Provisional Constitutional Order

Provisional Constitutional Order
Martial law
Territorial extentWhole of State of Pakistan
Enacted byMartial law
Administered byChief Martial Law Administrator
White paperConstitution Petition No. 8 & 9 of 2009
Legislative history
Introduced byZia regime
Introduced25 March 1981
First reading14 October 1999
Second reading7 November 2007
Related legislation
18th Amendment
Status: Not fully in force

The Provisional Constitutional Order (PCO) is an emergency and extra-constitutional order that suspends either wholly or partially the Constitution of Pakistan — the supreme law of the land.[1]

The PCO acts as a temporary order while the constitution is held in abeyance or suspension.[2] These orders have mostly been enforced during times of martial law imposed by the armed forces of the country against the civilian governments.[1]

Overview of Provisional Constitutional Order

Provisional Constitutional Order, 1981

Soon after the martial law went into effect in 1977, the Constitution of Pakistan was suspended. The first Provisional Constitutional Order (PCO) was declared on March 24, 1981, by then-President and Chief of Army Staff General Muhammad Zia-ul-Haq.[3]

Under this new order, the senior justices of the Supreme Court of Pakistan were asked to take an oath of office under the provisions set by the PCO.[3] In March 1981, President Zia terminated 19 senior justices of the Supreme Court when they refused to take the oath.[4] Chief Justice Dorab Patel and Senior Justice Fakhruddin G. Ebrahim declined to take the oath, thus opting for retirement.[4] Senior Justice Sheikh Anwarul Haq also resigned after refusing to take the oath, while Senior Justice Maulvi Mushtaq Hussain, who was willing to take the oath, was not asked to do so.[4]

Senior Justices Hussain and Haq had previously approved Zulfikar Ali Bhutto's hanging and were reportedly restrained from taking the oath under the secretive directives issued by President Zia.[4] All of these senior justices were asked to tender their resignation, which they did.[4]

Provisional Constitutional Order effecting the Judicature of Pakistan
Senior Justices of the Supreme Court of Pakistan Oath of Office Extension under PCO
Chief Justice Dorab Patel Refused to take oath under PCO Resigned
Chief Justice Anwarul Haq Took oath under PCO Resigned
Senior Justice Fakhruddin Ebrahim Refused to take oath under PCO Resigned
Senior Justice Abdul Kadir Shaikh Took oath under PCO Continuation at Supreme Court
Senior Justice Mohammad Haleem Took oath under PCO Elevated as Chief Justice (1981–89)
Senior Justice K.I. Chouhann Took oath under PCO Continuation at Supreme Court
Senior Justice Aslam Riaz Hussain Took oath under PCO Continuation at Supreme Court
Senior Justice Nasim Shah Took oath under PCO Elevated as Chief Justice (1993–94)
Senior Justice Shafi-u-Rehman Took oath under PCO Continuation at Supreme Court
Senior Justice Maulvi Mushtaq Hussain Not invited to take oath under PCO Resigned
Senior Justice M.A. Zulla Took oath under PCO Elevated as Chief Justice (1993–94)
Senior Justice Agha Ali Hyder Not invited to take oath under PCO Appointed at the Federal Shariat Court
Senior Justice Abdul Hayee Qureshi Took oath under PCO Appointed at the Sindh High Court
Senior Justice Abdul Hafeez Memon Refused to take oath under PCO Appointed at the Sindh High Court
Senior Justice Zaffar Hussain Mirza Took oath under PCO Appointed at the Sindh High Court
Senior Justice Naimuddin Ahmed Took oath under PCO Appointed at Supreme Court
Senior Justice S.A. Nusrat Took oath under PCO Appointed at Supreme Court
Senior Justice G. M. Shah Not invited to take oath under PCO Resigned
Senior Justice Ajmal Mian Took oath under PCO Elevated as Chief Justice (1997–99)
Senior Justice Muhammad Zahoor-ul-Haq Took oath under PCO Appointed at the Sindh High Court
Senior Justice Sajjad A. Shah Took oath under PCO Elevated as Chief Justice (1994–97)
Senior Justice Ghous Ali Shah Took oath under PCO Resigned
Senior Justice Tanzil-ur-Rahman Took oath under PCO Appointed at the Federal Shariat Court
Senior Justice Saeeduzzaman Siddiqui Took oath under PCO Elevated as Chief Justice (1999–00)
Senior Justice G.M. Kourejo Took oath under PCO Appointed at the Sindh High Court
Senior Justice Nasir A. Zahid Took oath under PCO Appointed at the Sindh High Court
Senior Justice K.A. Ghani Took oath under PCO Appointed at the Sindh High Court
Senior Justice Saleem Akhtar Took oath under PCO Resigned

Provisional Constitutional Order, 1999

In the wake of political tensions arising after the border incidents with India that nearly pushed the two countries to the brink of war, Chairman Joint Chiefs of Staff Committee and Chief of Army Staff General Pervez Musharraf imposed martial law against the government of Prime Minister Nawaz Sharif on October 12, 1999.

