Q:- provisional constitution order (PCO) 1980.
- Introduction:-
Provisional Constitution Order (PCO) was
enforced on the night between 24th and 25th 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.
- 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.
- 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 5th 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 24th
and 25th 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.
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