Indo Pak History-9

Legal Framework Order 2002

On August 24, 2002, Chief Executive General Musharraf issued the Legal Framework Order 2002, announcing general elections for the National and Provincial Assemblies to be held in October 2002. Constitutional Provisions were amended for smooth and orderly transition of power from the Chief Executive to the newly elected Prime Minister after the elections.

The main text of the L. F. O. 2002 stated as follows:

It has been specified that it will come into force henceforth and in the first meetings of National Assembly, Senate and Provincial Assemblies and that if any necessity arises for any further amendment of the Constitution or there is any difficulty in giving effect to any of the provisions of this Order, the Chief Executive will have the discretionary power to make provisions and pass orders for amending the Constitution or for removing any difficulty. It has been further asserted that the validity of any provision made, or orders passed, under clauses (1) and (2) shall not be called in question in any court on any ground whatsoever. The main points of L. F. O. 2002 may be summed up as below:

i) Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders.

ii) Having received the democratic mandate to serve the nation as President of Pakistan for a period of five years, the Chief Executive on relinquishing the office of the C. E., shall assume the office of President of Pakistan forthwith and hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly.

iii) There shall be 342 seats of the members in the National Assembly, including seats reserved for women and non-Muslims.

iv) The seats in the National Assembly are allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital as under:

- Balochistan: General 14, Women 3, Total 17

- N. W. F. P.: General 35, Women 8, Total 43

- Punjab: General 148, Women 35, Total 183

- Sindh: General 61, Women 14, Total 75

- F. A. T. A.: General 12, Women 0, Total 12

- Federal Capital: General 2, Women 0, Total 2

- Total: General 272, Women 60, Total 332

v) In addition to the number of seats referred to in clause (iv), there shall be, in the National Assembly, ten seats reserved for non-Muslims.

vi) Members to the seats reserved for non-Muslims shall be elected in accordance with law through proportional representation system of political parties’ lists of candidates on the basis of total number of general seats won by each political party in the National Assembly. A political party securing less than five per centum of the total number of seats in the National Assembly shall not be entitled to any seat reserved for women or non-Muslims.

vii) If any question arises whether a member of the Parliament is disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, within 30 days, refer the question to the Chief Election Commissioner who shall give his decision thereon not later than three months from its receipt by the Chief Election Commissioner.

viii) If a member of a Parliamentary Party resigns from membership of his political party or joins another; or votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs concerning election of the Prime Minister or the Chief Minister; a vote of confidence or no-confidence; or a Money Bill, he may be declared in writing by the Head of the Parliamentary Party to have defected from the political party. The Head of the Parliamentary Party shall forward a copy of the declaration to the Presiding Officer, and a copy thereof to the member concerned.

ix) A member of a House shall be deemed to be a member of a Parliamentary Party if he having been elected as a candidate or nominee of a political party constituting the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing.

x) With an addition of “a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary”, the clause 58 is revived.

xi) Where a Bill is referred to the Mediation Committee, it shall, within 90 days, formulate an agreed Bill likely to be passed by both Houses of the Parliament and place the agreed Bill separately before each House. If both the Houses pass the Bill, it shall be presented to the President for assent.

xii) All decisions of the Mediation Committee shall be made by a majority of the total number of members of each House in the Committee.

xiii) The President may, in consultation with the Speaker of the National Assembly and Chairman of the Senate, make rules for conduct of business of the Mediation Committee.

xiv) With an insertion of a new article 152A, there shall be a National Security Council whose chairman shall be the President in order to serve as a forum for consultation on strategic matters pertaining to the sovereignty, integrity and security of the State, and the matters relating to democracy, governance and inter-provincial harmony. Other members of N. S. C. shall be the Prime Minister, the Chairman of the Senate, the Speaker of the National Assembly, the Leader of the Opposition in the National Assembly, the Chief Ministers of the Provinces, the Chairman Joint Chiefs of Staff Committee, and the Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force. Meetings of the National Security Council may be convened by the President either in his discretion, or on the advice of the Prime Minister, or when requested by any other of its members, within the time frame indicated by him.

