The much-hyped constitutional package prepared by Farooq Naek is finally available to the public. Shorn of its packaging, it is nothing but an attempt to save the NRO, perpetuate the Dogar court and open the way for indemnifying Musharraf for his unconstitutional acts. It is wrapped in a plethora of convoluted, impracticable, poorly drafted and, in many places, badly conceived, provisions; ostensibly to guarantee the independence of the judiciary but actually to curtail the tenure and powers of Chief Justice Iftikhar Chaudhry in a Supreme Court packed with Musharraf and Zardari loyalists.
The key provisions of Naek’s 8,000-word, 80-article opus are those which seek to provide protection to the NRO (new Article 270AAA), give a fresh lease of life to the Dogar court (new Article 270CC), assure the PCO judges of security of tenure (new Article 209) and of immunity from prosecution for abetment of high treason (amendment to Article 6) and empower the government to indemnify Musharraf’s unlawful actions (amendment to Article 46). These five articles of the constitutional package form its core. The rest is window-dressing.
Protecting the NRO
Although the NRO is not named even once in the proposed Eighteenth Amendment, it forms the keystone of the constitutional package. The “threat” to the NRO comes from three sources: (a) Article 89, which lays down a maximum four-month life for an ordinance; (b) Article 8, according to which all laws inconsistent with the Fundamental Rights guaranteed by the Constitution are void; and (c) an independent judiciary, which might have the temerity to rule that the NRO is inconsistent with one or more of these rights, such as the right to equality before law. The constitutional package takes care of all three eventualities.
First, under Clause 1 of new Article 270AAA, the NRO and any action taken under it “shall be deemed to have been validly made and taken by the competent authority, notwithstanding the expiry of the period of four months specified in Article 89.” The NRO is not specifically named, as that would make it obvious that the main aim of the amendment is to protect the Ordinance under which the PPP leadership has been cleared of a whole raft of corruption charges. Therefore, Naek’s proposal gives constitutional protection to all Ordinances promulgated by Musharraf between July 12 and Dec 15, 2007, some thirty-odd, of which the NRO is one. This amendment also serves the purpose that the NRO will not have to be submitted for approval to our new “sovereign” Parliament which might otherwise have been tempted to poke its nose into this sensitive matter of state.
Second, under Article 270AAA, Clause 1, the NRO shall, “notwithstanding anything contained in the Constitution,” not be called in question “in any court or forum on any ground whatsoever.” If this amendment is adopted, the courts would be debarred from ruling whether the NRO is in conformity with the Constitution. As if that was not enough, Clause 2 goes on to add that the NRO shall “continue in force until altered, repealed or amended by the appropriate legislature.” In other words, the Supreme Court or the other courts will have no power to tamper with this sacrosanct law.
Perpetuating the Dogar court
That brings us to the third source of danger to the NRO: an independent judiciary. Even after these amendments to protect the NRO, there is no telling what an independent judiciary might do. The stay order given by the Supreme Court on the NRO before Nov 3 is no doubt still fresh in the minds of the PPP leadership. The constitutional package therefore seeks to entrench the Dogar court, while also making some concession to the demand for the restoration of the deposed judges. The legal formula which the authors of the constitutional package (Naek, Sharifuddin Pirzada and Qayyum) have adopted for this purpose is to be found in Article 270CC, which states that judges who had “ceased to continue to hold office in pursuance of the Oath of Office (Judges) Order 2007 shall stand/restored to the position and seniority they were holding on November 2, 2007.” This amounts to first validating the removal of the deposed judges and then restoring them to their position and seniority.
The Eighteenth Amendment does not expressly validate the PCO but it does the next best thing, as far as Zardari and Musharraf are concerned. It entrenches the court which validated the PCO, Musharraf’s “election” and the NRO. The validation of the PCO is also implicit in the mere fact that the restoration of the deposed judges is to be brought about by a constitutional amendment. Moreover, instead of reverting the Supreme Court and the High Courts to the position on Nov 2, as constitutional propriety demands, the new Article only speaks of the restoration of the deposed judges to their position and seniority on that date.
The PCO judges are also to be given security of tenure through a new procedure for the removal of judges (Article 209) which is tilted in their favour. The Supreme Judicial Council, which could remove those judges who took oath under the PCO on grounds of misconduct, is to be replaced by a “Judicial Commission of Pakistan” composed of “non-politicised” retired judges, who could be counted upon to do his bidding.
As a further assurance to the PCO judges, Article 6 is to be amended. As it stands at present, they could be prosecuted for abetment of high treason. But under the Naek package, only future judges who validate an abrogation of the Constitution will have to face this charge.
The term of office of the chief justice is to be limited to anywhere between three to five years, so that Iftikhar Chaudhry retires early. Also, Justice Javed Iqbal, who is the most senior judge after Iftikhar Chaudhry, is to be debarred under the Naek package from being restored, so as to pave the way for Dogar, Zardari’s favourite judge, succeeding Iftikhar Chaudhry as chief justice. Finally, the retirement age for the chief justice of the Supreme Court is to be raised to 68 years, so that Dogar can serve a full term in that office after Iftikhar Chaudhry.
In order to escape punishment under Article 6, our military dictators have always sought to have their coups validated through a constitutional amendment before handing over power. The Seventeenth Amendment gave protection for Musharraf’s first coup through Article 270AA. To validate his second martial law, he inserted Article 270AAA, almost a carbon copy of 270AA, through a presidential order issued under the PCO. But an amendment made under a presidential order is of no effect unless duly adopted by Parliament. The Naek package does not have this Article or anything similar. However, as it has been said, the Constitution is what the judges say it is. Since the Dogar court, which declared the PCO and Musharraf’s “election” to be valid, is being retained under the proposed Eighteenth Amendment, Musharraf could well claim, in case he is brought to justice, that his actions of Nov 3 have been held to be valid.
The constitutional package also adopts another route to indemnify Musharraf: An amendment to Article 45 would empower the president to “indemnify any act whatsoever.” To indemnify, according to The New Oxford Dictionary of English, means (a) to compensate (someone) in respect of harm or loss; and (b) to secure (someone) against legal responsibility for their actions. Under Article 45, the President has the power to grant pardon after a person has been convicted and sentenced. The Naek proposal would now also empower the President to absolve any alleged offender of the charges against him even before conviction. This would enable the government to offer a safe exit to Musharraf, should he choose to resign. In other words, an NRO for Musharraf.
(To be continued)
The writer is a former member of the Pakistan Foreign Service. Email: firstname.lastname@example.org
Source: The News, 16/6/2008