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In the beginning of the takeover, the military leadership was in a position to uphold the 1973 Constitution as the law of the country. But it soon discovered that it was difficult to rule without any hindrance from the courts. In view of this situation, drastic changes were made in the basic law to suit the regime’s ambitious plans.
On March 24, a Provisional Constitutional Order 1981 (PCO) was implemented, which denied the independence of the judiciary, but validated all acts and decisions made by the military government. It also decreed that no act of military government could be challenged in any court.
The nature and implication of this order was very significant as it was through this order that Gen Zia denied the supremacy of the higher courts. All judges of the High Courts and Supreme Court were asked to take a fresh oath of allegiance. In simple words, Gen Zia wanted to get rid of all the judges who did not support him. All articles in the Constitution that related to elections, parliament and fundamental rights were scrapped.
Uncomfortable with the prospect of an independent judiciary, Zia implements Pakistan’s first Provisional Constitutional Order
Article 16 of the Order regarding the powers of the president had been evoked which empowered Gen Zia to amend the Constitution. Through this order, the independence of judiciary was withdrawn and only those judges who would take a fresh oath under the PCO would be considered as judge. It also empowered the military government to be unquestionable by any court as none of its orders could be challenged in any court of law.
The most deplorable point was that the orders of the high courts against the military courts were cancelled while the military courts’ decisions became effective again. Hence, high court decisions became ineffective.
In fact, in the Nusrat Bhutto case, the PCO was the constraint laid down in the decision of the Supreme Court. Through the PCO, the provincial affairs would also be administered by one man and the state became a unitary administration. Discontent with the twin systems of judiciary, i.e. the civilian judiciary and military courts, the provincial governors initiated a judicial bias as they wanted to control the entire province. When Gen Zia asked his two legal advisers A.K. Brohi and Sharifuddin Pirzada, he was advised to remove “the lacuna legally” and hence the PCO was developed.
This was the first time ever that the President and CMLA had issued a PCO in the country. In the past the country had seen martial law governments twice (1958 and 1969) but the judicial system had remained unchanged.
This was the first time ever that the President and CMLA had issued a PCO in the country. In the past the country had seen martial law governments twice (1958 and 1969) but the judicial system had remained unchanged. In both instances, the government employees were dismissed or sent on forced retirement but nothing had changed in the judicial system.
It is believed that Gen Zia either wanted judges of his choice or wanted assurance that the judges realised that now they were required to take a fresh oath to express allegiance to him instead of the constitution, as he was the President and Chief Martial Law Administrator.
He asked the Supreme Judicial Council to report whether the judges had been appointed on political considerations. In fact, he wanted to get rid of the judges who were independent and who judged matters based on fact and law. Clear instructions were given out that, even if they were willing to take oath under the PCO, judges who were not favoured by the government would not be invited to come and take oath. When 19 senior judges of the Supreme Court refused to take oath, Gen Zia terminated their services.
In effect, this was an instrument of the martial law which abrogated the 1973 constitution, replacing the writ of the civil courts. The PCO meant restricting the power and independence of judiciary for deciding whether a certain law was valid or not. By this order, all court judgments dealing with the legality of the martial law government were rendered invalid.
The oath taking ceremony was scheduled on March 25, 1981, a few hours before which, Chief Justice Anwarul Haq who still had one year to stay as Chief Justice, sought a meeting with Gen Zia. At the time, Sharifuddin Pirzada, the minister for law was with the General. During the short meeting, Justice Anwarul Haq told Gen Zia that he could not take oath under the PCO. Zia replied that he would lose his legal advice and reluctantly accepted his resignation, honouring the Justice’s wishes, even though he had been hand-picked by Zia himself as the chief justice. Justice Mohammad Haleem, the senior-most judge was asked to take oath as chief justice.
Other Supreme Court judges who refused to take oath under the PCO were Dorab Patel and Fakhruddin G. Ebrahim. The former said that he was not party to the Supreme Court bench acquitting Bhutto. Chief justice Maulvi Mushtaq Hussain who presided over Bhutto’s verdict at Lahore High Court was willing to take oath under the PCO but was not invited. Those who took oath under PCO were Justices Abdul Qadir Shaikh, Mohammad Haleem, K. I. Chauhan, Aslam Riaz Hussain, Nasim Hassan Shah, Shafiur Rahman, M.A. Zulla, Abdul Hayee Qureshi, Zafar Hussain Mirza, Naimuddin Ahmad, S.A. Nusrat, Ajmal Mian, Mohammad Zahoorul Haq, Sajjad Ali Shah, Ghaus Ali Shah, Tanzilur Rahman, Saeeduz Zaman Siddiqi, M.J. Kaurejo, Nasir Aslam Zahid, K.A. Ghani and Saleem Akhtar.
Those who were not invited or refused to take oath and had to resign were: Justice Dorab Patel, Anwarul Haq, Fakhruddin G. Ebrahim, Maulvi Mushtaq Hussain, Agha Ali Hyder, Abdul Hafeez Memon and G.M. Shah. In a report published in Dawn, on Jan 7, 2008 the former Chief Justice of Pakistan said: “In fact, despite attempts to conceal the events in the Supreme Court, certain proceedings did come to light. Chief Justice Maulvi Mushtaq of the Lahore High Court, who headed the bench of five judges and sentenced Prime Minister Zulfikar Ali Bhutto to death, had fallen out with President Zia.” Despite being elevated to the Supreme Court and ready to take oath, Maulvi Mushtaq was not invited. Justice Dorab Patel also refrained from taking oath despite the fact that he was one of the three judges who had acquitted Bhutto, the other two being Justice Mohammad Haleem and Justice G. Safdar Shah.
It was later known that Gen Zia wanted to have a batch of judges who would not act independently. In fact, the PCO curtailed the jurisdiction of the judiciary and denied the object of judgment.
Some years later, there was another PCO when in 1999 Gen Pervaiz Musharraf overthrew the Nawaz Sharif government and asked the judiciary to take a fresh oath, which also became a disputed issue.
Published in Dawn, Sunday Magazine, May 31st, 2015
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