200806.04
Off
0

Cursory Comments  on 18th Amendment

Mohammad Akram Sheikh
Wednesday, June 04, 2008

The scheme of the Constitution of 1973 mandates the nation in the month of May and June has only to focus on budget making so that the country be geared through any economic or financial problems. It is with this purpose that  the Constitution mandates that no other business shall be transacted when the money bill is presented before the National Assembly. This overwhelming directive of the Constitution has been frustrated and virtually set at naught by introducing the constitutional package debate at a point of time when the nation should have concentrated and focused only on the budget making and its leadership should have steered the country through massive economic crisis being termed by experts as economic meltdown.

After a thorough reading of the proposed constitutional package, at least I have come away with a feeling of extreme disappointment. The package is self-contradictory, full of absurdities, and seems to have been prepared without any serious application of mind. Let me share with you my views on salient features of the proposed amendments

ARTICLE 6: HIGH TREASON

A 6 (1) of the current Article 6 has been retained in essence. Anyone who abrogates, suspends the Constitution shall be guilty of High Treason.

A 6 (2). The aim of this Article seems to be to make the aiders, abettors and also validators (including Judges) of the act as described in A 6(1) guilty of the offence of High Treason.

  1. Most absurdly, instead of making individual judges guilty of high treason if they were to validate abrogation, suspension etc of Constitution, A 6(2) aims to make the whole Supreme Court or whole High Court guilty of High Treason! The key expression in A 6(2) reads: ‘or any court including a High Court and the Supreme Court ..that validates’! We would be a joke of the world if entire Supreme Court is tried for offence of High Treason. Who will prosecute and who will decide guilt of the institution of SC? Besides, what about judges, sitting in the same Supreme Court, who strongly oppose such validation?
  2. In A 6(2) the expression ‘any person …affirming or validating’ has been left so open that it may include even members of Parliament. Is that the intention or is that just negligence? Because while this whole package does not include validation of 3rd November actions, in case of adoption of this Amendment, any member of Parliament who subsequently initiates a bill for such validation will be guilty of High Treason. Is that the intention? If it is, then it should be clearly specified. Otherwise, Parliament should be specifically excluded so that it dose not open another Pandora’s box in future.
  3. General Musharraf’s actions of 3rd November 2007 obviously fully fall within High Treason. As the validity of those actions is still an open question, with many political parties demanding General Musharraf’s trial under Article 6, and deposed Judges still seeing it as abrogation of Constitution, Justice Hameed Dogar has affirmed all those acts as valid. In other words, the illegality of 3rd November actions is still a very live issue and the very status of the judges who have affirmed them is the most contentious political question today.

In this scenario, it would be irresponsible to make the judges guilty of high treason if they uphold any such action without clearly either bringing Justice Dogar and his colleagues who affirmed the actions within the ambit of A 6 (2) (making them guilty of high treason) or taking them out of this (giving them immunity from being held guilty of high treason). A 6 is silent on this point. What if after restoration, someone files a petition in Supreme Court seeking prosecution of  Justice Dogar and other judges who validated General Musharraf’s 3rd November actions?

  1. Article 6(1) creates and describes the offence of high treason and A 6(2) makes any person aiding or validating the act of A 6(1) also guilty of high treason. Even under current law, a military officer will be breaching his oath of office by ‘involving himself in politics’, if, say, intelligence officer, were to meet and persuade an MNA to join a forward bloc etc. At present, this action, while being in violation of oath, does not amount to abrogation or suspension of Constitution. If PPP wanted breach of oath to be made high treason also, it should have included this too in A 6(1) but it did not. However, A 6(2) which is aimed at making the aiders and abettors and validators of the offence of A 6(1) also liable for high treason, oddly mentions violation of oath of office as prescribed in Schedule-III. The legal consequence may be that if a general breaches his oath by merely holding a meeting with a politician, while that general may not be guilty of high treason under A 6(1), any person aiding such meeting will be so guilty because of A 6(2). The scope of A 6(2) is thus wider than A 6(1). For decades to come, this confusion too may lead to a lot of controversy as to what does and what does not fall within the definition of high treason.

ARTICLE 58: DISSOLUTION OF THE NATIONAL ASSEMBLY

A 58 (2) and (3) that dealt with the President’s power to dissolve the National Assembly are proposed to be deleted.

