General Amendments — Constitutional Package Review Part VI

270A. Affirmation of President’s Orders, etc.–

History
I earlier wrote about the curse of article 270 here, Article 270A was however introduced first time by the first mad dictator (after 1973 constitution) , this article displays the moral and intellectual corruption of jadoogar of Jaddah Mr. Sharif-ud-din Peerzada. To my knowledge Pakistan’s constitution is the only constitution in the world which has the name of a person and that too a military dictator, being declared the President.
This article has very interesting history though. On 2nd March 1985 , article 270A was first time inserted into the constitution, which read as follows:

270-A
(1) The Proclamation of the fifth day of July, 1977, all President’s Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force, are hereby declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any court on any ground whatsoever.
(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notification, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.
(3) All President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes in to force shall continue in force until altered, repealed or amended by competent authority.
(4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
(6) The President’s Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President.
Explanation:- In this Article, “President’s Orders” includes “President and Chief Martial Law Administrator’s Order, and Chief Martial Law Administrator’s Orders.”

Reading carefully the original wordings of this article , shows that how much establishment was afraid of the Judiciary which can at any time look into the Martial Law orders, remember the judiciary at that time was nothing more than the pocket judges of mad dictator , however he was afraid of the future.
Later on with elections in 1985 , the original article was than amended by the 8th amendment as follows:

270A. Affirmation of President’s Orders, etc.
(1) The Proclamation of the fifth day of July, 1977, all President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P. O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December 1984, General Muhammad Zia- ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P. O. No. 14 of 1985), the Constitution (Second Amendment) Order 1985 (P. O. No. 24 of 1985), and all other laws, made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any court on any ground whatsoever:
(2) All order made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.
Provided that a President’s Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.
(3) All President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
Explanation. In this clause, Competent authority means-
(a) in respect of President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the Legislature; and
(b) in respect of notifications, rules orders and by-laws, the authority in which the power to made, alter, repeal or amend the same vests under the law.
(4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
(6) Such of the President’s Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws. Explanation. In this Article, “President’s Orders” includes “President and Chief Martial Law Administrator’s Orders” and “Chief Martial Law Administrator’s Orders.”

Commentry
The proposed amendment in this article removes the following words under which, in consequence of the result of the referendum held on the nineteenth day of December 1984, General Muhammad Zia- ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41,.
Only good thing about this change is that it deletes the name of General Zia-ul-Haq from the sacred document called constitution of Pakistan.

General Amendments — Constitutional Package Review Part V

243A. Declaration of war.–

History
This article is a new addition to the constitution. It is interesting to note that in the original constitution of 1973 , the declaration of war was not explicitly specified to be the right of Prime Minister or Cabinet. In the wake of limited Kargil war of 1999 , this article may have some significance.

243A. Declaration of war.–
Notwithstanding anything contained in the Constitution or any other law for the time being in force, no person or authority shall declare war or use Armed Forces against any foreign Government or country without prior approval of the Prime Minister or the Cabinet

Commentry
I believe this is any important and essential amendment , this article also follows the maxim of Winston Churchill that “War is too serious a business to be left on Generals only”. In 1999, the armed forces of Pakistan attacked India in Kargil without the prior permission of the Prime Minister or Cabinet , the matters get more confused in the context of article 243 (1A) which states

243 (1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President.

This is important to note that the above clause was added by another dictator Gen Zia in 1985 and it was not included in the original constitution of Pakistan , instead the original intent of the founders of constitution was expressed in the clause 1 of the same article i.e.

243. Command of Armed Forces.
(1) The Federal Government shall have control and command of the Armed Forces.

Since the control and command of the armed forces lies with the Federal Government , therefore declaration of war which included mobilization of armed forces against the enemy also lies with the Federal Government , however with the introduction of clause 1A , the president became the supreme commander of the armed forces, hence having the implicit authority to declare the war.
In my opinion introduction of Article 243A , will explicitly define the authority of Prime Minister and Cabinet to make a decision of war.

260. Definitions.
History
This one is very interesting article, Article 260 was part of the constitution since 1973, it clarified the meanings of certain terms in the constitution. Let me first give a brief overview why these definitions are important. It is the right of Supreme Court of Pakistan to interpret the constitution in case of any ambiguity or question posed by the federal government about the meaning of any article/clause of the constitution. Supreme Court interprets the constitution based on the letter and spirit of the constitution , this interpretation is usually backed by the precedents from both other countries constitution as well as the original intent of the writers of the constitution. However the writers of the constitution decided to enforce certain meanings for certain terms used in a context. Later on however the dictators decided to use this article to give the opposite meanings to certain terms. This amendment tries to rectify one such problem. Let me quote here the amendment.

(1) In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say,

“consultation” shall, save in respect of appointments of Judges of the Supreme Court and High Courts, mean discussion and deliberation which shall not be binding on the President.

Commentry
Consultation in constitutional parlance means a meaningful discussion in order to reach a consensus. And usually it means a certain binding nature on the person who initiates this consultation. At many places in the constitution the phrase “In consultation with Prime Minister” is used , the decision coming out of such consultation is binding in nature , however this definition nullifies the meaning of consultation , Ironically it also mentions that in case of appointment of Judges of Supreme Court and High Court this will still be binding on President. This definition has far reaching impact on the whole constitution making it presidential in nature. Therefore removal of this definition is imperative and essential.

General Amendments — Constitutional Package Review Part V

Article 95A : Federal Minister performing functions of Prime Minister

History
This article is a new addition to the constitution. On the face of it the article seems provide solution for situation wherein an “acting” Prime Minister could work in the absence of real Prime Minister.  Let me quote here the wording of the article.

95A: - Federal Minister performing functions of Prime Minister: -
(1) In the event of the resignation of the Prime Minister or the office of Prime Minister becoming vacant by any reason or of his ceasing to be a member of the National Assembly, the Senior Federal Minister for the time being shall be called upon by the President to perform the functions of that office and the Federal Ministers and the Ministers of the State shall continuein office until a new Prime Minister has entered upon his office.
(2) If the National Assembly is in session at the time,when the office of Prime Minister becomes vacant, the Assembly shall forthwith proceed to ascertain as to which member of the Assembly commands the confidence of majority of the members and if the Assembly is not in session the President shall for that purpose summon it to meet within fourteen days of the office becoming vacant to ascertain as to which member of the Assembly commands the confidence of the majority of the members.
(3) When the Prime Minister, by reason of absence from. Pakistan or any other cause, is unable to perform his functions, the Senior Federal Minister for the time being shall perform the functions of Prime Minister until the Prime Minister returns to Pakistan or, as the case may be, resumes his functions.
(4) In this Article, “Senior Federal Minister” means the Federal Minister for the time being designated as such by the Prime Minister.

