There’s an old English saying, a stitch in time saves nine.
Franklin D. Roosevelt rose to power in the United States in 1933, before the end of the great depression. He promised a ‘new deal’, to reform and recover the severely strained American economy.
In a political battle of wills, the Supreme Court passed legislation after legislation, which regulated the economy that was in violation of the constitutional guarantee of freedom to contract. Then the executive and the legislative teamed up and a radical proposal of court-packing was followed. Court-packing meant that the composition of the Supreme Court would be increased from nine to fifteen, the six new judges would of course be appointed by the leading political party. The prestige and integrity of the court were under threat; transforming the conservative majority into a liberal one. The judiciary had to take a bow to save it from disgrace, the New Deal succeeded, and Roosevelt remained President for twelve years. The West Coal decision gave birth to the English saying, the switch in time that saved the nine.
Roosevelt was the longest serving President of the United States, and died in office not ready to give up power. General Zia-ul-Haq was the longest serving President of Pakistan, and died in office not ready to give up power. However, the parallels between the two run deeper than this.
In 1979, General Zia passed the Provisional Constitution Second Amendment Order; Article 212 — A, was added to the constitution, under which special military courts were established. These courts had tremendous power as they could punish any perceived enemy of the state and the military. The courts were only answerable to the Chief Martial Law Administrator and no one besides him could interfere with their proceedings. Zia had publicly lambasted the judiciary, which had subserviently served him until then. He declared that the civilian courts were unable to provide justice therefore, military courts were the need of the hour to serve expeditious and quick justice.
Chief Justice Maulvi Mushtaq who had helped Zia in not only legitimising his regime but also had convicted Zulfikar Ali Bhutto and partaken in the judicial victimisation of Zia’s opponent, was transferred as a temporary judge of the Supreme Court. He was forcibly removed and locked out of his office
Constitutional challenges arose in Balochistan and Lahore High Courts. In Balochistan, Chief Justice Mir Khuda Baksh Marri, stayed the executions of a few convicts who had been sentenced by the military courts. Upon hearing this, the Martial Law Administration ordered them to be executed regardless of the stay order. The Balochistan High Court on being informed of this development gave new orders warning the jail authorities to obey them, lest the officers be charged with contempt of court and premeditated murder. After this new threat, the jail authorities deferred to the orders of the Balochistan High Court.
Then came the switch in time, albeit anti-thetical to its American counterpart. While the hearing for the matter was going on in the Lahore High Court, Chief Justice Maulvi Mushtaq who had helped Zia in not only legitimising his regime but also had convicted Zulfikar Ali Bhutto and partaken in the judicial victimisation of Zia’s opponent, was transferred as a temporary judge of the Supreme Court. He was forcibly removed and locked out of his office and his arch-nemesis Justice Shamim Qadri, a radical Islamist, was appointed in his place as the new Chief Justice.
After accumulating state muscle power, Zia passed the Provisional Constitutional Order of 1981. This required all judges of the superior courts to take oath on the PCO. However, there was a clause, under which the President could reserve the right to not let any judge take the oath.
Lists were drawn up, and judges that had dared to stand up to the martial law authorities were kicked out of office. This included Chief Justice Mir Khuda Baksh Marri of the Balochistan High Court. Surprisingly enough, some loyalist judges were also not allowed to take the oath including Justice Maulvi Mushtaq. The Chief Justice of Pakistan, Maulvi Anwar-ul-Haq, who had initially recommended Justice Mushtaq to General Zia for the position, tried unsuccessfully to convince Zia to allow Justice Mushtaq to take the oath. The general refused to comply with this request and then proceeded to remove Justice Haq’s name from the list of judges that were allowed to take the oath.
The two judges that had gone out of their way to please martial law authorities, going as far as to order Bhutto’s execution, had been left humiliated. Senior lawyer Hamid Khan wrote in his book after meeting one of the finest judges of Pakistan, Justice Cornelius, saying that the judicial proceedings had been violated beyond measure.
The US Supreme Court made the switch in time that saved the nine. Pakistani judges did not make the switch in time and when they finally decided to, it was too late. If the same judges that were publicly humiliated and removed, had taken a stand against legitimizing the coup of July 5, the fate that they had suffered might have been avoided.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law
Published in Daily Times, August 30th 2018.