xv) On dissolution of an Assembly under article 58-2 (b) or, on completion of its term, the President, in his discretion, or, as the case may be, the Governor, in his discretion but with the previous approval of the President, shall appoint a caretaker Cabinet. When a caretaker Cabinet is appointed, on dissolution of the National Assembly under Article 58 or a Provincial Assembly under Article 112, or on dissolution of any such Assembly on completion of its term, the Prime Minister or, as the case may be, the Chief Minister of the caretaker Cabinet shall not be eligible to contest the immediately following election of such Assembly.

xvi) The Proclamation of Emergency of the 14th October, 1999, all President’s Orders, Ordinances, Chief Executive’s Orders, including the P. C. O. No. 1 of 1999, the Oath of Office (Judges) Order 2000, the Referendum Order 2002 (Chief Executive’s Order No. 12 of 2002), and all other laws made between the October 12, 1999 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.

xvii) All Proclamations, President’s Orders, Ordinances, Chief Executive’s Orders, laws, regulations, enactments, notifications, rules, orders or bye-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.

Through L. F. O. 2000, the President and Chief Executive revived the Constitution of Pakistan, except a few articles pertaining to the Provincial Governments and the Senate of Pakistan, etc., with effect from 16th November, 2002, which are to be restored later. Those parts of the Constitution which are restored include “Preamble, Article 1 to 58 (both inclusive), Article 64 to 100 (both inclusive), Annex, insertion of Article 152A and the schedule to the Constitution”.

Some of the immediate implications of the L. F. O. 2000 are:

a) L. F. O. 2000 has been sanctified by postulating that no body can challenge it in any court of law “on any ground whatsoever.”

b) It is now assumed to be an integral part of the Constitution and there is no imperative left for the newly and duly elected National Assembly but to accept it willingly or unwillingly. The present Parliament is quite unable to reverse or do away with any of the Amendments, especially the one relating to the National Security Council. The Prime Minister and the whole Parliament are at the will of the President for their survival.

c) Many believe that the L. F. O. 2000 has been enforced without any regard for the Constitutional and democratic norms and proprieties. By terminating the Thirteenth Amendment that was not passed by two-third majority but a unanimous vote of the Parliament, the President has again been authorized to enjoy the power of dismissing the Prime Minister along with his Cabinet and the Parliament.

d) With the adoption of the Legal Framework Order 2002, Pakistan has virtually advanced from the parliamentary form of government to the presidential system. The Article 58-2 (b) clause has been revived and the insertion of the new clause 152A has created the National Security Council.

e) Though the function of National Security Council and the clause 58-2 (b) is to provide a system of checks-and-balances, there are some issues to consider. In case of a confrontation between the President and the Prime Minister, the majority of votes in the National Security Council will automatically go in favor of the President who can thus easily remove the Prime Minister, putting the Parliamentary form of government once again in jeopardy.

f) With a radically altered Constitutional Framework, in whose making the people of Pakistan have had no say, the sovereignty of the Parliament has been severely crippled.

g) Although the Article 58-2 (b) does not specifically mention the President as having the power to sack the Prime Minister, the dissolution of the Assembly automatically makes the Prime Minister go. As the recent past shows, this clause was misused by three Presidents to remove Prime Ministers for purely political reasons, even though the Constitution authorized the President to take such a drastic step only after it had become clear that “a situation had arisen in which the government of the federation cannot be carried on in accordance with the provisions of the Constitution.” There is no doubt that every future Prime Minister will have to work under the constraints of 58-2 (b) at all times.

The only way to constitutionally amend the Constitution is through the Article 239, which lays down the following procedure:

“A bill to amend the Constitution may originate in either House (National Assembly or the Senate) and, when the bill is passed by the votes of not less than two-thirds of the total membership of the House, it shall be transmitted to the other House.” As such, it is still considered by the Constitutional experts that General Musharraf requires two-thirds majority to have his Constitutional Amendments or L. F. O. 2000 validated. In addition, the legal position of General Musharraf is also not in accordance with the Constitution of Pakistan for it does not recognize a uniformed Army Chief as the Head of State. Under the Constitution of 1973, only a majority vote in National Assembly, Senate, and four Provincial Assemblies can elect a President.

