Zia’s Operation Fairplay’

D uring the night between 4 and 5 july, the armed forces

led by Army Chief General Muhammad Zia-ul-Haq, took
over the administration of the country. Bhutto, his cabinat
colleagues, and top PNA leaders were placed under
‘protective custody’. The National and Provincial
Assemblies were dissolved, and Martial law was imposed
throughout the country. In his broadcast to the nation over
radio and television on 5 july, zia said that he had faith in
democracy and that election would be held in ninety days
and power would be transferred to the elected
representatives of the people. However, all political
activities were banned till further orders.

Having assumed the office of chief Martial law

Administrator (CMLA), Zia announced that he wanted to
make it absolutey clear’ that he neither had any political
ambitions nor did the army want to be detracted from the
profession of soldiering. He said that he was obliged to
step into fill the vacuum created by the political leaders
and accepted this challenge as a true ‘ soldier of islam. He
promised fair pools and free and transfer of power to the
elected representatives of the people. In the next three
months, my total attention will be concentrated on holding
the elections and I would not be like to desipate my powers
and energies as Chief Martial Law Administrator on
anything else. He said that the tension created during the
political confrontation in the countryand the mutual
distrustbetween the PPP and the PNA had made the
prospects of political compromise impossible. At the end of
his address, he said that what was to become his
justification to remain in the power in the years to come:
To conclude, I must say that the spirit of islam
demonstrated during the recent movement was
commendable. It proves that Pakistan, which was created in
the name of islam. That is why , I consider the introduction
of Islamic system as an essential pre-requesties for the
country.

The operation of taking over the countryby armed forces

was code-named “operation fairplay”. President Chaudary
Fazal Elahi whose term was to expire in august 1978, was
to allowed to continue after Zia had meeting with him on
5th july. He also met the Chief Justice of Pakistan. The
governer of the provinces had also ceased to hold office
and, in their places, the chief justice of all four provinces
were taken as acting governer of their prospective
provinces.

CONSTITUTION SUSPENDED AND

LAWS (CONTINUANCE IN FORCE)
ORDER, 1977, PROMULGATED

Unlike the previous two proclamations of Martial Law, the

constitution was not abrogated but was only held in
abeyance. However, like the 1958 martial law, laws order
1977 was promulgatedto administrator the affairs of the
country. It repeated the expression used in the law order
1958 and provisional constitution order, 1969 that Pakistan
shall, subject to this order and any order made by the
president and any regulation made by the (CMLA) be
governed as nearly as may be, in accordance with the
constitution. The courts were allowed to function but
powers of the supreme court and the high courts to issue
writs under jurisdiction were suspended. This was
sweeping denial of jurisdiction except against the CMLA or
an MLA or any person exercising powers or jurisdiction
under the authority of either.
The fundamental rights under the 1973 constitution and all
proceding pending in the courts regardingthier enforcement
were suspended. No court, tribunal, or other authority could
call or permit to be called in question of proclamation of
martial law or any order, ordinance or martial law order, all
laws other than constitution. All person who were in the
servise of govt of Pakistan were allowed to continue on the
same term and conditions and to enjoy the same previlige.

