Byline: Syed Tahir Hussain Bukhari
The foundation of Pakistan was laid down on the basis of federal parliamentary democracy under the vision of Quaid-i-Azam Muhammad Ali Jinnah. According to his vision the constitution of Pakistan would be the combination of Islamic values and democratic principles.1 The Objective Resolution 1949 was the first step towards constitution making process. The first Constituent Assembly worked under the premiership of Liaquat Ali Khan. It constituted first Basic Principle Committee to lay down the basic principles for future constitution. Later on, second Basic Principle Committee report was presented after Liaquat Ali Khan's death during Kh. Nazimuddin's premiership and Bogra Formula during Bogra rule. These were initial steps for constitution making but were severely objected by the public circles especially from East Bengal.2
Jinnah had a strong will to build up the political institutions on democratic principles. It was a challenging task which he initiated during his last days. His sudden death on September 11, 1948 was a great blow both for nation and country. After his death the incapable leadership could not effectively handle the conditions and hence, the constitution making efforts became victim of differences and vested interests. The Pakistani political history and democracy has repeatedly been objected by strong autocratic rules and military governments. The regimes of Ayub Khan, Yahya Khan, Zia ul Haq and Musharraf are identical with reference to political set up and 'controlled democracy'. It was Ayub Khan who firstly derailed the political and democratic set up and introduced the political system and democracy of his own choice and design which delayed the onward democratic process that led hatred among both wings of the country and later on led to the separation of East Pakistan.
The PPP rule from 1971-1977 was a sigh of relief for people but the autocratic temperament of Zulifkar Ali Bhutto created differences among civil-military bureaucracy which resulted again in imposition of Martial Law by General Zia who adopted the same pattern of Ayub Khan to legitimize himself by adopting different measures, i.e. introducing fake and controlled democracy which undermined the development of political culture and leadership in country. The paper discusses the events and causes which were responsible for fragile political set up in country onwards having special focus on the period from 1985-1988. General Zia came into power after imposing Martial Law on July 5, 1977. He took certain immediate measures to run the state affairs. The real administrative powers vested in the personality of Zia. President Chaudhary Fazal Elahi continued although the parliament was dissolved.3 The judiciary supported Martial Law.
The chief justices of provincial High Courts were appointed governors of respective provinces with the consent of Chief Justice of Supreme Court of Pakistan Justice Yaqoob Ali Khan.4 The step of imposition of Martial Law of 1977 was the clear violation of 1973 constitution by the civil and military authorities. The constitution blocked the military's involvement in future politics. Under article 6 of the 1973 constitution the abrogation or undermining the constitution forcibly would be considered as high treason. The articles 12(2), 243 and 244 clearly enumerated that armed forces are under the control of central government and they had to swear to maintain superiority of the constitution and they will act on the commands of the federation of Pakistan.5 Martial Law is always considered as supra-constitutional act. Every dictator who imposes Martial Law always seeks justification for his action. After taking this supra-constitutional act Zia sought the help of judiciary.
The real objective to get the support of judiciary for his unlawful act was to keep him safe from the penalty of 'death sentence' under the constitution. The Chief Justice of Pakistan was not in favour of dissolution of constitution, establishment of military courts and Martial Law's administration involvement in government affairs. The Supreme Court also recommended that President must not be deposed and army should go back after conduct of election and power transfer to civil authorities. Initially, Zia assured his consent to Chief Justice Supreme Court but when the Court started hearing the case of Bhutto's captivity, the Chief Justice was relieved under Martial Law order according to which the term of service of Chief Justice was amended. 6 This step was a clear indication of control of institutions by Zia's regime which totally crushed the judicial system.7 Later on, the Supreme Court gave its verdict by justifying the imposition of Martial Law under special conditions.8
The Supreme Court issued its judgment in a constitutional petition filed by Begum Nusrat Bhutto under...