General Elections 2002

After three years of military rule, Pakistan again headed towards democracy on October 10, 2002. More than 70 parties, big and small, contested the eighth national parliamentary election. The major parties contesting the elections were Peoples Party Parliamentarians, Pakistan Muslim League-Nawaz Group, Pakistan Muslim League-Quaid-i-Azam also called the “King’s Party” for its unconditional support to the government, and the Muttahida Majlis-i-Amal (MMA), alliance of six religious political parties. Other known parties contesting at the national level included the six-party National Alliance led by former caretaker Prime Minister Ghulam Mustafa Jatoi, Imran Khan’s Pakistan Tehrik-i-Insaaf and Tahir-ul-Qadri’s Pakistan Awami Tehrik. Several regional parties, with strongholds in their own provinces included the Sindh-based Muttahida Qaumi Movement, Awami National Party, Jamhuri Watan Party, factions of Baluchistan National Movement and Pashtunkhwa Milli Awami Party.

The National and Provincial elections were held on the same day. More than 72 million registered voters aged 18 and above from a population of 140 million, elected members for the 342 National Assembly seats and 728 seats of the four Provincial Assemblies. A total of 2,098 candidates contested for 272 general seats of the National Assembly. The remaining 60 seats were reserved for women and 10 for non-Muslim minorities. These seats were to be allocated on the basis of proportional representation to parties bagging at least five per cent of the total general seats. In the Provincial Assemblies out of the full 371 seat Punjab Assembly, 66 were reserved for women and eight for minorities, in the 168 seat Sindh Assembly, 29 for women and nine for minorities, in the 124 seat N. W. F. P. Assembly, 22 for women and three for minorities, and the 65 seat Baluchistan Assembly, 11 for women and three for minorities.

Voting was carried out from 8 in the morning till 5 in the evening on some 65,000 polling stations having 164,718 polling booths across the country, with segregated voting booths for women. The elections were observed and monitored by hundreds of local and 300 international observers, including observers from European Union and the Commonwealth, as well as local rights group.

These elections were different from the previous ones due to the number of legislation passed by the Government. Convicted people were barred from taking part in elections under the Representation of the People’s Act. Several other politicians were unable to contest the elections, as they did not have a Bachelor’s Degree, which was a mandatory qualification in the elections. Pakistan’s leading political personalities Benazir Bhutto of the P. P. P. and Nawaz Sharif of the Pakistan Muslim League-Nawaz Group were barred from standing in the elections under the new electoral laws. And for the first time since 1977, the minority communities that included Christians, Hindus and Parsees contested and voted for all general seats in the National and Provincial Assemblies. The age limit of voting in these elections was also lowered from 21 to 18 years.

The election results issued after inexplicable delay not only led to no major party having an overall majority in the new National Assembly, but also were surprising with an unexpectedly large number of seats won by the Islamic parties. The religious alliance known as Muttahida Majlis-i-Amal (MMA) secured 51 seats, emerging as the third largest party in the National Assembly elections after P. M. L. (Q) with 76 seats and PPPP with 62 seats. A total of 121 seats were won by three major anti-Government parties, including 62 seats by PPPP, 51 by MMA and the PML (N) won 14 seats. The Islamic parties, which previously had actually won fewer seats, came in strong this time by capitalizing on opposition to Pakistan’s partnership with the United States in the bombing of Afghanistan and in the war against terrorism. The MMA got a clear-cut majority in NWFP and Baluchistan provinces where it easily formed a government on its own. In the rest of the Provincial Assemblies coalition governments were formed as no party had come in with a complete majority.

The elections had a low turnout of 20 to 25 percent as compared to 35.42 percent in 1997 general election. Despite government assurances that the elections would be fair, free and transparent, different political parties alleged that the elections were engineered and the government was involved in massive rigging. It was alleged that ballot engineering was behind the sluggish pace of announcements of the election results.

With no party emerging with a simple majority Pakistan faced menace of a hung parliament. A coalition government was, however, set up with Mir Zafarullah Khan Jamali, the candidate of PML (Q) as the Prime Minister of Pakistan with the help of MQM, a number of independent candidates and 10 members of the Pakistan Peoples Party Parliamentarians who defected from the party to form their own Forward Block.