ARTICLE 95: VOTE OF NO CONFIDENCE AGAINST THE PRIME MINISTER

A 95(2) makes it impossible for NA to vote a PM out without a name of his successor being in the same resolution. This proposal is more of a vote of confidence for the successor than a vote of no confidence against an incumbent Prime Minister. For instance, no motion for vote of no confidence can be moved against present PM in the absence of a successor to be elected through the same resolution. That in effect would mean that no such vote can be moved or at least adopted. The NA can not remove a PM and then focus on choosing a new PM. And if the name of the successor fails to get enough votes, the incumbent PM will not be removed even if majority of MNAs want his removal.

ART. 184(3)

The nature of exercise of jurisdiction under Article 184(3) is sought to be absolutely changed from a substantial judgment to a mere declaratory order which not only tantamount to taking away  jurisdiction of the Supreme Court  but also  tendes to be used for providing benefits of fundamental rights to the lowest strata of society. Common man is the ultimate beneficiary. And the great Government of PP Party seeks to take away this benevolent jurisdiction, keeping the luxury of the litigation to the selected elite which can well afford totally adversarial proceedings.

ARTICLE 209: JUDICIAL COMMISSION OF PAKISTAN

Article 209 as it presently stands is completely replaced with a new Article.

A 209(2) specifies the composition of a judicial commission (as opposed to a judicial council existing at present). The Judicial Commission is supposed to be composed of:

  1. a) 1 (non-politicized) retired Chief Justice of Pakistan
  2. b) 2 retired (non-politicized) Judges of the Supreme Court
  3. c) 5 retired (non-politicized) Judges of the High Court

Thus the proposed Judicial Commission will consist of 8 (non-politicized) retired Judges. No definition of ‘non-politicized’ judges have been provided. All eight are to be appointed by President so it is up to the President to pick and choose whoever he desires. What was the problem with J. Munir or J. Anwarul Haq or J. Irshad Hassan Khan? Were they politicized? The sad thing is that when drafting this clause, while so much emphasis has been place on members to be “non-politicized”, even for the sake propriety, PPP intellectuals even forgot to use such expressions as ‘honesty’ or ‘proven integrity’ as a criterion for membership of Commission.

Furthermore, A 209(5) provides that ‘In case of . . . difference of opinion . . . majority .’ view shall prevail.

This means that the Judicial Commission will take all its decision by majority vote. As the total number is 8, the majority will be 5, which, means that 5 retired Judges of High Courts will hold in their hands the fate of a sitting Chief Justice of Pakistan, all Judges of Supreme Court, all chief justices of High Courts and all judges of High Courts. Under present A 209, the President ‘may’ remove a judge in case of a negative finding of the Supreme Judicial Council. The package proposes the word ‘may’ to be replaced by ‘shall’. This means that whenever the four retired judges give a finding against a serving judge, the President ‘shall’ have to remove him.

 

Why it is absurd?

As we shall see below, under the proposed A 270CC, all judges including Iftikhar Mohammad Chaudhry are supposed to be restored to the same position and seniority as that on 2nd November.

A 209(8) provides:

Now, A 209(8) of the proposed amendment provide as follows When the ‘. . . Commission is enquiring . . . the President shall by order in writing require such Chief Justice or Judge to proceed on leave’ from such date and for such duration as may be described in the order.

The above provision is in substance the same as the Presidential Order No. 27/ 1970 (pertaining to sending a Judge on forced leave) which was declared illegal by a Full Court of the Supreme Court on July 20th 2007, when the Supreme Court reinstated Chief Justice Iftikhar Muhammad Chaudhry.

In view of above, Consider this scenario: Let us assume, the package is adopted today and under the proposed Article 270CC, the CJ stands restored. Next day, any private person may file a complaint against the Chief Justice, thus initiating an ‘enquiry’, which will make Musharraf constitutionally bound under Art. 209(8) to forthwith send the Chief Justice on forced leave.!! One wonders if it is by negligence or by design? Within a day of restoration, Musharraf can send CJ on forced leave once again.

Even otherwise, any disgruntled litigant can, at any time, have any judge sent on forced leave. And what if one person files complaints against all judges of Supreme Court and High Courts? The President will be constitutionally bound to send all of them on compulsory leave!!

ARTICLE 243: COMMAND OF ARMED FORCES

Strangely, this Article seems to have been drafted in the specific background of the current standoff between Gen Musharraf and Gen Kiyani. Musharraf’s power is to be enhanced and Kiani has to be given guarantee that Musharraf cannot appoint just any general as COAS because Kiyani will have the last say on who is the new COAS!!  

