Khan’s government set a precedent in key growth areas and expanded the
education levels of the whole country.67 Even a staunch critic like Mahmud recognized Khan’s accomplishments. ‘Nevertheless, the new order did enjoy
political stability and high economic growth for a few years. This prompted
commentators to hail Pakistan as a model of political and economic
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development for newly independent states. But, that was not enough. Persistent
demands for representation, fundamental rights, and democracy continued,
erupting into a popular mass movement by fall of 1968’. 68 Added to this was the growing ‘traditionalist’ resentment at Ayub Khan for his secular lifestyle,
making polygamy illegal and expanding women’s rights with respect to
divorce.69 Resultantly, traditionalists capitalized on cementing his image as unrepresentative of the people’s values and rioting became widespread.
In response to the ongoing protests, rather than negotiate, strong-arm tactics
were employed to eradicate myopic politics. General Ayub had little time to
waste on compromises and conversation, viewing partisan politics as Pakistan’s
main evil. Even to this day, political parties are seen as unrepresentative of
the people and operate as ‘families’, with little concern for the well-being of the
masses.70 Nevertheless, banning them outright was surely not the solution.
Through the Political Party Act, all political parties became illegal. In parti-
cular, this authoritarian decision was directed at the traditionalists in the
Jamaat-i-Islami, and resulted in the pivotal ‘Maudoodi case’.71 This tenacious legal edifice was unable to withstand the various constitutional cases that
were filed against this act. By infringing on the freedom of association, the
military overstepped its powers. In its verdict, the Supreme Court, presided over
by Chief Justice Cornelius, declared the Political Party Act was a violation of
appellant rights by unfairly curbing freedom of association. Interestingly,
Justice Cornelius was the first Catholic to head the Supreme Court of Pakistan
who protected the rights of a ‘traditionalist’ political party with the self-
declared aims of limiting political power minorities could hold. Khan states
that ‘this judgement is one of the most important ones in the constitutional
law of Pakistan upholding the fundamental right of freedom of association. It
gave protection to the political parties against the government that was using
its power arbitrarily to ban them and stifle their activities’.72
Following that judgement, the government’s ability to suppress rioting was
limited. Powerful political protests, organized by the Jamaat-i-Islami, rocked
the country, demanding ‘Islam’ – without specifying what that meant. Conflict
between the traditionalists and the secularists was exacerbating political
instability, with the former demanding the resignation of the secularist General
Ayub Khan. This precarious situation was further inflamed by growing dis-
satisfaction with the concentration of wealth in the hands of a few, rising
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student protests, and political rallies that were culminating in harsh government
repression.73 Collectively, this led to a total breakdown.
By 1968, a total of 45 politicians had been incarcerated.74 And, as repression increased, so did opposition to Ayub Khan’s leadership, who had this
to say:
my system unfortunately broke down at the pyramid level. When the
Provincial and Central Assemblies were formed and if they could run
politics without the party system, it could have worked. But unfortunately
it is not possible. I was perhaps trying to lay down rules for a game,
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125
which is too old now to change its rules. But I wish to God they had
listened to me.75
Notwithstanding his sincerity, his inability to lead was a consequence of his
distance from his people. And rather than blame partisan politics, ideology is
a prime factor motivating each toward their agenda. By virtue of there being
no agreeable, coherent ideology guiding the political parties, they clash. Finally,
political parties, especially the Jamaat-i-Islami, cooperated with elements of
the military to coerce Ayub Khan to relinquish power.
The political vacuum that erupted with Ayub’s resignation created
chaos throughout both wings of Pakistan. Of particular importance was the
threatening political climate in East Pakistan. With the future uncertain, the
traditionalists began fearing a communist takeover in East Pakistan and
organized several processions to warn the population. ‘The leader of the
Jamaat-i-Islami, Mawlana Maudoodi, said the “tongues of those who speak
of communism will be torn out.” In response, Bhashani, a secularist Bengali,
said, “the house of religious fanatics will be burned”’.76 Clearly, both the traditionalists and secularists were creating confusion and havoc throughout
the country with antagonistic jingoism. At this point, the Army Chief General
Yahya Khan was in power and immediately placed the country under martial
law. He announced the abrogation of the constitution and dissolved the
National Assembly.77 Soon thereafter, General Yahya Khan prepared for new elections.
