Chapter VIII

The Third Martial Law


Page 1


The army staged third coup d'état in Pakistan's history when General Ziaul Haq overthrew the government of Prime Minister Zulfikar Ali Bhutto and took over as Chief Martial Law Administrator (CMLA) on July 5, 1977. The federal and provincial governments were dismissed; political parties were banned; national and provincial assemblies and the Senate were dissolved; the constitution was put in abeyance; civil courts continued to function as usual but fundamental rights were suspended.

In his speech while declaring martial law, General Zia termed the take-over as a "90-day operation" and declared that he had no political ambitions. He said "his sole aim" in staging the coup was "to organize free and fair elections" that would be held that October. A week later, addressing the newspaper editors, on July 11, 1977, General Zia reiterated his resolve to hold elections saying that "the primary aim before the interim regime was the restoration of democracy in the country."

On July 15, 1977, Justice Mushtaq Husseinof Lahore High court was appointed chairman of a committee to formulate election procedures and laws. Two days later, Justice Mushtaq Hussein also took over as the Chief Election Commissioner and announced that elections would be held in the first fortnight of October 1977 under the supervision of the armed forces and the judiciary. October 18 was fixed for the general elections and nomination papers were invited between 7 and 18 August, 1977. On Sept. 21, 1977, General Zia issued a 15-point code of ethics to regulate the election campaign which started from Sept. 18. The code laid emphasis on the national integrity, Islamic ideology and Islam as a religion. It prohibited all actions and deeds, including words, symbolic representations, which were likely to prejudice the solidarity of Pakistan and its Islamic foundations.

However, on October 1, the elections were postponed indefinitely on the pretext that all the major political groups, except the Pakistan Peoples' Party had demanded to complete the process of accountability first and then to hold the elections. In a speech General Ziaul Haq claimed that postponement has been made to "save the country from a dangerous crisis and to place full facts before the public through the process of accountability." He also banned the political activity "to rid the country of all physical and mental strains and to allow passions to cool down."

On November 10, 1977 the Supreme Court unanimously validated the imposition of martial law, under the doctrine of necessity. The law of necessity recognized and upheld by Pakistan's highest judicial body has proved an honorable protection for military adventure in civil government. In its judgment dismissing Begum Nusrat Bhutto's petition challenging detention under Martial Law of former Prime Minister Z.A. Bhutto and 10 others, the nine-member court headed by Chief Justice Anwarul Haq observed that after massive rigging of elections followed by complete breakdown of law and order situation bringing the country on the brink of disaster, the imposition of martial law had become inevitable. The judgment also said the court would like to state in clear terms that it had found it possible to validate the extra constitutional action of the Chief Martial Law Administrator (CMLA) not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible. By the period of constitutional deviation, the court meant, of course, the period between the martial law takeover and the holding of elections.

The Supreme Court judgment said: It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely, the parts dealing with the federal and provincial executives and legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same constitution. Soon after the polls, the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life.

"In the presence of these unambiguous declarations, it would be highly unfair and uncharitable to attribute any other intention to the Chief Martial Law Administrator, and to insinuate that he has not assumed power for the purposes stated by him, or that he does not intend to restore democratic situations in terms of the 1973 constitution."

However, less than four months after the Supreme Court judgment, General Ziaul Haq made it clear that elections would be held only when he and his colleagues were fully convinced about what he called the "positive results." He said that Allah had granted him and his colleagues an opportunity to clean the body-politic of the country, and unless this task was accomplished it would be futile to embark on the election exercise.[1] A Martial Law Order was issued on February 28, 1978 debarring all politicians, whose cases had been referred to Disqualification Tribunals, from political activities until proved not guilty of misconduct.

In the mean-time, General Ziaul Haq started maneuvering to seek support of political leaders for his martial law regime. On July 5, 1978, on the occasion of the first anniversary of the imposition of martial law, General Zia announced a 22-member federal cabinet, comprising of politicians, technocrats and army men. The following four points were declared the objective of the new cabinet: (a) to work for the implementation of Islamic system; (b) to prepare ground for general elections at the earliest possible date; (c) to plan improvement of the country's economic conditions; and (d) to work for stability at home and Pakistan's prestige abroad.

