Frantic govt bid to amend Constitution comes to nought

ISLAMABAD: The government switched to a defensive mode after it could not introduce the Constitution (26th) Amendment Bill 2024 in the National Assembly on Monday. The session was prorogued for indefinite period.

Speaking on the floor of the National Assembly, Minister for Law Azam Nazeer Tarar said that draft of the Constitution Amendment Bill 2024 was yet to be presented before the federal cabinet and Cabinet Committee for Disposal of Legislative Committee (CCLC).

He said when the allied government was being formed, it was decided between the Pakistan Muslim League-Nawaz (PMLN) and the Pakistan Peoples Party (PPP) that unfinished part of the Charter of Democracy (CoD) would be implemented. “We were not going to commit any robbery or doing anything else in the dark of the night,” he said.

He said that 250 million people of the country have given authority to the parliamentarians that as to how the country would be run, as it is not the chief justice who would direct how a political party should work.

He said that with surge in terrorist activities in Balochistan and Khyber Pakhtunkhwa provinces, a demanded was made in the apex committee that a sunset clause should be passed for establishment of military courts but Bilawal Bhutto and other political leaders were of the view that civil system should be improved.

He said that it was wrongly assumed that the retiring Chief Justice of Pakistan would be appointed as chief justice of the constitutional court. He said that it was because of parties own political weaknesses that instead of resolving their differences, they go to the adjacent building (Supreme Court).

He revealed that he would introduce legislation with regard to criminal cases which would include registration of FIRs, presentation of challans, arrests and detention matters, bail matters and timeframe for trial. “According to it, the relevant judge would face action if trial is not completed within the timeframe,” he said, adding that the same package would not be opposed by any bar council or association.

He said that no bar council or association would oppose formation of a constitutional court and other judicial reforms. Earlier, addressing the law minister, former Speaker Asad Qaisar said: “Whether you conscience was allowing you to make efforts for passage of the amendment.”

He maintained that the Pakistan Tehreek-e-Insaf (PTI) leadership would strongly resist any constitutional amendment which could undermine supremacy of the Constitution and independent judiciary.

He said the government humiliated the Parliament and attempted to make the House a rubber stamp. The PTI leader thanked all the opposition leaders particularly Maulana Fazlur and then Mahmood Khan Achakzai who bravely faced the situation.

He questioned as to where from the government received draft of the constitutional amendment. “It was the law minister who was saying that he did not possess draft of the amendment,” he said.

He said that he was particularly pained by the PPP leadership, including Bilawal, because they knew the whole situation. However, he said that amendments in Articles 8 and 99 were not shared with the PPP leadership and same amendments were meant to breach basic rights of the people.

He said that the proposed Constitutional amendment which could have effected even the common man was attempted to be passed in the dark of the night. “If you do not share the draft of legislation with stakeholders then it should be called theft, not legislation,” he said.

He said that there was lack of trust on the part of the ruling party as even within allied parties different drafts were shared at different forums. He alleged that six to seven MNAs were kept in Punjab House and they were being forced to vote in favour of the constitutional amendment. “It’s better to die instead becoming part of such a constitutional amendment”, he said.

Referring to proceedings of the Special Committee headed by Syed Khursheed Shah, the former Speaker said the PTI leadership would support amendment in the Constitution with conditions that there should be supremacy of Constitution, independent judiciary, rule of law, strengthening the Parliament.

While taking the floor, Defence Minister Khawaja Asif said that the constitutional amendment circulating in the media was an attempt on part of the government to remove constitutional imbalances and undo 19th Amendment.

“There was no politics and it is right of parliamentarians that for supremacy of the Parliament and strengthen the institution which represents 250 million people of the country, as enshrined in the Constitution,” Asif said.

He said that it was also meant to mend corrosion if there is any in the Constitution, adding that the basic document of the same amendment was in the CoD signed by Nawaz Sharif and Benazir Bhutto in 2006 and also signed by other parties later.

He said that they still wanted to create maximum consensus in Parliament and it would not take any constitutional shape unless it is passed by federal cabinet and two Houses of Parliament. “We desire that the Constitutional amendment represents collective wisdom of the House,” he said.

“I feel our first and foremost responsibility is to protect the Constitution and law instead of going for legislation aimed at serving political interests,” he said, claiming that there was no politics in the proposed amendment.

However, he stressed that the Constitution Amendment Bill would be presented in the House once political consensus is created on the legislation. He said that it was also in the spirit of the CoD and there was also a consensus on the political spectrum that there should be a constitutional court and same is the practice in other democratic countries which similar courts. “It is not that Parliament will encroach upon the judiciary as the constitutional court will remain subject of the judiciary, but it will be for the specific subject so that other complainants should not suffer because constitutional matters,” he said, questioning that if it’s a political interest if a step is taken to lessen burden of judiciary.

Khawaja Asif said that the government through an amendment did not want to trespass limits of any institution but wanted to assert existence of Parliament in the light of the Constitution. “The role of Parliament should not be a rubber stamp and there should be representation of Parliament in the Judicial Commission of Pakistan,” he said.

The minister said that they attempted to retrieve right of Parliament through the proposed constitutional amendment. PPP’s Syed Naveed Qamar said that the process for consultation for the constitutional amendment would continue.

He went on to say that it was not the final draft and it would be given a final shape after consultation in the special parliamentary committee within the government, and with approval of the federal cabinet. “We also have objection on many clauses of the draft,” he added.

The Jamiat Ulema-e-Islam-Fazl (JUIF) parliamentarian Shahida Akhtar Ali said that if a legislation is person specific or time specific then it would face same fate as happened in recent case.

