Naeem Shakir, Advocate, Lahore High Court, Pakistan
The Legal Framework Order, or LFO as it is commonly known, has been under fire inside and outside Pakistan for the changes it brought in 2002 to the 1973 Constitution, although it was just the latest in a seemingly endless series of challenges and changes to the constitution. In fact, the present military ruler General Pervez Musharraf took powers in 1999 from an elected government that alone had effected 29 constitutional amendments. However, the LFO gained notoriety because of how it institutionalised the role of the military in national politics and administration, in order that one person might be the chief executive and president at the same time.
A short history in constitutional game-playing
The judiciary in Pakistan has been backing down from the political players over the constitution since even earlier than its inception. Before the first Constituent Assembly established under the Independence Act of 1947 could deliver a constitution it was dissolved in 1954 by the Governor General; the act was challenged, and the Sindh Chief Court held that it was unlawful, but the decision was reversed in the Federal Court. The Constituent Assembly was re-established in 1955 and brought the first constitution into effect in 1956. However, by 1958 a declaration of martial law was already undermining the status of the constitution. When the matter came to the Supreme Court, it again gave the military the green light, by stating that the effect of martial law was to overrule the constitution and existing legal order. The new president, General Muhammad Ayub Khan, was free to take complete control and finally introduce a new constitution in 1962.
In 1965 the second constitution was also abrogated by the new military ruler, General Yayha Khan, who in his Provincial Constitutional Order of 1969 also took away the jurisdiction of the superior courts and installed himself as president. He introduced the first Legal Framework Order, under which general elections were held in 1970. When the matter of martial law, the LFO and other actions by the government came to the Supreme Court this time, it refused to support the military takeover, and declared it illegal; at the same time the country split, with Bangladesh declaring independence. In order to run the business of the state, an interim constitution was promulgated in 1972, until the third constitution, which ostensibly remains in force to this day, was introduced the following year. In 1977 a new military regime took control, and the Supreme Court yet again upheld its right to do so. General Muhammad Zia ul Haq suspended the constitution altogether in 1981, installed himself as president via referendum in 1984, and brought in a handpicked parliament in 1985.
General Zia took it upon himself to ‘Islamise’ the society, and thereby effected more than one hundred amendments to the constitution on sectarian lines. This meddling with the constitution was so ruthless and crude that its democratic spirit was mutilated and it amounted to a completely new constitution brought in through a blanket constitutional amendment in 1985. This amendment introduced, apartheid style, separate electorates on sectarian lines and a parallel judicial system, the Federal Shariat Court, empowered to undo any law passed by the legislature deemed as ‘un-Islamic’. In 1988 General Zia dissolved the assemblies under a newly introduced provision, but his order was assailed and the judiciary was again put to the challenge. Although he died in the interim, when the Lahore High Court examined the matter it held that the dissolution order was illegal; a decision upheld by the Supreme Court. The Supreme Court, however, did not restore the assemblies but thought it proper to allow the electorate to choose representatives afresh.
The new government survived until 1990, when the president dissolved parliament. After the matter came to the superior courts, this time they simply refused to interfere and allowed new elections to proceed. However, when the process was repeated in 1993, the Supreme Court upheld an appeal that the assemblies stand. The court supported the next dissolution, in 1996, on the ground that the government had completely broken down. Finally, in 1999 the current regime took control through a proclamation of emergency and a subsequent series of orders to consolidate military control, among which was the newest version of the Legal Framework Order.
The judiciary again gives way to the military
The Legal Framework Order 2002 was promulgated by the military regime on 21 August 2002. It was passed into the constitution, by way of the Constitution (Seventeenth Amendment) Act 2003, which went through parliament on 31 December 2003. This constitutional amendment has validated all of the regulations established, appointments made and other steps taken by the government under the LFO, and protected it from legal action against persons who would have it otherwise. The legal authority that the military commander has exercised to effect those constitutional amendments stem from a Supreme Court order in the case of Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869), the relevant portion of which is reproduced hereunder:
6(i) That General Pervez Musharraf, Chairman, Joint Chief of Staff Committee and Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra-constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely;
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.
(ii) That the 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 and further that the power to amend the Constitution by virtue of clause (i) (a) ibid is controlled by sub-clauses (b)(c) and (d) in the same clause.
(iii) That no amendment shall be made in the salient features of the Constitution i.e., independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions.
As the Supreme Court conferred these powers on the government, it is now very difficult to challenge its legal legitimacy. However, some jurists hold that the Supreme Court cannot confer such powers on an individual, as only the chosen representatives of the people can exercise them. It should also be added that the court reserved the right for superior courts to judicially review the actions of the armed forces, including the proclamation of emergency, as deemed necessary.
