Slav Defence
THINK TANK VICE CHAIRMAN: ANALYST
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Sorry sir,but constitution of Pakistan does not allow to harbor any conspiracy.Look how beautifully Musharraf played,where as Nawaz Sharif who hold rights used wrong methodology.
MUSHARRAF AND THE CONSTITUTIONAL TANGLE
On two facts there is no disagreement: First, on 12 October 1999, Prime Minister Nawaz Sharif had dismissed the Chief of Army Staff, General Pervez Musharraf, when he was about to board a PIA plane in Colombo for return journey and, secondly, the Army Generals had successfully carried out the coup to oust Nawaz Sharif before General Musharraf’s plane landed in Karachi.
Within few hours of the coup, it was announced on radio and television that the armed forces had seized power and General Musharraf was in command. In the early hours of 13 October 1999, General Musharraf addressed the nation to give his version of the circumstances and events leading to military takeover and accused Nawaz Sharif’s government of,inter alia, trying to politicize the army, to destabilize it and to create dissensions within its ranks.
On 14 October 1999, General Musharraf issued the Proclamation of Emergency (a misnomer since it was outside the scope of Constitution) and assumed the office of the “Chief Executive” of Islamic Republic of Pakistan in addition to that of Chairman Joint Chiefs of Staff Committee and Chief of Army Staff. Same day, he promulgated the Provisional Constitution Order No. 1 of 1999 which, inter alia, provided:
2. (1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.
3. (2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the Chief Executive or any authority designated by the Chief Executive.
In his address of 17 October 1999, General Musharraf declared that he would not allow the people to be taken back to the era of ‘sham democracy’ but to a true one. He promised that the Constitution had only been temporarily held in abeyance and that the armed forces had no intention to stay in power any longer than was absolutely necessary to pave the way for true democracy to flourish in the country.
As Prime Minister, Nawaz Sharif was well within his right to dismiss the Chief of Army Staff on 12 October 1999, although his action had procedural flaws.
He had to take this extraordinary caution of dismissing General Musharraf in his absence because he feared that the army might not accept his orders. But by staging the coup, prima facie, the army generals had “subverted” the Constitution within the meaning of Article 6 of the Constitution.
Before the Eighteenth Amendment to the Constitution, Article 6, titled “High Treason”, read as follows: Clause (1) “Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.” Clause (2) “Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.” Clause (3) “Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason.”
The High Treason Act, 1973, inter alia, says that high treason as defined in Article 6 of the Constitution shall be punishable with death or imprisonment for life.
However, Section 3 of the same Act bars any Court to take cognizance of an offence punishable under it except on a complaint in writing made by a person authorized by the Federal Government on this behalf.
No one launched any complaint against the military takeover of 12 October 1999 under the High Treason Act 1973 with the competent court.
On 10 November 1999, a case was registered against Nawaz Sharif on the charges of a criminal conspiracy to hijack the PIA aircraft in which General Musharraf was returning from Colombo. On 6 April 2000, Justice Rehmat Hussain Jafri of Anti-terrorism Court in Karachi sentenced Nawaz Sharif to life imprisonment, fined him Rs. 3 million and ordered confiscation of his property.
Although the Court convicted the former Prime Minister for hijacking and terrorism, he was acquitted of the charges of kidnapping and attempted murder which had also been made against him.
Despite the bar imposed by the Provisional Constitution Order, the legitimacy of the military takeover came into question when, on 6 December 1999 and its immediate aftermath, the Supreme Court admitted several petitions under Article 184 (3) of the Constitution challenging the military action of 12 October 1999.
Article 184 (3) says: “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11 is involved, have the power to make an order of the nature mentioned in the said Article.”
General Musharraf responded to this challenge by issuing Oath of Offices (Judges) Order No. 1 of 2000 with precise provisions that a judge, to whom oath was to be administered, should abide by the provisions of Proclamation of Emergency of 14 October 1999 and Provisional Constitution Order No. 1 of 1999.
Several judges of the Supreme Court and the High Courts, including the Chief Justice of Pakistan, Justice Saeed-uz-Zaman Siddique, refused to take fresh oath under this Order.
After completing the regular hearings of the constitutional petitions, in what came to be known as the Zafar Ali Shah Case, the Supreme Court delivered its Short Order (Judgment) on 12 May 2000, in which it observed:“Notwithstanding anything contained in the Proclamation of Emergency of the fourteenth day of October 1999, the Provisional Constitutional Order No. 1 of 1999 . . . . and the Oath of Office (Judges) Order No. 1 of 2000, all of which purportedly restrained this Court from calling in question or permitting to call in question the validity of any of the provisions thereof, this Court, in the exercise of its inherent powers of judicial review, has the right to examine the validity of the aforesaid instruments.” However, the apex Court took notice of corruption, mismanagement and institutional failures under the Nawaz Sharif government, and delivered the judgment in favour of the military takeover.
