17^th Constitution Amendment 2003

&

The Parliament Constitutional Committee—Jurisdiction, Scope & Extent

By

His Grace Sahibzada Hoseyn AKC

Honoured to be “Esquire”—“next below to “Knight”—“Sir”

@

The Pakistan Society Dinner

Inter Continental

Main Park Lane

London

Friday, March 12, 2010

As to the revival of the Constitution of 1973 the fact remains that unlike today’s ensued parliamentary practice and prowess the framers of the 3^rd republic had the mandate under the LFO 1969 to enact the consensus constitution. It was not mere the National Assembly but equally the Constituent Assembly of Pakistan. The elections held in December 1970 had been contested on the constitutional proposals as envisaged in the de facto constitution, namely the LFO 1969. Quite contrary to that the 2008 elections were contested to the National Assembly and not to the Constituent Assembly, which mandated the incumbent lot of legislators only to repeal the 17^th Constitution Amendment 2003, thereby doing away with the concomitants thereof i.e. the filth heaped on the sanctified document by Musharraff’s nominis numbra rule. Except the PML (Q) and the JUI of Maulana Fazalurrahman all the political parties including the PPPP of the Makhdoom of Hala Sharif pledged to oust Musharraf, free and reinstate the detained judges of the superior courts and seizure of the invented war against terrorism by evolving an independent foreign policy thereby guarantying the indivisible and inalienable sovereignty of the Islamic Republic of Pakistan.

As to the functioning and assumption of the pledged agenda by the goon government under the vagrant Bloch people of Pakistan are the most aware ladies and gentleman on the globe. Presidency is the central pillar of the constitutional polity in view of the unbridled powers conferred on Zardari by the tyrannical legacy of the despot. Having consumed the life of the serene lady in the Great Game—the obnoxious intrigue hatched under the malicious auspices of Dick Cheney M/s Zardari & Co was saddled into power. The fact remains that the ostensible war quid pro quo lodged thugs in the posh presidency of Pakistan due to which they have to keep on ruling the client state of the US. As under the dogmatic yoke of Musharraf Pakistan under Zardari truly retains its status as an administrative state, which forlornly has been transformed into an authoritative state. Philosophically, despite the espousal of the unanimous resolutions there exists not even an austere opportunity of framing an independent foreign policy in authoritarianism. Thus Pakistan suffers unceasingly. 

As to the sovereignty of the parliament being the supreme legislative organ it has to remain a far cry in the circumstances created and tailored to materialise the repugnant designs of Zardari. The long awaited formation of the Constitution Committee in June 2009 headed by unruffled Reza Rabbani amply manifests the ill intents of the ruling junta. Indeed it is an instrumental delaying tactic, which suits to the lone figure and his cronies in the Presidency. The incessant series of lies and the conked out commitments on the Judicator and the revocation of the 17^th Amendment and the consequent ouster of PML (N) from the coalition are self-evident to the fact.

As to the intentions of the founding fathers of the Constitution it is expedient to ascertain the autocratic insight of amending the Constitution and the outright annulment thereof under a democratic dispensation. History witnesses that inspired by Yahya’s LFO the 8^th Amendment 1985 had been inserted into the sacred document not only to grab powers further to repudiate the Parliament but also to indemnify the longest military tyranny. However, good counsel prevailed upon Mian Nawaz Sharif who in collaboration with the martyred lady unanimously abolished in 1997 the remnants of the despotic age. Indeed it has become the touchstone to deal with the analogous situations in the statecraft. However, it has not been effectuated despondently in the instance of the 17^th Amendment, which attests the satanic intents of Zardari to cherish the repressive powers as signified in the LFO 1969, the 8^th Amendment 1985, and the 17^th Amendment 2003.  

As to the 17^th Constitution Amendment 2003 introduced and adopted under the toe of a haughty dictator it adequately unveils the hoax of the supremacy of the Parliament. The present chamber is but the succession and continuation thereof. The same is the case of the executive organ, which simply serves the endless vista of wishes of psycho Zardari and his sycophants. Thus, the supremacy of the Parliament, which at present is mere a political slogan ought to be addressed seriously. Zardari cannot coexist with a sovereign legislative body simply because of the war hatched against our own people. A number of Tories, Labours and Liberals rationally divulge the facts of the concocted event of September 11, 2001 and the prank of Osama and the subsequent Afghan invasion 2001, and the Iraq War 2003—2008. The august members of the Mother Parliament further opine that Al Qaeda either doesn’t exist at all, or it is just an extension of the CIA itself. Conversely, the Secretary of State David Milliband due to his Polish Jewish heritage props it up as does the gangster Bloch, who is hell bent upon carrying on the made-up war. Indeed it carries the sinister posture and Zardari, the mugger of money leaves no stone unturned to snare the nation into issues and non issues. The said above committee is, therefore, the characteristic illustration of his devilish delaying designs.