She said such a constitutional amendment should be considered on which there is consensus among all the political parties. She said that her party was not even aware of content of proposed legislation and number of clauses of the Constitution to be amended.

“We cannot take any decision whether to support or oppose the constitutional amendment unless we are provided draft of the legislation,” she said. MQM parliamentarian Dr Farooq Sattar, while observing that the opposition also complained that they did not get draft of the proposed amendment, said that as an ally of the government, they were also taken for granted and approached at the eleventh hour.

He said that giving powers to local governments and strengthening the system should also be made part of the constitutional amendment. Meanwhile, PPP Chairman Bilawal Bhutto Zardari reached residence of JUIF chief Maulana Fazalur Rehman in a bid to convince him on proposed constitutional amendment.

Earlier, Bilawal also held a separate meeting with Prime Minister Shehbaz Sharif. The PPP chairman along with party leaders Syed Khursheed Shah, Syed Naveed Qamar and Murtaza Wahab met the prime minister and discussed reservations of Maulana Fazl.

The government allies agreed to remove the JUIF’s reservations on the proposed constitutional amendment. Later immediately after the meeting, Bilawal visited Maulana Fazl. The political situation of the country with focus on the amendment was discussed in detail between the PPP and JUIF.

The meeting lasted for an hour in which the PPP and JUIF agreed to jointly draft the proposed constitutional amendment to be shared with the PMLN and other government allies. Sources said it was decided that the PPP and JUIF would continue discussions on the issue of proposed constitutional amendment, and after reviewing the proposed draft, both the parties would meet again.

After the meeting, Khursheed Shah told the media that the PPP and JUIF consulted on the articles of the bills on which they agree. He said: “Our effort is make laws according to the wishes of the peoples, the country, the nation, the constitution, and according to the supremacy of Parliament.”

He said Parliament has every right to legislate and nobody can stop us from legislating because it is our right. “We want to make Parliament powerful,” he said. Syed Khursheed Shah there was no question of persuading or arguing with anyone when we and Maulana Fazlur Rehman have agree together. “We will talk to other parties as well.”

Syed Naveed Qamar said: “There is no disagreement as the focus of the PPP is to bring amendments according to the constitutional courts. Maulana Sahib has agreed in principle on what was discussed,” he said.

“Positive things have happened and we hope that we will all sit down and come to a consensus.” JUIF leader Senator Kamran Murtaza, who was also present in the meeting, said that they are yet receive draft of the proposed amendment.

Earlier, Maulana Fazl chaired a meeting of JUIF’s parliamentary party to discuss the ongoing political situation particularly with reference to activities of the last two days. The JUIF is represented by eight members in the National Assembly and five members in the Senate which enhances party’s importance for passage of the constitutional amendment with two-thirds of the majority separately in two houses.

Meanwhile, sources revealed that the proposed 26th constitution amendment contains more than 54 amendments with focus on creation of a federal constitutional court (FCC) having a chief justice and many other judges, tenure of Chief Justice of Pakistan, change in format of Judicial Commission of Pakistan, and transfer of all the pending cases in constitutional matters to the proposed FCC.

According to insertion of a new clause 176A, the President of Pakistan would appoint the FCC chief justice and other judges under Article 175A. A person who holds or has held office of a judge of the Supreme Court or judge of a high court having experience of at least five years will be eligible to be appointed as FCC judge.

Moreover, a person having 15-year experience as advocate of a high court and is advocate of the Supreme Court may also be appointed as FCC judge. According to new Article 178A, the retiring age of judge of the FCC has been fixed at 68 unless he resigns or is removed from the office according to the Constitution.

There would also be an acting chief justice of the FCC who would be the most senior judge of the FCC. According to an amendment in Article 63A of the Constitution, the vote cast by a member (parliamentarians) contrary to direction issued by the parliamentary party would be counted and not disregarded.

There are amendments to Articles 9A, 17, 48, 63A, 68, 78, 81, 100, 111, 114, 165, 175, 175A, 176, 177, 178, 179, 182, 184, 186, 187, 188, 189, 190, 191, 192, 193, 199, 2022, 204, 205, 206, 207, 108, 209, 210, 215, 243, 248, 255, 259, 260 and amendments in third and fourth schedule of the Constitution.

According to an amendment in Article 179, the tenure of Chief Justice of Pakistan would be three years unless he resigns or attains age of 65 years.

The FCC would have the jurisdiction to hear appeals, petitions, or review applications arising out of the orders of the high courts passed under Article 199, or filed/ pending before the Supreme Court prior to commencement of the Constitution Amendment Bill 2024.

According to substitution of Article 185 of the Constitution, the Supreme Court would have jurisdiction to determine appeal from judgements, decrees, final orders or sentences of a high court excluding those announced under Article 199. This Article 199 relates to orders of the high court in constitutional matters and with passage of the bill, all the cases in this respect would be transferred from Supreme Court to the FCC.

According to an amendment in Article 175A, the commission for appointment of judges of the high courts and Federal Shariat Court would consist of two senior most judges of the FCC, chief justice and two senior most judges of the Supreme Court, federal minister for law and justice, attorney general, a senior advocate or an advocate having not less than 20 years of practice in Supreme Court to be nominated by the Pakistan Bar Council for a term of two years.

The commission would also consist two members each from the Senate and the National Assembly with equal representation from the treasury and opposition benches. In case of appointment of judges of the FCC, the chief justice and two senior most judges of the Supreme Court would be replaced by chief justice and senior most judges of the FCC.