Constitutional amendments: Another bid by PMLN, PPP to forge consensus amid iffy JUIF support

ISLAMABAD: The Pakistan Peoples Party (PPP) presented its draft while the government shared its recommendations for constitutional amendments with regard to the judicial reforms at the special committee meeting, here on Friday.

The 5th in-camera meeting of the special committee was held with committee chairman Syed Khursheed Shah in the chair, and attended by PPP Chairman Bilawal-Bhutto Zardari, PTI Chairman Gohar Ali Khan, JUIF Chief Maulana Fazlur Rehman and other members.

Any consensus could not be reached in the meeting on Friday and it was decided that the in-camera meeting would be held again on Saturday (today). Sources said the JUIF would share its draft with the committee in on Saturday.

The government recommendations were based on the points proposed by lawyers during consultations.

Talking to the media later on, Minister for Law and Justice Azam Nazeer Tarar said all parties expressed their views in the meeting. “We have put in writing our suggestions on the judicial package, and those given by the bar bodies in the meeting,” he said.

He said that it had been decided that the meeting would be held again on Saturday after 12 noon. “At least, the uncertainty, which had been created, has now come to an end with today’s meeting,” he added.

He said that on the day when the conference of representatives of the Supreme Court Bar was held, he had handed over the draft to them in the open forum. “This is the same draft that talks about establishment of the federal constitutional court and how should be the Judicial Commission.

“Any system of accountability of judges should be based on their professionalism and competence and disciplinary action should be taken against those who do not perform well, while the procedure for removing them is the same as under Article 209,” he added.

Commenting on the contents of the joint draft, the law minister said the amendments suggest what should be the authority and formation of the judicial commission. “Moreover, the establishment of constitutional courts and judges’ transfer has also been discussed,” he added.

In a reply to a question, the law minister said the PTI did not give any opinion in today’s meeting and sought time to review the proposals. “I have asked the JUIF to share their draft and it is expected that they will share it on Saturday meeting of the special committee,” he said.

In a reply to a question, he said members had to vote the constitutional amendments after going through it, and also know about the fallout of the going against the party directives. “We cannot force anyone to vote for the constitutional amendments as who will understand that it is beneficial for strengthening the parliamentary system, judicial reforms, betterment of the country, as after its passage, no elected prime minister will be sent home on someone’s directions, and those who agree on it will vote for it,” he added.

Later on, addressing a press conference at his chamber in the Parliament House, PPP Chairman Bilawal-Bhutto Zardari said the constitutional amendment should be done with consensus among political parties. He said the government had given him space for a month to reach consensus on constitutional amendment related to judicial reforms. “If there is no consensus, how long will the government wait,” he asked.

Bilawal said: “Our efforts are for a consensus draft. We don’t want to just oppose any suggestion for no reason.” He said while the Shanghai Cooperation Organisation (SCO) conference was taking place in Islamabad, he was trying his best to evolve a consensus. If it takes more than the given time period to reach consensus, the government might use its constitutional right and move on it.

He said Pakistan Tehreek-e-Insaf (PTI) was asking for time to discuss the amendment on the one hand, and also hurling threats on the other. They would have to come to one stance, he added.

He said only the final document of the PPP had come out, while the draft had not been formally received from Maulana Fazlur Rehman. “The PPP draft has been with Kamran Murtaza for over a week,” he said.

Bilawal said if the government had a two-thirds majority and still wanted consensus, then it should be appreciated. The PPP chairman said the government wanted to work according to the constitution and law. He said the PPP had always made constitutional amendments with consensus. He said the draft given by the PPP included establishment of a constitutional court, and also included proposals for amendments to Article 175 A, B, D, E, F.

He asked the government to share the points other than judicial reforms. “Of course, there will be some points according to the government’s own manifesto. The PMLN has the right to amend the Constitution according to the Charter of Democracy,” he added.

He said the PPP had not linked its aspirations with the constitutional amendment and “we have put forward the constitutional court and judicial reforms”.

While answering the media questions, he said a detailed meeting of the parliamentary committee took place on Friday, in which all parties gave their views. The PPP presented its original draft proposals in the committee, comprising issues related to the constitutional court. Apart from this, he said points of lawyers were also presented in the committee, adding that the law minister held detailed consultations with lawyers and their suggestions were also presented.

Bilawal said the opposition parties also presented their comments while Maulana Fazlur Rehman reiterated his position that he wanted to make a draft by reaching consensus with the PPP. He told a reporter that the federal government was very confident that they had the required numbers for passing the amendment. He said the law minister said they had a two-thirds majority, but the PPP wanted all political parties to reach consensus.

