Inside the constitutional package – by Rauf Klasra
Being the president won’t be fun any more; Minimum age for judges 45; president can’t impose emergency with impunity; PM to appoint services chiefs; judges validating coup to be tried for high treason
ISLAMABAD: President Asif Ali Zardari’s sweeping powers to impose emergency in the country will be clipped in the upcoming constitutional amendment package, which also envisages absolute powers to the Parliamentary Commission to reject, with two-thirds vote majority, any proposed judge of the Supreme Court/high court referred to it by the Judicial Commission of Pakistan headed by the Chief Justice of Pakistan.
A draft copy of the proposed constitutional package to be laid down reveals that several powers of the President of Pakistan were being massively clipped, particularly his role in appointment of judges, chief election commissioner, imposition of emergency in the country, caretaker set-up, formation of federal government, etc.
However, according to a source, final touches are still being given to the two most high profile powers of the president — appointing the services chiefs and to dissolve the National Assembly under the earlier Article 58-2(b).
The draft changes also propose that only the native of a particular province would be made the governor of that province.
The Islamabad High Court (IHC) is also being established under the new constitutional package in addition to formation of new high courts at Mingora and Turbat. But, the president would still have the consolation powers to administer oath to the IHC chief justice.
The sources said though these amendments were still at the proposal stage, any last time change was possible.
The documents available with The News revealed that now under the proposed amended Article 232 of the Constitution, the president of Pakistan could not act on his own without proper consent of the concerned provincial assembly. The new clause being added to the article reads that now imposition of emergency in the country due to internal disturbance beyond the powers of a provincial government to control, a resolution from the provincial assembly of that province shall be required. It has also been provided further in the same article that if the president acts on his own, the proclamation of emergency shall be placed before both the houses of parliament to be approved by each House within 10 days.
Earlier, under the existing Constitution, if the president is satisfied that a grave emergency exists in which the security of Pakistan or any part, therefore, is threatened by war or external aggression or by internal disturbance beyond the powers of the provincial government to control, he may issue a proclamation of emergency.
Likewise, President Asif Ali Zardari’s powers are proposed to be transferred to the judicial commission and parliamentary committee of both the houses of parliament. The most important clause added to these changes is the new role of parliament in making decisions about the nomination of judges. The committee would have even powers over the Judicial Commission of Pakistan, which would send its recommendation to the Parliamentary Committee of parliament.
Quite a few clauses are being added to Article 175 to facilitate the new process. According to the new proposed Article 175 (clause 6), the judicial commission, by a majority of the total membership, shall recommend one name for each vacancy in the Supreme Court or a high court to the parliamentary committee while the parliamentary commission would have the powers to send back a recommendation to the judicial commission by a 3/4th majority, and in such a case, the judicial commission shall send a new name for its consideration. The committee would decide the matter within 14 days of the receipt of recommendation, failing which it shall be deemed to have been confirmed.
The draft package also envisages changes in the Article 177 of the Constitution which deals with the powers of the president to appoint the judges. It said in clause (1) the following shall be substituted namely – “(1) The Chief Justice of Pakistan and other judges of the Supreme Court shall be appointed by the president on recommendation of judicial commission provided in the article 175-A.”
Changes have also been proposed in the Article 193 as now the age of a proposed judge would be enhanced from 40 to 45. Now the consultation of the president with the CJ and governors has been done away with as this power will vest in the hands of judicial commission being set up under article 175-A.
Article 198 is also being proposed to be changed. Two new high courts — one at Mingora and other at Turbat — are being set up.
Article 203-C is also being amended to define the criteria of appointment of judges. Now only those people would be made judges of the Federal Shariat Court who would have at least 15 years experience in Islamic law, research or instructions. The judges of the Shariat court shall not be removed from office except in the like manner and on the like grounds as judge of the Supreme Court. In another amendment, the president can no longer assign the judge of the Shariat Court to any other chore.
Changes are also being proposed in the Article 213 as the powers of the president to appoint a chief election commissioner are now being shifted to the prime minister and opposition leader. In the new order, the prime minister shall, in consultation with the leader of the opposition in the National Assembly, forward three names for appointment of the commissioner to joint parliamentary committee for hearing and confirmation of any one. The joint parliamentary committee, to be constituted by the speaker, shall comprise 50 per cent members from opposition parties, based on their strength in parliament, to be nominated by the respective parliamentary leaders. In case there is no consensus between the prime minister and the leader of the opposition, each shall forward separate list to the joint parliamentary committee for consideration, which may confirm any one name.
