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Old Sunday, April 03, 2011
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Exclamation Zardari surprises critics by praising SC;Hamid Mir

ISLAMABAD: President Asif Ali Zardari has surprised his critics by reposing full confidence in the present judiciary through his first constitutional reference sent to the Supreme Court of Pakistan to revisit the Zulfikar Ali Bhutto case.
The president has clearly said on the first page of the reference: “The judiciary in Pakistan is independent and is playing a proactive role in the cases of public importance.” It is interesting to note that Zardari did not demand a re-trial of Bhutto. He has used the word “revisit”.
There is an impression in many political circles that Zardari masterminded this reference just to embarrass the Supreme Court by playing the Sindh card because all the judges who gave the verdict against Bhutto were from Punjab and all the three judges who disagreed were from Sindh and Khyber-Pakhtunkhwa.
Highly placed sources in the federal government are giving another impression. They say that if the president has sent a reference to the Supreme Court then it means that he has full confidence in the court.
These sources are of the view that this presidential reference could also be viewed as a message of reconciliation from Zardari to Justice Iftikhar Muhammad Chaudhry but if the Supreme Court on any technical or legal grounds rejects this reference then it would be difficult to avoid a head-on collision between the SC and the PPP.
In both cases, the PPP will be the beneficiary. If the Supreme Court entertains the reference, the PPP can claim a political victory and if the reference is rejected, the PPP will start a campaign against the Supreme Court.
Legal eagles of the government claim that a goodwill gesture is very much visible on Page-10 of the reference where President Zardari says: “The use of the judiciary for the execution of his (General Ziaul Haq) malicious designs should not remain part of our legal history as this country has started treading the path of democracy under an independent and proactive judiciary which has shown its resolve to defeat and foil any attempt to undermine or subvert the Constitution of Islamic Republic of Pakistan.”
It is worth mentioning that President Zardari did not plan this reference in haste. He started consulting many legal experts long ago including Abdul Hafeez Pirzada who was once a close associate of ZA Bhutto. Pirzada was of the view that it would not be possible for the Supreme Court to provide any relief to the president under Article 186.
Another legal expert and a federal minister Senator Raza Rabbani expressed his reservations about the reference in the cabinet meeting where this reference was discussed. Rabbani said the Supreme Court verdict against Bhutto was against all the norms of justice but the present Supreme Court cannot undo that verdict under Article 186.
Federal Law Minister Babar Awan and Chairman Senate Farooq Naek fully support the reference idea. Prime Minister Yousuf Raza Gilani also gave his vote in support of the reference and that was how President Zardari managed the cabinet approval for this reference.
Zardari has hinted clearly that he was actually trying to uphold the dignity of the court by sending the reference to the Supreme Court. He says: “I, as the President of the Islamic Republic of Pakistan, in order to uphold the dignity of the court, supremacy of the Constitution and law, feel constrained to refer a few questions of law which are of paramount public importance and remain yet to be finally determined and answered by the Supreme Court of Pakistan.”
President Zardari says in the reference that the founder of the Constitution, a prime mover of the non-aligned movement, founder of the Islamic bloc, initiator of our nuclear programme and the convener of the first Islamic Summit, Zulfikar Ali Bhutto became victim of a wide ranging conspiracy.
If the Supreme Court decides to entertain the reference then a question could be asked from the PPP lawyers about who were the other characters of the wide ranging conspiracy against the initiator of our nuclear programme and in that case the last book of Bhutto “If I am Assassinated” will also come under discussion in which Bhutto clearly pointed his fingers towards the US as the mastermind of the whole conspiracy against him.
The president has raised many questions on the verdict against Zulfikar Ali Bhutto and has said that the verdict was based on the evidence of an approver who was not present at the crime scene and law of approval is against the injunctions of Islam.
The president says: “No accused had been convicted and sentenced to death solely on the testimony of an approver. The Supreme Court of Pakistan has again disapproved the testimony of an approver in the case of Mian Muhammad Nawaz Sharif vs State (PLD 2009 SC 814) and the law continues to be volatile.”
The reference says: “The Supreme Court bench which announced a divided verdict against Bhutto was incomplete. This bench had nine judges. One of the judges Justice Waheedud Din Ahmed was sick and the bench chose to proceed in his absence despite the fact that he was desirous to join the proceedings. Another Judge Justice Qaisar Khan retired during proceedings. The Supreme Court was legally and morally duty bound to fill the vacancy. Out of seven judges four (Justice Anwarul Haq, Justice Akram, Justice Naseem Hasan Shah and Justice Karam Elahi Chauhan) announced a death sentence for Bhutto and three judges (Justice Ghulam Safdar Shah, Justice Dorab Patel and Justice Haleem) disagreed.
It says: “It was a judicial murder continuously haunting the conscience of an independent nation and lego-judicial circles.” This is the first time that a president of the country clearly rejected a superior court verdict in a reference sent to the superior courts.
The president has raised a question: Whether justice can be seen to have been done in this case while the appellant was deprived of his right of appeal before the High Court, being tried directly by the High Court? The president said that it has been ruled by the Honourable court in the case of Federation of Pakistan and others vs Mian Muhammad Nawaz Sharif (PLD 2009 SC 284) as below: “Law is not a static object, it has to cope with modern ideas and concepts and the disputes coming before the court for resolution, as the society with its environmental set up are continuously progressing. Law as well as its remedies are also changing with passage of time.” The president also gave reference of Justice Naseem Shah who was one of the four judges who convicted Bhutto but later admitted in the print and electronic media that the verdict against Bhutto was a judicial murder.
In the last para of the reference, President Zardari says: “I may make it very clear that the coalition government headed by the Pakistan People’s Party is neither interested in any type of vengeance against anybody nor the government believes in revenge. However, the unprecedented incident of judicial murder of an international face of Pakistan cannot be left unchecked under the dictates of justice, fairplay and history.”
The PPP leader Aitzaz Ahsan, referring to the reference, says President Zardari has reposed his confidence in the judiciary by sending a reference to the Supreme Court and if the Supreme Court refuses to entertain it then morally it will not be possible to say that court is biased.
Federal Law Minister Babar Awan expressed his optimism in the courts and said he is hopeful that the Supreme Court will not hang Zulfikar Ali Bhutto for the second time by rejecting the presidential reference.
It is also important to note that complainant against ZA Bhutto, Barrister Ahmed Raza Kasuri, was a PPP member of the National Assembly. His FIR against the sitting prime minister was registered after clearance from Bhutto.
After a few years, Kasuri delivered a speech in the National Assembly on January 1, 1977 and praised the agricultural reforms of Bhutto. He said that “name of my leader Zulfikar Ali Bhutto will be written in history in golden words.”
After a few months he applied for an NA ticket which was denied, he shook hands with General Zia in July 1977 and today he is the senior vice president of the All Pakistan Muslim League, headed by another former dictator General Pervez Musharraf.
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Default Health and the 18th Amendment