Talking to the media after the meeting, JUIF Chief Fazlur Rehman said the government shared the draft of the constitutional amendment for the first time today, and now a discussion would start on it. “Let’s see what stand the government takes, and where the matter is settled,” he said. When he was asked whether the proposals of the PPP were presented in the special committee meeting, Maulana said the proposals of the PPP had come out, and “now we will discuss it with it”. He said the PPP and the JUIF would also hold discussions for preparing a consensus draft, and “we will also share our draft with the PTI, while the PPP will share it with its ally PMLN, so that consensus can be reached”.

In response to a question, the Maulana said, “I cannot say how long this matter will be settled. There has been an agreement to reach a consensus on it. We want to reach a consensus.”

The JUIF chief said there should be no hurry; the 18th amendment took nine months. “Today, someone says that they cannot give nine days or even nine hours; then this is not a good thing,” he added. “We should be given at least nine days to take a decision on this amendment,” he said, while pointing out that the government should be aware of the fact that the JUIF’s stance on the amendment won the public approval.

Maulana Fazlur Rehman said both the government and the opposition wanted to evolve consensus on the proposed constitutional amendment. “A consensus on the constitutional amendment can be reached if some flexibility is shown by the government,” he said while expressing the hope that the government would also accommodate his party’s proposals.

He said at special committee’s meeting, it was decided that things should move forward with consensus, saying that other opposition parties would also be taken along on the important issue. “We can reach a consensus on a draft if our proposals are also included in it,” he said.

Fazl said he would immediately start going through draft of the proposed bill, which was distributed and shared by the government at special committee meeting. “We have started considerations on the draft today and we hope that the government would also accommodate our proposals,” he added.

Saying that both a constitutional bench and a constitutional court could be alternatives, he said consensus would be reached if the government would show flexibility. The JUIF leader admitted that the constitutional and political matters should be separated from other cases.

The Maulana said they had also proposed to restore the 18th Amendment by doing away with the 19th amendment in the Constitution. He said the JUIF’s draft would also be shared with those whose willingness was required.

Fazlur Rehman, at the outset of the presser, condemned use of force on a jirga in Khyber district, alleging that the unarmed people were killed and injured. “I do not understand as to why this organisation has been banned,” he said. Fazl said it was an undemocratic act, which could not be supported, saying that his party’s workers were allowed to participate in Jirga, while the JUIF delegation would also visit the gathering.

Saying that on completion of party’s Majlis-e-Shura, the JUIF would stage protest demonstrations across country. He also demanded compensation for killed and injured participants in jirga.

To a question, the Maulana said the whole nation and political leadership should demonstrate unity on eve of the SCO Summit and the foreign delegates be welcomed. He observed that the opposition parties should refrain from protest demonstrations on the eve of the important event.

Earlier, a PPP delegation, led by party chairman Bilawal-Bhutto Zardari met Maulana Fazlur Rehman at his residence. The two sides held discussions on the constitutional amendment, JUIF Spokesman Aslam Ghori said in a statement.

Syed Naveed Qamar, Murtaza Wahab and Jamil Soomro were part of the PPP delegation, while JUIF leaders Maulana Jamaluddin and Aslam Ghori were present in the meeting.

Meanwhile, PTI Chairman Gohar Ali Khan said no proper draft had come so far, and when draft would come, then his party would give its stance.

Asked that Maulana Fazlur Rehman said that draft was presented in the committee meeting, Gohar said there was no proper draft so far, as the PPP suggestions was presented in the committee, while the government presented the input of lawyers in the constitutional amendments.

Asked whether the PTI give any proposals, Gohar said there was nothing from the government so far “and how could we give our opinion unless any proper draft from the government is presented”.

He said question was whether they aim to establish constitutional court; and if constitutional court is established, then the Supreme Court status would be restricted to a district court.

In a press talk after the meeting, Aamir Dogar of the PTI said “we have received both drafts of the government and the PPP. While government’s draft lacks clarity, PPP’s presents all in detail. The government draft was prepared in haste, and have ambiguity,” he added.

The PPP in its draft, shared with the special committee, proposed establishment of the federal constitutional court, and also included proposed amendments to Article 175 A, B, D, E, F of the Constitution, as well as establishment of provincial constitutional courts.

The draft reads as under:

175AA: There shall be a Federal Constitutional Court (FCC) of Pakistan.

175AB. The Federal Constitutional Court shall consist of a Chief Justice of FCC, more judges, for a total of judges as may be prescribed by law. Each province will have an equal representation in FCC. The Chief Justice will be on rotation from each province to be appointed for three years.