ZIA’S DIFFERENCES WITH BHUTTO

It appears that, in the beginning, zia was not hostile towards

Bhutto. In fact, was so closely associated with Bhutto that
some leaders of PNA suspected that the imposition of
martial law might be bhutto’s move to frustrate the PNA
movement to back out of the settlement reached with them.
After all, zia had every reason to be beholden to Bhutto
because he had been appointed Army chief of staff
supersiding seven or eight senior leutinent generals. Earlier
utterances by zia soon after the imposition of martial law
also reflected his respect and admiration for Bhutto. While
addressing a press conference on 14 july 1977, he referred
to his three telephonic conversation with Bhutto since 5th
july and said that he was ‘quiet happy and enjoying life’.
He also said that he would be releasing Bhutto and other
PPP leaders soon and that he would meet him before then.
He reiterated that he had lmited aims before him and wuld
stay for ninety days of which eight had already passed. The
military council, he said, had decidednot to take any action
against any politition even if there was certianley about
their misdeeds. He sid it was for the peoples representatives
to decide about such action against anyone.
On 15th july , he visited Bhutto and Mufti Mahmood in
murree.’ It seems that this meeting change the relationship
between the two. Nothing is recorded about what transpired
between them during this meeting but there are several
speculations about the disscusion between the two. It is also
believed that Bhutto was rude and insulting in that meeting
which shook the latter very much and he returned sour and
worried.
The murder of nawab Muhammad ahmad khan happened
on the nightof 10 november 1974. in the first information
report (FIR)to the police mr kasuri alleged that he was the
target and his fatherhad been shot by mistake. When asked
the name of the accused, he said “zulfiqar ali Bhutto”. On
his insistence, the police wrote bhutto’s name as the
accused in the FIR.
On 28th july1977, Bhutto, mufti muhmood and other
leaders in ‘protective custody’ were released. On 29th july,
Bhutto addreesing party workers in Islamabad said that he
would work within the bounds of the existing laws and
martial law regulation in the larger interst of the countery.
Limited political activity had been allowed from 1st aug and
on 2nd aug 1977, the date for election to the national and
provincial assemblies was announced to be 18 oct. Bhutto
lauched the election campaign of the PPP and toured
multan, Lahore, Karachi, and Peshawar. Everywhere, he
was received by large enthusiastic crowds. After the
imposition of martial law, the family members of ahmad
raza had revived the murder case of nawab muhamad
ahmad khan. They lodged a criminal complaint, hearing of
which was being held by anadditional sessions judge in
Lahore. The murder complaint was transferred to the
Lahore high court on 27th aug and the court was informed
that the state would presnt a challan against bhuttoby 29th
august. Now the martial law regime had come out openly
against Bhutto.
On 3rd September 1977, Bhutto was arrested from his
residence in Karachi, flown to Lahore, and remanded to
police custody in Lahore on charges relatingto the murder
of Ahmad Raza’s father. After the grant of bail Bhutto went
to leghari house in Lahore, where he addreesed party
workers. He made an extremely belligerent and bellicose
speech against the military junta, using threatening words
against zia and his military colleagues. It appear that his
success his obtaining bail lured him into further
confrontation with the military and he was clearly carried
away by favorable response from the crowdpresent at the
occasion.

WITHDRAWAL OF THE FIFTH AND

SIXTH AMENDMENT :-
Since zia and his junta
had decided to stay in power and postpone elections by the
third week of September. They needed to exercise wide and
sweeping powers. Nusrat Bhutto had moved the supreme
court against the detention of Bhutto in its original
jurisdiction for enforcement of fundamental rights under
the constitution. The matter came up for hearing for the
first time on 20 sep 1977, when justice Muhammad yakub
ali as the chief justice,presided the court. The court orderd
the admission of the petation and the immediate transfer of
Bhutto and other accused to the rawalpendi and adjourned
the case to 25 september 1977. the other judges of the court
obviously concurred with the decision. The military janta
must have sensed that the chief justice was not going to
play their game. Zia retaliated through CMLA’s order
number 6 of 1977 issued on 22 septembr, which amended
Article 2 of Laws (continuance in force)order 1977, the
effect of which was that the term ‘constitution’ was to be
construed as if Article 179,195, and 199 of the constitution
had not been amended by any of the Acts amending it. It
was also provided that an incumbent in any office who
would have retired from office in the absence of an
amendment to the constitution, would cease to hold office
forthwith. In other words, by a CMLA’s order, the
constitution was amended so that the fifth and sixth
amendments incorporated there in were withdrawn and the
provision for a chief justice to serve his term of office after
reaching age of retirement was set at nought. The result of
this amendment was that Chief justice yakub ali, who had
crossed the age of the retirement, ceased the whole office.
Justice Anwar-ul-haq assumed office in his place.
This was the first act on the part of the CMLA to amend the
1973 constitution, while it was still being held in abeyance,
to accomplish his immediate objective. The effect was the
removal of the chief justice of Pakistan and when his
successor took office as a result of the CMLA order and the
supreme court accepted this transition not only was the
immediate goal of getting rid of justice yakub ali achived
but the supreme court’s submission to the power of the
CMLA was also established.

