18th amendment is in the offing By: Amjad Malik MA, LLM
On 18th February 2008 despite all pre poll efforts democracy spirit in Pakistan won the day and democrats won majority against establishment though credit goes to the man in uniform for remaining a spectator along with his en to rouge and with the announcement of both leaders of opposition parties to form a coalition government jointly there are serious possibilities of 18th amendment to the 1973 Constitution in the early days of the parliament undoing most of the provisions of 17th amendment, bringing in for Parliamentary ratification of ‘Charter of Democracy’ abolishing National Security Council and restoring true parliamentary form of governance as at the moment its neither Parliamentary nor Presidential and the General Kiyani is remaining impartial its a recipe of disaster. Parliament had attempted such action when 8th amendment was removed in a joint session in the earlier reign of Sharif and we are at a crossroad again with the similar task.
There are few problems worthy of attention at the earliest: first being the reinstatement of pre 3 November judiciary in particular Chief Justice. I for one believe strongly that with any particular judge or judges judiciary does not secure independence fully its the system of justice need revamping not the few personalities. There is a full scale judicial package required to release judiciary from the continuous barricades which hinders its genuine performance. The foremost is the syllabus of lawyers and promoting the concept of non political bar once we are truly into democracy as good lawyers in return transform into good judges. Judiciary needs independence financially too, as judges who are dependant for their salary, and allowances including pension(s) on executive are prone to get twisted especially lower judiciary. Judicial Security is also a key to provide sense of security to the man who dispense justice if he is dependent on local Police chief for his security how can he do a judicial review of his decision as he needs to go home too at some point at night therefore full security to judges handling cases against any criminal mafia, landlords, fanatics, and terrorist(s) is a necessity otherwise we will keep seeing judges are pulled from their rooms what we saw on 3rd Nov 2007. In Pakistan ‘who you know’ or ‘money’ works and self dependency with pride will promote judicial work as per law. Give judge a sense of security so that he can give you justice. There is political will required for judicial autonomy too as if Parliament and its members are willing to be accountable, I am sure there will be no ‘PCO’ ever introduced. It was not judiciary but politicians who voted for Musharraf in uniform so they bear a blame too for their inefficiencies where public and judiciary faces the wrath in return. It’s only the judiciary which can guarantee the smooth running of the work of provinces and can save the Federation amicably arbitrating amongst the bigger problems between provinces and parties and hold accountable the elements who are acting unconstitutionally, Steel Mills reference, Hisba bill and 2 Million voters registration case of Ms. Bhutto are a few examples of such judicial work, the nation demands.
Now this is for Parliament and public to answer why we need these judges back but the way they have been treated in 2007 justice is not seen to be done if they are not reinstated. How can we achieve this is very simple. On 3rd November 2007 Chief of Army Staff without holding any power in the Constitution declared emergency and offered the selected judges an oath of loyalty. Almost 70 judges refused to bear allegiance to the outgoing military general despite the fact that few had sworn loyalty earlier in 2000 for the same man. On the same day 7 members bench of the Supreme Court declared that proclamation illegal and barred the remaining judiciary to take any such oath of loyalty. Had it been army no corpse commander would have taken a step forward to be the next army chief when the head is removed unlawfully but unfortunately this was our judiciary and General Musharraf got lucky with the aid and assistance of his legal hawks they managed and found a few ready to violate that order as well as agreed to accept that offer. They went one step ahead and on an application of Tikka Iqbal Mohd Khan C.P No 87/2007 legalised the mini coup too in the same month when Constitution Avenue was blocked for lawyers and public. That decision may absolve the general from article 6 prosecutions but does not legalise coup in full terms as Supreme Court cannot grant what inherently they do not possess which is a right to make law as that is the sole prerogative of the Parliament and elected members of the people of Pakistan. So the action is unlawful until Parliament approves it with 2/3 majority.
Now on 18th February if the poll had favoured the king’s party all is fine but the result went against odds. Now the Parliament will have to make a decision which decision to accept 3rd November one by the former CJ Mr. Justice Choudhary and his colleagues or the 23 November 2007 one by Mr. Justice Dogar. I think if Parliament wishes to restore judges, an executive order can put them back in their respective courts however due to a follow up judgement of Mr. Justice Dogar a simple act of Parliament ‘Rejection of the PCO & emergency provisions bill’ is required to ensure that the will of parliament is to reject 3rd November action(s) in particular new oath and that the parliament accept 7 member SC decision of 3rd Nov 2007 as valid which will restore all judges with legal authority at once. Fate of remaining judges appointed post 3rd November may be decided by the SC Chief in consultation with his colleagues in the light of AL-Jehad Trust case subsequently. This is quite similar to what General Musharraf himself did, once he retained his presidency in uniform post 31 December 2004 in violation of Art. 63(1)d against his promise and he did that by simply passing an Act of Parliament called ‘Two Offices Bill.’ Now the will of people is crystal clear only USA needs to make up his mind, do they wish to engage with one man drowning or 160 million people of Pakistan who are rising with every day passing.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK
23 February 2008
- Posted by valiantpk on 23/02/2008.
- valiantpk's site
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