Pakistan and Future

A million dollar question about the constitutional package is that how it deals with the actions of mad dictator between November 3rd 2007 and December 15 2007.  Let me first try to build a historical context around the part of constitution that deals with such matters. 
In 1973, when article 6 was made part of the constitution Zulfiqar Ali Bhutto declared that there will not be any martial law after this. However in 1977 a mad dictator decided to put the constitution in abeyance and impose martial law in Pakistan. However later on in 1985, Zulfiqar Ali Bhutto proved partially right when mad dictator was afraid of lifting martial law due to the presence of article 6 in the constitution. However he found Jadoogar of Jaddah who told him “a curse” which if the mad dictator used against the constitution and the people of Pakistan , than he can get away with anything he wishes. This curse is know as “Notwithstanding clause” and exist in Part XII Chapter 7 of the constitution of Pakistan as article 270.

Originally article 270, was used to give <b>temporary</b> validation to the laws/ordinances promulaged between 25th March 1969 and 19th December 1971. It is important to read the wordings of article 270 which I quote here.

270. Temporary validation of certain laws, etc.

(1) [Majlis-e-Shoora (Parliament)] may by law made in the manner prescribed for legislations for a matter in Part I of the Federal Legislative List validate all Proclamations, President’s Orders, Martial Law Regulations, Martial Law Orders and other laws made between the twenty-fifth day of March, one thousand nine hundred and sixty- nine and the nineteenth day of December, one thousand nine hundred and seventy-one (both days inclusive).
         (2) Notwithstanding a judgment of any court, a law made by [Majlis-e-Shoora (Parliament)] under clause (1) shall not be questioned in any court on any ground whatsoever. 

(3) Notwithstanding the provisions of clause (1), and a judgment of any court to the contrary, for a period of two years from the commencing day, the validity of all such instruments as are referred to in clause (1) shall not be called in question before any court on any ground whatsoever.

(4) All orders made, proceedings taken and acts done by any authority, or any person, which were made, taken or done, or purported to have been made, taken or done, between the twenty- fifth day of March, one thousand nine hundred and sixty-nine and nineteenth day of December, one thousand nine hundred and seventy- one (both days inclusive), in exercise of powers derived from any President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws, or in execution of any order made or sentence passed by any authority in the exercise or purported exercise of power as aforesaid shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done, so however that any such order, proceeding or act may be declared invalid by  [Majlis-e-Shoora (Parliament)] at any time within a period of two years from the commencing day by resolution of both Houses, or in case of disagreement between the two Houses, by such resolution passed at a joint sitting and shall not be called in question before any court on any ground whatsoever.

So the important point in this validation was that the “Notwithstanding” exception was not over the whole constitution , it was for a court judgment that too for a period of two years. The parilament was granted powers to validate such laws within period of two years.

The jadoogar of Jaddah found this hole and came up with a novel way of declaring night as a day. He drafted the Presidential Order number 14 of 1985 which contained.

270-A

(1)

The Proclamation of the fifth day of July, 1977, all President’s Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force, are hereby 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.

(2)

All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notification, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.

(3)

All President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes in to force shall continue in force until altered, repealed or amended by competent authority.

(4)

No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(5)

For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.

[(6)

The President's Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President.]

Explanation:- In this Article, “President’s Orders” includes “President and Chief Martial Law Administrator’s Order, and Chief Martial Law Administrator’s Orders.”

Later on 8th amendment adopted the same article in the following format.

270A. Affirmation of President’s Orders, etc.

(1) The Proclamation of the fifth day of July, 1977, all President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P. O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December 1984, General Muhammad Zia- ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P. O. No. 14 of 1985), the Constitution (Second Amendment) Order 1985 (P. O. No. 24 of 1985), and all other laws, made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, 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:

Provided that a President’s Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.

 

(2) All order made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever. 

(3) All President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.

