter-IV 115 AUTHORITY FOR THE LONGEST MILITARY RULE 4.1 Background of Ziaul Haq’s Taking Control of Power 115 4.2 Imposition of Third Martial Law and its Validation by the Supreme Court 121 Accountability and Islamisation as Policy Options to Prolong Military 4.3 127 Rule 4.4 Zulfiqar Ali Bhutto’s Trial and Execution 135 Banning the Political Activities and Partnership with Likeminded 4.5 141 Civilians 4.6 Curtailing Powers of the Superior Judiciary and Institutional Restraints 147 MILITARY'S STRATEGY OF SHARING POWER WITH THE Chapter-V 162 CIVILIANS 5.1 Legitimacy Crises and the Controversial Referendum of 1984 162 5.2 Non-party Elections of 1985 to Civilianize the Military Regime 167 5.3 Constitutional Cover through Amendments in the Constitution 173 5.4 Working Relationship between the Elected Government and the Military 179 5.5 Revival of PPP under Benazir Bhutto and Resistance to Ziaul Haq Regime 187 5.6 Geneva Accords and Ojhri Camp Tragedy: Worsening of the Relations 192 5.7 Dismissal of Junejo Government and Supreme Court Decision 198 RESTORATION OF PARLIAMENTARY DEMOCRACY IN THE Chapter-VI 209 POST ZIA-UL-HAQ ERA 6.1 Elections of 1988 and the Role of Military in Transfer of Power 209 6.1.1 Benazir Bhutto and her Dealing with the Opposition 212 6.1.2 Civil-Military Relations under General Mirza Aslam Baig 215 6.1.3 Benazir Bhutto and Ghulam Ishaq Khan Relations 221 6.1.4 Dismissal of Benazir Government and the Decision of the Supreme Court 224 6.2 Elections of 1990 and the Premiership of Nawaz Sharif 227 6.2.1 Relations with General Mirza Aslam Baig and General Asif Nawaz Janjua 229 6.2.2 Nawaz Sharif and Ghulam Ishaq Khan Relations 234 5 Dismissal of Nawaz Sharif Government and Reinstatement by Supreme 6.2.3 238 Court Continuation of Confrontation and Military’s Intervention to Resolve the 6.2.4 244 Tension NEW TRENDS IN CIVIL-MILITARY RELATIONS AMIDST Chapter-VII 256 JUDICIAL ACTIVISM 7.1 Elections of 1993 and Benazir Bhutto’s Second Term in Office 256 7.1.1 Relations with Military under General Abdul Waheed Kakar 257 7.1.2 Relations with Judiciary under Chief Justice Sajjad Ali Shah 260 7.1.3 Relations with the President Farooq Leghari; a Party Loyalist 264 Dismissal of Benazir Bhutto Government and Judgement of the Supreme 7.1.4 267 Court 7.2 General Elections of 1997 and Nawaz Sharif’s Coming Back 270 7.2.1 Confrontation with the Judiciary and the President 275 7.2.2 Relations with Military under General Jahangir Karamat and After 281 7.2.3 Kargil Operation and Turmoil in Civil-Military Relations 286 Removal of Army Chief General Pervaiz Musharraf and Military’s 7.2.4 291 Retaliation Chapter-VIII CONCLUSION 304 8.1 Background of Military Takeover by General Ziaul Haq 304 8.2 Consolidation of Power by General Ziaul Haq 305 8.3 Sharing of Power with Premier Muhammad Khan Junejo 310 8.4 The Post Ziaul Haq Democracy 312 8.5 Military Takeover by General Pervaiz Musharraf 318 8.6 Findings 319 8.7 Recommendations 321 Bibliography 327 Annexures 340 6 Abstract This thesis examines civil-military relations in Pakistan and the role played by the judiciary whenever bitterness occurs in their relations.