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]
| Provisional Constitutional Order | |
|---|---|
| Martial law | |
| Territorial extent | Whole of State of Pakistan |
| Enacted by | Martial law |
| Administered by | Chief Martial Law Administrator |
| White paper | Constitution Petition No. 8 & 9 of 2009 |
| Legislative history | |
| Introduced by | Zia regime |
| Introduced | 25 March 1981 |
| First reading | 14 October 1999 |
| Second reading | 7 November 2007 |
| Related legislation | |
| 18th Amendment | |
| Status: Not fully in force | |
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
editProvisional Constitutional Order, 1981
editSoon 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]
| 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
editIn 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]
| 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
editIn 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.
| 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
edit- ^ a b Omar, Imtiaz (2002). Emergency powers and the courts in India and Pakistan. England: Kluwer Law International. ISBN 904111775X.
- ^ 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.
- ^ a b Mehdi, Rubya (1994). The Islamization of the Law in Pakistan. [S.l.]: Routledge. ISBN 978-0-415-64437-2.
- ^ 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.
- ^ "Pakistan Judges Refuse Oath Demanded by Pakistan's Rulers". Waycross Journal-Herald. 31 January 2000. Retrieved 7 May 2011.