Sunday, April 18, 2010

All That Glitters Is Not Gold

Hurriedly passed bill would lead to more serious constitutional difficulties in future as a number of legal issues were not thoroughly debated in Pakistan National Assembly (PNA). And on April 16, 2010, all the 90 members present in the 100 members Senate also unanimously passed the 18th Constitutional Amendment Bill to restore the Constitution to its original form by removing the imprints of the former military dictators. However, the most important issues of economic prosperity were ignored as usual because most of the political figures define the non-issues as the alarming issues.
Pakistan’s overjoyed Prime Minister celebrated the democratic victory and said, "It is victory of democracy. It is time to deliver. Let us ensure that dividends of 18th amendment reach the masses. I congratulate the nation, the Parliament and the Committee on this landmark achievement."
Prime Minister is now the “chief executive” of the federation –but the substance of power will remain with President Zardari who also happens to be the Party’s Co Chair.
Though, apparently the appointment of the army chief or cabinet ministers will now be in the hands of PM Gilani, yet the main power will remain with the Co-Chairperson of the PPP. Nothing is seen in the amendment to keep 'the party politics' away from the non political office of the President. Obviously, he must not perform this role if he heads a particular political party.
All previous elected presidents of Pakistan under the 1973 Constitution stayed away from active politics. But President Zardari continues as the party leader as well as the de facto Head of Pakistan after the passage of the amendment bill.
However, under Article 48, the President shall act in accordance with the advice of the cabinet or the Prime Minister. Even under Article 45, the President’s power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority, to appoint the attorney-general of Pakistan, the auditor-general of Pakistan and provincial governors will be dependent on the Prime minister’s recommendation. The question is--would PM Gilani go against the wishes of his Party chief ?
Regarding the judicial appointments, the new procedure under the said amendment compromises the primacy of the judiciary; hence clearly undermines the independence of Judiciary. Very basic feature of the Constitution has been tampered with, as no amendment can ever be made to the Constitution to the disadvantage of the independence of the judiciary.
The amendment envisages the formation of a judicial commission to be headed by the chief justice of Pakistan and comprising members including two senior most judges, one retired judge, the law minister, the Attorney General and a nominee of the Pakistan Bar Council. This commission would recommend one name against each vacancy of judge in the Supreme Court to the parliamentary committee, which would comprise eight members, four from government benches and four from the opposition.
However, the supreme court bar association (SCBA, a majority of the legal fraternity including most of the respected retired judges have rejected the concept of  Judicial Commission and Parliamentary Commission for the appointment of judges.
The legal and constitutional experts generally support the idea of creating a collegium of judges as is the practice in India to make appointment of judges to the superior judiciary.
Former attorney general Anwar Mansoor, who has recently resigned after his differences with the government over the implementation of the Supreme Court’s decision on the NRO, is also of the view that the new appointment process would politicize the judiciary besides affecting its independence.
Nevertheless, CJP Choudhry asserts that the Supreme Court has authority to examine irregularities of government and its departments and to prevent abuse of power. Addressing the concluding session of National Judicial Conference, he stressed, “We should be surrounded by incorruptible people, adding all the stakeholders of the system will have to play their part for the rule of justice.” He elaborated the Legislature, Executive and Judiciary would have to consolidate each other and that all the institutions should work in their specified ambits. Fortunately, the Constitution is in force in the country with democracy flourishing. According to Justice Chaudhry, the process of improvement has set off in the justice system with the announcement of Judicial Policy and it is now needed that justice should be dispensed with indiscriminately. The Chief Justice further said, “The judiciary is a vital organ of the state; hence, an independent and strong judiciary can play key role in functioning of the government.”
On the contrary, Pakistan National Assembly is almost occupied by the Jagirdars who win by forcing the constituents to vote for them or else they would end up with certain reprisals. In other words, these elected dictators are a cause of discomfort to the poor people who chose them. Although, unity, faith and discipline are the foundation for a stronger Pakistan, yet many of the elected dictators are almost engaged in strengthening their own powers. This is so saddening.
Furthermore, name changing or dreaming for more provinces is a waste of time and resources which is good for nothing but serving the purposes of anti-Pakistan elements. Instead, the legislature should go for ‘Unity of the Federation’ under ONE UNIT type, since there would be a drastic cut in expenditure to the overburdened national exchequer.
Most importantly, the judiciary’s supervisory role of keeping an eye on any illegitimacy or abuse by any pillar of the State should be maintained to eradicate corrupt people indiscriminately.

The writer is an independent writer based in Canada

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