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Old Saturday, April 03, 2010
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Post Hamid MIr analysis about 18th Amendment

Zardari still has powers, Charter of Democracy not followed in true spirit By Hamid Mir

ISLAMABAD: The 18th Amendment bill is no doubt a historical breakthrough giving many new rights to the provinces by abolishing the concurrent list but the Charter of Democracy signed between late Benazir Bhutto and Nawaz Sharif in 2006 has not been followed properly.

Interestingly, the case of provincial autonomy was fought by Senator Abdul Malik Baloch and Senator Afrasiab Khattak in the constitutional committee whose elders were allies of Sheikh Mujib in 1970. Pakistan could have been saved by giving this autonomy in 1970 to Sheikh Mujib.

Consensus on the 18th Amendment bill is definitely a collective victory of all the political parties but two big parties, the PPP and the PML-N, were not able to fulfill some of their promises made in the Charter of Democracy. The basic objective of CoD was to restore all powers of the prime minister and turn the president into a show piece according to the 1973 Contitution. The 18th Amendment bill does not serve this objective.

The president is not a lame duck if the amendment is passed as approved by the Rabbani Committee. Zardari would not be like a former showpiece President Chaudhry Fazal Elahi or Rafiq Tarar. He will still retain many powers in violation of the CoD.

Complete implementation of the CoD was not in the interest of both President Asif Ali Zardari and Chief Justice Iftikhar Chaudhry. Both president and chief justice are the beneficiaries of violation of the CoD. The constitutional reforms committee left some powers for the President in violation of the first clause of the CoD, which said that “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”.

According to the real 1973 Constitution and clause 2 of the CoD “the appointment of the governors, three services chiefs and the CJCSC shall be made by the chief executive”. The constitutional committee never agreed to implement clause 2 of the CoD in its true spirit.

The 18th Amendment bill proposed changes in Article 101 of the Constitution that “there shall be a governor for each province, who shall be appointed by the president on the advice of the prime minister”.

According to the new bill, the president is still the Supreme Commander of the Armed Forces and “the President shall, on advice of the Prime Minister appoint CJCSC and three services chiefs”.

The 18th Amendment bill has definitely curtailed the discretionary powers of President in the appointment of governors and three services chiefs because the “advice” of the prime minister will be binding but this new proposed amendment is also a violation of CoD.

The president still enjoys 50 percent powers in the appointment of governors and services chiefs. It is learnt that Senator Raza Rabbani consulted with President Zardari in detail and some powers were left for president with the consent of Prime Minister Yousuf Raza Gilani

The Clause 3 of the CoD says that the recommendations for appointment of judges to superior judiciary shall be formulated through a commission headed by a chief justice who has never previously taken oath under the PCO. In the light of this clause, Justice Iftikhar was not eligible to become the head of the judicial commission because he took oath under the PCO in 2000.

The 18th Amendment bill gave him this relaxation. Now he could become head of the judicial commission in violation of the CoD. It is also important that the 18th Amendment bill has introduced some changes in Articles 62 and 63 of the Constitution in the light of the Supreme Court verdict in the NRO case.

The Supreme Court made some remarks about Article 62(f) and 63(1) h in the detailed judgment of the NRO case. The SC said that 62(f) was inserted by a dictator in the Constitution but it is still continuing although five National Assemblies and Senate had been elected and completed their terms but no effective steps have been taken in this regard.

The Clause 62 (f) says that a person shall not be qualified to be elected or chosen as a member of parliament unless he is sagacious, righteous and non-profligate and honest and Ameen. Now the 18th Amendment bill has proposed to add some new words in it and these are: “He is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law”.

The 18th Amendment bill has deleted article 62(g) completely which says that a person shall not be qualified to be elected or chosen as a member of parliament unless “he has not been convicted for a crime involving moral turpitude or for giving false evidence”.

The Supreme Court verdict on the NRO also said that Articles 63(h) and 63(i) have been made ineffective by NRO. The 18th Amendment bill has changed the Article 63(h) but not touched 63(i). The original version of Article 63(h) says that a person shall be disqualified from being elected member of parliament if “he has been convicted by the court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force”.

According to the new version of Article 63(h), now a person shall be disqualified from being elected member of parliament if “he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has lapsed since his release”.

According to some experts, this new article may help President Zardari in future from disqualification or impeachment. Sources in the constitutional reforms committee claimed that members of Jamaat-i-Islami and the JUI-F opposed major changes in Articles 62 and 63 but members from PPP, PML-N, PML-Q, MQM and also ANP supported changes in articles inserted in Constitution by former military dictators.

The ANP wanted that Fata be included in Khyber Pakhtunkhawa according to clause 8 of the CoD but Fata representatives in committee refused to become part of the Pakhtunkhawa province. They want a separate identity. Now the PPP and the PML-N can claim that they have washed the name of General Ziaul Haq from the Constitution but they cannot claim that they followed the CoD in its true spirit.
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