The other day, I incidentally read a news report that argued that Pervez Musharraf could not be put on trial under Article six of the 1973 constitution since the latter was adopted by the remaining part of an assembly (parliament) elected in a united Pakistan in 1970. Since Pakistan was bifurcated in December 1971, the 1970 elections and the elected parliament lost the logic for their being. Moreover, it argued that, since the 1973 constitution was an ‘act’ of parliament, it cannot be considered a substantively consensual, and hence legitimate and authentic document. Not only this, the report also attempted to make us believe that since ‘authority’ was transferred to Bhutto by General Yahya Khan, who was Chief Martial Law Administrator (CMLA), this power transfer is illegitimate. These questions are very important and need to be addressed empirically and logically since the ontological raison d’état of the Pakistani state is at stake. The following is an effort in this regard.
To begin with, in the wake of popular anger, violent demonstrations and dissidence, even within the military ranks, the institutionally demoralised and politically paralysed military chose to go back to the barracks, rationally. Therefore, on December 20, 1971 (General-President-C-in-C) Yahya Khan was replaced by Zulfikar Ali Bhutto as CMLA and president of the ‘new’ Pakistan. The assumption of these important positions was a product of rational calculus on the part of civilian Bhutto and the military. The former, on account of his electoral success and comparative popularity in new Pakistan, made rational decisions to strategically interact and ally with the military to pursue his party’s political interests. The latter, due to its limited set of choices, also rationally engaged with a politician who was electorally unmatched by any other in the new Pakistan.
Supposedly, had the military, despite its constrained political space, opted for another politician — or bureaucrat and/or judge, for that matter — the socio-political reaction from the PPP-led populace would have been drastic for the military’s long term interests, if not that of the country. Therefore, the arguments that Bhutto was the military’s man, that he was psychologically power-oriented, that he was a power-hungry ‘feudal’ and representative of the feudal class, etc, are empirically unfounded. Had this been the case, Bhutto should not have left Ayub in the political lurch by establishing an anti-establishment political party. Rather, he should have joined hands with Mujib to gain power to pursue personal and/or class interests. Quite to the contrary, Bhutto’s political calculus in the post-election period points to his agency and rationality.
The opposition, especially the National Awami Party (NAP), gave a warning to the civilian martial law regime to restore democracy or face the consequences. Having read the situation, Bhutto was able to reach an accord with Wali Khan, leader of the NAP, and Mufti Mahmood, head of the Jamiat-e-Ulema-e-Islam (JUI) with respect to lifting martial law, forming of governments in the then NWFP and Balochistan on majority principle and issuance of an interim constitution.
As a result of preference-convergence between the PPP and a section of the opposition, Bhutto issued the National Assembly Order 1972 on March 23, 1972. Under the order, the National Assembly (NA) session was called on April 14, 1972, where Bhutto was elected president of the assembly unanimously. Importantly, unlike Bangladesh, where a fresh mandate was given to the Awami League, in Pakistan’s case the situation was quite the opposite. In the latter’s case, Bhutto gave incentives to non-PPP politicians to support his party politically. The opposition politicians, especially from non-Punjab provinces, due to their poor performance in the 1970 elections, preferred to be part of the extra-electoral power allocation. Thus, the interim constitution — under which all the “existing laws were continued in force with necessary adaptations” — was accordingly adopted by the NA on April 20. The following day, martial law was lifted. Subsequently, under the interim arrangements, Bhutto got elected as president of Pakistan. However, the governorship of then NWFP and Balochistan went to NAP/JUI as part of an understanding.
After the formation of civilian governments of NAP-JUI in NWFP and Balochistan, the common man was disenchanted with the PPP and its coalition partners’ politics of confrontation, which was grounded in the difference of preferences towards issues of the economy and society. Since the PPP had an agenda of nationalization, which faced resistance, Bhutto chose to ally with Abdul Qayyum Khan (QML) in April 1972. Consequently, the NAP-JUI governments faced dismissal in February 1973. Reactively, the NAP-JUI government in NWFP (now Khyber Pakhtunkhwa) resigned in protest. In August 1973, the top politicians from Balochistan, Ghaus Bakhsh Bizenjo, Ataullah Mengal and Khair Bakhsh Marri were arrested and put behind bars immediately after the promulgation of the 1973 constitution. President (now Prime Minister) Bhutto was criticised for being a power maximiser and undemocratic.
Earlier, as a result of strategic interaction with the opposition, Bhutto, on April 17, 1972, appointed 25 members, six from the former constitution committee, to negotiate the formal rules of the game in terms of drafting the future constitution of Pakistan. After long rounds of political negotiations between the government and deeply divided opposition, the committee, in October, was able to reach an accord on the basics of the rules. Subsequently, a constitutional bill was moved in the National Assembly on December 30, to the opposition’s disappointment. The latter had found that the bill violated the accord in many respects. Therefore, in order to further press the government on a more democratic constitution, the opposition was able to form an alliance: the United Democratic Front (UDF).
On April 10, 1973, the National Assembly passed the constitution consensually. Indeed, there were not any dissenting votes by all the political parties on the floor but there were a few abstentions (notably from Balochistan). The foregoing should suffice for those who attempt to kill the constitution for being non-consensual. As regards the transfer of authority from Yahya Khan to Bhutto, the simplest reference is Magna Carta. It is the oppressed and the ruled who may sacrifice even their lives for the cause of fundamental human rights. When left with little choice, kings, queens and military dictators had to reconcile. Put differently, if Yahya Khan was a ‘usurper’, should his usurpation not have been questioned by the people, parliament and the judiciary? The same is the case of Pervez Musharraf. To conclude, I found the following verse by Dr Iqbal quite relevant:
“Khud badal’tay nahin, Qur’an ko ba’dal day’te hain” (people do not change themselves, rather they change the Quran).
The Pakistani security establishment is visibly upset. Its reservations are about former ...