PAKISTAN

By, of and for Musharraf

B. MURALIDHAR REDDY

General Pervez Musharraf has proved to be one up on his predecessors in uniform, Field Marshal Ayub Khan, General Yahya Khan and General Zia-ul-Haq, in the constitutional scheme of things. The amendments made to the suspended 1973 Constitution are undoubtedly by him, of him and for him. Musharraf is not the first 'soldier statesman' to attempt a 'political revolution' through constitutional changes. But there is a major difference in his case. Ayub Khan and Zia-ul-Haq, who gave the nation their own versions of the Constitution, put on the pretence of securing the 'consent of the people' by getting them ratified by the chosen 'National Assembly' of the day. Musharraf does not believe in such niceties. At the 'historic' press briefing on August 21, where he unveiled the package, he said: "I hereby make it part of the Constitution under the powers vested in me by the Supreme Court and it is now the Constitution." When a reporter reminded the General that under the Constitution Parliament alone had the right to amend the Constitution and the apex court could not be expected to give him powers that it did not have, he said: "Let those who disagree go to court."

Through the Legal Framework Order (LFO) 2002, under which he extended his term as Army Chief and President for another five years, Musharraf has ensured that none of his actions since the military takeover in October 1999 is questioned by either the courts or the new Parliament.

The LFO incorporates an Article (Article 270 A) in the suspended Constitution that validates all acts by the government and the laws it has made since October 12, 1999. For good measure, the LFO says it comes into 'immediate effect'. However, legal experts and political observers are not clear if it would mean a revival of the Constitution as amended by Musharraf. After all, when he pronounces that the amendments he has made to the suspended Constitution shall come into force with immediate effect, it is presumed that it pertains to all the provisions of the Constitution. But that is certainly not the case. For instance, the ban on outdoor political activities, to borrow a phrase from the military government, continues while the 1973 Constitution contains no such restrictions.

The new order allows the Musharraf government to bypass Parliament, which under the 1973 Constitution is the only competent body to amend the Constitution. Musharraf has argued that he was empowered by the Supreme Court to make 'necessary' changes to the Constitution. However, critics point out that although the Supreme Court gave him such powers, he was not supposed to amend the basic features of the Constitution. For instance, how can Musharraf continue to wear two hats - he is the President and the Chief of the Army Staff - when the Constitution specifically prohibits a person from the armed forces becoming President?

Musharraf was referring to the Pakistan Supreme Court's verdict in March 2000, which validated the bloodless coup by invoking the 'doctrine of necessity'. The judgment allowed him to make 'necessary' changes in the Constitution to carry on the business of governance without affecting its salient features.

With the insertion of Article 270 A in the LFO, the proclamation of a state of emergency on October 12, 1999, all orders of the President, the Chief Executive's orders, the Provisional Constitution Order (PCO), ordinances and other acts, including the oaths taken by Judges, will get legal status and come into force at once. It stated: "They are affirmed and will be adopted and declared, notwithstanding any judgment of any court, to have been validly made by competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court on any ground whatsoever." The LFO says that no suits, prosecution or other legal proceedings will stand in any court against any authority or any person for or on account of or in respect of any order made since October 12, 1999.

The LFO also provides protection to the Judges of the Supreme Court, High Courts and the Federal Shariat Court, who took their oaths under the PCO, by stating that these Judges would be deemed to have held their offices under the Constitution. In January 2000, almost three months after taking over the reigns of the country, Musharraf suspended the Constitution and directed all the Judges to take a fresh oath under the PCO. A few Judges of the Supreme Court and the High Courts, who refused to oblige, had to resign. It is not clear whether after the promulgation of the LFO, courts in Pakistan can entertain petitions challenging any of the actions of the Musharraf regime.