THE NUSRAT BHUTTO CASE:-

When the supreme court re-assembled on 25 september,
justice Anwar-ul-Haq had taken over as chief justice, the
order passed on 20 september 1977, according to which
Bhutto and others were to be transferred to rawalpendi was,
of course, never complied with. The case was heared by a
full bench of of the supreme court of Pakistan or, rather, a
full court consisting of nine judges. The hearing ended on
1st nov 1977. yahya bakhtiar counsel for the petitioner,
nusrat Bhutto , relied mainly on Asma Jailani’s case and
contended that zia, Chief of Army Staff, had no authority
under the 1973 Constitution to impose Martial Law in the
country; that this intervention amounted to an act of treason
in term of Article 6 of the constitution; that as a
consequence, the proclamation of martial law dated 5 th july
1977 was without lawful authority, the laws order 1977 as
well as Martial Law Order Number 12 under which Bhutto
and his Colleague were detained were illegal and without
lawful authority.
A.K Brohi, council for fedration of Pakistan raised two
prelimanry objections to the maintanibility of the petation.
He contended that the writ was directly against the chief of
army staff. Whereas the order of detention had been passed
by the Chief Martial Law Administrator; and the petitioner
was not agrrevied person in term of article 184(3) of thwe
constitution read with Article 199, therefore , as she was
not alleged any allegation for her own fundamental rights.
But only the detonus. He further submitted that the supreme
court had no jurisdiction to grant any relief in the matter
ownig to the prohabitation contained in the laws order,
1977, which consisting o nine judges. The hearing ended
on 1st nov 1977. Yahya Bakhtiar consil for petioner , begum
nusrat Bhutto relied mainly on asma jilani’s case and
contended that zia , chief of army staff, had no authority
under the 1973 constitution to impose martial law in the
country.; tha this intervention amounted to an act of treason
in term of articl 6 of the constitution ; that as the
consequences, the proclamation of martial law dated 5th
july 1977 was clearly contemplated that no court, including
the high court and supreme court, could question the
validityof any martial law order or regulation or any other
order made their under by a martial law authority.
Sharifuddin Perzada, the newly appointed Attorney General
of the millatery regime, appearing as ‘laws officer’ of the
court had supported Brohi’s submission that the change
which we had taken place in Pakistan on 5th july 1977did
not amount to the usurpation of state powers by the chief of
army staff but was , in fact iontended to oust the usurper
who had illigaly assumed powers as a result of massive
rigging of election results on 7march 1977. it was he
argued also intended to displace the illegally constituted
legislative assemblies both at the center and in the
provinces as a majority of successed by curropt and
criminal practices that the present situation was not covered
by the dicta of supreme court in the well known cases of
dosso and asma jilani for the reason of circumstances were
radically different where change brought about by military
intervention was of a permanent nature.
The chief justice held that the controversy in the case must
processed on the assumption that the 1973 Constitution
had been validity framed was in when chief of army staff
proclaimed by brohi and no application to a situation where
the breach of legal continuity is admitted or declared to be
a purely temprory nature and for a specified limited
purpose. Such a phenomenon could more appropriately be
described as one of constitutional devitation rather than
resolution. It would be indeed highly inappropriate to apply
kelson’s theory to such a transient and limited change in the
legal or constitutional continuity. Accordingly, no
justification had been made for resurrecting Dosso’s case
in supersession of the view adopted by the court. The chief
justice took judicial notice of the following facts:-
1:That forms the evening of 7 march 1977, there were
wide spread allegation of massive official interference with
the sanctity of the ballot of the favour of the candidates of
the Pakistan people party.
 2: That these, allegations, amounting almost to widespread
belief among the people, generated a national view of
resentment and give birth to a protest agitation which soon
spread from Karachi to Khyber and assumed serious
prepositions.
3: That the disturbances result’s from his movement were
beyond the control of civil armed force.
4: That the disturbances results in heavy loss of life and
property through out the country.
5: That even the calling out of the troops under Articl 245
of the constitution by the faderal government and the
consequent impositions of the local martial law in several
important cities of Pakistan and the calling out of troops by
the local authorities under the provision of the code of
criminal procedure in smaller cities and towns did not have
the desired effect and the agitation continued unabated.
6: that the allegations of rigging and official interference
with elections in favour of candidates of rulling party were
established by judicial decision in at least four cases which
displayed a general pattern of official interference.
7: That public statement made by then Chief Election
Commissioner confirmed the widespread allegations made
by the oppositions regarding official interference with the
elections and endorsed the demand for fresh election.
8: That, in the circumstances, Bhutto felt compelled to
offer himself to a referendum under the seventh amendment
to the constitution but the offer did not have any impact at
all on the course of the agitation and the demand for his
resignation and for fresh elections continued unabated with
the result that the referendum plan had to be cancelled ;
 9: That in spite of Bhutto dialogue with the leaders of the
Pakistan National Alliance (PNA) and the temprory
suspension of the movement against the government,
official charged maintaining law and order were
apprehensive that in the event of the failure of the talk’s
there would be a terrible explosion beyond the control of
the civilian authorities.
10: That although the talks between Bhutto and the PNA
leaders had commenced on 3rd june 1977 on the basis of his
offer for holding fresh elections to the national and
provincial assemblies, they had dragged on for various
reasons, and as late as 4th july 1977, PNA leaders was
insisting that nine or ten points remained to be resolved
while Bhutto was also saying that his side would be
similarly put forward another ten points if the general
council of PNA did not ratify the accord on the morning of
3rd july 1977 .
11: That during the crucial days of the dead lock between
Bhutto and PNA leaders the Punjab government sanctioned
the distribution of fire-arm license on a vast scalre to its
party members, and provocative statement were
deliberately made by7 the prime minister special assistant,
G.M Khar, who had patched up his differences with the
prime minister and secured this appointment as late as 16
june 1977 ;
12: That as a result of the agitation, all normal economic,
social, and educational activities in the country stood
seriously disrupted, with incalculable damage to the nation
and the country.