Commentry
This article may have reaching consequences in the future politics of Pakistan and has great potential to be used by establishment to destabilize the fragile democracy. As I said on the surface this only fills the gap of Prime Minister’s absence. However this article will be potentially very explosive. First of let me revisit why the “founders” of 1973 constitution did not get this provision in the first place. The idea of “acting” Prime Minister exists in most of the the democracies , usually there is a “Deputy Prime Minister” who may be asked to act as the “Prime Minister” , however important point to note is that such “Deputy Prime Minister” role is not a constitutional role at all , it is simply a “political” role.  In a parlimentary democracy Prime Minister is the chief executive of the country and is a person who enjoys the confidence of the majority members of the parliament. It is important to note that the absence of Prime Minister from the country due to official/unofficial visit does not change his privilege  to be the chief executive of the country. The concept of “acting” Prime Minister only applies when a Prime Minister is unable to perform his duties permanently in such case a “new” Prime Minister is needed and usually the role of “deputy” Prime Minister is to provide the political stability to the government however this role as I said is not a constitutional role at all. It is also important to note that the term Chief Executive in Parliamentary democracy is not similar to Chief Executive of the company , the primay requirement of a Prime Minister is to enjoy the confidence of majority members of the parliament and person should only take over as Prime Minister (acting or permanent) only if he/she can prove that he enjoys the majority vote.
Now let us see how this proposed article can cause chaos in Pakistan’s politics.  Let us assume that their is a coalition government in Pakistan where Prime Minister is from one party and the “Senior Federal Minister” is from another party , now due to PM’s absence from Pakistan , Senior Federal Prime Minister is performing the functions of Prime Minister and he/she requests the president to dissolve the assembly. This is just one example there may be several such occasion where an acting Prime Minister could be used by the establishment to cause political destablization and circus in the country.
In a nutshell I think that this amendment is just “superflous” and has potential to cause damage to the democracy, therefore must be withdrawn.

The above commentary also applies to :

133A. Provincial Minister performing functions of Chief Minister.
 (1) In the event of the resignation of the Chief Minister or the office of Chief Minister becoming vacant by any other reason including his ceasing to be a member of the Provincial Assembly, the Senior Provincial Minister for the time being shall be called upon by the Governor to perform the functions of that office and the Provincial Ministers shall continue in office until a new Chief Minister has entered upon his office.
(2) If the provincial Assembly is in session at the time when the office of Chief Minister becomes vacant, the Assembly shall forthwith proceed to ascertain which one of the members commands the confidence of the majority of members, and if the Assembly is not in session the Governor shall for that purpose summon it to meet within fourteen days of the office becoming vacant to ascertain as to which members of the Assembly comments the confidence of the majority of the members.
(3) When the Chief Minister, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the Senior Provincial Minister for the time being shall perform the functions of Chief Minister until the Chief Minster returns to Pakistan or, as the case may be, resumes his functions.
(4) In this Article, “Senior Provincial Minister” means the Provincial Minister for the time being designated as such by the Chief Minister.

General Amendments — Constitutional Package Review Part IV

Let me start with the amendments proposed in the constitutional package that are general in nature and may have some unexpected consequences.  For the purpose of this review I would be quoting the history and text of each article from the original constitution as it was passed on 23rd of March 1973 , this text will be in green color , then the subsequent changes in that article and finally the changes as being proposed in this constitutional package. After the history of the article would like to summarise the consequences of the proposed change. Following articles are covered in this part.

1. Article 1 : The Republic and its territories.
2. Article 55: Voting in Assembly
3. Article 95A: Federal Minister performing the functions of Prime Minister.
4. Article 243A: Declaration of War.
5. Article 260 : Definitions
6. Article 270A: Affirmation of Presidential Orders
7. Article 270BB : General Elections 2008 to be deemed held under the Constitution.

 Article 1: The Republic and its territories.

History:
Originally the Article 1 of the Constitution read as follows:

1. The Republic and its territories
(1) Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.
(2) The Constitution shall apply to the following territories of Pakistan:
(a) the Provinces of Baluchistan, the North-West Frontier, the Punjab and Sind;
(b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital;
(c) the Federally Administered Tribal Areas and
(d) such States and territories as are or may be included in Pakistan, whether by accession or otherwise.
(3) The Constitution shall be appropriately amended so as to enable the people of the Province of East Pakistan, as and when foreign aggression in that Province and its effects are eliminated, to be represented in the affairs of the Federation.
(4) Parliament may by law admit into the Federation new States or areas on such terms, and conditions as it thinks fit.

However with effect from May 4, 1974 , the first amendment in the constitution recognized the existence of Bangladesh and removed the reference to East Pakistan from within the constitution. The clause 3 was removed from the constitution and instead of stating the application of this constitution the wordings of clause 2 was changed to describe the territorial boundaries of Pakistan. Here is the current text of the same article.

1. The Republic and its territories
(1) Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.
(2) The territories of Pakistan shall comprise :-
(a) the Provinces of Baluchistan, the North-West Frontier, the Punjab and Sind;
(b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital;
(c) Federally Administered Tribal Areas; and
(d) such States and territories as are or may be included in Pakistan, whether by accession or otherwise.
(3) Majlis-e-Shoora (Parliament) may by law admit into the Federation new States or areas on such terms and conditions as it thinks fit

Commentary:
The proposed amendment via constitutional package under review will replace the words “North-West Frontier” with “Pukhtunkhawa“. It is interesting to note that the article does not declare what would be the name of each province instead it just recognizes the existence of provinces Baluchistan , Punjab , Sind and North-West Frontier province. So changing the word North-West Frontier does not mean the change of name of the province , instead it means that if there is a province named “Pukhtunkhawa” that will be part of the Pakistan.I believe that there is a separate federal/provincial act/law that describes the name and boundries of province “Pukhtunkhawa“.

Article 55: Voting in Assembly:
History:
Article 55 is one of the few articles that have not been affected by the changes by dictators ruling over the countries in last 30 years. This article defines the requirement of minimum number of the members of parliaments to be present in the assembly. The original article reads as follows:

55. Voting in Assembly and quorum.
(1) Subject to the Constitution, all decisions Voting in of the National Assembly shall be taken by majority Assembly a of the members present and voting, but the person quorum. presiding shall not vote except in the case of equality of votes.
(2) If at any time during a sitting of the National Assembly the attention of the person presiding is drawn to the fact that less than one-fourth of the total membership of the Assembly is present, he shall either adjourn the Assembly or suspend the meeting until at least one-fourth of such membership is present.

Commentary:
The proposed change will reduce the requirement of members present in the assembly from one-fourth to one-sixth. It is interesting to note that current number of total members in National Assembly is 332 , which means that in order for the quorum to complete there will be only 56 members needed. In the original constitution there used to be 207 member in the parliament and 52 members were required for the quorum. Another interesting aspect of this change is that there are 60 women members in the parliament so all the women members can now complete the quorum and pass a valid law on their own . Please also note that this article also applies to Senate by virtue of article 61. Hence the quorum requirement for senate will also be one-sixth of the total members i.e. 17 members only out of total 100 members.
It is important to note that other parliaments in the world have much lesser quorum requirements than Pakistan’s parliament , for example quorum requirment for Indian Parliament is only one-tenth of the total members even then they find it hard to get the quorum.  Similarly British Parliament has quorum requirement of only 40 members,  Canadian Parliament requires only 20 members.

