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



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