In its judgment, the Supreme Court, inter alia, stated: “With the repeal of Article 58 (2) (b) of the Constitution, there was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf, for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra-constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the community that order be preserved.”
Although the Supreme Court accorded legitimacy to Musharraf’s takeover of government, some of the significant points of the judgment were:
“4. That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity.
6. (ii) That constitutional amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives. . . .
– (iii) That no amendment shall be made in the salient features of the Constitution i.e., independence of judiciary, federalism, and parliamentary form of government blended with Islamic provisions.
– (vi) That the Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces. . . .
10. That the government shall accelerate the process of accountability in a coherent and transparent manner justly, fairly, equitably and in accordance with law.”
17. That having regard to all the relevant factors involved in the case. . . . three years period is allowed to the Chief Executive with effect from the date of the Army takeover i.e., 12th October 1999 for achieving his declared objectives.
18. That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the aforesaid period of three years, for holding of a general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.”
The critics of the Supreme Court Judgment in the Zafar Ali Shah Case argue that even if the charges against Mian Nawaz Sharif were correct it was for the National Assembly to bring him to task and that the nation as a whole should not have been made to pay for his crimes by permitting the winding up of the democratic system.
Some critics even think that the Supreme Court had become abettor in the subversion of the Constitution within the meaning of Article 6 by validating the military coup and authorizing Musharraf to amend the Constitution if it failed to provide “a solution for attainment of his declared objectives.”
While the proceedings in the Zafar Ali Shah were still taking place, General Musharraf announced in his address on 23 March 2000 the outline of a plan for devolution of power and responsibilities through establishment of local bodies. By opting to rely on local bodies as a source of support to his government, General Musharraf was repeating the scripts of former military rulers of Pakistan, General Mohammad Ayub Khan and General Mohammad Zia-ul Haq, who had constructed local bodies systems with the intention to develop a support base by creating a new body of leaders.
On 9 December 2000, Mian Nawaz Sharif and Mian Shahbaz Sharif were granted presidential pardon and left along with most of their family members for what was meant to be a ten-year exile to Saudi Arabia in the middle of the night under a secret deal brokered by Saudi authorities.
Benazir Bhutto, Chairperson of the Pakistan People’s Party, was already in exile to avoid imprisonment and further prosecution on charges of corruption framed by the Pakistan Muslim League (Nawaz) government before the army removed Nawaz Sharif from power.
With Nawaz Sharif and Benazir Bhutto in exile and Benazir’s husband, Asif Ali Zardari, behind the bars since November 1996, the political scenario was favourable for General Musharraf to move ahead according to his agenda. On 20 June 2001, ahead of Agra Summit with the Indian Prime Minister, Atal Bihari Vajpee, President Mohammad Rafiq Tarar was obliged to step down and General Musharraf became President of Pakistan.
As the deadline to hold general elections under the Supreme Court Judgment was drawing nearer, General Musharraf decided to tread the path of General Zia-ul Haq. On 5 April 2002, he addressed the nation to recount his government’s progress on various points of his initial agenda. After speaking at length on development strategy and performance of his government, General Musharraf came to the issue of his continuation in office:
- What is my personal role? Am I required for Pakistan? Is there any role for me?
- What should be the environment of the assembly and the cabinet in post-October period? . . . I am saying that if I have a role in the Post-October Pakistan then I should have the right kind of interaction with the prime minister, the cabinet and the National Assembly otherwise democracy will stand where it was.
On 9 April 2002, General Musharraf issued Chief Executive’s Order No. 12 of 2002 for holding of a referendum on 30 April 2002. The Order wanted the people to reply in ‘yes’ or ‘no’ to the following question:
“Do you wish to make President General Musharraf president of Pakistan for the next five years – for the survival of the system of local government, for the continuity and consolidation of reforms, for an end to sectarianism and extremism, and for the realization of the Quaid-i-Azam’s vision?”
Section 4 of the above mentioned Order stated:
4 (1) Notwithstanding anything contained in the Constitution or any law for the time being in force, if the majority of the votes cast in the referendum are in the affirmative, the people of Pakistan shall be deemed to have given the democratic mandate to General Pervez Musharraf to serve the nation as President of Pakistan for a period of five years.”
The Chief Executive’s Order to hold referendum was challenged in the Supreme Court under Article 184 (3) on constitutional ground as well as on the touchstone of the Supreme Court’s Judgment in the Zafar Ali Shah Case.
On 27 April 2002, the Supreme Court gave a short order validating the holding of referendum. Significantly the Supreme Court’s Order stated:
13. As regards the grounds of challenge to the consequences flowing from the holding of referendum under the Referendum Order, apparently these questions are purely academic, hypothetical and presumptive in nature and are not capable of being determined at this juncture. Accordingly, we would not like to go into these questions at this stage and leave the same to be determined at a proper forum at the appropriate time.