Constitutional Package Review Part III

Continued from here

This article is part of series of articles to discuss the most comprehensive constitutional package in the history of Pakistan, I know there is a big question mark whether this package would actually get approval from the parliament however even if 50% of this package could be approved that would mean that since 1973 we have almost a new constitution. I would be discussing good, bad and worse points in this draft of the constitutional package.

The constitution of Pakistan has more than 280 articles, the proposed consititutional package is going to impact 70 of these articles , that means 25% of the whole constitution is going to be changed. Most importantly constitutional package is going to amend almost all the operative clauses of the constitution. A comprehensive review requires an in-depth analysis of each of these articles and how it will impact the future. Please refer to the table below that lists all the articles amended , added or removed via this package.

Articles amended	1, 6, 41, 44, 45, 48, 50, 55, 58,  59, 70 , 73, 75,  90, 91, 95, 99, 100, 101, 104, 105,112, 116, 129, 130, 136, 139, 153, 156, 175, 177, 179, 181, 182, 183, 184, 185, 192, 193, 194, 195, 196, 197, 198, 203B, 207, 208, 209, 213, 215, 218, 219, 221, 224, 243, 257, 255, 260, 267, 268, 270A
Articles Added	95A, 133A, 177A, 193A, 209A, 243A, 270AAA, 270BB, 270CC
Articles Removed	71
Schedules Amended	Third and Fourth
Schedule Replaced	Sixth

 

I plan to review the package under the following headings.

• General Amendments: These amendments are related to the cosmetic but interesting changes in the constitution like change of name of province , removing word Majlis-e-shoora etc.
• Useless Amendments : These amendments on the surface seems useless or have no impact.  Couple of these amendments are in fact laughable.
• Amendments related to Presidential Powers:  Obviously one of the major objective of this constitutional package is to correct the balance of powers between Parliament (Prime Minister) and the President, there are several such amendments which relates to this subject.
• Amendments related to Judiciary: A wholesale changes are being made to the chapter of Judiciary in the constitution. Obviously these amendments are totally unacceptable part of the constitutional package. I’ll look into detail the nature of these amendments and malafide intent behind these amendments.
• Safeguard against the future Martial Laws : Well there are few changes proposed that intend to make it difficult for the future military dictators and their associates (judges) to impose martial law or emergency.
• Schedules affected by the proposed changes

Constitutional Package Review Part II

Continued from here

This article is part of series of articles to discuss the most comprehensive constitutional package in the history of Pakistan, I know there is a big question mark whether this package would actually get approval from the parliament however even if 50% of this package could be approved that would mean that since 1973 we have almost a new constitution. I would be discussing good, bad and worse points in this draft of the constitutional package. First of all I would like to reproduce the proposed amendments here in a manner which can allow readers to have both original version and the version after the proposed amendment in each of the amended article. All the additions/substitutions are in this pen wheras deletion of any words/pharase is marked like this , if an article is completely removed from the constitution than it the whole article is marked like this

Critics of AA and Criticism

Before talking about the criticism on the decision of not doing sit-in for the demands , I would first like to discuss the categories of critics. Broadly there are three types of critics against AA.
1. These are the people belonging to the camp of mad dictator, their objective is to down play the success of long march as well as malign Aitzaz Ahsan. A good example of these people is ahmed quraishi and Imtiaz Alam like journalists. They not only try to down play the number of people in long march but also try to malign AA and other lawyer leaders.

2. The second category is of the people who have utmost hatred against PPP and they are suspecious of AA’s motive in the long march and judiciary struggle. It is very difficult for them to trust AA while he keeps his association with the people’s party. A good example of such critics is Irfan Siddiqi , his today’s article in Nawaiwaqt sums up his suspicion against AA. Let me do some translation:

Before that he (AA) failed to do the proper planning for this movement. Many people think that he should have convinced the lawyers to take part in elections 2008 with whole-hearted effort. If Lawyers, APDM and PML-N had taken part in elections with mutual cooperation , there would have been different balance of power in the parliament. A section also thinks that asking CJ Iftikhar to take part in procession was not an appropriate strategy. Also taking CJ to meet Asif Zardari was inappropriate, Similarly his taking part in Pindi’s election was criticised too. There is also a question mark on his affiliation with PPP (which is the biggest stumbling block in judges restoration) while leading the struggle for judiciary

3. Third category is of those people who are know-all (aql-e-kul) in Pakistan, they know everything and can tell you who made mistake and when. They will always be able to point out how bad a leadership is and what they (leaders) should have done. Their argument will be on the lines why Aitzaz built up the momentum for sit-in , why did they not tell earlier, why he choosed month of June, why he lacked planning , why he did the long march when there was no money and so on and so on.

Although I planned to try writing something in defence of AA’s decision of not doing sit-in , however I feel that the categorization of the critics in itself is a fair defence of how his decision was correct. I personally do not care about the first two types of critics as it is their right and duty to do such criticism , I am more interested in the third type of critics (I sometimes think I might be one of them) :).

June 14th 2008, a 23rd March of 21st Century.

Long march 2008 was really a historical event that would be remembered like 23rd of March 1940 by the generations to come in Pakistan. Before I talk about the ongoing criticism for going against the wishes of certain segment of the lawyers/political workers to do a sit-in till the demands of restoration of judiciary are met, I would like to highlight the achievements of this long march and its historical success.
As I said 14th of June 2008 has the similar significance in the modern history of Pakistan as 23rd of March 1940 has in the creation of Pakistan. Long March signifies the success of “bloody civilians” over the “all-knowing” establishment of Pakistan. As Aitzaz Ahsan aptly put it that this long march has covered the distance of centuries in moments.

The long march has busted several myths about the people of Pakistan and the establishment of Pakistan.

Let me start with some historical perspective. In one of the talk show , the host mentioned that the first ever long march in the history of Pakistan was that of Khan Abdul Qayum in 1958, where the participants travelled 35 km on foot and as the result of that long march General Skindar Mirza imposed martial law in Pakistan. However there were few more such events , two of them were Tehrik-e-Nijat and Dharna’s of JI and BB’s long march. Unfortunately all of these events were somehow controlled in one way or the other by the establishment to achieve their goals. Just like the long march of Khan Abdul Qayum , all these “long marches” brought a change in government in Islamabad.
One of the myth shared by several high ups in the establishment and the media was that any big gathering in Islamabad could cause Pakistan to fall into chaos. I remember that during the movement in 90’s , Islamabad used to be sealed completely and nobody would be allowed to enter Islamabad even if it is a call from Qazi Hussain Ahmed where you would expect few hundred people to turn up. The reason to seal Islamabad was to create a false myth about the fallibility of Islamabad in particular and Pakistan in general. This myth was totally busted on 14th of June 2008 when hundreds of thousands of people of Pakistan gathered peacefully in the heart of Islamabad without disturbing a single leaf on the trees of Islamabad.