As the nation was wondering about the next move by the army regime, he made a dramatic announcement on December 2, 1978, on the occasion of the first day of the Hijra calendar to enforce the Islamic system in the country. In a nationwide address, General Zia accused politicians of exploiting the name of Islam saying: "many a ruler did what they pleased in the name of Islam. After assuming power the task that the present government set to was its public commitment to enforce Nizam-e-Islam. As a preliminary measure to establish an Islamic society in Pakistan, General Zia announced the establishment of Shariah Benches. Speaking about the jurisdiction of the Shariah Benches he said: "Every citizen will have the right to present any law enforced by the government before the "Shariah Bench" and obtain its verdict whether the law is wholly or partly Islamic or un-Islamic." But General Zia did not mention that the Shariah Benches jurisdiction was curtailed by the following overriding clause: " (Any) law does not include the constitution, Muslim personal law, any law relating to the procedure of any court or tribunal or, until the expiration of three years, any fiscal law, or any law relating to the collection of taxes and fees or insurance practice and procedure." It meant that all important laws which affect each and every individual directly remained outside the purview of the Shariah Benches. However, he did not have a smooth sailing even with the clipped Shariah Benches. The Federal Shariah Bench declared rajm, lapidation, to be un-Islamic, Ziaul Haq reconstituted that court which declared rajm as Islamic.[2]

In his drive of Islamization General Ziaul Haq announced further measures on Feb. 10, 1979. In a speech on the occasion of the birthday anniversary of the Holy Prophet Mohammed (PBUH) he said: All major political parties despite their other differences are agreed that the Islamic system should be introduced in this country ...... I am formally announcing the introduction of the Islamic system in the country." The Islamic measures were enforced through presidential orders and ordinances under which the existing laws relating to the offenses of theft, robbery and dacoity, adultery, false charge of adultery and wine-drinking were replaced by the fixed punishments prescribed by the Holy Quran and Sunnah. One of the ordinances was related to the execution of the punishment of whipping.

Under Offenses Against Property (Enforcement of Hudood] Ordinance 1979, the punishment of imprisonment or fine, or both, as provided in the existing Pakistan Penal Code for theft, was substituted by the amputation of the right hand of the offender from the joint of the wrist by a surgeon. For robbery, the right hand of the offender from the wrist and his left foot from the ankle should be amputated by a surgeon.

Drinking of wine (i.e. all alcoholic drinks) was not a crime at all under the Pakistan Penal Code. In 1977, however, the drinking and selling of wine by Muslims was banned in Pakistan and the sentence of imprisonment of six months or a fine of Rs. 5000/-, or both, was provided in that law. Under Prohibition Order these provisions of law were replaced by punishment of eighty (80) stripes for which an ijma of the companions of the Holy Prophet ever since the period of the Second Caliph Umar, was cited.

Under the Zina Ordinance the provisions relating to adultery were replaced as that the women and the man guilty will be flogged, each of them, with hundred stripes, if unmarried. And if they are married they shall be stoned to death. It was argued that the section 497 of the Pakistan Penal Code dealing with the offence of adultery provided certain safeguards to the offender in as much as if the adultery is with the consent or connivance of the husband, no offence of adultery was deemed to have been committed in the eye of law. The wife, under the prevailing law, was also not to be punished as abettor. Islamic law knows no such exception.

The Pakistan Penal Code and the Criminal Procedure Code, were amended [through ordinances in 1980, 1982 and 1986] to declare anything implying disrespect to the Holy Prophet, Ahle Bait (family of the prophet), Sahaba (companion of the prophet) and Sha'ar-i-Islam (Islamic symbols), a cognizable offence, punishable with imprisonment or fine, or with both. Instructions were issued for regular observance of prayers and made arrangements for performing noon prayer (Salat Al Zuhur) in the government and semi-government offices and educational institutions, during office hours, and official functions, and at the airports, railway stations and bus stops. An "Ehtram-i-Ramazan" (reverence for fasting) Ordinance was issued providing that complete sanctity be observed during the Islamic month of Ramazan, including the closure of cinema houses three hours after the Maghreb (sunset) prayers.

