ISLAMABAD, Nov 21: President General Pervez Musharraf on Wednesday amended the Constitution through an executive order which legal experts said was essentially aimed at providing “constitutional cover” to all actions taken during the period of emergency and to clear the path for the lifting of emergency if and when he desired to do so.

The presidential order, officially described as the “Constitution (Amendment) Order 2007” and promulgated under the Provisional Constitution Order (PCO), in essence takes away the powers of judicial review by superior courts of all actions taken under the PCO.

The president’s order allows insertion of a number of amendments in the Constitution which, legal experts say, could otherwise only be carried out with the support of a two-thirds majority in parliament.

Perhaps the most crucial of the amendments introduced through the surprised executive order is the introduction of a new clause to be called Article 270AAA in the Constitution which under the PCO has been held in abeyance.

Some legal and political analysts say this could be the first step in the process to lift the emergency rule as without a validation clause and constitutional cover, there would have remained a possibility of a legal challenge to the actions taken under the PCO, including Gen Musharraf’s move to put the Constitution in abeyance.

However, within hours of the introduction of the constitutional amendment, several senior lawyers and experts described it as a highly unusual and unconstitutional move, with some even going to the extent of saying that the moment emergency was lifted such an executive order would become meaningless.

The new Article, 270AAA, has been inserted in order to validate and affirm all laws, orders and constitutional amendments during emergency. Sub-article 1 of the Article 270AAA added to the Constitution reads: “The proclamation of emergency of November 3, all President’s orders, ordinances, Chief of Army Staff orders, including the Provisional Constitution Order No 1 of 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 November 3, 2007, and the date on which emergency 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.”

According to 270AAA (2), all orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person in exercise of powers derived from any proclamation, PCO order No 1 of 2007, president’s orders, ordinances, enactments, including amendments to the Constitution, notifications, rules, orders, by-laws, or in execution or compliance with any orders made, or sentence passed by any authority in

exercise of these powers, notwithstanding anything contained in the Constitution or any judgment of any court, be deemed to 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.

Clause 270AAA (3) says all proclamations, president’s orders, ordinances, Chief of Army Staff orders, laws, regulations, enactments, including amendments to the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the emergency was revoked, will continue in force until altered, repealed, or amended by the ‘competent authority’.

The order explains that appropriate legislature would be a competent authority in respect of president’s orders, ordinances, Chief of Army Staff orders and enactments, including amendments to the Constitution, and 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.

According to the Clause 270AAA, no prosecution or any other proceedings, including but not limited to suits, constitutional petitions or complaints, shall lie in any court, forum or authority against any person or authority on account of issuance of any ‘legal instruments’.

But some seasoned lawyers described it as a move which was bound to further complicate the already complex legal and constitutional situation. Former Supreme Court judge and eminent lawyer Fakhruddin G. Ebrahim told Dawn that the order would have no legal value, unless it was validated by parliament to come into being after the forthcoming elections. He said it seemed that General Musharraf wanted to give protection to his acts against any adverse court action before a new parliament comes into being as a result of the elections scheduled to take place on January 8, 2008.

Mr Ebrahim was quite firm in his view that the Constitution could not be amended through orders and ordinances. He said the proclamation of emergency itself was illegal and unconstitutional because under the Constitution only the president could proclaim emergency on the advice of the prime minister. “The Chief of Army Staff cannot impose emergency,” he remarked.

Khalid Anwer, another seasoned lawyer and former law minister, rejected the Constitution (Amendment) Order as ‘rubbish’ in constitutional terms. “It will have no legal or constitutional status at all once the emergency is lifted,” he remarked.

He said Gen Musharraf had tried to insert a sort of indemnity clause into the Constitution through an order to provide protection to what he called ‘unconstitutional actions’. He said such indemnities had previously been given but through a constitutional amendment act.

Apart from the validation clause, other amendments introduced through the Presidential Order include a clause that would allow the setting up of a high court in the federal capital.

About the clause creating a high court in Islamabad, Mr Khalid Anwer said it was something mala fide and was meant to curtail the jurisdiction of the Lahore High Court (Rawalpindi Bench). He said new appointments would be made for the new high court and politically pliable people would be brought in.

Reading in the light of the evolving situation in the coming days, veteran lawyer and politician S.M. Zafar told Dawn that the President’s Amendment Order was an indication that the emergency imposed on Nov 3 was soon to be lifted. “It is a prelude to the lifting of emergency and is on the pattern of Legal Framework Order (LFO) 2002 that was passed when the emergency was about to be lifted.”

He said the order was likely to come up before the Supreme Court for examining its constitutional validity, and the apex court’s decision would be the first indicator of the future status of this ‘legal document’.

Commenting on the order, Syed Zafar Ali Shah said General Musharraf was taking illegal and unconstitutional actions and was trying to provide them constitutional cover through orders that had no legal value at all.

He said the Supreme Court had rightly or wrongly authorised Gen Musharraf to amend the Constitution while hearing a petition filed by him, but that time had also expired. He said that even parliament could not change the basic structure of the Constitution.

He said the amendment to the Constitution through an ‘unconstitutional order’ amounted to subversion of the Constitution.

Like S.M. Zafar, he too viewed it as an attempt by Gen Musharraf to add a sort of indemnity clause to the Constitution for himself. He said it appeared as if he was scared of the judges appointed by him.Justice (retd) Gul Zarin Kiani when contacted refused to offer any comment, saying that it was not possible for him to say something about a document he has not seen for himself.