In the battle of democratic forces against the establishment of Pakistan, Long March 2008 has proved to be the most successful strike against the establishment. The democratic forces have enforced their upper hand over the establishment that they gained in the elections of February 2008. The battle in Pakistan is between the power of gun and power of people , the politicians of Pakistan have always relied on the power of people to fight against the generals of Pakistan who hold the gun in their hand and try to pressurize the legitimate people leadership. Be it Zulfiqar Ali Bhutto, Muhammad Khan Junejo, Benazir Bhutto or Nawaz Sharif , the political leadership of Pakistan always stood against the establishment on the basis of their popularity amongst the masses.
The best way to demonstrate this popularity is through the traditional processions (jalsa) in Pakistan. The number game in such processions is very important as it demonstrates the love of people for their leadership. I never down play the interest of foreign governments in Pakistan , and I believe that these processions are a proper way of proving your strength in the eyes of foreign government. For example Benazir Bhutto gained upperhand in negotiations with mad dictator in the presence of foreign guarantors when she successfully demonstrated her popularity on 18th of October 2007.
In the context of Long March 2008, the duration of long march is also very important , usually people would tend to analyze the success of long march on the night of 13th of June , however it is important to consider the period between 9th of June and 12th of June. The huge gathering both in Multan and Lahore can not be ignored. The awakening that people had during this long march in unprecedented in the history of South Asia, I think that it is the most significant event in the history since the division of India in 1947. Just like the freedom movement that started between 1937 and 1940 and picked up the momentum in early 40’s , I think Long March 2008 as the start of movement of emancipation of people of Pakistan from the tyranny of establishment and realization of dream of Pakistan where there is rule of law and democracy. I pick the verse of Aitzaz Ahsan’s poem “Riyasat hoogi maan kai jaisi” as the final goal of this movement.

So what did we achieve in the short term. Well three things stands out for me as the direct consequence of this long march.
1. The democratic forces have decided not to give any safe exit to the mad dictator , put other way for the first time democratic forces have decided to pay back the establishment. The sentence that struck me in Nawaz Sharif’s speech was “Why only politicians are supposed to face execution and exile , now it is time for the dictators to face the same”. I think the message is very clear specially when there is a lot of pressure being built by the dictator’s own constituency (ex-Servicemen) against him. I foresee a trouble time ahead of the mad dictator.
2. It seems now quite impossible for the Dogar clan to keep their positions as the “judges” in the real supreme court. There was a time when lawyers and PML-N were ready to give them some space to stay as judges (I am talking about the Dogar judges who were also judges in the SC before 3rd of November). Dogar, Butter , Khokhar (I think he has already retired), Saeed and one more have lost any ground to stay in the future court. It seems to me that they will resign at the time of restoration of judges.
3. Apparently the distance between PPP, PML-N and lawyers have now been reduced, moreover there will now be some filteration among the ranks of lawyers to take the clear positions with respect to their political allignments.

Dedicated to Aitzaz Ahsan

These were comments I posted on pkpolitics.

 

Aaj aamed hee aamed hay……..
One more here fits the situation..

Dilbary thehra zuban-e-khalq khulwanay ka naam
Ab nahin laitay pree-roo zulf laharnay ka naam
ab kisi laila ko bhee iqrar-e-mahboobi nain
in dinoon badnaam hai her aik deewany ka naam

aur
Faiz unko hay taqaaz-i-wafa hum say jinhain
aashna kay naam say piyara hai beganay ka naam

Faiz did not create these verses out of nothing , this war is going on for decades , the same people have passed through same situtation several times.

………

Dedicated to AA

Faiz thee rah sar basar manzil
hum jahaan pohnchay kamiab aaye

and looking at the comments here, a qitaa dedicated to AA

Choora nahin ghairoon nay koi nawak-e-dushnaam
Chooti nahin apnoon say koi tarz-e-malamat
is ishq na us ishq pay naadim hai magar dil
har daagh hay is dil mein bajuz daagh-e-nidamat

is ishq = Independent judiciary
us ishq = PPP

—–
Long march was greatest show of people’s power in the heart of establishment’s forte , it has given the required strength to the political forces to keep firm stand against the establsihment.

Long march ka tarana..

Long March 2008

Long March

Musharraf

Dedicated to Long March 2008

پھر برق فروزاں ھے سر وادی سینا

پھر رنگ پہ ہے شعلہ رخسار حقیقت

پیغام اجل دعوت دیدار حقیقت

اے دیدہ بینا

اب وقت ھے دیدار کا دم ہے کہ نہیں ہے

اب قاتل جاں چارہ گر کلفت غم ہے

گلزار ارم پر تو صحراے عدم ہے

پندار جنوں

حوصلہ راہ عدم ہے کہ نہیں ہے

پھر برق فروزاں ھے سر وادی سینا

اے دیدہ بینا

پھر دل کو مصفا کرو اس لوح پر شاید

مابین من و تو نیا پیماں کوی اترے

اب رسم ستم حکمت خاصان زمیں ہے

تایید ستم مصلحت مفتی دیں ہے

اب صدیوں کے اقرار اطاعت کو بدلنے

لازم ہے کے انکار کا فرماں کوی اترے

Mystery of 270AAA .. the curse of dictators

A million dollar question about the constitutional package is that how it deals with the actions of mad dictator between November 3rd 2007 and December 15 2007.  Let me first try to build a historical context around the part of constitution that deals with such matters. 
In 1973, when article 6 was made part of the constitution Zulfiqar Ali Bhutto declared that there will not be any martial law after this. However in 1977 a mad dictator decided to put the constitution in abeyance and impose martial law in Pakistan. However later on in 1985, Zulfiqar Ali Bhutto proved partially right when mad dictator was afraid of lifting martial law due to the presence of article 6 in the constitution. However he found Jadoogar of Jaddah who told him “a curse” which if the mad dictator used against the constitution and the people of Pakistan , than he can get away with anything he wishes. This curse is know as “Notwithstanding clause” and exist in Part XII Chapter 7 of the constitution of Pakistan as article 270.

Originally article 270, was used to give <b>temporary</b> validation to the laws/ordinances promulaged between 25th March 1969 and 19th December 1971. It is important to read the wordings of article 270 which I quote here.

270. Temporary validation of certain laws, etc.

(1) [Majlis-e-Shoora (Parliament)] may by law made in the manner prescribed for legislations for a matter in Part I of the Federal Legislative List validate all Proclamations, President’s Orders, Martial Law Regulations, Martial Law Orders and other laws made between the twenty-fifth day of March, one thousand nine hundred and sixty- nine and the nineteenth day of December, one thousand nine hundred and seventy-one (both days inclusive).
         (2) Notwithstanding a judgment of any court, a law made by [Majlis-e-Shoora (Parliament)] under clause (1) shall not be questioned in any court on any ground whatsoever. 

(3) Notwithstanding the provisions of clause (1), and a judgment of any court to the contrary, for a period of two years from the commencing day, the validity of all such instruments as are referred to in clause (1) shall not be called in question before any court on any ground whatsoever.

(4) All orders made, proceedings taken and acts done by any authority, or any person, which were made, taken or done, or purported to have been made, taken or done, between the twenty- fifth day of March, one thousand nine hundred and sixty-nine and nineteenth day of December, one thousand nine hundred and seventy- one (both days inclusive), in exercise of powers derived from any President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws, or in execution of any order made or sentence passed by any authority in the exercise or purported exercise of power as aforesaid shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done, so however that any such order, proceeding or act may be declared invalid by  [Majlis-e-Shoora (Parliament)] at any time within a period of two years from the commencing day by resolution of both Houses, or in case of disagreement between the two Houses, by such resolution passed at a joint sitting and shall not be called in question before any court on any ground whatsoever.