By amending the constitution, General Zia also provided the following definition of a Muslim and a non-Muslim: (a) "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophet hood of Mohammed (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed to be a prophet in any sense of the word or of any description, whatsoever, after Mohammed. (b) "Non-Muslim" means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Bhuddist, or Parsi community, a person of the Qadiani Group or the Lahori Group (who call themselves Ahmadis), or a Bahai, or a person belonging to any of the scheduled castes.

Within the framework of Islamization of economy, the National Investment Trust and the Investment Corporation of Pakistan were asked to operate on equity basis instead of interest as of July 1, 1979. Interest-free counters were opened at all the 7,000 branches of the nationalized commercial banks on January 1, 1980. But interes-bearing National Savings Schemes were allowed to operate in parallel. The Zakat and Ushr Ordinance was promulgated on June 20, 1980 to empower the government to deduct 2.5 per cent Zakat annually from mainly interest-bearing savings and shares held in the National Investment Trust, the Investment Corporation of Pakistan and other companies of which the majority of shares are owned by the Muslims. Foreign Exchange Bearer Certificate scheme that offered fixed interest was exempted from the compulsory Zakat deduction. This ordinance drew sharp criticism from the Shia sect which was later exempted from the compulsory deduction of Zakat. Even Sunnis were critical of the compulsory deduction and the way Zakat was distributed.[3]

On December 13, 1980, to the surprise of General Zia, the Federal Shariah Court declared the land reforms of 1972 and 1977 as eminently in consonance with Islamic injunctions.[4] Then the so-called Ulema were brought in who traditionally supported the landlord class. Three Ulema were inducted into the Federal Shariah Court and two into the Shariah Appellate Bench of the Supreme Court which reversed the FSC judgment in 1990. After the imposition of martial law, many landlords were reported to have told their tenants to seek the protection of their benefactor, namely, Bhutto. Thousands of tenants were forcibly evicted from the land in various districts. The martial law regime made it clear that it was not committed to redistributive agrarian policies and described the land reforms as ordinary politics to reward supporters and punish enemies.

General Zia's advice to the deprived and the dispossessed was that "It is not for the employers to provide roti, kapra aur makan (obviously a jibe at Bhutto). It was for God Almighty who is the provider of livelihood to his people. Any increase or decrease in your sustenance comes from Him. Trust in God and He will bestow upon you an abundance of good things in life."[5] Demands for higher wages, better working conditions, social security, old age benefits and compensation for accidents, were no justification for protests and strikes. Industrialists were assured that any kind of industrial unrest resulting from strikes or any other trade union activity would be suppressed. Maximum punishment to the offenders was three years' rigorous imprisonment and/or whipping. On January 2, 1978 police mercilessly killed 19 workers as the management of the Colony Textile Mill in Multan sought assistance from the police in its dispute with the striking workers.

MURDER TRIAL OF BHUTTO [6]

On September 3, 1977, Bhutto was arrested in connection with the 1974 murder of the father of Ahmad Raza Qasuri, a bitter critic of Bhutto. The Lahore High Court began the trial on Oct. 10 and gave its judgment on March 8, 1978. During the court proceedings, Bhutto pleaded several times that the Chief Justice Molvi Mushtaq Ahmad was biased and he would not get a fair trial but General Zia's government ignored all his pleas. In a 134 page unanimous judgment the Lahore High Court concluded: "All the offenses with which the accused are charged are thus proved to the hilt." Therefore, the Chief Justice pronounced conviction of the principal accused, Bhutto and the others under relevant sections of the Pakistan Penal Code and passed death sentence on all the five accused in the trial. On February 6, 1979, in a majority decision, the Supreme Court dismissed the appeal of Bhutto and the others and upheld the unanimous judgment of the Lahore High Court. The main judgment written by the Chief Justice was concurred by three other judges. The dissenting judgments were given separately by two other judges and the third judge agreed with them. Anwarul Haq, the Chief Justice, observed on the question of sentence that: "the facts which had been proved beyond any doubt established that Bhutto used the apparatus of the Government namely, the agency of the Federal Security Force for a political vendetta. This was a diabolical misuse of the instruments of state power as the head of the administration. Instead of safeguarding the life and liberty of the citizens of Pakistan, he set about to destroy a political opponent by using the power of the Federal Security Force, whose Director General occupied a special position under him. Ahmad Raza Kasuri was pursued relentlessly in Islamabad and Lahore until finally his father became the victim of the conspiracy, and Ahmad Raza Kasuri miraculously escaped. The power of the Prime Minister was then used to stifle proper investigation, and after to pressurize Ahmad Raza Kasuri in rejoining the Pakistan People's Party.