The 1970 Elections and the Rise of Zulfiqar Bhutto
The 1970 elections were the first in Pakistan to be conducted on the basis of
universal adult franchise, and were generally regarded as fair, free and with-
out violence.78 The results of the election were indisputable. No party won significant representation outside their geographical origins and this state of
affairs continues today. ‘In West Pakistan, the People’s Party of Pakistan led
by Zulfiqar Ali Bhutto had won the majority with 81 seats. In East Pakistan,
Mujibur Rahman of the Awami League had guaranteed all but one seat for a
total of 151’.79 Clearly, the Awami League had the official mandate to form the next government, but the political and military leadership in West Pakistan
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was unwilling to concede power. There was a continuous postponement of
reconvening the National Assembly, which, eventually, led to constitutional
breakdown. Here Mahmud places sole culpability on the army,80 while Newberg suggests that both the army and Bhutto were responsible. By the writ of
the law, the Awami League and Mujibur Rahman should have controlled the
central government, but neither Bhutto nor the military were willing to concede
without a fight.81 Khan claims, persuasively, that Bhutto recognized the futility of Pakistan’s current geography and aspired to be the sole leader of West
Pakistan.82 Jennings, too, argues that it is clear that Bhutto did not want to relinquish control of the country and his selfishness led to civil war.83
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Following his electoral victory, Mujibur Rahman and the Awami League
emphasized the infamous ‘Six Points’ – which aimed for maximum autonomy,
a paramilitary force based in Dacca and a certain level of financial indepen-
dence for East Pakistan.84 Tragically, these points,
many of which were legitimate, were dismissed outright by many political and military elites in West
Pakistan. Comprehending the distinction between maintaining ‘togetherness’
and enforcing ‘sameness’ was far from them. In their minds, there could be no
compromise to the ‘unity’ of Pakistan. Consequently, the shuttle diplomacy
initiated by General Yahya Khan was in vain, since the distrustful political
atmosphere obviated conciliation. His attempt to convince Mujibur Rahman
to adopt a conciliatory approach merely delayed the inevitable. It did not help
matters that Zulfiqar Bhutto was becoming increasingly vocal about his fears
of Pakistan splintering, especially if the Awami League was given power.
Irresponsibly, he openly invited the military to intervene and protect the
country’s territorial integrity. These perceptions were forcing the political and
military establishment in West Pakistan to become increasingly intolerant of
the Awami League leadership. Eventually, mass rioting became pervasive and,
in response, the Army initiated a brutal crackdown. The ensuing civil war and
the coordinated attack by the Indian army sealed Pakistan’s fate, thereby
creating the new state of Bangladesh.
By disenfranchising the people of East Pakistan, rejecting serious discussions
with the representatives of the Awami League and using violence to impose
order, the federation of Pakistan fractured. Founded as a homeland for
diverse Muslims, with equal opportunity, Pakistan had become a battlefield of
competing nationalities vying for power. The mutual mistrust and personal
ambitions of the secularist, regional forces of Bhutto and Rahman spelled dis-
aster for the country. It is for this reason, perhaps, that General Zia insisted,
‘take Islam out of Pakistan and make it a secular state; it would collapse’. 85
Also, without a ‘coherent ideology’, mutually agreeable to all peoples in the
federation of Pakistan, it was only a matter of time before the country would
fracture into two sovereign states.86 This separation was a devastating event, draining the country both economically and morally. The constitutional issues
were forever dramatically altered. For Bhutto, the new events catapulted him
onto centre stage, since he was now the majority leader. Later, he became the
Chief Martial Law Administrator and the President, and then quickly began
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developing a new constitution with two primary concerns – protection of his
political power and the role of Islam in the state.87 Note, that secularists and traditionalists were vigorously manipulating the role of Islam in the state. Yet
prior to detailing Bhutto’s method of constitution making, another important
constitutional development took place in the Asma Jilani case.
The Asma Jilani case
During the initial years of Bhutto’s governance of a truncated Pakistan, a
constitutional case came to the forefront of the judiciary’s agenda – the Asma
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127
Jilani case.88 Although heard in 1972, this case referred to General Ayub Khan’s action in 1969 when he transferred power to General Yahya Khan.
Specifically, this case revoked the Dosso case, stating that any military seizure
of power was illegal and treasonous. The court took a robust position in
protecting Pakistan’s constitution by prescribing exemplary punishment for
those who tried to supersede it. ‘That on account of his holding the coercive
apparatus of the State, the people and the courts are silenced temporarily, but
let it be laid down firmly that the order which the usurper imposes will
remain illegal and courts will not recognize its rule and act upon them as de
jure. As soon as the first opportunity arises, when the coercive apparatus falls
from the hands of the usurper, he should be tried for high treason and
suitably punished. This alone will serve as a deterrent to would be adven-
turers’.89 However, with all the hoopla surrounding this case, it reneged on its principled position and legitimised Bhutto’s political leadership as an act of
‘implied mandate’.