So the important point in this validation was that the “Notwithstanding” exception was not over the whole constitution , it was for a court judgment that too for a period of two years. The parilament was granted powers to validate such laws within period of two years.

The jadoogar of Jaddah found this hole and came up with a novel way of declaring night as a day. He drafted the Presidential Order number 14 of 1985 which contained.

270-A

(1)

The Proclamation of the fifth day of July, 1977, all President’s Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force, are hereby declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any court on any ground whatsoever.

(2)

All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notification, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever.

(3)

All President’s Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes in to force shall continue in force until altered, repealed or amended by competent authority.

(4)

No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.

(5)

For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.

[(6)

The President's Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President.]

Explanation:- In this Article, “President’s Orders” includes “President and Chief Martial Law Administrator’s Order, and Chief Martial Law Administrator’s Orders.”

Later on 8th amendment adopted the same article in the following format.

270A. Affirmation of President’s Orders, etc.

(1) The Proclamation of the fifth day of July, 1977, all President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P. O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December 1984, General Muhammad Zia- ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P. O. No. 14 of 1985), the Constitution (Second Amendment) Order 1985 (P. O. No. 24 of 1985), and all other laws, made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any court on any ground whatsoever:

Provided that a President’s Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977.

 

(2) All order made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever. 

(3) All President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or by-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.

Explanation. In this clause, Competent authority means-

(a) in respect of President’s Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the Legislature; and

(b) in respect of notifications, rules orders and by-laws, the authority in which the power to made, alter, repeal or amend the same vests under the law.

 

(4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. 

(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.

[(6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws.] Explanation. In this Article, “President’s Orders” includes “President and Chief Martial Law Administrator’s Orders” and “Chief Martial Law Administrator’s Orders.”

See the curse “Notwithstanding anything contained in the constitution” , also see the validation to all the constitutional amendment orders and presidential orders forever.

This curse was used by the next mad dictator in 2002 and he also attempted to use the same in 2007. Let us first decide in principle that the constitution can not be amended by any method other than the one laid down in the article 239 of the constitution. Therefore granting validation to any order by the president (dictator) that amends the constitution is in itself illegal and unconstitutional. However successive supreme courts violated that principle and declared 8th and 17th amendment as legal act.

Mystery of 270AAA

Let me first quote the article 270AAA as proposed in the constitutional package.

270AAA. Validation of Ordinances etc.-
(1) The Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007) and the Ordinance, except those specified in the Sixth Schedule, made between the 12th day of July, 2007 and the 15th day of December, 2007 (both days inclusive) and actions taken thereunder shall be deemed to have been validly made and taken by the competent authority notwithstanding the expiry of period of four months specified in Article 89 and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.
(2) The Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007) and the Ordinances, except those specified in the Sixth Schedule, in force between the 12th day of July, 2007 and the 15th day of December, 2007 (both days inclusive) shall continue in force until altered, repealed or amended by the appropriate legislature.

It is important to note that this article refers to Sixth Schedule of the constitution which also is part of the constitutional package. Let me quote that as well.

SIXTH SCHEDULE [See Article 270AAA]
1. The National Commission for Human Development (Amendment) Ordinance, 2007 (XXXVII of 2007).
2. The Police Order (Amendment) Ordinance, 2007 (XLI of 2007).
3. The Press, Newspapers, News Agencies and Books Registration (amendment) Ordinance, 2007 (LXIV of 2007).
4. The Pakistan Electronic Media Regulatory Authority (Third Amendment) Ordinance, 2007 (LXV of 2007).
5. The Pakistan Army (Amendment) Ordinance, 2007 (LXVI of 2007).
6. The Legal Practitioners and Bar Councils (Amendment) Ordinance, 2007 (LXIX of 2007).

Frankly I had to read this article along with sixth schedule numerous time to understand the meanings of this article so let me first clear certain myths.

1. There in no doubt that this article is NOT granting any indemnity to the mad dictator for his actions of November 3rd which includes Proclaimation of Emergency Order 2007, Constitutional Amendment Orders and Oath of Office of Judges Order. That affectively means that there is a possibility that if IMC and brother judges are restored they may take up the case of high treason against the mad dictator. However there are things which are being balnketly validated through this article.  Let me make a distinction between the “Order” and an “Ordinance” , and Ordinance is a constitutional instrument that can be issued by the President and have been described in th constitution. However an order is usually an executive order which is issued by the chief executive of the country.

2. On a very close reading I see that one order “The Islamabad High Court Establishment Order” being validated through this clause , and all the ordinances (including off course NRO) except 6 ordinances are  validated. The ordinances which are not validated via this article are listed in sixth schedule.

3. So as I understand the Proclamation of Emegency Order , Constitutional Amendment Orders, Oath of Office (Judges) Order are not given any validation through this amendment. 

Conclusion:

I think article 270AAA is very balanced however it was important to get rid of “Notwithstanding anything contained in the constitution” and the article should have given the powers to revisit all the ordinances including the “Islamabad High Court Esablishment Order” and if in the period of two years the parliament had decided to reconsider these ordinances it would have been much better. I understand that NRO may have been a stumbling block in this case. Moreover it would have been much more dignified if the NRO was placed in front of the parliament as part of this package instead of getting a backdoor approval for this.

 

Restoration of Judges: Article 270CC found and busted.

This article is part of the series of articles aimed to review the constitutional package proposed by the PPP government. Please allow me to jump directly to the most debated part of the bill that relates to the “restoration of judges” through the “constitutional instrument” as apposed to “executive order” relying upon a “parliamentary resolution”.

In the print media and TV talk shows , though there is a hot debate on this issue, yet the most relevant clauses (270AAA and 270CC) in the bill have not been made public by most of the analysts, I am not sure if this is intentional on their part to keep the people guessing. Fortunately in today’s the News I found the exact wording of the article 270CC , which deals with the restoration of judges. Here I reproduce the text of this article as reported by Babar Sattar in daily The News.

270CC :
Notwithstanding anything contained in any provision of the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007 and any other law for the time being in force or judgment of any court including a high court and the Supreme Court, the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007, shall stand reinstated/restored to the position and seniority they were holding on the 2nd day of November, 2007.

Before going any further with the explaination of this article , let me first clarify some confusion regarding the versions of “Constitution of Pakistan” available today and clarify certain points with regards to the proposed constitutional package.

Versions of Constitution of Pakistan:
On the morning of 3rd November 2007 , we had only one version of constitution of Pakistan both as “de-facto” and “de-jure” , this consitution is called “Constitution of Islamic Republic of Pakistan” and had 17 amendments in it. On 3rd of November mad dictator of Pakistan imposed martial law in Pakistan and via “Provisional Constitution Order 2007” , put the constitution in abeyance. Later on under the same PCO , mad dictator promulgated the following orders:
1. Constitution (Amendment) Order, 2007
2. Constitution (Second Amendment) Order, 2007
Both of these orders made changes to the Constitution of Pakistan that was held in abeyance. There were numerous changes in the constitution through these orders. However let me describe one such amendment made through these orders.