Thus the Supreme Court passed on the decision of validation or otherwise of the referendum to the Parliament that was yet to be elected.
Although the actual turnout of the voters on the day of referendum was very low, the government employed different tactics to bolster balloting. According to official figures 42.8 million out of 43.9 million voters cast their votes in ‘yes’ and this made up a good 97.7 percent. General Musharraf admitted later that the exercise of referendum suffered from certain flaws.
The next step was to tailor a system that would have ensured that General Musharraf remained at the helm even after the general elections scheduled for 10 October 2002 were held. As stated, the Supreme Court Judgment in the Zafar Ali Shah Case had empowered him to amend the Constitution under certain conditions. On 21 August 2002, General Musharraf issued what was called Legal Framework Order 2002 to amend the Constitution to suit his scheme of things.
The most significant amendments under the LFO included the restoration of Article 58 (2) (b), which was about the powers of the president to dissolve the National Assembly, and the insertion of a new Article 152 (a), which provided for creation of a National Security Council “to serve as a forum for consultation on strategic matters pertaining to the sovereignty, integrity and security of the State; and the matters relating to democracy, governance and inter-provincial harmony.” The President was to be the Chairman of the National Security Council and its other members were to be the Prime Minister, the Chairman of the Senate, the Speaker of the National Assembly, the Leader of the Opposition in the National Assembly, the Chief Ministers of the Provinces, the Chairman Joint Chiefs of Staff Committee and the Chiefs of Staff of Pakistan Army, Pakistan Navy and Pakistan Air Force.
The LFO also contained provisions for the validation of laws framed and Orders issued since 12 October 1999, legitimating of the referendum of 30 April 2002, under which General Musharraf was to serve as President for next five years, and determination of strength and composition of the National Assembly, the Senate and the Provincial Assemblies.
The results of the general elections held in October 2002 were apparently engineered in favour of the King’s Party i.e., Pakistan Muslim League (Quaid-i-Azam) and Muttahida Majlis-i-Amal, the latter also had a sympathy wave in its favour due to endemic anti-American sentiments caused by American-led occupation of Afghanistan after 9/11.
In order to facilitate the formation of coalition governments by the PML (Q), General Musharraf amended the Political Parties Act for a short period to allow defections from other political parties. Instead of going along with the Alliance for Restoration of Democracy, which comprised the PPP (Parliamentarians), the PML (N) and some other opposition groups. The MMA formed its government in the NWFP (Khyber-Pakhtunkhwa) and became a coalition partner with the PML (Q) in Balochistan.
The legitimacy of the LFO would have remained doubtful without its validation by the Parliament. From the very first session, the Opposition, including MMA, raised the issue of the LFO and refused to accept it as a part of the Constitution. The Opposition demanded the restoration of the Constitution of 1973 without any substantial amendments on the part of the military ruler.
However, the Opposition was in a catch 22 situation because the general elections had also been held under the LFO. The Opposition primarily directed its protest against the restoration of Article 58 (2) (b) and the formation of National Security Council. The protest against the LFO made it difficult for the National Assembly to function in a normal fashion. But it took more than a year before the PML (Q) and the MMA arrived at a compromise formula.
On 24 December 2003, the ruling PML (Q) and the MMA signed an agreement on the constitutional amendment package. The two parties agreed, inter alia, that the proposed National Security Council would be set up under an act of the Parliament rather than as a constitutional body; President’s decision to dissolve the National Assembly under Article 58 (2) (b) would have to be referred to the Supreme Court within 15 days; General Musharraf would have to seek vote of confidence as President from the electoral college; the President would have to consult the Prime Minister on the appointment of the Chiefs of the Armed Forces, although he would not be bound by the advice of the Prime Minister; and General Musharraf would give up his uniform by 31 December 2004.
In the agreement between the PNL (Q) and the MMA, it was clarified that the amendment allowing the President to remain in office for the ongoing term would be supported by the MMA but it would not be bound to cast vote of confidence in Musharraf as President in the Senate, the National Assembly and the Provincial Assemblies. Simultaneously, the MMA members would not oppose the confidence motion through any activity, and that they would remain present in the Parliament and the Provincial Assemblies at the time of voting on the confidence motion for the President.
As per agreement, the MMA voted with the ruling coalition for the passage of the Seventeenth Amendment to the Constitution, which was based on the LFO as modified under the PML (Q) – MMA agreement, except that the provision regarding the date of 31 December 2004 for giving up of uniform by General Musharraf was ambiguous. Further,Article 270 AA was inserted in the Constitution to validate and affirm the Proclamation of Emergency of the fourteenth day of October 1999, the Provisional Constitution Order No. 1 of !999, the Oath of Offices (Judges) Order No. 1 of 2000 and various other proclamations, orders, ordinances, laws etc.