In upholding the Lahore High Court Judgment, the majority judgment of the Supreme Court further concluded: "In these circumstances there is absolutely no support for the contention that the present case was politically motivated, or was the result of international conspiracy. The case having been registered almost three years before the ouster of the appellant from power, and a clear indication being available as to the possible identity of assailants not only in the kind of ammunition used in both incidents, but also in the Report of the Shafi-ur Rahman Tribunal, the investigation was deliberately allowed to be stultified. It is, therefore, futile to urge that the prosecution of the appellant is politically motivated, or a result of international conspiracy."

In his dissenting judgment, spread over 441 pages, Justice G. Safdar Shah expressed the view that certain statements of Masood Mahmood (head of the FSF) were in the nature of hearsay and were not admissible as evidence. Secondly, this approver (state witness) was not reliable. Therefore, he concluded that he was convinced that the case had not been proved to the hilt by the prosecution. Accordingly, in his view, the prosecution had failed to prove the existence of a criminal conspiracy between Zulfikar Ali Bhutto and Masood Mahmood. Therefore, he concluded that the prosecution had failed to prove the case against Bhutto and Mian Abbas. and the conviction against them should be set aside. In an independent judgment, disagreeing with the majority opinion, Justice Dorab Patel maintained that neither the existence of a conspiracy between Bhutto and Masood Mahmood could be established, nor could the evidence of Masood Mahmood be accepted, as he was not a reliable witness.

On April 1, 1979, General Zia rejected the mercy petition and the countdown for the execution began. According to General Khalid Mahmud Arif, a close confident of General Zia: "I accompanied General Zia to Karachi to attend a meeting held in Governor's office. Besides the Governor General S.M. Abbasi, it was attended by Major Generals Jahandad Khan and Abdullah Malik and Mahmood Aslam Hayat, all serving in Sindh. They explained the burial arrangements and the security measures proposed for the occasion. It was decided with Governor Abbasi separately that, subject to other considerations, the execution be carried out on April 3, 1979. However, the meteorological forecast for the morning of April 3 indicated that flying conditions would be unfavorable for transporting body by air from Rawalpindi to the place of burial. The execution was, therefore, postponed by twenty-four hours."[7]

Until the trial and hanging of Bhutto, General Zia humored the leaders of the Pakistan National Alliance (PNA). Once that threshold had been crossed he dropped their representatives from his cabinet. The disillusionment of the PNA was complete when Zia canceled the elections which had been set for November 1979. The other PNA parties went into the opposition, eventually joining hands with the PPP in the Movement for the Restoration of Democracy which was formed in February 1981.

19 JUDGES FIRED

The higher judiciary, some of whose key members had collaborated with General Zia over the question of Bhutto's hanging, got a taste of Zia's bitter medicine in March 1981 when the Provisional Constitutional Order (PCO) was promulgated. This was actually an instrument of martial law. The judges were required to swear a new oath under the PCO which in effect abrogated Pakistan's 1973 constitution and replaced it with a rigid code restricting the power of the civil courts. The order declared as void, all court judgments dealing with the legality of the martial law regime. According to the then Chief Justice Anwarul Haq, General Zia's new Provisional Constitutional Order removed the power of the judiciary to decide whether a legislation was valid. Any judge who took the oath bound himself in advance not to question anything contained in the order.