Explanation. In this clause, Competent authority means-

(a) in respect of President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the Legislature; and

(b) in respect of notifications, rules orders and by-laws, the authority in which the power to made, alter, repeal or amend the same vests under the law.

 

(4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. 

(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.

[(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws.] Explanation. In this Article, “President’s Orders” includes “President and Chief Martial Law Administrator’s Orders” and “Chief Martial Law Administrator’s Orders.”

See the curse “Notwithstanding anything contained in the constitution” , also see the validation to all the constitutional amendment orders and presidential orders forever.

This curse was used by the next mad dictator in 2002 and he also attempted to use the same in 2007. Let us first decide in principle that the constitution can not be amended by any method other than the one laid down in the article 239 of the constitution. Therefore granting validation to any order by the president (dictator) that amends the constitution is in itself illegal and unconstitutional. However successive supreme courts violated that principle and declared 8th and 17th amendment as legal act.

Mystery of 270AAA

Let me first quote the article 270AAA as proposed in the constitutional package.

270AAA. Validation of Ordinances etc.-
(1) The Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007) and the Ordinance, except those specified in the Sixth Schedule, made between the 12th day of July, 2007 and the 15th day of December, 2007 (both days inclusive) and actions taken thereunder shall be deemed to have been validly made and taken by the competent authority notwithstanding the expiry of period of four months specified in Article 89 and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.
(2) The Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007) and the Ordinances, except those specified in the Sixth Schedule, in force between the 12th day of July, 2007 and the 15th day of December, 2007 (both days inclusive) shall continue in force until altered, repealed or amended by the appropriate legislature.

It is important to note that this article refers to Sixth Schedule of the constitution which also is part of the constitutional package. Let me quote that as well.

SIXTH SCHEDULE [See Article 270AAA]
1. The National Commission for Human Development (Amendment) Ordinance, 2007 (XXXVII of 2007).
2. The Police Order (Amendment) Ordinance, 2007 (XLI of 2007).
3. The Press, Newspapers, News Agencies and Books Registration (amendment) Ordinance, 2007 (LXIV of 2007).
4. The Pakistan Electronic Media Regulatory Authority (Third Amendment) Ordinance, 2007 (LXV of 2007).
5. The Pakistan Army (Amendment) Ordinance, 2007 (LXVI of 2007).
6. The Legal Practitioners and Bar Councils (Amendment) Ordinance, 2007 (LXIX of 2007).

Frankly I had to read this article along with sixth schedule numerous time to understand the meanings of this article so let me first clear certain myths.

1. There in no doubt that this article is NOT granting any indemnity to the mad dictator for his actions of November 3rd which includes Proclaimation of Emergency Order 2007, Constitutional Amendment Orders and Oath of Office of Judges Order. That affectively means that there is a possibility that if IMC and brother judges are restored they may take up the case of high treason against the mad dictator. However there are things which are being balnketly validated through this article.  Let me make a distinction between the “Order” and an “Ordinance” , and Ordinance is a constitutional instrument that can be issued by the President and have been described in th constitution. However an order is usually an executive order which is issued by the chief executive of the country.

2. On a very close reading I see that one order “The Islamabad High Court Establishment Order” being validated through this clause , and all the ordinances (including off course NRO) except 6 ordinances are  validated. The ordinances which are not validated via this article are listed in sixth schedule.

3. So as I understand the Proclamation of Emegency Order , Constitutional Amendment Orders, Oath of Office (Judges) Order are not given any validation through this amendment. 

Conclusion:

I think article 270AAA is very balanced however it was important to get rid of “Notwithstanding anything contained in the constitution” and the article should have given the powers to revisit all the ordinances including the “Islamabad High Court Esablishment Order” and if in the period of two years the parliament had decided to reconsider these ordinances it would have been much better. I understand that NRO may have been a stumbling block in this case. Moreover it would have been much more dignified if the NRO was placed in front of the parliament as part of this package instead of getting a backdoor approval for this.