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Chief Executive
General Musharraf issued the Legal Framework Order 2002 on August 24,
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.