New judicial snag
divested under the 18th Amendment.
Since the proposals made by the Judicial Commission were approved by the Parliamentary Committee, the requirements of the constitution for judicial appointments have been fulfilled. Nevertheless, we cannot sweep under the rug the question as to whether the Judicial Commission which took these decisions had been properly constituted and, if not, whether its recommendations were legally valid. The constitution requires that the “most senior judge” of the High Court should sit on the commission when considering appointments to that court. It also states that the decisions of the commission do not become invalid due to the absence of any member. But the constitution is silent on whether in the absence of the most senior judge his place on the commission is to be taken by the next most senior judge. This is an issue which must be addressed and resolved, irrespective of whether Zardari actually seeks an advisory opinion of the Supreme Court, as he has said he would.
This is not the only instance – or the most serious one – of Zardari assuming or trying to assume powers that do not belong to the president, or exceeding the bounds of the constitution. Although the 18th Amendment now stipulates clearly that, except in a few clearly defined cases, the president has to act “on and in accordance with” the advice of the cabinet or the prime minister, Zardari has often acted on his own. By remaining party head and appointing handpicked nonentities as prime minister, he has in effect usurped most of the powers that belong to the prime minister under the constitution. He has also paid little heed to the rulings of the judiciary to remain politically neutral and of the Election Commission not to use his official position for electioneering.
Another example of Zardari exceeding his constitutional powers is his attempt to set the date of the coming parliamentary elections. This question was discussed by the chief election commissioner and the law minister on November 13. Following the meeting, Farook Naek asserted that it was for the president to determine the election date in his discretion. There is actually no constitutional basis for this claim. This might not be a make-or-break issue in influencing the outcome of an election, but it is not unimportant.
Article 48 (2) of the constitution does grant to the president the power to “act in his discretion in respect of any matter in respect of which he is empowered by the constitution.” But the only situation in which the president has this power is that given in Article 58 (2). Under this clause, the president may dissolve the National Assembly in