4. Amendment of Article 198 of the Constitution:-
In the Constitution, in Article 198, after clause (1), the following new clause shall be inserted, namely:-
(1A) The High Court for Islamabad Capital Territory shall have its Principal seat at Islamabad.

Article 198 as in Constitution (Pre 3rd November 2007).

198. Seat of the High Court.
(1) Each High Court in existence immediately before the commencing day shall continue to have its principal seat at the place where it had such seat before that day. 
(2) Each High Court and the Judges and divisional courts thereof shall sit at its principal seat and the seats of its Benches and may hold, at any place within its territorial jurisdiction, circuit courts consisting of such of the Judges as may be nominated by the Chief Justice.
(3) The Lahore High Court shall have a Bench each at Bahawalpur, Multan and Rawalpindi; the High Court of Sind shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi.
(4) Each of the High Courts may have Benches at such other places as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice of the High Court.
(5) A Bench referred in clause (3), or established under clause (4), shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.
(6) The Governor in consultation with the Chief Justice of the High Court shall make rules to provide the following matters, that is to say,-
(a) assigning the area in relation to which each Bench shall exercise jurisdiction vested in the High Court; and
(b) for all incidental, supplemental or consequential matters.

After the amendment by the “Constitutional Amendment Order 2007″ , the Article 198 reads as follows.

198. Seat of the High Court.
(1) Each High Court in existence immediately before the commencing day shall continue to have its principal seat at the place where it had such seat before that day. 
(1A) The High Court for Islamabad Capital Territory shall have its Principal seat at Islamabad.
(2) Each High Court and the Judges and divisional courts thereof shall sit at its principal seat and the seats of its Benches and may hold, at any place within its territorial jurisdiction, circuit courts consisting of such of the Judges as may be nominated by the Chief Justice.
(3) The Lahore High Court shall have a Bench each at Bahawalpur, Multan and Rawalpindi; the High Court of Sind shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi.
(4) Each of the High Courts may have Benches at such other places as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice of the High Court.
(5) A Bench referred in clause (3), or established under clause (4), shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.
(6) The Governor in consultation with the Chief Justice of the High Court shall make rules to provide the following matters, that is to say,-
(a) assigning the area in relation to which each Bench shall exercise jurisdiction vested in the High Court; and
(b) for all incidental, supplemental or consequential matters.

Which Version of Constitution Proposed Constitutional Package Amends?
It is important to understand which version of the above two , proposed constitutional package is amending. Looking at the wordings of proposed amendment in the same article 198 as given in point 53 of the constitutional package.

53. Amendment of Article 198 of the Constitution.- In the Constitution, in Article 198, after clause (1), the following new clause shall be inserted, namely:-
(a) “(1A) The High Court for Islamabad Capital Territory shall have its principal seat at Islamabad.
(b) In clause (3), for the words “at Sukkur” the words and comma “each at Sukkur, Hyderabad and Larkana” shall be substituted.
(c) In clause (4), the word “in consultation with” shall be omitted.”

This clearly shows that the proposed package is “inserting” new clause 1A in the article 198 , which can only be inserted in “Pre 3rd November 2007″ version of Constitution.

So it is now clear that proposed constitutional package is not recognizing the existence of “Constitutional Amendment Order 2007″ at all. And is ascertaining that the amendments done through this order are not recognized as such part of the contitution of Pakistan.

Let us now discuss the article 270CC , I would first play the devil’s advocate (Farooq Naik the devil - to defend the article as the right way to restore the judges.
So according to the article 270CC , it is made clear that “Notwithstanding anything contained in the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007   and any other law for the time being in force or judgment of any court including a high court and the Supreme Court” , ”the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007 shall stand reinstated/restored”.  

The wording of this clause is not assuming the validity of “Constitutional Amendment Order 2007″ , or “Provisional Constitutional Order 2007″ , it is referring to “The Oath of Judges Order 2007″ and other related orders. Since these orders were issued by the mad dictator in his capacity as President of Pakistan , therefore they may be considered as “de-facto” orders which need to nullified.  We have to agree with the assertion that the said orders are “for the time being in force” , therefore they must be nullified and article 270CC ensures that these orders are set aside.  Similarly there is a “Judgment of Supreme Court” that declares that the “honorable judges” have “ceased to continue to hold office” , therefore this Judgment must also be set aside , and article 270CC ensures that too.  Please note that the wording is not assuming the validity of these orders/judgment instead it is just assuming the existence of these orders/judgment. Makes some logic isn’t it?

Article 270CC busted
On the face of it the above devil’s advocate argument seems logical , however let us see how it negates itself. The “Oath of Judges Order 2007″ and all other related orders were issued in pursunace of “Provisional Constitutional Order 2007″ , these orders were never issued by the mad dictator in his capacity as president , let me narrate here the opening paragraphs of “Oath of Judges Order 2007″

Whereas in pursuance of the Proclamation of Emergency of the 3rd day of November, 2007, and the Provisional Constitutional Order No. 1 of 2007, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;
Whereas Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the President has, and shall be deemed always to have had the power to amend the Constitution;
Whereas all Courts in existence immediately before the commencement of this Order will continue to function and to exercise their respective powers and jurisdiction subject to the Proclamation of Emergency and the Provisional Constitutional Order No. 1 of 2007;
And Whereas to enable the Judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office;

This is exactly similar to the paragraphs of “Constitutional Amendment Order 2007″, i.e both of the orders are issued in “pursuance of the Proclamation of Emergency of the 3rd day of November 2007” , however the article 270CC is recongnizing the existence of the “Oath of Judges Order 2007″ whereas the constitutional package is not recognizing the existence of “Constitutional Amendment Order 2007″.
Another important aspect to the argument of “de-facto” status of the current “dogar” judges and the honorable judges is that it requires an instrument to change this de-facto status. However the idea of using the constitutional instrument to recognize this de-facto status and then changing it is absurd to say the least. The illegal and void “executive orders” can and should be reversed by the legal and valid “executive” orders. Finally there is the question of Judgment by the dogar court , the executive order need not be concerned about the judgment of supreme court as the restored judges would have the responsibility of reviewing this judgment on the touchstone of legality of the bench that passed such judgment.

 

Constitutional Package - Comprehensive Review Part 1.

