New ju­di­cial snag

The Pak Banker - - Front Page -

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

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