SHC bar rejects draft of 18th amendment
KARACHI, June 4: The Sindh High Court Bar Association dismissed on Wednesday the proposed 18th amendment to the Constitution ‘as a measure calculated to maintain the status quo and delay the reinstatement of the deposed judges’.
A resolution adopted by the SHCBA managing committee said it had studied and considered in detail the constitutional package prepared by the federal law ministry and reached the conclusion that some of its provisions ‘have been devised to legitimize all unconstitutional and mala fide acts and decisions of General Pervez Musharraf and are not, therefore, acceptable to the lawyers community and civil society at large’.
The substitution of Article 6 dealing with the offence of high treason, the resolution said, had been proposed to protect the judges who took the oath under the provisional constitutional order of November 3, 2007, and conveys an impression that no punishment is prescribed in the existing article for ‘the PCO judges’. The term ‘abetment’ has been used in the present article, which is sufficient to cover all those judges, parliamentarians and others who abetted the subversion of the Constitution. The proposal is ‘cosmetic’ and unnecessary.
The powers to appoint the attorney-general and the advocates-general, the resolution noted, were formally sought to be conferred on the federal and provincial governments, respectively, and the discretion of the president and the provincial governors was sought to be withdrawn, thus making the appointments ‘political’.
The resolution strongly condemned the proposed amendments in Article 177 and insertion of Article 177-A dealing with the appointment of superior court judges as repugnant to ‘the basic concept of independence of the judiciary’. The well-settled principles governing the appointment and elevation of superior court judges have been expounded by the Supreme Court in several cases, particularly the Al Jihad Trust or Judges Case and Malik Asad Ali’s case. The judgments are sought to be negated by envisaging a commission to be headed by the chief justice of Pakistan and composed of all the chief justices of the high courts, who would decide their own cases of elevation to the Supreme Court.
The lawyers had, the resolution recalled, vehemently opposed the enhancement of the retiring age of the superior court judges made through the Legal Framework Order of 2002 and it was in response to their demand that the provision was dropped vide the seventeenth amendment. An attempt is being made to re-introduce the provision, ‘which amounts to awarding bonus to the PCO judges’.
Likewise, it noted, the introduction of Article 193-A violated the basic concept of independence of the judiciary. The appointment of high court judges would be ‘politicised’ by inclusion of federal and provincial ministers in the commission. Strangely, the commission would be headed by the federal law minister for the purpose of appointing the chief justices of the high courts. The formation of a joint parliamentary committee and involvement of the chief ministers substantiates the apprehension that the process of elevation to the high courts would henceforth be ‘purely political’.
The resolution deplored the substitution of Article 209 and the mechanism stipulated by it for removal of superior court judges with a judicial commission, which would consist of ‘non-politicized’ retired judges. Surprisingly, the term ‘non-politicized’ has not been defined in the proposed amendment. The new Article 209 would be capable of being misused ‘as a weapon of exploitation against those judges who are independent and who do not succumb to government pressure’. “Nearly all the provisions relating to the judiciary have been defaced and mutilated in order serve the purpose of the Ruling Junta,” the resolution declared.
The resolution also ‘painfully’ noted that the proposed amendment to Article 184 ‘is a calculated attempt to take away and/or curtail the powers of the apex court. “This association, therefore, totally rejects the proposed eighteenth amendment as a mala fide attempt on the part of the present regime,” the resolution said.
Earlier in the morning, the association held its general body meeting, which was followed by token hunger strike by Advocates Khalid Khan Arshi Rashid Bohio.
SHCBA President Rasheed A. Razvi, meanwhile, welcomed the release of outstanding dues to the deposed judges. He said the judges were in dire straits and were, in some cases, unable to continue to pay for their children’s education. They are willing to discharge their functions but have been restrained from doing so. It is their right to draw their remunerations. That the payments were made from the prime minister’s discretionary fund cast a reflection on the executive rather than the judiciary, he said.
Mr Razvi pointed out that the amount paid could subsequently be adjusted and transferred to the appropriate head of account The payments of salaries was a much-needed urgent measure and he appreciated it.