This article is part of series of articles to discuss the most comprehensive constitutional package in the history of Pakistan, I know there is a big question mark whether this package would actually get approval from the parliament however even if 50% of this package could be approved that would mean that since 1973 we have almost a new constitution. I would be discussing good, bad and worse points in this draft of the constitutional package , I however need to tell the readers that I don’t have the offical copy of the actual draft , and at the moment I have only 57 points out of reported 80 points in the draft. I however expect that I would be able to get the complete draft by the time I complete this series. First of all I would like to reproduce the proposed amendments here in a manner which can allow readers to have both original version and the version after the proposed amendment in each of the amended article. All the additions/substitutions are in this pen wheras deletion of any words/pharase is marked like this , if an article is completely removed from the constitution than it the whole article is marked like this

1.The Republic and its territories
(2) The territories of Pakistan shall comprise :-
(a) the Provinces of Baluchistan, the Pakhtunkhawa , the Punjab and Sind;

6. High treason.
(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. (2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason. (3)[Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.
(1) Any person who abrogates, subverts, suspends or holds in abeyance or attempts or conspires to abrogate, subvert, suspend or hold in abeyance the Constitution by use of force or show of force or by other un-constitutional means shall be guilty of high treason.
(2) Any person aiding or abetting or any person or any court including a High Court and the Supreme Court condoning, affirming or validating the acts mentioned in clause (1) or violating oath of office specified in the Third Schedule shall likewise be guilty of high treason. (3) Parliament shall by law provide for the punishment of person found guilty of high treason

41. The President.

(3) The President to be elected after the expiration of the term specified in clause ( 7) shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of:

44. Term of office of President.

(2) Subject to the Constitution, a person holding office as President shall be eligible for re-election to that office, but no person shall hold that office for more than two consecutive terms.

45. President’s power to grant pardon, etc.

The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority or indemnify any act whatsoever

48. President to act on advice, etc. (1) In the exercise of his functions, the President shall act on in accordance with the advice of the Cabinet or the Prime Minister, and such advice shall be binding on him which shall be returned to the Cabinet or the Prime Minister, as the case may be, within fifteen days
Provided that the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall within severs days act in accordance with the advice tendered after such reconsideration. (5) Where the President dissolves the National Assembly, he shall, in his discretion after consultation with the Speaker of the National Assembly and the Chairman, Senate,:
(b) appoint a neutral care-taker Cabinet.
(6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister Parliament in joint sitting , considers that it is desirable that any matter of national importance should be referred to a referendum, the President Parliament may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by “Yes” or “No”. (7) An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.

50. Majlis-e-Shoora (Parliament)

There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the President and two Houses to be known respectively as the National Assembly and the Senate.

55. Voting in Assembly and quorum.

(2) If at any time during a sitting of the National Assembly the attention of the person presiding is drawn to the fact that less than one-fourth one-sixth of the total membership of the Assembly is present, he shall either adjourn the Assembly or suspend the meeting until at least one-fourth of such membership is present.

58. Dissolution of the National Assembly.
(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,:
(a) a vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the members of the National Assembly in accordance with the provisions of the Constitution as ascertained in a session of the National Assembly summoned for the purpose; or
(b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.
[(3) The President in case of dissolution of the National Assembly under paragraph (b) of clause (2) shall, within fifteen days of the dissolution, refer the matter to the Supreme Court and the Supreme Court shall decide the reference within thirty days whose decision shall be final.

59. The Senate

(1) The Senate shall consist of one-hundred and five members, of whom,-

70. Introduction and passing of Bills.
(1) A Bill with respect to any matter in the Federal Legislative List or in the Concurrent Legislative List may originate in either House and shall, if it is passed by the House in which it originated, be transmitted to the other House; and, if the Bill is passed without amendment, by the other House also, it shall he presented to the President for assent. (2) if a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its receipt or is passed with amendment, the Bill, at the request of the House in which it originated, shall be referred to a Mediation Committee constituted under Article 71 for consideration and resolution thereon considered in joint sitting.
(3) Where a Bill is referred to the Mediation Committee under clause (2), the Mediation Committee shall, within ninety days, formulate an agreed Bill which is likely to be passed by both Houses of the Majlis-e-Shoora (Parliament) and place the agreed Bill separately before each House and if both the Houses pass the Bill, it shall be presented to the President for assent. President for assent.

(3) If a request is made under clause (2), the President shall summon joint sitting within thirty days; and, if the Bill is passed in the joint sitting, with or without amendment, by the votes of the majority of the total membership of the two Houses, it shall be presented to the President for assent


71. Mediation Committee
(1) Both Houses of Majlis-e-Shoora (Parliament) shall, within fifteen days from the date of referral of the Bill by the House in which it was originated for consideration and resolution by the Mediation Committee under clause (2) of Article 70 nominate eight members each as members of a Mediation Committee. (2) The House in which the Bill was originated shall nominate a member of the Mediation Committee as Chairman of the Committee and the other House shall nominate a member as the Vice-Chairman thereof. (3) All decisions of the Mediation Committee shall be made by a majority of the total number of members of each House in the Committee. (4) The President may, in consultation with the Speaker of the National Assembly and Chairman of the Senate, make rules for conduct of business of the Mediation Committee.

73. Procedure with respect to Money Bill.

(1) Notwithstanding anything contained in Article 70, a Money Bill shall originate in the National Assembly. Provided that simultaneously when a Money Bill, including the Finance Bill containing the Annual Budget Statement, is presented in the National Assembly, a copy thereof shall be transmitted to the Senate which may, within seven fourteen days, make recommendations thereon to the National Assembly.

75. President's assent to Bills.

(1) When a Bill is presented to the President for assent, the President shall, within thirty fifteen days,- (a) assent to the Bill; or

(b) in the case of a Bill other than a Money Bill, return the Bill to the Majlis-e-Shoora (Parliament) with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered.

90. Exercise of executive authority of the Federation.

(1) The executive authority of the Federation shall vest in the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution.

(2) Nothing contained in clause (1) shall :-

(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any Province or other authority; or

(b) prevent the Majlis-e-Shoora (Parliament) from conferring by law functions on authorities other than the President

90. The Federal Government.-
(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the. Prime Minister and the Federal Ministers, which shall act through the Prime Minister who shall be the Chief Executive of the Federation. (2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.

91. The Cabinet.
(1) There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions.
(2) The President shall in his discretion appoint from amongst the members of the National Assembly a Prime Minister who, in his opinion, is most likely to command the confidence of the majority of the members of the National Assembly.
(2A) Notwithstanding any-thing contained in clause (2), after the twentieth day of March, one thousand nine hundred and ninety, the President shall invite the member of the National Assembly to be the Prime Minister who commands the confidence of the majority of the members of the National Assembly, as ascertained in a session of the Assembly summoned for the purpose in accordance with the provisions of the Constitution.
(2) The National Assembly shall meet on the thirtieth day following the day on which a general election to the Assembly is held, unless sooner summoned by the President.
(3) The person appointed under clause (2) or as the case may be, invited under clause (2A) shall, before entering upon the office, make before the President oath in the form set out in the Third Schedule and shallwithin a period of sixty days thereof obtain a vote of confidence from the National Assembly.
(3) After the election of the Speaker and the Deputy Speaker, the National. Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its Muslim members to be the Prime Minister
(4) The Cabinet, together with the Ministers of State, shall be collectively responsible to the National Assembly.
(4) -. The Prime Minister shall be elected by the votes of the majority of the total membership of the National Assembly: Provided that, if the number of votes secured by two or more members securing the highest number of votes is equal, further poll shall be held between them until one of them secures majority of votes of the members present and voting: Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of votes of the members present and voting.
(5) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly.
(5) The member elected under clause (3) shall be called upon by the President to assume the office of Prime Minister and he shall, before entering upon the office, make before the President oath in the form set out in the Third Schedule

95. Vote of no-confidence against Prime Minister.

(1) A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the National Assembly.

(3) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.

