May 222008

Federal Law Minister Farooq H Naek is quietly working these days on preparation of a constitutional package which might be presented before the Parliament in the form of a constitutional amendment bill within next two weeks. No details of the proposed constitutional package have so far been made public either by the Ministry of Law or by the Pakistan Peoples Party Secretariat. However, in view of the ongoing political developments in the country, it is almost certain that the thrust of the constitutional package will be on independence of the judiciary in general and on restoration of the deposed judges in particular. Although both Pakistan Peoples Party (PPP) and Pakistan Muslim League – Nawaz (PMLN) have been dilating upon the issue of the restoration of the deposed judges for months, there has been no consensus between the two major political parties on this issue. PPP Co-chairman Asif Ali Zardari and the PMLN chief Mian Nawaz Sharif have repeatedly vowed that there is no difference among them as to the restoration of the judges. Nonetheless, they do have differences on ‘modalities’ or the method that should be adopted to restore the judges. While Sharif maintains that the issue may be resolved by approval of a resolution in the National Assembly followed by an executive order, Zardari has reservations on the procedure. According to him, the restoration of the judges in the manner suggested by Sharif will lead to a clash between the institutions. In his view, if the executive pursues the path of confrontation, it could face two potential threats: firstly, the Supreme Court may issue a Stay Order against the executive action; and secondly, the President may not comply with the advice or wishes of the federal government. Both PPP and PMLN have parted their ways because of their differences on the judges’ issue. Yet, both of them admit their allegiance to the Bhurban Accord of 9th March 2008 and the Charter of Democracy of 15th May 2006. The Bhurban Accord declared that the judges will be restored through a parliamentary resolution within thirty days of the formation of the federal government. The deadline of thirty days has already expired. The continued adherence of PPP and PMLN to the Bhurban Accord in the present scenario simply means that both the parties still agree that the deposed judges will be restored through a parliamentary resolution. To give effect to its part of the commitment made in the Bhurban Accord, Pakistan Peoples Party wants to amend the Constitution and to enact or amend some other laws before bringing any resolution in a joint session of the parliament for the judges’ restoration. To preclude dissent of PMLN leadership, Pakistan Peoples Party plans to build the edifice of the proposed constitutional package upon the foundations of the Charter of Democracy (COD). The COD is divided into four sections: constitutional amendments, code of conduct, free and fair elections, civil-military relations. It is the first section namely ‘constitutional amendments’ which is likely to figure up in the forthcoming constitutional package of the coalition government, if it can still be called a coalition government after resignations of PMLN ministers on 12th May 2008. In its section A, the COD promised ten amendments in the constitution. These were as follows: 1. The 1973 Constitution as on 12th October 1999 before the military coup shall be restored with the provisions of joint electorates, minorities, and women reserved seats on closed party list in the Parliament, the lowering of the voting age, and the increase in seats in parliament and the Legal Framework Order, 2000 and the Seventeenth Constitutional Amendment shall be repealed accordingly. 2. The appointment of the governors, three services chiefs and the CJCSC shall be made by the chief executive who is the prime minister, as per the 1973 Constitution. 3. (a) The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of the following: (i) The chairman shall be a chief justice, who has never previously taken oath under the PCO. (ii) The members of the commission shall be the chief justices of the provincial high courts who have not taken oath under the PCO, failing which the senior most judge of that high court who has not taken oath shall be the member. (iii) Vice-Chairmen of Pakistan and Vice-Chairmen of Provincial Bar Association with respect to the appointment of judges to their concerned province. (iv) President of Supreme Court Bar Association. (v) Presidents of High Court Bar Associations of Karachi, Lahore, Peshawar, and Quetta with respect to the appointment of judges to their concerned province (vi) Federal Minister for Law and Justice (vii) Attorney General of Pakistan. (a-i) The commission shall forward a panel of three names for each vacancy to the prime minister, who shall forward one name for confirmation to joint parliamentary committee for confirmation of the nomination through a transparent public hearing process. (a-ii) The joint parliamentary committee shall comprise of 50 per cent members from the treasury benches and the remaining 50 per cent from opposition parties based on their strength in the parliament nominated by respective parliamentary leaders. (b) No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973. (c) Administrative mechanism will be instituted for the prevention of misconduct, implementation of code of ethics, and removal of judges on such charges brought to its attention by any citizen through the proposed commission for appointment of Judges. (d) All special courts including anti-terrorism and accountability courts shall be abolished and such cases be tried in ordinary courts. Further to create a set of rules and procedures whereby, the arbitrary powers of the chief justices over the assignment of cases to various judges and the transfer of judges to various benches such powers shall be exercised by the Chief Justice and two senior most judges sitting together. 4. A Federal Constitutional Court will be set up to resolve constitutional issues, giving equal representation to each of the federating units, whose members may be judges or persons qualified to be judges of the Supreme Court, constituted for a six-year period. The Supreme and High Courts will hear regular civil and criminal cases. The appointment of judges shall be made in the same manner as for judges of higher judiciary. 5. The Concurrent List in the Constitution will be abolished. A new NFC award will be announced. 6. The reserved seats for women in the national and provincial assemblies will be allocated to the parties on the basis of the number of votes polled in the general elections by each party. 7. The strength of the Senate of Pakistan shall be increased to give representation to minorities in the Senate. 8. FATA shall be included in the NWFP province in consultation with them. 9. Northern Areas shall be developed by giving it a special status and further empowering the Northern Areas Legislative Council to provide people of Northern Areas access to justice and human rights. 10. Local Bodies election will be held on party basis through provincial election commissions in respective provinces and constitutional protection will be given to the local bodies to make them autonomous and answerable to their respective assemblies as well as to the people through regular courts of law. (Continued)

Courtesy: The Frontier Post, 21/5/2008

 Posted by at 10:07 pm

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