The constitution under Musharraf

A previous series of columns that appeared in these pages on the constitutional amendments in Pakistan brought the discussion to the end of the 20th century till the 16th Amendment passed under the second Nawaz-Sharif government. For other pressing topics, I stopped the series for a while but there was tremendous response from my readers.

Many students of history, law and political science, both here in Pakistan and away, wrote emails asking me to complete the series on the 50th anniversary of the 1973 constitution of Pakistan. In this column, we will have a look at how the late General Musharraf and his military dictatorship mutilated the constitution not once but multiple times just to benefit the dictator’s aim to continue in power as long as possible without any constitutional legitimacy. After usurping power illegally and unconstitutionally in October 1999, Gen Musharraf sought support to validate his usurpation by appointing himself chief executive of the country.

His proclamation enforced an emergency throughout the country and then he promulgated a provisional constitutional order (PCO). He issued the proclamation as the army chief and suspended all representative institutions; dissolution of the assemblies was done by the order of the self-appointed chief executive of the country. The imposition of these orders lacked any legitimacy as there was no constitutional breakdown necessitating the enforcement of emergency. Gen Musharraf held the constitution in abeyance but did not target the jurisdiction of the superior courts initially. Then he allowed only limited jurisdiction of the courts and limited their functions from examining the actions of the government.

At the opening stage of his military rule, he had allowed the judges of the superior courts to continue without taking oath under the PCO. But when the imposition of the military rule faced a challenge before the Supreme Court, the situation changed and the dictator-led government forced the judges to take fresh oaths in January 2000 under the PCO. It imposed limitations over the rights of the judges to continue with their offices to which they were constitutionally entitled. Judges were not at liberty to take a fresh oath but had to follow the dictation of the self-appointed chief executive of the country.

These limitations deprived the chief justice of Pakistan and other judges of the Supreme Court from their right under the constitution. The credibility and independence of the judiciary was at stake as the option of oath taking itself became a matter of choice with the military government to select the services of the judges of its own preference. The proclamation said that if the new regime did not invite some judges to take oath – or would not take oath under their own will within the time the chief executive fixed – they would cease to hold office.

The then CJ of Pakistan Justice Saeeduzzaman Siddiqui (born in Lucknow in 1939) could have continued for another four years but he refused to take oath under the PCO and resigned. So did Justices Mamoon Qazi, Nasir Aslam Zahid, KR Khan, Wajihuddin Ahmed, and Kamal Mansure Alam. Three of the justices taking oath became chief justices in quick succession from 2000 to 2005: Irshad Hasan Khan, Bashir Jenangiri, and Riaz Ahmed. The oath-taking judges – that new CH Justice Irshad Hasan Khan led – validated the military takeover under the dubious ‘law of necessity’ and granted the new regime authority to amend the constitution.

The military government during the period of emergency promulgated Legal framework Order (LFO) 2002. The order provided for amendment to the constitution almost on the same lines as General Ziaul Haq had done 20 years earlier. The regime introduced significant alterations in dozens of articles of the constitution. These amendments redesigned the political system by making the cabinet and the entire parliament vulnerable to the whims of Gen Musharraf. The military ruler himself became dominant without having a presidential system under the constitution. A National Security Council came into being, with the chiefs of the three armed forces as its dominating members, changing the power structure.

The regime also held elections in 2002 to give the dictatorship a democratic facade. General Musharraf incorporated all the amendments to the constitution in the name of the LFO that had no approval of the new parliament. The unilaterally amended constitution governed the elections of 2002 but then the new parliament refused to recognize the LFO as a legal piece of legislation. The pro-Musharraf ruling party, PML-Q, tried to manipulate parliament with the help of any opposition party to get the required majority. The Muttahida Majlis-e-Amal (MMA), a coming together of some religious parties, cooperated with the government and passed the LFO as the 17th Amendment.

Just like all previous military dictators, Gen Musharraf never entirely depended on political forces for his support, as dictators are helped by their uniforms. The new civilian government was dependent on Gen Musharraf though the PML-Q leaders kept claiming that the dictator had transferred power to them. It is worth recalling that the people who advocated for Gen Musharraf and helped him mutilate the constitution also included lawyers.

Sharif Uddin Pirzada had served all dictators: under General Ayub Khan as attorney general and foreign minister; under General Yahya Khan as attorney general, under General Zia as attorney general and law minister for eight years. While serving Gen Musharraf he was already in his 80s. Aziz A Munshi was a nephew of I I Chundrigar and served as attorney general of Pakistan four times: twice under Gen Ziaul Haq and then under Gen Musharraf. They had a lot to answer for.

In December 2003, parliament passed the 17th Amendment to the constitution of Pakistan that made changes dealing with the office of the president and the reversal of the effects of the 13th Amendment. Gen Musharraf forced the incorporation of the LFO into the constitution much in the same fashion as Gen Zia had through the 8th Amendment in the 1980s. That allowed Gen Musharraf to continue but then in 2005 the situation changed when Justice Iftikhar Chaudhry assumed office as chief justice of Pakistan. By 2007, the general was not happy with the chief justice and filed a reference against him preventing him from functioning.

Then in Nov 2007, Gen Musharraf once again declared emergency, suspended the constitution and issued another PCO forcing all judges of high courts and the Supreme Court to take new oaths. Over a hundred judges including CJ Justice Iftikhar Chaudhry and a dozen Supreme Court judges refused, while Justice Abdul Hameed Dogar followed in the footsteps of Justice Irshad Hasan Khan, taking the new oath and assuming charge as the new chief justice. Those who refused to take oath found themselves under effective house arrest. Justice Iftikhar Chaudhry issued a restraining order but the general overruled him.

Chief Justice Dogar almost immediately declared Chaudhry’s ruling null and void, validating the PCO and the state of emergency. That was the last and the most devastating mutilation of the constitution under Gen Musharraf. Within a year he had to resign and in 2010 the 18th Amendment tried to rectify some of these mutilations.