The total strength of the joint parliamentary committee shall not exceed 12 members out of which 1/3 shall be from the Senate. When the National Assembly is dissolved and a vacancy occurs in the office of the chief election commissioner, the joint parliamentary committee shall comprise members from the Senate and the foregoing provision of this shall “mutatis mutandis’ apply.
Another change in the Article clause 218 says the Election Commission shall consist of the commissioner who shall be the chairman of the commission and four members, each of whom has been a judge of a high court from each province, appointed by the president in the manner provided for the appointment of the commissioner in Clause 2-A of the Article 213.
The powers of the president to appoint the Federal Public Service Commission chairman are being proposed to be shifted to the prime minister after proposing changes in Article 242. Now, the discretionary power of the president to appoint the FPSC chairman was abolished. Now he would be required to make an appointment on “advice of the prime minister”. Likewise, a governor will also appoint chairman of the provincial public service commission on the “advice of the chief minister”.
Source: The News
Judges validating coup to be tried for high treason
Monday, March 22, 2010
PM to appoint services chiefs
ISLAMABAD: Parliament is being asked this week to approve a major change in Article 6 of the Constitution envisaging trial under high treason charges of all those judges of the superior judiciary who would validate any future military coup, as they would be seen as abettors in the crime, writes Rauf Klasra.
The powers of the president to appoint the services chiefs and to dissolve the National Assembly are finally being proposed to be returned to the prime minister amid certain sweeping changes in the clauses pertaining to articles 62 and 63 to stop disqualification of any person from contesting the election or becoming member of parliament on charges of making speeches and comments against the judiciary and Army, unless convicted by a court of law.
Under the new constitutional package, the attorney general will not be allowed to indulge in private practice or accept lucrative fees from individuals or firms so long as he holds the office.
According to the proposed constitutional package being given final shape, clause 4 of Article 200 is being omitted from the Constitution which envisages that “if a judge of a high court who does not accept the transfer (by the president of Pakistan) to another high court under clause (i) shall be deemed to have been retired from his office and on such retirement shall be entitled to receive a pension calculated on the basis of length of his service as judge”. Now under the proposed arrangements, the powers of president to transfer a judge and subsequent punishment of retirement in case of his refusal have been deleted.
One of the proposed changes in the Constitution have also made it mandatory for the president to give his assent to any bill within ten days as against the existing thirty days, failing which the assent shall be deemed to have been given.
According to the available draft copy of the recommendations to be tabled in the National Assembly most probably this week, the committee members were in full agreement to bring about changes in Article 6 of the Constitution to apply high treason clause to all those judges who would validate military rule. They would be seen as abetters in the crime if they will give legal cover to military takeover in future. The first change in Article 6 is being proposed in clause (1) where after the word “subverts” the words “or suspends or holds in abeyance” shall be inserted.
Likewise after clause (2) the following new clause shall be inserted: “no court including the supreme court and high court shall validate an act of high treason mentioned in clause (1) or clause (2)”.
Now the revised Article 6 will read as “(1) any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert Constitution by use of force or by other unconstitutional means shall be guilty of high treason; (2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason. No court including Supreme Court and a high court shall validate an act of high treason mentioned in clause (1) or clause (2);
(3) Parliament shall by law provide for the punishment of persons found guilty of high treason.
A new article 8-A is also being introduced to give right to fair trial. The new article reads “Right to fair trial: For the determination of civil rights and obligations or in any criminal charge against him a person is entitled to a fair trial”.
Meanwhile, it has been confirmed to The News that powers of the president to appoint three services chiefs were being shifted to the prime minister. It was decided among the members that the Constitution should be brought back to its original position as on October 12, 1999. Before Mushrraf’s coup, former prime minister Nawaz Shairf had the powers to appoint services chiefs by virtue of constitutional changes made by Parliament in 1997. Farooq Khan Leghari had inherited these powers from Ghulam Ishaq.
General Pervez Musharraf got these powers back as well as the power to dismiss the National Assembly under Article 58-2(b) although unlike General Zia, Ghulam Ishaq Khan and Farooq Leghari, Musharraf did not dissolve the National Assembly. Now, once again the same powers are being returned to the prime minister.