As to the vicious and irrational debate of the supremacy of the Parliament the fact remains that Parliament reigns supreme only in the United Kingdom, chiefly because of the saturated traditions of the law abiding citizenry who evolved an evolutionary and unwritten constitution. Despite its sacrosanct sovereign status yet it cannot enact that all the blue eyed boys be killed forthwith. Indeed it functions evenly and sensibly. That’s how there’s no formal judicial review on the enactments of the British Parliament yet a judge observed: Parliament can do no wrong but sometimes it acts very foolishly. In rest of the Commonwealth including Pakistan and India the Constitution remains supreme from where the Parliament derives the legislative powers, as do judiciary and executive. Inclusive of the United States where there is a codified constitution it stays supreme and not the parliament, even not the American Congress.

As to the composition and the term of reference of the cited above committee it is ab initio void. The extent and scope thereof is ultra vires of the Constitution of the Islamic Republic of Pakistan—the supreme law of the land. The fact remains that except evolving an accord to rescind the 17^th Constitution Amendment 2003 it could only batter the concurrent list in consonance with the auspicious intentions of the framers of the Constitution. The items incorporated into the said list were pledged to be reviewed by 1983 further to consolidate the federating units. However, the hide and seek of the democratic order and the dictatorial intervention in a row hampered the crucial constitutional obligation.

As to the fortified bid on provincial autonomy propounded by ANP in view of the intriguing issue of Balochistan associated with amending the title of NWFP is not only a situation of brooding conspiracy against the federation but also a despicable plot against the aspirations of the diverse people of the Frontier Province. ANP has never been a sole spokesman of the province. Like Zardari’s PPP it is not a political party but simply a stratum of plunderers. Be that Malik, Sardar or Khan, money and only money means to Pathans as enunciated in the political documents lying in the India Office Library, London. Days are not gone by when they were the ardent opponents of the USA, as they would reflex their muscle to bring about the red revolution sponsored by the Russian riches. Now, lulled over dollars they are the stern supporters of the Americans who wage war against their own brethren.

As to Pashto the fact remains that it is never spoken in Chitral. It is also not the singular language of the rest of the former princely states of the British India’s NWFP. Pashto speaking Pathans badly lack not only in Kohat Division, but also in Bannu and DI Khan Divisions. Yes, as per Senator Bilor, Tareens and Jadoons of Hazara are Pathans but they speak Hindko. The thickly populated Hazara Division is composed of Moguls, Awans and Rajputs along with the majority of Doonds*. The question of renaming the NWFP is, therefore, truly a non-issue. Even at all if it is an issue it ought to be settled through a referendum so that the swing of the vast populace of Serikies and Kashmiries along with the non Pashto speaking people should be ascertained and held accordingly.

As to the proposed Judicial Commission subjugated to the Parliamentary Committee for the elevation of judges undoubtedly it is tantamount to ridicule the judiciary. It is the opening avenue of systematic corruption, which is the hallmark of today’s Pakistan. If analysed quite keenly the wisdom available in the Constitution and interpreted ahead in Aljihad Trust Case 1996, Malik Asad Case 1997, and the SCBA Case 2002 the present mechanism involves less hassle and redtapism. It is a well settled practice, which forms part of the Pakistani Jurisprudence and required to be honoured accordingly. In contrast the proposed composition of the Judicial Commission aims at creating and catering the oblique influence even be that the President of the Supreme Court Bar Association, or the Vice Chairman of the Pakistan Bar Council. Lobbying for elevation negates the very essence of the sagacious slot of judges, who profess the prophetic compulsion of dispensing justice. Unlike the Bar Council of England & Wales, elections to the representative bodies of lawyers in Pakistan are extremely expensive. Thus, favouritism, pressure and power would certainly hold its sway.