It can also be noted that the Supreme Court has allowed the same person to hold the office of president and commander of the armed forces, despite the fact that this contravenes the spirit of the 1973 Constitution. There can be no question that it is undemocratic for the same person to hold these offices, as one is a position of public service whereas the other is a public office through which to represent the people. Inevitably, this subject also came before the Supreme Court in the case of Qazi Hussain Ahmed, Amir Jamat Islami v. Gen. Pervez Musharraf (PLD 2002 SC 853). In this instance, lawyers asserted that the 1973 Constitution still remained the supreme law of the land and the powers of the present government were strictly circumscribed as per the Supreme Court judgement in Zafar Ali Shah’s Case. However, the court again refused to take on the military ruler, by deciding that the relevant provisions of the constitution were still being held in abeyance.
The Legal Framework Order 2002 and the judiciary
It is appropriate to provide some background to explain the real intent of the LFO with regards to the judiciary, as judges were retained or dismissed by the new government on the basis of their political allegiance. Superior court judges have from the beginning been obliged to take an oath of office to uphold the constitution. However, the relevant provisions of the Provisional Constitution Order 1 of 1999, introduced by the current president, ran as follows:
No Court, tribunal or other authority shall call in question the Proclamation of Emergency of 14th day of September 1999 or any other Order made in pursuance thereof. No judgement, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the Chief Executive or any other authority designated by the Chief Executive.
All persons who, immediately before the commencement of this Order, were in service of Pakistan as defined in Article 260 of the Constitution and those who immediately before such commencement were in office as Judge of the Supreme Court, the Federal Shariat Court or a High Court or Auditor General or Ombudsman and Chief Ehtesab Commissioner, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any.
Then the Oath of Office (Judges) Order was promulgated on 25 January 2000, with the intent that judges take a new oath to continue serving. Reproduction of the relevant provisions of this order will make it clearer how a policy to weed out undesirable judges was set in place by the government:
3. Oath of Judges — (1) A person holding office immediately before the commencement of this Order as a Judge of the superior Court shall not continue to hold that office if he is not given, or does not make, oath in the form set out in the Schedule, before the expiration of such time from such commencement as the Chief Executive may determine or within such further time as may be allowed by the Chief Executive.
(2) A Judge of the Superior Court appointed after the commencement of the order shall, before entering upon office, make oath in the form set out in the Schedule.
(3) A person referred to in clause (1) and (2) who has made oath as required by these clauses shall be bound by the provision of this Order, the Proclamation of Emergency of the fourteenth day of October, 1999 and the Provisional Constitution Order No. 1 of 1999 as amended and, notwithstanding any judgement of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof.
The form set out for the oath of office was of course framed for obedience and allegiance to the instruments referred to in clause 3. Many members of the judiciary naturally became apprehensive about the designs of the new rulers. The result was a sudden exodus of judges, especially from the Supreme Court. Six of its judges, including the Chief Justice, refused to take the oath. Some of the Judges of the high courts also did not make the oath, notably those of the Lahore High Court, High Court of Sindh and Peshawar High Court.
The matter itself came before the Supreme Court in Zafar Ali Shah’s Case, by which time the judges in question had left from office. The court refused to consider the specific cases, declaring the matter closed, and stated that:
Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise. The validity of the action of the Chief Executive was open to question on the touchstone of Article 209 of the Constitution. But none of the Judges took any remedial steps and accepted pension as also the right to practice law and thereby acquiesced in the action. Furthermore, the appropriate course of action for Supreme Court in these proceedings would be to declare the law to avoid the recurrence in future, but not to upset earlier actions or decisions taken in this behalf by the Chief Executive, these being past and closed transactions.
Unquestionably, the superior judiciary of the country was in this instance intimidated and ridiculed by the military. Those who refused to succumb to the pressure from the regime acted valiantly, and the assertion in the judgement that they might have done otherwise ignores the extenuating circumstances.
The Seventeenth Constitutional Amendment, which confers absolute power in General Musharraf, is opposed to the spirit of parliamentary governance enshrined in the constitution. It is true that the people of Pakistan have again been provided an opportunity to elect a representative to run state business, but the fact remains that it is a government tailored to the desires and requirements of a military regime. General Musharraf vigorously presents his case inside and outside Pakistan, asserting that he is indispensable for the state and the people on the premises of security and for the reforms he has brought about for the good of the country. His assertions bring to mind John Adam, who rightly said, “Power always thinks it has a great soul and vast views beyond the comprehension of the weak; and that it is doing of God’s service when it is violating all his laws.”