Enhancing President’s powers

A 243(3) instead of taking away the power from President to appoint military chiefs, by deleting the expression ‘in consultation with the Prime Minister’, completely removes the possibility of the PM to have any say in the matter. This amendment therefore does not merely retain the power of President to appoint COAS, it strengthens it by removing from him even the burden of consulting the PM. It will now be the sole prerogative of the President.

Strengthening Kyani’s Position

A 243(4) grants sole authority to ‘Chief’ (without specifying which chief, whether army, navy or the air force) to give a panel of three names ‘in order of priority’ to President for appointment from amongst them.

Use of the word ‘priority’ is unfortunate. Priority is something personal. COAS may give list of priorities for his house, cars, etc. but not who should be COAS after him!! No mention of such word as “suitability” or “Professional competence”.

If this is adopted, Pakistan will become the only country where a government servant will have a Constitutional right to have a veto over who will take his place!!! Come on all you generals who one day aspire to become COAS. Don’t focus on performance, don’t look at PM or even President. Just polish the current COAS’ shoes and hope that one day when he is retiring, he will include your name in the panel of priorities that he would send to the President. And what if Musharraf decides to replace Kiyani? He can’t do so unless Kiyani gives him a list of his ‘priority’ generals.

ARTICLE 270AAA: VALIDATION OF ORDINANCES ETC.

This does not propose to validate General Musharraf’s actions of 3rd November. Though it does give validation to certain Ordinances promulgated by Musharraf. (Obviously, this validation will include NRO also).

ARTICLE 270CC: RESTORATION OF SUPERIOR COURT JUDGES

Restoring judges through this constitutional amendment instead of a simple resolution is against Murree declaration. If restoration is effected through this provision, it would mean that the Parliament has accepted that all acts of General Musharraf of 3rd November were valid as they can only be reversed through an amendment. This may amount to implied validation of 3rd November actions.

A lengthy proviso is there just to ensure that Justice Javed Iqbal is not back in the Court so that Justice Dogar gets a free run at being the next Chief Justice of Pakistan.

CONCLUSION:

Most of amendments proposed are cosmetic in nature e.g. where PM will not even have a right to be consulted appointment of military chiefs, he has been empowered to declare war. Others are mischievous such as giving the President the power to send the CJ on force leave. But most changes simply seem to have been prepared by a non-lawyer who has no idea on how one word or expression can play havoc in a multitude of different factual situations that may arise in the decades to come, which means that It is a Pandora’s box of legal controversies. 

For instance, first, Article 243(4) for the first time gives the Chief of Army Staff a constitutional veto on who should be next Chief of Army Staff. What if the Chief of Army Staff refuses to give a list of his three ‘priorities’ for the next Chief of Army Staff? It will be the first time in world where outgoing official will have a constitutional right to pick his successor.

Secondly, it will be almost impossible to have no confidence against the Prime Minister.

Thirdly, it is not clear whether violation of military oath will amount to high treason or not because while Article 6(1) has no mention of it, A 6(2) does mention it.

Fourthly, it is not clear why retired judges are being empowered to remove any serving judge? How will this increase independence of judiciary? Who will decide which judges are non-politicised? 4 retired High Court Judges cane remove Chief Justice Pakistan, and while they are enquiring into his conduct, the President will have to send the Chief Justice of Pakistan on forced leave.

Having concluded my brief impartial comments on the salient features of the package of Constitutional Amendments being proposed by PPPP, let me leave the reader with the following very likely scenario:

The whole package is finally adopted and under A270CC, all the deposed Judges including Chief Justice of Pakistan Iftikhar Muhammad Chaudhry stand restored. The very next day, someone files a complaint against the Chief Justice before a commission of retired judges, thereby merely initiating ‘enquiry’, which, under Article 209(8), will make Gen Musharraf constitutionally bound to forthwith send the CJP on forced leave, landing the whole nation exactly the same mess in which it was on March 9th 2007, only this time, Musharraf will have the backing of the Constitution which he did not have on 9th March 2007.

Even if, for a moment, we keep aside whether we agree or not with Mr. Zardari’s views on Judiciary or General Musharraf, in view of the errors, contradictions and flaws, that I have shared with you, I invite the readers to judge themselves whether there has even been a ‘serious and responsible” application of mind behind a package to completely change the Constitution of this country, a task on which Mr. Zardari and his team so dramatically embarked and on which they have been working day and night for the last 100 days.