Musharraf amends Pakistan constitution to bar legal challenges to emergency

[JURIST] Pakistani President Pervez Musharraf promulgated an ordinance Wednesday invoking his power to unilaterally amend the country's constitution under Article 2(1) of the current Provisional Constitution Order [text as amended] and making the November 3 declaration of emergency and accompanying orders immune from any legal challenge by deeming them always to have been validly made. The Constitution (Amendment) Order, 2007 [text] provides that Article 270 of the now-suspended Pakistani constitution is amended to include the following provision:

270AAA. Validation and affirmation of laws etc.-

(1) The proclamation of Emergency of 3rd November, 2007, all President's Orders, Ordinances, Chief of Army Staff Orders, including the Provisional Constitution order No.1 2007, the Oath of Office (Judges) Order, 2007, the amendments made in the constitution through the Constitution (Amendment) Order, 2007 and all other laws made between the 3rd day of November, 2007 and the date on which the Proclamation of Emergency of the 3rd Day of November, 2007, is revoked (both days inclusive), are accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.

(2) All orders made, proceedings taken, appointments made, including secondments and deputations, 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, on or after the 3rd day of November, 2007 in exercise of the powers derived from any Proclamation, Provisional Constitution Order No. 1 of 2007, President's orders, ordinances, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding anything contained in the Constitution or 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 or forum on any ground whatsoever.

(3) All proclamations, President's orders, ordinances, Chief of Army Staff Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the Proclamation of Emergency of the 3rd day of November, 2007 is revoked, shall continue in force until altered, repealed or amended by the competent authority.

Explanation.- In this clause, "competent authority" means,- (a) in respect of President's orders, ordinances, Chief of Army Staff Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.

(4) No prosecution or any other legal proceedings, including but not limited to suits, constitutional petitions or complaints, shall, notwithstanding anything contained in the Constitution or any other law for the time being in force, lie in any court, forum or authority against any person or authority on account of or in respect of issuance of the legal instruments referred to in clause (1) and on account of or in respect of any action taken by the Chief of Army Staff, the President or any other in exercise or purported exercise of the powers referred to in clause (2).

(5) For purpose of clauses (1), (2) and (4) all orders made, proceeding taken, appointments made, including secondments and deputation, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken in good faith and for the purpose intended to be served thereby.
The Order appears to have been issued in contemplation of the eventual reinstatement of Pakistan's constitution after the current proclamation of emergency is revoked and would effectively hold harmless the proclamation's authors and enforcers. The News has local coverage.


 

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