Health and the 18th Amendment
The implementation commission of the 18th constitutional amendment, in its recent session, has taken the final decision to devolve the Ministry of Education. The next round of deliberations will decide the modalities of devolving another set of ministries, including the Ministry of Health (MoH). My comment in these columns on December 25, 2010 – The Vanishing Ministry – outlined several institutional considerations that need attention whilst making decisions in this regard. One of these refers to the question of the national role in health and related institutional arrangements. Lessons from other countries are instructive in this regard. There are at least 25 countries with federating structures where health is a fully devolved subject. All have federal institutions – a ministry, state department, directorates or equivalent institutions – taking responsibility for ‘national mandates’ in health.

Contrary to what is being planned, there is need for stepping up capacity within the MoH, as there are many ominous indications of its constrained capacity – the case of polio and H1NI are illustrative. But it seems that for the implementation commission, ‘ministerial abolition’ in subjects, which have been devolved, has become symbolic of the entire process of devolution. The best option is to develop a constitutional solution.

This viewpoint is being used to draw attention to a recently conducted analysis, on which inputs are being solicited. The paper presents the technical and constitutional rationale for retaining the national role in health and discusses options for a way forward.

The paper defines the following as national functions in health: health information and disease security, international commitments, drug regulation, certain aspects of human resource regulation, overarching norms, and standards where inter-provincial conformity is needed. It then goes on to discuss the impact of certain changes brought about by the 18th Amendment on these national functions – abolition of the Concurrent Legislative List (CLL), shifting of entrees from Part 1 to Part 2 of the Federal Legislative List (FLL), insertion of a new entry in Part 1 of the FLL, amendments in Article 144 and 270.

Although sweeping changes have been made by the 18th Amendment, the Constitution still provides space for the federal level to assume responsibilities for most of the national functions referred to above. The only exception is drugs.

The paper makes a strong case for also retaining a ‘national role in health’ and underscores the need for an appropriate federal institutional arrangement to fulfil national health responsibilities. Attention is drawn to constitutional provisions and rules of business of the federal government, which when viewed in context of the present devolution drive, call for creating a health division.

The paper also discusses systemic challenges, which plague the current MoH and stresses on the need to use the present opportunity to bridge these weaknesses as the ministry is ‘recast’ as a division. The relationship of five institutional streams, which are envisaged to report to/link with the health division, has been elaborated.

It has been accepted that with the responsibility for health completely devolved, the policymaking role has automatically been transferred to provinces. This notwithstanding, areas within the national policy purview have been enumerated and the convening fora for mandates granted to the national level under Part I and II of the FLL have been discussed – in particular prerogatives of the cabinet vs. the council of common interest.

On the subject of regulation, the paper refers to the post-18th Amendment prerogative of parliament to create federal regulatory authorities and alludes to the problem which can arise when the subject for which a federal regulatory agency is created, is devolved. The complexity of this for the area of drugs regulation has been alluded to in detail in the paper. This consideration has implications for the regulatory mandate in many other areas/subjects, and deserves a dedicated discussion in another comment.

With respect to drugs, the paper emphasises the strong policy rationale for retaining regulation at the national/federal level and elaborates why the appropriate constitutional mechanism to enable that is Article 144. Other subjects touched upon in the paper include national functions with respect to service delivery, national public health programmes, health information systems, human resource, federal fiscalism, health financing and international agreements.

With respect to the national public health programmes, incremental devolution has been recommended and a unified interim federal structure has been described to assume responsibility till such time that provincial capacity is fully developed. A case has been made for folding all programmatic activities, such as research, health information and mobile service delivery, in other cross-cutting interventions. The need for retaining a unified minimal federal structure has also been flagged to support functions on an ongoing basis where inter-provincial policy coordination is needed.

The analysis states how the amendment does not drastically alter federal functions related to human resource but describes the interplay of provincial concurrence, which may now become necessary for human resource decisions at the federal level. A section of the analysis clarifies the constitutional position with regard to health information, which the viewpoint argues is an important national/federal responsibility in the wake of disease security concerns. It clarifies that constitutional provisions potentially enable the function to be retained federally, but makes a strong case for reform of the health information institutional landscape to bridge current weaknesses in individual streams. It also calls for creating an apex mechanism to comply with International Health Regulations, 2005.
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