Zafarullah Khan Jamali Becomes Prime Minister [2002]

Zafarullah Khan Jamali was elected the 21st Prime Minister of Pakistan by the newly elected Parliament on November 21, 2002. President General Pervez Musharraf administered the oath to the new Prime Minster at the Aiwan-i-Sadr on November 23. He now heads Pakistan’s first civilian government after three years of military rule of General Pervez Musharraf.

The October elections resulted in a political deadlock as no party won with an overall majority. This led to the delay in the appointment of the Prime Minister. The President did not call the National Assembly session until the creation of PPP’s forward bloc and the floor-crossing law was held in abeyance. Maulana Fazl-ur-Rehman of the Muttahida Majlis-i-Amal, Shah Mahmud Qureshi of the Pakistan Peoples Party Parliamentarians and Mir Zafarullah Khan Jamali of Pakistan Muslim League (Quaid-i-Azam) were the main contender for the seat of Prime Minister. Mir Zafarullah Khan Jamali won by securing 172 votes out of 329 votes, against 89 bagged by Maulana Fazl-ur-Rahman and 70 by Shah Mahmud Qureshi. Mir Zafarullah Khan Jamali was however, able to get the desired number of votes after 10 members of the Pakistan Peoples Party Parliamentarians defected from the party to form their own Forward Block in order to support Mir Zafarullah Khan Jamali.

Zafarullah Khan Jamali has promised to continue President Musharraf’s economic and foreign policies, particularly in supporting the ongoing international war against terrorism. He reiterated Pakistan’s support for the United States led war on terrorism and said “Pakistan has become a frontline state, and will remain one”. Mir Zafarullah Khan Jamali in one of his first acts announced a 25-member Cabinet. The Cabinet includes four unelected advisers and several legislators who had defected from Pakistan Peoples Party. The PPPP dissidents for their critical support to Mir Zafarullah Khan Jamali’s pro-Musharraf Pakistan Muslim League (Quaid-i-Azam) got the top slot ministries in the Government. Rao Sikandar and Makhdoom Faisal Saleh Hayat have been given the two most powerful Ministries of Defense and Interior. Out of the ten PPPP dissidents, six have been accommodated either as full or junior Ministers.

Mir Zafarullah Khan Jamali’s Government faces tough challenges ahead. He not only faces a strong opposition in the National Assembly, but also has to keep his multi-party coalition together while sharing power with President Pervez Musharraf. The President still retains the ultimate power, with the authority to dissolve Parliament and sack the Prime Minister. On December 29, 2002, Mir Zaffarullah Khan Jamali won the vote of confidence of 188 members out of the 342-seat House.

Jamali, who had plunged into politics against a dictator when he campaigned for Mohtarma Fatima Jinnah in her presidential race against Pakistan’s first dictator, Ayub Khan, is now working readily and steadily to run the Parliament as well as uphold the order of the President and the army in various areas. Jamali’s clash with either president or Army will certainly cost his saddle like the late ex-Prime Minister Mohammad Khan Junejo. It is a tribute to his pleasing personality that even the main Opposition, i.e., MMA while sticking to its own political agenda, has pledged publicly not to destabilize his Government so that the democratic dispensation takes firm roots. His pledge not to take any major step without consulting the opposition and that his opponents would not be dragged in false cases has at length led to the strengthening and functioning of “sustainable of democracy”. Though Mir Zafarullah Khan Jamali who did bear confidence of the majority in the Parliament and tried to maintain amicable terms with the most powerful President as well as the Opposition with his traits of humility and decency, could not complete his five-year term and suddenly had to resign on June 26, 2004.

Seventeenth Amendment [2003]

Seventeenth Amendment is basically the Legal Framework Order 2002 that has been accepted as part of the Constitution with minor modifications and may be, therefore, termed as an LFO-amended Constitution. After a surprise deal between PML(Q) and MMA (Mutahida Majlis-e-Amal), the 17th Amendment has now become part of the 1973 Constitution after the formal approval of President General Pervez Musharraf. A year-old constitutional deadlock was broken only because of “flexibility” shown by President General Pervez Musharraf and top MMA leadership. The amendment allows General Pervez Musharraf to serve out his term as President, which ends in 2007, and formalize special powers he had decreed himself giving him the right to sack the prime minister and disband parliament by decree. In return, Musharraf agrees to step down as army chief, supposed to be the main source of his power, by December 31, 2004.

