COMMENT: The 18th Amendment case ²Munir Attaullah

As a nation, we are being asked to revisit that ancient philosophical dilemma whether the ends justify the means adopted. Is this a novel version of the µdoctrine of necessity¶? A week ago, the Supreme Court (SC), after months of intensive hearings, passed an interim order in the above case that took everyone by complete surprise. The court decided to refer back to parliament for reconsideration ² with its own recommendations thrown in ² the constitutional amendment passed by parliament relating to the procedure for the appointment of the higher judiciary. Meanwhile, it left open the question whether this provision (and many other changes to the constitution made by the 18th Amendment that were also under challenge by various petitioners) should now indeed be validly considered as part of the constitution. In its own words, ³The court at this stage would not like to express its opinion on the merits of the issues raised...and would rather, in the first instance, defer to the Parliamentary opinion qua Article 175-A on reconsideration by it in terms of this order. We would thereafter decide on all these petitions.´ The date for this µthereafter¶ has been set for the last week of coming January. As far as I could tell, everyone appeared to find sufficient comfort for their own point of view in some part or the other of the order to welcome the decision. For the government, and other critics of judicial activism, the court¶s observation that the amendment must be deemed to have come into effect and, pending the parliamentary review, upcoming vacancies will be filled as per the procedure spelt out in the amendment, was seen as upholding parliament¶s right to amend the constitution. As for that dubious argument that parliament cannot alter the µbasic structure¶ of the constitution through an amendment, there was a reassuring observation: ³...the Court did not deem it proper to make it a touchstone to strike down a constitutional provision´. Meanwhile, the petitioners, though a little disappointed, took heart from the fact that the court, by postponing its decision on merits for a few months, has not rejected outright their objections to the amendment. They can still hope for a favourable decision eventually. As for the more neutral observers, they have praised the court for wisely giving parliament another chance which, if acted upon to the satisfaction of the court, will largely take away the basis for a fundamental disagreement between two pillars of state on an important issue of principle. All in all, the short order seemed a masterly effort at a win-win solution to a thorny problem, right? No, I don¶t think so. Maybe I am alone (though I doubt it) in finding the order wholly unsatisfactory, so I had better give you the reasons that force me to draw that conclusion. Let us start by asking what might happen should parliament, after due reconsideration, still decides the procedure it laid down in Article 175-A will remain unchanged. After all, as far as I can tell, parliament is not even duty-bound to consider the court¶s recommendations (though wisdom requires the honour and dignity of the court be maintained by never ever openly voicing such a thought), let alone treat them as binding (or, will someone tell me the court¶s recommendations are indeed binding?). Then what? Will that be the end of the matter? Do not bet on it. Certainly, in my reading of it (and I hope I am wrong) the judgement powerfully hints at otherwise. Once again, it would appear that the only way of avoiding µthe clash of institutions¶ everyone talks about and dreads is to simply defer to the wishes of the SC without further ado. Everyone recommends that. But there is another side to this story that concerns me. No one questions whether it is indeed constitutionally proper for the court to be demanding from others what it repeatedly asks them to do. In this particular instance, for example, let us remember two important considerations. Firstly, Article 175-A is a near consensual constitutional amendment, enacted by the political sovereign after lengthy deliberations and consultations. Secondly, there is that not unimportant little matter of Article 239, clauses (5) and (6). To remind readers for the umpteenth tedious time, the former states that, ³No amendment of the constitution will be called in question in any court on any grounds whatsoever,´ while the latter states: ³For the removal of doubt it is hereby declared there is no limitation whatever on the power of parliament to amend any of the provisions of the constitution.´ Could anything be more firmly, unambiguously, and categorically stated, in the simplest and clearest of words? Before any arguments are heard in any court on the merits of any case, the first question to be decided is one of jurisdiction (that is, is the court competent and authorised to hear the case). I at least have not understood how then, given clause (5), the SC saw fit to hear the case in the first place. In my opinion, it had no jurisdiction.

Is it possible to sidestep clause (5) through a liberal and loose interpretation of some other general constitutional provision? I do not think so. For, there are two well established and sound principles of legal interpretation that would preclude such an effort. The first principle is to prefer the obvious meaning over the convoluted of anything clearly and unambiguously stated. The second principle is that a specific and clear provision has precedence over a general one in case of a perceived conflict between the two. As for the merits of the petitions challenging Article 175-A, clause (6), and the other arguments just adduced, would also seem to lead to the conclusion that the SC should have summarily dismissed the petitions in the first place. But it has not done so, presumably for reasons that the Hon¶ble judges consider legally and otherwise good enough to override all what I have said above. Whether you buy my arguments or not, you will at least have to admit that the SC has adopted a course that is highly controversial legally. In doing so, could it be it is motivated by some honourable and higher notions of acting in the best µnational interest¶? I do not know. What I do know is that in doing so the Hon¶ble Court has controversially ended up putting on the spot many a power circle that has its own turf to protect. As a nation, we are being asked to revisit that ancient philosophical dilemma whether the ends justify the means adopted. Is this a novel version of the µdoctrine of necessity¶? And let us not pretend that all will be well in this blessed land if only we would let the SC be the final arbiter of all contentious issues. When elephants clash the only certain outcome is that the grass gets trampled. The writer is a businessman. A selection of his columns is now available in book form. Visit Summary of 18th Amendment
April 3, 2010 . 21 Comments in Featured Articles Parliament should declare the 17th Amendment to the Constitution and the Legal Framework Order (LFO) given by a dictator as without any legal authority and should be repealed. NWFP should be renamed as µKhyber Pakhtoonkhwa¶. Good Governance by restricting the size of the Cabinet in to 11 per cent of the members of Parliament and respective Provinces. Four seats, one from each province, should be allocated in the Senate for the minorities to increase their strength. It has been recommended that education to each child up to the age of 16 years be made compulsory. Formation of the council of common interests should be revised with prime minister as its chairman. The council should meet at least once in 90 days besides abolition of the Concurrent List. Prime Minister shall keep the president informed on all matters of internal and foreign policy and on all legislative proposals the federal government intends to bring before the Majlis-e-Shoora (parliament). President could use the power of dissolution of the National Assembly when a vote of noconfidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly, in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly for the purpose. For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. Under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an act of Majlis-e-Shoora (parliament). Restriction imposed on the attorney general for doing private practice. Inexpensive and expeditious justice should be ensured to the people as also the right of access to information without any hurdle.

