The constitutional declaration is a good statutory exercise but it is the people and their representatives who make constitutions secure and workable. And the appointment of the army chief should be for a fixed term, made on the basis of seniority and merit. That is the lesson we learn with reference to the end of Z.A. Bhutto regime.
When General Musharraf, the favourite choice of Nawaz Sharif, declared his military coup, many political leaders including Benazir Bhutto welcomed it. This does not speak well for the democratic convictions of the politicians. At the time the mood of apprehension about the government was quite palpable and army's corps commander would have been aware of the situation.
One could argue, therefore, that it was the duty of the opposition to stand up to Mr Sharif's 'heavy mandate' and use all the tools in the process to make democracy work, instead of looking for a saviour. Opinions about the coup were divided but it was greeted in many quarters.
In fact, in each of the four martial laws in the country, the army chief not only had corps commanders on his side, but he knew that there would be no street demonstrations against him.
The period around the 1977 general elections held by Z.A. Bhutto was full of uncertainty concerning national security. The opposition parties were demanding that because of large-scale irregularities which had taken place in the 1977 elections, new elections should be held in the country.
Mr Bhutto's refusal to acknowledge these irregularities increased hostility in the opposition, demonstrated by rioting in various cities. Opposition leaders were also demanding a share in the interim government to make sure for free and fair elections.
In order to resolve the stalemate, the senior leaders of the PPP advised Mr Bhutto in favour of new elections. They must have sensed what was generally believed that the opposition, especially, the religious parties, might have gained popularity but would still fail to win at the ballot box and beat the historical trend.
After what felt like considerable delay, Mr Bhutto did agree to hold new elections, but it was too late.
The chances of Mr Bhutto accepting the original advice from his PPP colleagues were rather slim. As Lawrence Ziring says, he was not committed to PPP; it was only a vehicle for success and source of legitimacy. And he had combined the chairmanship of the party with his office as prime minister.
And he also kept complete control over government institutions. One could add that it was a civilian government with a faÃ§ade of democracy. Under the circumstances, opposition had strong suspicions about the autonomy of the election commission.
For an effective parliamentary government, then, it is not enough to hold general elections for candidates chosen by the self-appointed leaders, who would impose party discipline on the respective parliamentarians and claim to be democratic. More appropriately, it would be called oligarchy. In order, therefore, to practise democracy, some democratic habits are necessary. They would include promoting intra-party elections held regularly in open conventions, on fixed dates. And they would include keeping the office of the chairman of the party strictly separate from the senior administrative office such as that of prime minister and president.
If Mr Bhutto had kept rapport with his party hierarchy, it is possible that a consensus would have developed about how to deal with the political stalemate. The problem was that he had alienated the industrialists, the landed aristocracy with a few exceptions, the labour organisations, and certainly, the bureaucracy and the army.
The political analysts have emphasised that scepticism about Bhutto in the army had started first among the junior officers and then moved up to senior officers, that he should not be trusted; that he was behind the loss of East Pakistan; now he could cause the loss of whole of Pakistan.
Against this background, Ziaul Haq, the army chief of his choice, told him that the game was over. The denouement after declaration of martial law followed at a rapid speed, from resurrecting 1974 FIR of Ahmed Raza Kasuri, to trial at Lahore High Court, to the ritual of appeal at the Supreme Court, to death penalty. This fast-moving scenario must have a plot, it is fair to assume.
Stanley Wolpert, Bhutto's biographer, is of the view that the plot to remove Bhutto not only from office but from the world was hatched in Zia's brain. This is a plausible hypothesis, because as Ziring suggests, Ziaul Haq took the initiative as soon as he had made sure about support from his corps commanders. Behind his ingratiating demeanour he must have disliked Bhutto's arrogance towards him.
History also repeated itself martial law was greeted with relief in many quarters. (The constitutional guarantee-wallahs need to make note).
Much has been written about this episode. My purpose in this article is to focus on how religion and politics have been mixed by those in powers to suit their objectives. This is in line with my theme that I have developed in my previous articles (see for example, Religious orthodoxy in Bhutto era, Encounter, July 18, 2010).
The controversial but a popular leader, and an elected prime minister, deserved a fair trial, corresponding to the dignity of the office, to do justice to him, and that seemed to be done. In light of these criteria, it was a farce, initiated by Maulvi Mushtaq Hussain, Chief Justice of Lahore High Court, and affirmed by Justice Anwarul Haq, Chief Justice of Pakistan.
There were really no court proceedings in Lahore High Court; it was a theatre, to insult and humiliate Bhutto. The reviewers point out that Maulvi Sahib hated Bhutto. That may be so, but perhaps Chief Justice had higher mission in mind. The other two judges involved in the case took advantage of the Provisional Constitutional Order 1981 and opted for retirement.
Chief Justice of Supreme Court in reviewing the judgment of the Lahore court acknowledged that some of the orders 'may not have been correct from the strict view of the law', but these were 'mere' errors. The gratuitous observations of the High Court (i.e. Muslim only in name; a consummate liar, etc) were expunged, as if this act by itself would clear the misdemeanours of Lahore High Court especially when it had considered them as important part of its judgment.
But there was another drama unfolding relevant to the matter under discussion. In December 1978, Ziaul Haq had announced his plan for Nizam-i-Mustafa. On February 2, 1979 Nizam-i-Mustafa was imposed, which included Zakat, Ushr, Hudood Ordinances, as well as Qazi Courts and Shariat Courts. An essential feature of the Nizam-i-Mustafa was missing from this list, qisas and diyat. As Tahir Wasti, a well-known legal scholar says in his recent book (The Application of Islamic Criminal Law in Pakistan), this omission was deliberate and was mainly because Zia knew that he could not hang Bhutto by using the Sharia Law. There was no place in the Sharia Law for the approver, i.e. Masood Mehmood, the man from Bhutto's FSF, in the 1974 shooting incident. This was a blatant example of mixing religion with politics.
Both qisas and diyat belong to the pre-modern times and should be dispensed with. The motives for not implementing them by General Zia, however, were based on political expediency. The tragedy is that Benazir Bhutto, a self- proclaimed modern Muslim, implemented this archaic instrument of criminal law for political reasons, and it was finally passed as law under Nawaz Sharif.
Nizam-i-Mustafa of Ziaul Haq has nothing at all to do with the objective of establishing an Islamic State, as defined by the 1951 Manifesto of 22 ulema prepared under the chairmanship of Sayyid Sulaiman Nadavi.
If Zia had pursued this goal, he would have become unemployed. After all, in the Islamic state, a pious Muslim male is selected by a college of pious Muslim males to become Head of the state. It is doubtful if the clergy would have put their trust in Ziaul Haq in this regard.
The writer is a retired professor.