The seventeenth amendment now allows the provision for “vote of confidence for further affirmation of the president in office by majority of the members present and voting, by division or any other method as prescribed in the rules made by the federal government under clause (9), of the electoral college consisting of members of both Houses of Parliament and the provincial assemblies”. Accordingly a vote of confidence was passed in favor of the President on January 1, 2004 by members of both National Assembly and the Senate. Despite the fact the MMA abstained from giving the vote of confidence to the President, it has indirectly accepted him as elected president by allowing vote of confidence from both houses of parliament and provincial assemblies.

Under the Article 58(2)(b), “the President in case of dissolution of the National Assembly shall, within fifteen days of the dissolution, refer the matter to the Supreme Court and the Supreme Court shall decide the reference within thirty days whose decision shall be final”.

Likewise, under the Article 112, the governor in case of dissolution of the provisional assembly shall also refer the matter to the Supreme Court with the previous approval of the president and the Supreme Court shall decide the reference within thirty days whose decision shall be final.

Another amendment is the addition of the words “in consultation with the Prime Minister” in place of “in his discretion” in Article 243 of the Constitution giving the Prime Minister a constitutional say in the appointment of services chiefs. Article 152(A) of the Constitution has been omitted that related to the establishment of a National Security Council. The National Security Council may be, however, created with the passage of a bill with simple majority.

17th Amendment has amended Article 41(1)(7)(b) of the Constitution whereby Article 63(1)(d) of the Constitution has been made inoperative till December 31, 2004. Article 63(1)(d) deals with the disqualification for membership of Parliament and under Article 41(2) only a person qualified to be elected as member of the National Assembly, can be elected as President. This means that for the duration that that Article 63(1)(d) is inoperative, the President is not barred from being elected as the President while he holds the office of COAS. But it is interesting to note that the Article 43(1) of the Constitution still remains intact that says: “The President shall not hold office of profit in the service of Pakistan carrying the right to remuneration for the rendering of services,” Since no amendment has been made in this clause, the Article 43(1) disallows a person simultaneously to be the President and the COAS of the country.

The bill granted indemnity to all actions of President General Pervez Musharraf since military action of October 12, 1999 as according to the 270AA, the Parliament has “affirmed, adopted and declared to have been duly made by the competent authority … all laws made between October 12,1999 and the date on which the Article comes into force”.

In the Article 179, retirement age of the Supreme Court judges has now been fixed at 65 year. This was a huge concern for the lawyers of the country who have at least welcomed this move.

Chaudhry Shujaat Hussain Becomes Prime Minister [2004]

Ch. Shujaat Hussain, who heads the ruling faction of the Pakistan Muslim League, PML (QA) took the post in a caretaker position on June 30, 2004 four days after Zafarullah Jamali resigned all of a sudden. Chaudhry Shujaat was elected leader of the house after securing 190 whereas his opponent ARD’s Makhdoom Amin Fahim got 76 votes. With a 27-member Cabinet, Ch. Shujaat Hussain announced after taking oath as Prime Minister of Pakistan: “We will continue to pursue the policies of the President with regard to good governance and economic development”.

Prime Minister Ch. Shujaat Hussain announced formation of a special parliamentary committee to resolve Balochistan crisis by initiating political dialogue and giving representation all parliamentary parties of the upper House in the committee and offered to act as a member of the committee to resolve the problem through talks. Taking into consideration that “the success of the next government will be evaluated on its economic performance,” he said this very thinking led the Pakistan Muslim League and its allied parties to select Finance Minister Shaukat Aziz as the next executive head of the country. In an interview, he said: “My nomination by Mir Zafarullah Khan Jamali and nomination of Shaukat Aziz after consulting the President were in line with the set traditions. There should be no hue and cry over such technicalities”. Chaudhry Shujaat Hussain expressed gratitude to Almighty Allah for being the first elected Prime Minister in the country’s history to leave the office, after discharging his obligations (only for 45 days), with dignity and honor.