The writer holds a PhD from the University of Birmingham, UK and works in Islamabad.
In the second part of this series last week we discussed how in Bangladesh Mujib and most of his family were assassinated and how a counter-coup led by Maj-Gen Khalid Mosharraf failed to remove army chief Lt-Gen Ziaur Rahman from the scene.
It will be interesting for the readers to know that at the time of Mujib’s assassination by junior military officers, the army chief of Bangladesh was Maj-Gen K M Shafiullah. He was removed by the new president Mushtaque and deputy chief Gen Ziaur Rahman was appointed as the new army chief.
K M Shafiullah was given various ambassadorial positions and he is still alive in 2019 at the age of 85. President Mushtaq was in power just for three months before being imprisoned in November 1975 by the counter-coup plotters led by Khalid Mosharraf who had installed Chief Justice Abu Sayem as new president. When Mosharraf’s attempt to install himself as the new army chief failed and he was killed on November 7, army chief Ziaur Rahman kept Abu Sayem as president and Zia’s benefactor, Mushtaque, languished in jail till 1978. After his release, Mushtaque lived another 18 years and died in 1996 at the age of 78.
If you compare the roles of the judiciary in Bangladesh and Pakistan, some interesting points come to the fore. In Bangladesh, a serving chief justice, Abu Sayem was ready to accept the position of president in November 1975. When the counter-coup failed, he was again ready to serve both as chief martial law administrator (CMLA) and president at the behest of the army chief, Ziaur Rahman. In Pakistan, we had seen a civilian CMLA when Z A Bhutto took over in December 1971. Though the judiciary was ready to justify coups in Pakistan, we did not see a sitting CJ becoming CMLA or president after a coup.
In Bangladesh, for one year – up until November 1976 – Abu Sayem was both CMLA and president, whereas army chief Gen Ziaur Rahman was deputy CMLA but the real power remained in his hands. In November 1976, Abu Sayem, resigned or was asked to resign as CMLA, and Ziaur Rahman also assumed the post of CMLA. Six months later, in April 1977, Ziaur Rahman formally assumed the presidency too and wore three caps now: of army chief, CMLA, and president. A model that was soon to be followed by the Pakistan army chief, General Ziaul Haq.
In Bangladesh, Justice Abu Sayem lived another 20 years and died in 1997 at the age of 81. After assuming power, Lt-Gen Ziaur Rahman continued with Mujib’s policy and continued the ban on political parties. His real strength came from civil and military bureaucracies, as it happens with most dictators. After assuming power, Gen Ziaur Rahman promised national elections in 1978, a promise that was not kept, just like General Ziaul Haq did in Pakistan. Rather, Ziaur Rahman arranged for a Yes-No nationwide referendum and got himself elected as president in 1978.
Coming to Pakistan again, the main opposition – National Awami Party (NAP) – had been banned by Z A Bhutto. I have the original Supreme Court Judgment on Dissolution of NAP published in Rawalpindi on October 30, 1975. The six-member bench included Chief Justice Hamoodur Rahman, and Justices Yaqub Ali (who later became the next chief justice), Anwarul Haq (who later sent Z A Bhutto to the gallows), and Afzal Cheema (former federal law secretary who later became chairman of the Council of Islamic Ideology and helped Gen Ziaul Haq with the Islamisation of laws).
The lawyers’ panel from the government was led by the attorney general of Pakistan, Yahya Bakhtiar (who was one of the architects of the 1973 constitution) and others. The accused and arrested leaders of the NAP were represented by Mahmud Ali Qasuri (one of the founders of the NAP and father of K M Kasuri who was Gen Musharraf’s foreign minister from 2002 -2007), Azizullah Shaikh, and others. Interestingly, Sharifuddin Pirzada was appointed amicus curiae. Sharifuddin Pirzada became foreign minister in Ayub’s time when Z A Bhutto resigned in 1968. Pirzada had also served as attorney general during Yahya Khan’s dictatorship.
Chief Justice Hamoodur Rahman had been appointed by Ayub Khan in November 1968 and remained chief justice throughout Gen Yahya’s tenure and his military action in East Pakistan in 1971. He didn’t utter a word against the military action or against the cancellation of election results by Yahya. Though, after Yahya had been removed, he tried to redeem himself by declaring in the famous Asma Jilani Case that Yahya’s usurpation was invalid and unconstitutional. In 1975, the Supreme Court led by Chief Justice Hamoodur Rahman accepted press reports and intelligence officers’ statements as admissible.
The SC observed that Pakistan comprised just one nation and did not have any nationalities. This smacked of centrist prejudice and a statist approach to justice and politics. All judges were unanimous that the NAP indeed was a threat to the country. As if all this was not enough, Z A Bhutto introduced the Fourth Amendment to the constitution further curtailing the writ jurisdiction of the high courts, under Article 199, in cases of preventive detention. Now the courts were not allowed to grant bail to a person or to prohibit such detention.
A presidential ordinance was promulgated that disqualified NAP office-bearers from membership of national and provincial assemblies. With a parallel ordinance, special courts were established to try anti-state activities. After these changes, no high court had the jurisdiction to come to the aid of political victims and could not grant such people bail during detention. Justice Hamoodur Rahman retired on October 31, 1975, after reaching superannuation at the age of 65, and Justice Yaqub Ali became CJ at the age of 63.
In March 1976, Pakistan army chief Gen Tikka Khan retired and prime minister Z A Bhutto promoted the junior most Lt-Gen Ziaul Haq to the post of army chief. Gen Tikka Khan was reported to have advised Bhutto against superseding seven more senior officers, but Bhutto selected Gen Zia. General M Shariff who was the senior most in the race to be army chief, was appointed as the first chairman of Joint Chiefs of Staff committee. Without any actual command, this post largely remained ceremonial, and even if he wanted, Gen Shariff could not prevent the impending coup led by Gen Zia.
The Fifth Amendment to the 1973 constitution of Pakistan was introduced in September 1976, amending 16 articles and the First Schedule of the constitution. This amendment further restricted the powers of the high courts under Article 199. Now for the first time the judges themselves were affected by these changes in several ways: the term of the chief justice of the Supreme and high courts were to be determined not solely by age but also by a fixed period as an alternative. Now, the government also had the power to transfer a judge – without his consent – from one high court to another.
The Sixth Amendment was passed in December 1976 in the last session before the general elections, specifically to give a chance to Chief Justice Yaqub Ali to continue after his superannuation. Not long ago Bhutto himself had deprived the judges of their chance to continue after completing their four-year term as chief justice, even if they were as young just 55. Now Bhutto wanted to allow Justice Yaqub Ali to continue after the age of 65, on the pretext that he had not completed his term as chief justice. In January 1977, Bhutto announced that the next general elections would be held in March 1977.
In the next part of this essay tomorrow, we will discuss the general elections in India and Pakistan, both held in March 1977.
To be continued
Email: mnazir1964@yahoo.co.uk