Some important changes have also been recommended in Article 62. It is being proposed that clauses (g) and (i) of this article be omitted from the Constitution. Clause (g) reads: “a person shall not be qualified to be elected or chosen as a member of parliament if he has not been convicted for a crime involving moral turpitude or for giving false evidence.”
Clause (i) says: “a person shall not be qualified to be elected or chosen as member of parliament if he possesses such other qualifications as may be prescribed by act of parliament”.
Article 63 is also being rewritten in the new package. Clause “g” of article 63 is being abolished. It says: “a person cannot be chosen a member of parliament if he is propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan or sovereignty, integrity of Pakistan or morality or the maintenance of public order or the integrity of independence of judiciary of Pakistan, or which defames or brings ridicule to the judiciary or the armed forces of Pakistan”. Now this clause will be substituted with following words: “a person shall be disqualified from being elected or chosen as member of parliament if he has been convicted by a court of competent jurisdiction for propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan or the integrity or independence of the judiciary of Pakistan or which defames or brings into ridicule the armed forces of Pakistan”. This means that any person who will make comments about judiciary and army would not be stopped from contesting elections or disqualified from parliament seat unless convicted by a court.
In a related change in clause (2), the following shall be substituted: “(2) if any question arises whether a member of parliament has become disqualified from being a member, the speaker or, as the case may be, the chairman, shall refer the question to the Election Commission within thirty days and should he fail to do so within aforesaid period, it shall be deemed to have been so referred to the Election Commission who shall decide the question within 90 days from its receipt and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant”.
In another related change in Article 63, clause (m) is being omitted which says: “a person shall be disqualified from being member of parliament or contest the election if he has been convicted under section 7 of the Political Parties Act 1962 (III of 1962), unless a period of five years has been elapsed from the date of such conviction”.
Likewise, the president’s powers to keep any bill within him for 30 days to put his signatures are also being clipped, as now he would be required to sign or resend the bill to the parliament within ten days. A clause is being inserted in Article 75 which reads: “gives his (president) assent to a bill within ten days failing which such assent shall be deemed to have been given”.
Changes are also being proposed in Article 89. Now president would not issue ordinance if the Senate is in session. Under the current law, the president cannot issue ordinance if the National Assembly is in session but now “Senate” has been added to the relevant clause after the words “National Assembly”.
Changes are also being proposed in Article 104, which says: “speaker provincial assembly will act as or perform functions of governor in his absence. When the governor, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the speaker of the provincial assembly and in his absence any other person as the president may nominate shall perform the functions of governor until governor returns to Pakistan or as the case may be, resumes his function”.
Changes have also been proposed in Article 168, which deals with the appointment of auditor general of Pakistan. For clause (3) the following shall be substituted: “(3) the auditor general of Pakistan shall, unless he sooner resigns or is removed from the office in accordance with clause (5), hold office for a fixed term of five years from the date on which he assumed such office or he attains the age of 65 whichever is earlier.” Other terms and conditions of service of the AG shall be determined by an act of parliament and until so determined by the order of the president. In clause (6) for the words “such other person as the president may direct”, the words “the president may appoint the most senior officer in the auditor general department to” shall be substituted.
Article 170 is also being amended and following new clause shall be added: “(2) the audit of the accounts of the federation and of the provinces and the accounts of any authority or body established by the federation or a province, shall be conducted by the auditor general of Pakistan, who shall determine the extent and nature of such audit”. The reports of the AG will also be laid down before the Senate.
http://www.thenews.com.pk/top_story_detail.asp?Id=27907
The reform package is being prepared by a parliamentary committee comprised of members from all political parties in parliament. While the committee has reached a consensus on what the powers of the president, prime minister and the parliament should be, it has yet to decide on some other ticklish political issues such as renaming North West Frontier Province (NWFP). There are differences over the new name of the province between Sharif’s party and the Awami National Party (ANP), a secular and ethnic Pashtun nationalist party leading a coalition government in the NWFP. Prime Minister Yusuf Raza Gilani will emerge as the powerful head of government as most of Presidential powers transfer to him. President Zardari is voluntarily giving up his powers and setting new precedent. It is good omen that PPP is fulfilling its commitments it made regarding restoration of constitution.