As to the proposed Parliamentary Committee on Judiciary the apprehension severely stays that no erudite nominee would even think of an audience to the said body. The SCBA subsidised idea of following the Indian pattern is also not idyllic. The fact remains that the Chief Justice of Pakistan cordially consults all the concerned quarters of the Bar and Bench for before forwarding a recommendation. Instead of creating a rift between Legislature and Judicator, the Parliament ought to review the Legal Practitioners Act 1974 and the Rules of the Pakistan Bar Council so that only the lawyers of great intellectual standards and qualitative skills necessarily associated with the express eloquence should be licensed to practice in the High Courts and the Supreme Court. Apart from bona gestura conducting diligently causes in the Courts the reported cases in the prominent law journals, the capability in research articles and papers read out in the conferences must be taken into account while granting the right of audience. It paves the way of maintaining the authentic Roll of Senior Advocates, whose elevation to the superior judiciary would certainly cast no doubt in the requisite competence and integrity of the learned entrant. Furthermore evading the petty politics that produces people like Latif Khosa, Babar Awan and Malik Qayum the principal law officers of the Court i.e. Attorney General, Advocate Generals and the deputies and assistants thereof can be awfully ascended. Even the office bearers of the Pakistan Bar Council, Provincial Bar Councils, the Supreme Court Bar Association, and High Court Bar Associations can be filled in accordingly as it is practised in the United Kingdom and a number of the Commonwealth countries.

As to the operational extent of the supra Constitutional Committee it is palpable that it has not been mandated by the electorate. History would deliver the verdict that it is mere a bargaining body revolving around adjustments only to sate the strata of Pakistani politics that strives for the respective stakes. To that the bungling brokered by the PML (N) in Murree ought to be kept in mind. Apart from the restoration of the free-minded Judiciary the Bhurban Accord of March 2008 affirms the basic principles of the Charter of Democracy of June 2006, which assented to the PPPP to form the federal government dehors its viable majority in the National Assembly. In turn the PML (N) took over the executive throne of the Punjab. It is an open secret that the verve of the friendly opposition led by snooty Nisar Ali Khan lies in the Punjab Parrot.

As to the referred above bungling in the outset the fact remains that due to lack of the requisite political trust neither Zardari nor Mian indulged into tangible modalities whereby the objectives and execution thereof could have been examined. On the precedent of the meticulous mechanism as maintained in the MQM-PPP alliance no Core Committee was composed to look into the implementation of the accord. Despite the leverage proffered to Zardari by the PML (N) yet the constitutionality of the political support extended to Mian Shahbaz Sharif by the PML (Q) Forward Block and the impugned qualifications of M/s Mian Sahibaan in view of the Dogra Courts had been a sword of Damocles on the bald brothers. All it eased the cunning co-Chairperson of the PPP to play on the front foot. The denial of the pledged reinstatement of the Judges coupled with the disqualification of M/s Sharif Brother and the Governor Rule clamped in the Punjab in February 2009 is but the phase of Zardari’s twisty shots. The most infamous shady deal of the roving Bloch with the Chaudaries of Gujrat is an associated element of the same.

As to the governmental commitment to blow away the unpromising 17^th Amendment I resort to John Adams, the 2^nd worthy President of the United States (1797—1801): There are only two types of people in the world—one who make commitments, and second who keep them. Indeed there is no harm in making commitments but we ought to ponder as to whether the political lot is potent of the requisite creative capacity. Philosophically, less creative we are, more possessive we would be; more creative we are, more giving we would be; more possessive we are, more taking we would be. One uprightly understands the hyper possessive posture of the sitting lot.

As to the current system it is never cleansed and rectified. Rather it is consciously kept aloof from transparency. The billion-bribe in the guise of development funds to the legislators, VVIP visits, unparalleled perks and privileges, lucrative ministerial deals including the rental power projects and the Benazir Income Support Programme evidently indicate the guaranteed status quo politics, which stems from authoritarianism intensely enshrined in the power oriented society of Pakistan. From a constable to the Inspector General, from a Clerk to the Secretary, and from a Councillor to the President every one loves exercising and grasping more and more powers. In royal fashion the beauty of the authority lies in not exercising it. Thus, in authoritarianism people are not served but only ruled.

Last but not least a pivotal query is posed to the genius of the people: Weren’t the controversial clauses envisioned in the enactment dealing with the eligibility of legislators (only the graduates to contest) a part and parcel of the LFO? Even if the same falls within the ambit of the delegated statutory powers yet it forms part of the LFO and the 17^th Constitution Amendment 2003. Be it noted that on the initiation of the said above enactment in 2002 it was challenged into the Supreme Court, and regardless of the extensive debate and the piles of arguments delivered by the most imminent jurists and lawyers the Apex Court didn’t move ahead of Syed Zafar Ali Shah Case. However, the Court of Abdul Hameed Dogar (the orphan of Garhi Moori—Khairpur) annulled it in a day. If a segment of the 17^th Amendment can be declared null and void why could not the Parliament repeal the 17^th Amendment in a day? If the Parliament under Zulfikar Ali Bhutto could enact the Provisional Constitution 1972 (Presidential Form) just in three months, and the consensus Constitution within a year what hinders Zardari in doing away with an amendment? Isn’t it the classic case of perpetuating power? One who believes in sheer power cannot share the power.