Ground Realities
Of judges and generals, in Pakistan and Bangladesh
It was Justice Kayani who spoke for all the people of Pakistan when he described Ayub Khan's military take-over in October 1958 as probably the first instance in history when an army had occupied its own country. Kayani remains one of the few men who dared to defy soldiers who saw nothing amiss in seizing a country and sending everyone else into the woods. General Ayub Khan certainly felt the slap that had been hurled at him and in subsequent times did all he could to humiliate Kayani. He did not quite succeed, as events were to show.
When you consider the political legacy that shaped up in Pakistan from 1958 onwards, one that was to be tragically adopted in Bangladesh in 1975, you cannot but wonder at the many curious patterns that have systematically developed, or unravelled, as the case may be, in relations between generals and judges. Ayub Khan met defiance from the Bengali Justice Syed Mahbub Murshed in 1961 when the judge, overriding every objection the junta may have had toward a promotion of Bengali culture in East Pakistan, presided over the Tagore centenary celebrations in the province. It was an unambiguous instance of a judge taking on a military ruler at a time when martial law had put a moratorium on free expression.
You could move on from there and suggest that when in early March 1971 Justice B.A. Siddiky refused to administer the oath of office to General Tikka Khan, who had just been appointed governor of a restive East Pakistan by General Yahya Khan, it was a demonstration of courage on the part of the jurist. One wishes one were greatly enthused by the act, but the fact remains that the same Siddiky swore in Tikka Khan to the governor's job soon after the genocide by the Pakistan army got underway on March 25, 1971. You could say that perhaps like many others the judge had been intimidated by the scale of the military operations at that point and had hardly any choice he could make on his own. Maybe there is much flesh in that kind of argument. But note that Justice Siddiky surfaced again in the early 1980s, to provide leadership to a Muslim League left an orphan by the death of Khan Abdus Sabur. That was all right, certainly. But what did not seem quite acceptable was Siddiky's acceptance of the offer from General Hussein Muhammad Ershad, by 1982 Bangladesh's new military ruler, to be the country's permanent representative at the United Nations. Siddiky was to return home from New York in circumstances that have remained shrouded in questions.
Any reflection on the ties that have bound some judges to some generals in our part of the world quite naturally takes us back to Pakistan. Justice A.R. Cornelius was quite happy to please Ayub Khan where Kayani and Murshed had not. In the short-lived, disastrous regime of Yahya Khan, Cornelius cheerfully served as a legal advisor to the government and made significant contributions on the government's behalf at the abortive talks with the Awami League in March 1971. But the first decisive instance of the Pakistan authorities moving in force against the judiciary came when General Ziaul Huq ordered all judges of the Supreme Court and the High Courts to take a fresh oath of office under martial law regulations in 1977. Those who refused were simply dismissed. After that, it was largely a pliant judiciary that pandered to all of Zia's whims. Some of them, like Moulvi Mushtaq Hussain, behaved abominably. As Zulfikar Ali Bhutto fought back against charges of murder before Mushtaq's court, the judge unashamedly mocked the fallen prime minister and appeared to care a fig for the principles of justice. Bhutto was hanged by his country's judges in what remains a disputed conviction.
General Pervez Musharraf has clearly taken a leaf out of Zia's book. When his first attempt to remove Justice Iftikhar Muhammad Chaudhry failed (and that was because Chaudhry was reinstated by his colleagues on the Bench after the president had tried sacking him), Musharraf went for a bigger operation, this time through the imposition of a state of emergency in Pakistan. It is an irony that the judges who had been lining up to tell him that his hold on presidential office was illegal, that he could not be head of state and army chief together, were themselves dismissed and placed under arrest by the man they had sought to banish into the woods. The bigger irony, or call it scandal, came when Musharraf's hand-picked new judges, with not a bit of shame in them, decreed that all the earlier petitions against the general were pointless and so could be thrown out of court. And they were, making the way clear for Musharraf to be sworn in as president of Pakistan for a fresh new, albeit controversial term in office.
Musharraf has done grave damage to Pakistan's judicial institution. It is a sin earlier perpetrated in Bangladesh by General Ershad, who dismissed a number of judges of the High Court and then, by dictatorial fiat, decreed that the High Court be sliced into seven separate courts. It is to the credit of Bangladesh's higher judiciary that it refused to take the military ruler's decision lying down. Ershad's move was simply struck down and the High Court was thus restored to its old dignified place in the structure of the state. Speaking of dignity, quite a few judges in Bangladesh have in the course of their career seen it slip from their grasp. Justice Nurul Islam, chairman of the East Pakistan Red Cross Society during the Bangladesh liberation war, travelled abroad to trumpet the case for Pakistan and its army in 1971. In the Ershad years, he ended up being vice president of Bangladesh. He is a forgotten man today.
But not so forgotten is Justice Abu Sadat Muhammad Sayem. It was a hopeful Bengali nation that welcomed him to the presidency, per courtesy of General Khaled Musharraf, on November 6, 1975. The popular expectation was that he would lead the country back to a secular, democratic order following the tragic happenings of August 15 and November 3. In the event, he was overtaken by circumstances and found himself leading, nominally, a government in which General Ziaur Rahman was the paramount player. Sayem would have done himself and the country a favour if he had opted to walk away from the junta that seized the country on November 7, 1975. He did not, the consequence being that Zia eventually eased him out of Bangabhaban in April 1977 and finally had the whole country in his grasp. By then Sayem had clearly made himself controversial to a certain extent. It was he who had formalised the death warrant earlier served by a secret military court on Colonel Abu Taher. What if he had refused to countenance the murder of the celebrated freedom fighter?
But let that be. General Ziaur Rahman plucked Justice Abdus Sattar, who had been chief election commissioner in Yahya Khan's Pakistan at the time of the general elections of 1970, from retirement and appointed him Bangladesh's vice president. General Ershad, having seized power in March 1982, placed Justice Ahsanuddin Chowdhury in presidential office. Pretty soon, though, Chowdhury was shown the door, in much the same manner Sayem was once, because Ershad needed to be known as president rather than as chief martial law administrator.
Justice Munir was happy to indulge General Ayub Khan. Justice Ibrahim, having initially gone over to Pakistan's first military ruler, quickly saw through the dictator's artifices and walked out of the regime. The story was a trifle different with three other men who readily agreed to sit in judgement on Bangabandhu Sheikh Mujibur Rahman and his co-defendants in the so-called Agartala conspiracy case in 1968. But then, Justice S.A. Rahman, Justice Mujibur Rahman Khan, and Justice Maksumul Hakim saw the trial collapse before the gathering onslaught of a popular denunciation of the entire questionable process.
Remember, if you will, that in December 1990 it was to a judge that a general handed over power in Bangladesh. General Ershad fell before a mass movement; and Justice Shahabuddin Ahmed went on to inaugurate anew a democratic process in the country.
Syed Badrul Ahsan is Editor, Current Affairs, The Daily Star.
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