Having overturned the Dosso case, and confronted with limitations on the
application of the ‘doctrine of necessity’, the court employed the doctrine of
‘implied mandate’ first enunciated by Hugo Grotius. According to Grotius,
courts may validate certain necessary acts of a usurper done in the interest of
preserving the state, because the lawful sovereign would also want these acts
to be undertaken.90 The implied mandate placed limitations on military seizure of political power, mandating that elections be held, but was vague on
a specific time frame. Clearly, the courts took a favourable attitude toward
Bhutto’s government, following the war and secession of East Pakistan.
Overall, then, the judgement was meaningless at it seemed to close the door
to unlawful usurpation of power, then opened another under the guise of
‘implied mandate’.
The constitution of 1973
Following the judicial sanction of his authority, Bhutto quickly began the
task of constitution making. In 1973 a constitution was formed, ‘with the
consensus of all the political parties in the National Assembly. It contained
280 articles divided into 12 parts and six schedules’.91 Paralleling the previous constitutions of 1956 and 1962, it provided for the ‘Fundamental Rights’ of
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citizens. Moreover, it asserted that if any existing law, custom, or usage which
had the force of law contravened any provision of those fundamental rights, it
would be void … no authority in Pakistan … was competent to make any law,
regulation, or any order which might be repugnant to any of its provisions.92
And the judiciary was given power to enforce these fundamental rights and
decide if a law was repugnant to any of these provisions.
Specifically, two characteristics in the 1973 Constitution stand out as ideo-
logical considerations: (1) Principles of Policy and (2) Islamic Provisions. 93
Both sections were interrelated, but it is interesting to note the difficulties in
negotiations during its formation. First, the Principles of Policy was made to
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ensure ‘the responsibility of each organ and authority of the state and those
performing functions under them to act in accordance with those princi-
ples’.94 Again, those principles included that no law should be enacted which is repugnant to Islamic injunctions as laid down in the Holy Qur’an and the
Prophetic sayings.95 Additionally, the State should endeavour to facilitate the learning of Arabic, to promote observance of Islamic moral standards, and to
secure the proper organization of mosques and encourage international
Muslim unity. Overall, it sought to stabilize society through an enlightened
rendering of Islamic law – or a revivalist approach. For instance, the tradi-
tionalists did not, initially, support the inclusion of full rights for women’s
participation in public life. Yet, the constitution-makers decided that
approach poorly reflected the Islamic message and disregarded those objec-
tions. Similarly, secularists did not endorse seeking legitimacy by referring to
Islam. That stance, too, was unheeded by the constitution-makers, who
revealed the necessity of rationalizing authority and legitimacy in Islamic
values. Clearly, the Principles of Policy emanate from a revivalist ideological
approach that attempts to contextualize the ‘foundational’ values of Islamic
political culture.
Second, the Islamic Provisions in the 1973 Constitution section reaffirmed
Islam as the state religion of Pakistan, acknowledged diversity of religious
thought and established the ‘Council of Islamic Ideology’ that would make
recommendations to bring existing laws into conformity with Islamic injunctions.
The Council was also to advise on those injunctions requiring legislation.
This part of the constitution, along with the Principles of Policy section,
aimed to securely anchor Pakistan between ideological extremes. In fact, it
embodied the best possible arrangement to accommodate the various political
parties, their demands, economic interests, and ideological manifestos … 96
Specifically, it appeased the traditionalists by Article 2 that declares Islam the
state religion. Simultaneously, it placated secularists with Article 15, which
elevates freedom of speech and expression. By balancing these ideological
extremes, this constitution addressed a key factor in political instability.
However, its chronic manipulation by numerous amendments, and the inability
of politicians to abide by its writ and spirit, exacerbated political tensions.
The scourge of constitutional amendments
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Prior to the inauguration of the 1973 Constitution, Bhutto attempted to abrogate
it, and this would eventually become possible through a rendering of ‘implied
mandate’. Specifically, Part I, Section 7 of the 1973 Constitution stated that any abrogation of the constitution was considered high treason. 97 Yet the writ of law was not enough to prohibit political opportunism. With the insertion
of ‘implied mandate’, usurpation of power was possible. Actually, from that
point until now there have been 20 constitutional amendments. 98 And the principles of accountability, pluralism and fundamental rights have all been
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