Sunday, April 11, 2010

ANALYSIS: Amending the constitution —Dr Hasan-Askari Rizvi

http://www.dailytimes.com.pk/default.asp?page=2010\04\11\story_11-4-2010_pg3_2

The most innovative change relates to the appointment of judges of the Supreme Court and high courts, neutralising the chief justice’s acquired power to make binding recommendations for appointment. This power was acquired by the chief justice through different judgements starting with the 1996 judgement in the judges’ case

There is a need to celebrate the current consensus among the political parties represented in parliament on the text of the 18th Constitutional Amendment. The Parliamentary Committee for Constitutional Reforms (PCCR) took over nine months to evolve a consensus document, although different parties have added separate comments to outline their individual party positions.

This consensus is a rare development because the political parties and leaders are known more for polemical exchanges and conflict-prone interaction. The only occasion in the past when the political leaders demonstrated extraordinary capacity for consensus building was the formulation of the 1973 Constitution. Parliament approved the 1973 Constitution without any negative vote. This constitution was an advance over the previous constitutions in terms of social, economic and political rights, provincial autonomy and identity and distribution of economic resources between the Centre and provinces. Now, the 18th Amendment seeks to go several steps further on these issues, stipulating measures to increase administrative and financial autonomy of the provinces and shifting some areas of administration to the provinces. The position of the Council of Common Interests (CCI) has also been strengthened. If we read these changes along with the new NFC Award and the Assistance Package for Balochistan, the 18th Amendment can be described as a turning point in Pakistan’s constitutional and political history.

The passage of the 18th Amendment Bill in the National Assembly on April 8 was generally smooth. However, there were some political fireworks on the new name for NWFP because the members from the Hazara area took exception to this. The same issue is going to cause some controversy in the Senate. The PML-N may decide to withhold its support to the amendment on the name issue in order to strengthen its electoral position in the Hazara area.

The provisions of the 18th Amendment Bill can be divided into three major categories. Some amendments are based on the provisions of the Charter of Democracy (CoD). Most provisions of the 17th Amendment (2003) are being repealed or modified; some of its provisions have been retained. Several new amendments were proposed by the PCCR that do not relate to the above-mentioned two categories. These include a change in Article 6 regarding high treason, provincial autonomy, and the share of the provinces in natural resources, including coastline resources.

It is noteworthy that the reforms committee retained most provisions of the 8th Amendment inserted in 1985 by parliament on the initiative of the military government of General Ziaul Haq. His government increased emphasis on Islam as part of his effort to appease the conservative and orthodox Islamic clergy and their followers. General Ziaul Haq’s Islam-oriented constitutional provisions were the inclusion of the Objectives Resolution in the main text of the constitution, establishment of the Federal Shariat Court and the Shariat Appellate Bench in the Supreme Court, and religion and ethnic-based vague eligibility criteria for candidates in parliamentary elections. The committee did not go into these provisions to avoid confrontation with religious political parties that continue to support General Zia’s Islamisation.

The most innovative change relates to the appointment of judges of the Supreme Court and high courts, neutralising the chief justice’s acquired power to make binding recommendations for appointment. This power was acquired by the chief justice through different judgements starting with the 1996 judgement in the judges’ case. The constitution did not make the recommendation of the chief justice binding on the president. There was a long consultative process that left discretion to the president. In practice, both the chief justice and the presidency accommodated each other on appointments through consultations. This procedure caused political controversies and the superior judiciary used its judgements to increase its hold on the appointments procedure. The Legal Framework Order (LFO) issued by the military government of General Pervez Musharraf (2002) acknowledged the primacy of the chief justice in the appointments process. However, some of the recent appointments by the chief justice after a standoff with the president were subjected to criticism by a section of lawyers and the media for being skewed by non-professional considerations.

The new procedure for the appointment of judges of the superior judiciary assigns the power to a judicial commission of seven people headed by the chief justice. It also includes two senior judges of the Supreme Court, the attorney general, the federal law minister, one representative of the designated bar council and a retired judge of the Supreme Court. Its recommendations are subject to a time-bound review of a joint parliamentary committee that would have equal representation of the government and the opposition.

A section of lawyer activists are critical of the proposed procedure and want the chief justice to continue exercising the exclusive power to appoint judges. They maintain that the change in the appointments procedure amounts to changing the ‘basic structure’ of the constitution, which parliament is not authorised to do. They are hoping that the Supreme Court would use the ‘basic structure’ argument to knock out this procedure and thus protect the powers of the chief justice.

The 1973 Constitution neither assigns superiority to some articles over the others nor does it restrict the power of parliament to amend it through the prescribed procedure. Therefore, the argument of the ‘basic structure’ has no basis in the constitution and parliament has the sole power to amend the constitution.

Even if we go by the basic structure argument, the basic features of the constitution are an Islamic republic, parliamentary democracy, federalism and independence of the judiciary. It is parliament that decides about the ways and means to protect and promote these attributes. These methods can change over time. For example, the18th Amendment envisages far more powers to the provinces. Does this mean that the basic structure of the federation as written down in the original constitution has been violated? The answer is ‘no’. Pakistan remains a federation, but the operationalisation of this principle has been updated to meet the changed situation.

The primacy of the elected parliament needs to be respected. Judicial activism cannot be used to infringe the domain of the elected parliament and, especially, to question its powers to amend the constitution. The new procedure for appointment of judges is more transparent and consultative, giving a pre-eminent role rather than sole power to the chief justice. The judiciary’s independence is not affected by this amendment. Pakistan needs an independent rather than a dominant judiciary.

Dr Hasan-Askari Rizvi is a political and defence analyst

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