Q:- PROVISIONAL CONSTITUTION ORDER (PCO) 1980.

Q:- provisional constitution order (PCO) 1980.

1. Introduction:-

      Provisional Constitution Order (PCO) was enforced on the night between 24^th and 25^th  March 1981 by General Zia-ul-Haq which was to serve as the constitution of Pakistan for years to come. It was the CMLA (Chief Martial law Administrative) Order means to make adequate provisions for governing Pakistan and for effectively meeting the threat to the integrity and sovereignty of Pakistan and its Islamic ideology.

2. Origin of PCO 1981       

            Provisional Constitution Order 1981 was originated from the Article 138 of the Constitution of 1973. These Articles related to the daily working of Government both Federal and Provincial.     

3. Salient Features of PCO 1981.

            There are some main and important basic features of Provincial Constitution Order 1981.

a.    Fundamental Rights.

            All fundamental rights under the Constitution of 1973 the provisions of their enforceability were taken out.

b.    Vice President.

            The office of Vice President was created, the CMLA could appoint one or more Vice Presidents of Pakistan who would serve at the pleasure of the CMLA and would perform functions assigned by the CMLA.   

c.    Federal Council (Majlis-e-Shoora).

            A Federal Council would be set up consisting of people selected by the President. The council would perform functions as specified in an order make by the President.      

4   Provisions relating to Judiciary.

A number of provisions relating to judiciary were excluded from PCO and they were replaced by new provisions, the important ones being.    

(i)            Transfer of case.

The Supreme Court could transfer any case from one High Court to another High Court.

(ii)          Principle Seats of High Court.

Principle seats and Permanent benches of High Courts were determined and the permanent benches that have been formed under Provisional Laws were made part of the Constitutional document.

(iii)         Authority to appoint Judge.

President has power to appoint the judge whether High Court or Supreme Court in the absence of Chief Justice or when the seat of Chief Justice is vacant.        

(iv)         Transferring of Judge

A High Court judge could be transferred from One High Court to another for a period of upto Two Years.

(v)          Restriction on retired Judge      

A retired judge was not to hold any office of profit in the service of Pakistan within two years of his retirement.

(vi)         Barred of Jurisdiction in whose case

Jurisdiction of the Supreme Court, the High Courts or any other court or tribunal was barred in the cases of those civil servants who had been retired after completion of 25 yeas of service.     

5.    Political Parties.

Only those political parties would be allowed to function, which had registered themselves with the Election Commission by 11 October 1979. All other parties stood dissolved and their funds forfeited to the Federal Government. No new political party could be formed with except with the previous permission in writing of the Chief Election Commissioner.       

6.    Power to amend the Constitution

The President and CMLA would have and would be deemed always to have the power to amend the constitution.    

7.    Courts were barred

The courts were barred from granting any injunction against the acts and orders of any Martial Law Authority or a Military Court or Tribunal. Furthermore, all Martial Law regulations act all other Laws made on or after 5^th July 1977 were declared valid.

8.    oath under PCO.

All judges of Supreme Court, the High Courts and the Federal Shariat Court including the Chief Justices were required to take an oath under the PCO. Those judges who did not take oath under the PCO were to cease to hold office.

9.    Effect of take oath under PCO

Judges, who took the oath under the PCO, were to be bound by the provisions of the PCO and could not call into question of even permit to be called into question the validity of its provisions.          

10. why provisional constitution order (PCO) failed

It did not take along for the judiciary to up held the PCO as valid. In keeping with its dubious tradition, the Lahore High Court applied its seal of approval of the PCO soon thereafter. A retired Army General who was convicted and sentenced by a Field General court martial challenged the PCO on the ground that during the subsistence of Constitution of 1973 give such a provisional constitution in its supersession. These contentions were repelled by a Divisional Bench of the Lahore High Court as under:-

1.    PCO is not compact document.         

2.    Supreme Court has power to amend the constitution.      

3.    The judges had never criticized only law on the ground of it being harsh or unjust.

4.    Its effect was to curtail the powers of the Higher Court.    

11. Conclusion

In the above discussion it can be said the Provisional Constitution Order (PCO) 1981, was enforced on the night between 24^th and 25^th August. It is originated from 138 Articles of the Constitution of 1973. It has also some main basic and important features it did not take long for the judiciary to uphold the PCO as valid.