General Musharraf effectively imposed a state of emergency and suspended the Constitution after introducing the Provisional Order. Nearly all senior justices were required to take an oath of office under this new order, and concerns were raised that this would "erode the independence of the judiciary".[5]

Provisional Constitutional Order effecting the Judicature of Pakistan
Senior Justices of the Supreme Court of Pakistan Oath of Office Extension under PCO
Chief Justice Saeeduzzaman Siddiqui Refused to take oath under PCO Resigned
Senior Justice Sheikh Ejaz Nisar Took oath under PCO Continuation at Supreme Court
Senior Justice Bashir Jehangiri Took oath under PCO Elevated as Chief Justice (2002–02)
Senior Justice Irshad Hasan Khan Took oath under PCO Elevated as Chief Justice (2000–02)
Senior Justice Sh. Riaz Ahmad Took oath under PCO Elevated as Chief Justice (2002–05)
Senior Justice Mamoon A Kazi Refused to take oath under PCO Resigned
Senior Justice Nasir A. Zahid Refused to take oath under PCO Resigned
Senior Justice K.R. Khan Refused to take oath under PCO Resigned
Senior Justice Wajihuddin Ahmed Refused to take oath under PCO Resigned
Senior Justice Kamal Mansur Alam Refused to take oath under PCO Resigned
Senior Justice A.R. Khan Took oath under PCO Continuation at Supreme Court
Senior Justice Ch. Mohammad Arif Took oath under PCO Continuation at Supreme Court
Senior Justice Munir Sheikh Took oath under PCO Continuation at Supreme Court

Provisional Constitutional Order, 2007

In 2007, another Provisional Constitutional Order (PCO) was issued by General Pervez Musharraf. The PCO was issued on November 3, 2007, and was later amended on November 15, 2007. It was lifted on December 16, 2007.

Provisional Constitutional Order effecting the Judicature of Pakistan
Senior Justices of the Supreme Court of Pakistan Oath of Office Extension under PCO
Chief Justice Iftikhar Muhammad Chaudhry Refused to take oath under PCO Resigned
Senior Justice Rana Baghwandas Refused to take oath under PCO Resigned
Senior Justice Javed Iqbal Refused to take oath under PCO Resigned
Senior Justice Abdul Hameed Dogar Took oath under PCO Elevated as Chief Justice (2007–09)
Senior Justice Sardar Muhammad Raza Khan Refused to take oath under PCO Resigned
Senior Justice Khalil-ur-Rehman Ramday Refused to take oath under PCO Resigned
Senior Justice Muhammad Nawaz Abbasi Took oath under PCO Continuation at Supreme Court
Senior Justice Faqir Muhammad Khokhar Took oath under PCO Continuation at Supreme Court
Senior Justice Falak Sher Refused to take oath under PCO Resigned
Senior Justice Mian Shakirullah Jan Refused to take oath under PCO Resigned
Senior Justice Muhammad Javed Buttar Took oath under PCO Continuation at Supreme Court
Senior Justice Tassaduq Hussain Jillani Refused to take oath under PCO Resigned
Senior Justice Saiyed Saeed Ashhad Took oath under PCO Continuation at Supreme CourtResigned
Senior Justice Nasirul Mulk Refused to take oath under PCO Resigned
Senior Justice Raja Fayyaz Ahmad Refused to take oath under PCO Resigned
Senior Justice Chaudhry Ejaz Ahmed Refused to take oath under PCO Resigned
Senior Justice Syed Jamshed Ali Refused to take oath under PCO Resigned
Senior Justice Ghulam Rabbani Refused to take oath under PCO Resigned
Senior Justice Hamid Ali Mirza Refused to take oath under PCO Resigned

References

  1. ^ a b Omar, Imtiaz (2002). Emergency powers and the courts in India and Pakistan. England: Kluwer Law International. ISBN 904111775X.
  2. ^ Lau, Martin (2005). The role of Islam in the legal system of Pakistan ([Online-Ausg.]. ed.). The Hague [u.a.]: Kluwer Law International. ISBN 9004149279.
  3. ^ a b Mehdi, Rubya (1994). The Islamization of the Law in Pakistan. [S.l.]: Routledge. ISBN 978-0-415-64437-2.
  4. ^ a b c d e Ghazali, Abdus Sattar (1996). "§ VIII: The Third Martial Law". Islamic Pakistan: Illusions and Reality. Islamabad: National Book Club. Retrieved 24 November 2013.
  5. ^ "Pakistan Judges Refuse Oath Demanded by Pakistan's Rulers". Waycross Journal-Herald. 31 January 2000. Retrieved 7 May 2011.