CIVIL-MILITARY RELATIONS IN PAKISTAN AND THE ROLE OF JUDICIARY (1977-1999)

Abstract

This thesis examines civil-military relations in Pakistan and the role played by the judiciary whenever bitterness occurs in their relations. The study begins from 1977 when the state was placed under martial law despite constitutional safeguards against such moves. All arbitrary attacks on the elected government, either through a direct military takeover or through the president who was bestowed with sweeping powers under constitutional amendment of Zia era, have also proved fatal for judiciary despite the court’s willingness to support the takeover. The independence of judiciary was assaulted by employing different tactics such as by appointing likeminded judges, setting up of a separate hierarchy of courts and bringing amendments to the constitution for curtailing its jurisdiction. Both General Zia and General Musharraf asked the judges to take fresh vote of their offices under a special order and the refusal of which culminated into the latter’s forced retirement. The military would then put in place a coalition set up consisting of politicians, business elites and local bodies representatives … all willing to support the military junta. Reference may be made to the political set up based on a power sharing formula which General Ziaul Haq brought to the force in March 1985. The basis of this power sharing arrangement was the erstwhile Eighth Constitutional Amendment passed by a rubber stamp parliament in 1985. Through this amendment, the military had chalked out a parameter within which the civilian set up was to operate. The 8th Amendment had a devastating effect particularly its Article 58(2)(b). General Ziaul Haq’s removal of Muhammad Khan Junejo from office was under this Article. When the arbitrary action was challenged, the Supreme Court sided with the General even though the latter was in the next world at the time of Court judgement. Though the military rule ended in August 1988, it left behind a new pattern of civil-military relations under the 8th Constitutional Amendment, wherein Article 58(2)(b) served as a safety valve against direct military intervention. In the post Ziaul Haq era, the military opted to exercise an indirect influence on the fate of a setting elected government. The successive elected governments faced legitimacy crisis in 1990s and their attempt to assert authority would be foiled because of the agenda set - forth for them by the military in mid 1980s. There are instances to suggest that the military commanders and the President of Pakistan had acted in unanimity for dislodging three civilian governments one after another in 1990, 1993 and 1996. The arbitrary action of both Ghulam Ishaq Khan and Sardar Farooq Ahmad Khan Leghari as presidents, were not entirely free of military influence. To keep their hold over national politics, the military adopted a two-fold strategy i.e., get a political set-up dismantled through the exercise of power under 58(2)(b) by the president and, alternatively, to topple the government directly as was the case in October 1999. On each occasion of arbitrary action for a governmental change - either through a military takeover or the presidential power under the constitution, the judiciary was found willing to validate the action based on one or another doctrine.