The prime minister shall, in consultation with the leader of the opposition in the National Assembly, forward three names for appointment of the Chief Election Commissioner to a parliamentary committee for hearing and confirmation of any one person. The parliamentary committee, to be constituted by the speaker, shall comprise 50 per cent from the 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 lists to the parliamentary committee for consideration, which may confirm one name. The total strength of the parliamentary committee shall not exceed 12 members out of which one-third shall be from the Senate. Provided that when the National Assembly is dissolved and a vacancy occurs in the office of the chief election commissioner, the parliamentary committee shall comprise the members of the Senate only. There shall be no restriction on the number of terms for the offices of the prime minister and chief ministers. Prime minister would advise the president on appointment of the chairman of the chiefs of staff committee and chiefs of three armed forces. The Senate shall consist of 104 instead of 100 members with the addition of one minority member from each province. Working days of the Senate have been increased from 90 to 110. Restriction on a person who has been dismissed from the service of Pakistan, service of a corporation or office set up or controlled by the federal government or the provincial government on ground of misconduct has been lifted. According to this amendment, a person could be elected as MP, three or five years after dismissal from the service. A person shall be disqualified from being elected or chosen as, and from being, a member of parliament if he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled, by the federal government, the provincial government or a local government on ground of misconduct, unless a period of five years since his removal or dismissal; or unless a period of three years has elapsed since his removal or compulsory retirement. The restriction on a person being elected as member of parliament, who 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 sovereignty, integrity or security of Pakistan, or integrity or independence of the judiciary of Pakistan, or which defames or bring into ridicule the judiciary or the armed forces of Pakistan, unless a period of five years has elapsed since his release.

Chairman of the Federal Public Service Commission would be appointed by the president on the advice of the prime minister. Similarly, chairmen of the provincial public service commissions would be appointed by the governors on the advice of chief ministers. Proclamation of emergency in the province due to internal disturbances would require a resolution from the provincial assembly. If the president acts on his own, the proclamation of emergency shall be placed before both houses of parliament for approval by each house within 10 days. On dissolution of the assembly or completion of its term, or in case it is dissolved under Article 58 or Article 112, a caretaker shall be selected by the president in consultation with the prime minister and the leader of the opposition in the outgoing National Assembly. Similarly, a caretaker chief minister will be appointed in consultation with the chief minister and the leader of the opposition in the outgoing provincial assembly. Proclamation of emergency of the fourteenth day of October, 1999, the Provisional Constitution Order (PCO) No 1, the Oath of Office (Judges) Order, 2000, Chief Executive Order No 12 of 2002, Chief Executive Order No 19 of 2002, the amendments made in the Constitution through LFO, 2002, (Chief Executive Order No 24), the LFO (Amendment) Order, 2002, Chief Executive¶s Order No 29 of 2002) and the LFO (Second Amendment) Order, 2002 (Chief Executive Order No 32 of 2002), notwithstanding any judgment of any court, including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect. Judges of the Supreme Court, High Courts and Federal Shariat Court who were continuing to hold the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order 2000, shall be deemed to continue to hold the office as judge or appointed as such as the case may be, under the Constitution and such continuance or appointment, shall have effect accordingly. Appointment of judges to the Supreme Court, there shall be a judicial commission. For appointment of judges of the Supreme Court, the commission, headed by the chief justice of Pakistan, shall also consist of two most senior judges of the apex court, a former chief justice or a former judge of the Supreme Court to be appointed by the chief justice in consultation with two member judges for a period of two years, federal minister for law and justice, Attorney General for Pakistan, and a senior advocate of the Supreme Court of Pakistan to be nominated by the Pakistan Bar Council for a period of two years. The judicial commission for the appointment of High Court judge, headed by the chief justice of the High Court, would also include two most senior judges of the High Court, provincial law minister, a senior advocate to be nominated by the provincial bar council. For appointment of judges of the Federal Shariat Court, the judicial commission shall also include the chief justice of the Shariat Court and the most senior judge of that court as its members.

Article 58-2(b) should be repealed and substituted with ³Dissolution of the National Assembly´. The substitution clause says that the president shall dissolve the National Assembly if so advised by the prime minister, and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the prime minister has so advised. Notwithstanding anything contained in Clause 2 of Article 48, the president may also dissolve the National Assembly in his discretion where, a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly in accordance with the provision of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose. Passing of the bills: Recommended substitution in Article 70 with ³introduction of passing of bills´, adding that a bill with respect to any matter in the Federal Legislative List may originate in either house and shall, if it is passed by the house in which it originated, be transmitted to the other house and if the bill is passed without amendment by the other house also, it shall be presented to the president for assent. Bills presented in the house but not passed within 90 days of laying in the House shall be considered in a joint sitting of parliament. Islamabad High Court to be established and the judges of the Islamabad High Court should be taken from the federal capital and four provinces.

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