(4) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the Prime Minister shall cease to hold offce

95. Vote of no-confidence against the Prime: Minister: -

(1) A resolution for a vote of no-confidence moved by not less than twenty percent of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly.
(2) A resolution referred to in clause (1) shall not be moved in the
National Assembly unless, by the same resolution, the name of another memberof the Assembly is put forward as the successor.
(3) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which; such resolution is moved in the National Assembly.
(4) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for:
grants submitted to it in the Annual Budget Statement.

(5) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the President shall call upon the person named in the resolution as the successor to assume office and on his entering upon office his predecessor and the Federal Ministers and Ministers of State appointed by him shall cease to hold office.

(6) If a resolution referred to in clause (1) is not passed, another such resolution shall not be moved until a period of six months has elapsed.

95A: - Federal Minister performing functions of Prime Minister: -

(1) In the event of the resignation of the Prime Minister or the office of Prime Minister becoming vacant by any reason or of his ceasing to be a member of the National Assembly, the Senior Federal Minister for the time being shall be called upon by the President to perform the functions of that office and the Federal Ministers and the Ministers of the State shall continuein office until a new Prime Minister has entered upon his office.
(2) If the National Assembly is in session at the time,when the office of Prime Minister becomes vacant, the Assembly shall forthwith proceed to ascertain as to which member of the Assembly commands the confidence of majority of the members and if the Assembly is not in session the President shall for that purpose summon it to meet within fourteen days of the office becoming vacant to ascertain as to which member of the Assembly commands the confidence of the majority of the members.
(3) When the Prime Minister, by reason of absence from. Pakistan or any other cause, is unable to perform his functions, the Senior Federal Minister for the time being shall perform the functions of Prime Minister until the Prime Minister returns to Pakistan or, as the case may be, resumes his functions.
(4) In this Article, “Senior Fedei-,l Minister” means the Federal Minister for the time being designated as such by the Prime Minister.

99. Conduct of business of Federal Government.
(1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President.
(2) The President Parliament shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the President.
(3) The President Federal Government shall also make rules for the allocation and transaction of the business of the Federal Government

100. Attorney-General for Pakistan.

(1) The President Federal Government shall appoint a person, being a person qualified to be appointed a Judge of the Supreme Court, to be the Attorney-General for Pakistan.

(2) The Attorney-General shall hold office during the pleasure of the President Federal Government.

(3) It shall be the duty of the Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character as may be referred or assigned to him by the Federal Government, and in the performance of his duties he shall have the right of audience in all courts and tribunals in Pakistan.

(4) The Attorney-General may, by writing under his hand addressed to the President Federal Government , resign his office.

101. Appointment of Governor.

(1) There shall be a Governor for each Province, who shall be appointed by the President in his discretion] after consultation with the Prime Minister from the respective Province.

104. Acting Governor.

When the governor is absent from Pakistan or is unable to perform the functions of his office due to any cause, the President may direct the Speaker of the Provincial Assembly to act as Governor and in case the Speaker , is not available such other person as the President may direct shall act as Governor.

105. Governor to act on advice, etc. (1) Subject to the Constitution, in the performance of his functions, the Governor shall act on and in accordance with the advice of the Cabinet,or the Chief Minister,
and such advice shall be binding on him which shall be returned to the Cabinet or the Chief Minister, as the case may be, within fifteen days. Provided that the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall ,within seven days, act in accordance with the advice tendered after such reconsideration. (2) The question whether any, and if so what, advice was tendered to the Governor by the Chief Minister or the Cabinet shall not be inquired into in, or by, any court, tribunal or other authority.
(4) The powers conferred by the Article on the President shall be exercised by him in his discretion.

112. Dissolution of Provincial Assembly.
(1) The Governor shall dissolve the Provincial Assembly if so advised by the Chief Minister; and the Provincial Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Chief Minister has so advised. Explanation.- Reference in this Article to “Chief Minister” shall not be construed to include reference to a Chief Minister against whom notice or a resolution for a vote of no-confidence has been given in the Provincial Assembly but has not been voted upon or against whom a resolution for a vote of no-confidence has been passed or who is continuing in office by virtue of clause (2) of Article 134 or a Provincial Minister performing the functions of the Chief Minister under clause (1) or clause (3) of Article 135.
(2) The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where, in his opinion:-
(a) a vote of no-confidence having been passed against the Chief Minister, no other member of the Provincial Assembly is likely to command the confidence of the majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the Provincial Assembly summoned for the purpose; or
(b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.
(3) The Governor in case of dissolution of the Provisional Assembly under paragraph (b) of clause (2) shall within fifteen days of the dissolution refer the matter to the Supreme Court with the previous approval of the President and the Supreme Court shall decide the reference within thirty days whose decision shall be final.

116. Governor’s assent to Bills. (2) When a Bill is presented to the Governor for assent, the Governor shall, within thirty fifteen days,
(a) assent to the Bill; or
(b) in the case of a Bill other than a Money Bill, return the Bill to the Provincial Assembly with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered.

129. Exercise of executive authority of Province.
The executive authority of the Province shall vest in the Governor and shall be exercised by him, either directly or though officers subordinate to him, in accordance with the Constitution.

129. The Provincial Government.

(1) Subject to the Constitution,the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the. Chief Minister who shall be the Chief Executive of the Province.
(2) In the performance of his functions under the. Constitution, the Chief Minister may, act either directly or through the Provincial Ministers.

130. The Cabinet.
(2) The Governor shall appoint from amongst the members of the Provincial Assembly a Chief Minister who, in his opinion, is likely to command the confidence of the majority of the members of the provincial Assembly.
(2) The Provincial Assembly shall meet on the thirtieth day following the day on which a general election to the Assembly is held, unless sooner summoned by the Governor.
(2A) Notwithstanding anything contained in clause(2) after the twentieth day of March, one thousand nine-hundred and eighty-eight, the Governor shall invite the member of the Provincial Assembly to be the Chief Minister who commands the confidence of the members of the Provincial Assembly, as ascertained in session of the Assembly summoned for the purpose in accordance with the provisions of the Constitution:
Provided that nothing contained in this clause shall apply to a Chief Minister holding office on the twentieth day of March, one thousand nine hundred and eighty eight, in accordance with provisions of the Constitution.
(3) After the election of the Speaker, and the Deputy Speaker, the Provincial Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its members to be the Chief Minister,
(3) The person appointed under clause(2) or, as the case may be, invited under clause(2A)shall, before entering upon the office, make before the Governor oath in the form set out in the Third Schedule and shall within a period of sixty days thereof obtain a vote of confidence from the Provincial Assembly.
(4) The Chief Minister shall be elected by the votes of the majority or the total membership of the Provincial Assembly:
Provided that, if no member secures such majority in the first poll, a second pall shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Chief Minister.
Provided further that, if the number of votes Secured by two or more members securing the highest number of votes is equal, further polls shall be held between them until one of them secures a majority of votes of the members present and voting.
(5) The member elected under clause (3) shall be called upon by the Governor to assume the office of Chief Minister and he shall before entering upon the office make before the Governor oath in the form set out in the Third Schedule.

133A. Provincial Minister performing functions of Chief Minist