Saturday, November 3, 2007

1973 Constitution held in abeyance

Musharraf imposes ‘emergency plus’; PCO promulgated; parliament, provincial assemblies to continue functioning; superior judiciary’s powers clipped

By Shakil Shaikh

ISLAMABAD: Chief of Army Staff General Pervez Musharraf on Saturday imposed emergency throughout Pakistan, promulgated the Provisional Constitution Order (PCO) by holding the Constitution in abeyance, and placed the country under one-man rule.

In an extraordinary move, which many termed supra-constitutional and equated with martial law, Army Chief General Musharraf promulgated a proclamation of emergency and in pursuance of it issued a PCO holding the Constitution in abeyance.

The army chief took the step to arrest the worsening law and order situation and intensification of violence to unprecedented level which posed a grave threat to the life and property of citizens. He also referred to other grounds justifying such extraordinary measures by pointing to the “working of some members of the judiciary at cross purposes with the executive and the legislature in the fight against terrorism and extremism, interference by some members of the judiciary in government policy”, adversely affecting the economic growth in particular, “overstepping” of some judges of their limits of judicial authority, making the Supreme Judicial Council entirely irrelevant, and “humiliating treatment” meted to government officials by some members of the judiciary on a routine basis.

Despite this proclamation and the order, the Majlis-e-Shoora (parliament) and the provincial assemblies shall continue to function.

The entire nation received this development as a bombshell as it shocked everyone that instead of the Constitution the country would be governed by President General Pervez Musharraf.

This seemingly supra-constitutional step was taken at a time when the 11-member Supreme Court bench was to announce its verdict on the nomination of President General Pervez Musharraf as candidate for re-election in a week’s time.

The PCO has taken away powers of the superior judiciary — the Supreme Court, the Federal Shariat Court and the High Courts — and any tribunal or other authority to call in question the order of PCO, the Proclamation of Emergency, the Oath of Office (Judges) Order 2007 or any order made in pursuance thereof.

“No judgment, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the president or the prime minister or any authority designated by the president,” said Section 3(2) of the PCO, though the seven-member Supreme Court bench issued a two-page counter order restraining the COAS, corps commanders, staff officers and all concerned civil and military authorities from acting under the PCO. They were also restrained from undertaking any such action, which was contrary to the independence of the judiciary.

With the Islamic provisions of the Constitution to remain in force, the fundamental rights as enshrined in Article 9 (security of person), 10 (safeguard as to arrest and detention), 15 (freedom of movement, etc.), 16 (freedom of assembly), 17 (freedom of association), 19 (freedom of speech, etc.) and 25 (equality of citizens) shall remain suspended.

Enforcing the emergency at once, the army chief ordered and proclaimed that the “Constitution of the Islamic Republic of Pakistan shall remain in abeyance”. It put Pakistan under one-man rule to govern it through the PCO.

The PCO’s Section 1(3) says: “Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction, provided that the Supreme Court or a High Court or any other court shall not have the power to make any order against the president or the prime minister or any person exercising powers or jurisdiction under their authority.”

According to the proclamation of emergency, “the situation has been reviewed at meetings with the prime minister, the governors of the four provinces, and with the chairman joint chiefs of staff committee, chiefs of the armed forces, the vice chief of army staff and the corps commanders”.


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