To understand the ambiguity on the issue of holding of dual office by General Musharraf, one has to refer to relevant constitutional provisions, in particular clause (7) of Articles 41, which clause was inserted under the Seventeenth Amendment to the Constitution. It said: “The Chief Executive of the Islamic Republic of Pakistan – (a) shall relinquish the office of Chief Executive on such day as he may determine in accordance with the Judgment of the Supreme Court of Pakistan of the 12th May 2000; and (b) having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly.
Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December 2004.”
Article 41 (2) read:“A person shall not be qualified for election as President unless he is . . . .qualified to be elected as member of the National Assembly.”
Article 63 (1) said: “A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shura (Parliament), if – (d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder;”
As the above constitutional provisions show there was a technical loophole for Musharraf not to relinquish the office of the Chief of Army Staff as at some stage it could be “declared by law not to disqualify its holder.”
On his part, General Musharraf pledged to the nation that he would give up uniform by 31 December 2004. The MMA claimed that it had provided an exit to the military by extracting a public commitment from General Musharraf to shun uniform by 31 December 2004 and by reducing the National Security Council to a non-constitutional body.
General Musharraf secured the vote of confidence as provided in the Seventeenth Amendment.
Although the Federal Government was not representative in real sense due to unfair general elections, apparently it started functioning according to the provisions of Constitution as amended under the Seventeenth Amendment. On the constitutional plane, things appeared to have settled down for the moment.
However, as 31 December 2004 drew nearer, some ministers and members of the Parliament started airing the views that General Musharraf was indispensable and that his remaining in the uniform was in national interest. General Musharraf also started giving indications that he might have to remain in uniform to ensure the continuation of his policies.
On 14 October 2004, the National Assembly passed a law to enable General Musharraf to retain his dual office as President and Chief of Army Staff in order to maintain the “integrity and stability of the State” and to “combat terrorism and subversion”.
On 30 December 2004, General Musharraf formally announced that he intended to retain his office of the Chief of Army Staff till the end of his presidential term in 2007.
Several petitioners challenged the Seventeenth Amendment to the Constitution and holding of dual office by General Musharraf in the Supreme Court on different grounds, including the premise that they were against the scheme of the Constitution. All these petitions were dismissed by a 5-member bench of the Supreme Court on 13 April 2005. Although it remained unclear whether General Musharraf would be qualified to contest next presidential election due in 2007, if he did not shun his uniform.
It was crisis over this issue that led to the proclamation of another ‘emergency’ on 3 November 2007 for which General Musharraf may face a trial.
Presently, under Eighteenth Amendment to the Constitution made in April 2010, Article 270 AA has been substituted. The clause (1) of Article 270 AA now says that the Proclamation of Emergency of the fourteenth day of October 1999, the Provisional Constitution Order No.1 of 1999, the Oath of Offices (Judges) Order, 2000, and some other orders etc “notwithstanding any judgment of any court including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect.”
However, clause (3) of the same Article 270 AA adds: “Notwithstanding anything contained in the Constitution or clause (1), or judgment of any court including the Supreme Court or High Court, – (a) Judges of the Supreme Court, High Court and Federal Shariat Court, who were holding the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000 (I of 2000), shall be deemed to have continued to hold the office as a Judge or to have been appointed as such, as the case may be, under the Constitution, and such continuance or appointment, shall have effect accordingly.”
The constitutional and political developments recounted above raises certain important questions:
- Why General Musharraf is to be tried alone and for the action of 3 November 2007 only when Article 270 AA (1) has done away with the validity and legitimacy given to the Proclamation of Emergency of fourteenth day of October 1999 and by extension to the military action of 12 October 1999 which took place when General Musharraf was on board the PIA flight?
- Why clause (3) of Article 270 AA has validated the holding of office by the judges who took oath under the Oath of Office (Judges) Order , 2000, although by doing so they had prima facie become abettors in the subversion of Constitution within the meaning of Article 6 of the Constitution?
- Is it the prerogative of the Parliament to pass an amendment to the Constitution that invalidates or nullifies the Judgment of the Supreme Court like the one given in the Zafar Ali Shah Case?
regards
My friend,you have objected and answered yourself,no doubt.I don't need to add or subtract anything.I believe that we need simply people with common sense to run the government,rather than ones whose every action is complete non sense.
Government's responsibility is to manage such powerful institutions and to harbor their strength,and for this purpose,individuals within establishment must have dexterity,common sense and patriotism.You know that how phuppay,chachay,mamay joins some party and their incompetent generations inherit such power,they didn't earned it,they just get it.How could we expect any efficiency from them?
regards