175AC. The permanent seat of the Federal Constitutional Court shall be in Islamabad however the FCC may sit in any of the provincial capitals from time to time.

175AD. Article 184 of the Constitution of Pakistan stands deleted, and the contents thereof may be reproduced hereof and read as Article 175AD, and any reference to the Supreme Court therein shall be read as Federal Constitutional Court. (This section means that all original jurisdiction under Article 184 will now be that of Federal Constitutional Court).

175E. Article 186 of the Constitution of Pakistan stands deleted, and the contents thereof may be reproduced hereof and may be read as Article 175E, and any reference to the Supreme Court therein shall be read as Federal Constitutional Court. (This section means that advisory jurisdiction under Article 186 will now be that of Federal Constitutional Court).

175F. The decision of the Federal Constitutional Court in matters where it has jurisdictional competence shall be final and conclusive. There will not be any appeal against the decision of Federal Constitutional Court at any forum.

The PPP in its draft proposed that 191AC. The permanent seat of the Provincial Constitutional Court shall be in the provincial capital of the respective province, and there shall be registries of such PCC in such cities as the respective High Court of that province.

191AD. Jurisdiction of Provincial Constitutional Court: Article 199 of the Constitution of Pakistan stands deleted, and the contents thereof may be reproduced hereof and be read as Article 191AD, and any reference to the High Court therein shall be read as Provincial Constitutional Court. (This section means that the writ jurisdiction of High Court will now be that of Provincial Constitutional Court).

191AE. Nothing in the above Article 191AD shall be construed as giving appellate jurisdiction to Provincial Constitutional Court against a decision of a lower court, and the remedy against a judgment of the lower court shall be by way of an appeal to the High Court of the respective province.

191AF. The decision of the Provincial Constitutional Court may be appealed before the Federal Constitutional Court, whose decision shall be final.

In addition, following Articles will also be added to the Constitution:

Article 189A. Finality of judgments of Supreme Court The judgment of the Supreme Court in matters it has appellate jurisdiction under Article 185, shall be final and conclusive. There will not be any further appeal against the decision of Supreme Court at any forum.

Article 199A. Appellate Jurisdiction of the High Courts: The High Courts shall have jurisdiction to hear appeals against decisions of lower courts as provided by law.

According to the PPP draft:

There shall be a Constitutional Commission of Pakistan, hereinafter referred to as CCP, for appointment of judges of the Federal Constitution Court (FCC) and the Provincial Constitutional Courts (PCC).

The CCP shall consist of: a. Chief Justice of Supreme Constitutional Court; Two senior most judges of the Federal Constitutional Court, One retired judge of the Supreme Court or the Federal Constitution Court to be nominated by Chief Justice of the Federal Constitution Court, Federal Minister for Law, Justice and Parliamentary Affairs, Attorney General for Pakistan, One Advocate of Supreme Court to be nominated by Pakistan E Council, Two members of the Senate, one each from the treasury and opposition nominated by the respective Leader of the House and Leader of Opposition, Two members of the National Assembly, one each from the treasury and the opposition nominated by the respective Leader of the House and Lead of the Opposition.

Provided that, for purposes of nomination of a judge to the Provincial Constitutional Court, following shall also be members of CCP:

Chief Justice of the respective Provincial Constitutional Court, Provincial Law Minister, One member of the respective Provincial Bar Council; Any member of CCP may propose a name of an individual who fulfils the criteria of appointment as Judge of FCC or PCC, seconded by another member of the CCP.

The CCP may deliberate upon such name and decide by way of majority vote.

The CCP may then forward such name to the Prime Minister, who shall advise the President to make such appointment.

A person shall not be appointed a Judge of the FCC or PCC unless he is citizen of Pakistan, and is at least 40 years of age, and: has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court, and is also enrolled as an Advocate of Supreme Court.

The Pakistan Peoples Party suggested the amendment to Article 209 and added a clause - 209A which relates to Removal of Judges of the Federal Constitutional Court and the Provincial Constitutional Court; there shall be a Supreme Constitutional Council of Pakistan and in this Chapter referred to as the Council and the Council shall consist of the Chief Justice of Supreme Constitutional Court, the two next most senior Judges of the Supreme Constitutional Court; and the two most senior Chief Justices of Provincial Constitutional Courts.

For the purpose of this clause, the inter se seniority of the Chief Justices of the Provincial Constitutional Courts shall be determined with reference to their dates of appointment as Chief Justice [otherwise than as acting Chief Justice], and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts or their date of birth.

The PPP suggested in its drat that if at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then (a) if such member is a Judge of the Supreme Constitutional Court, the Judge of the Supreme Constitutional Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and (b) if such member is the Chief Justice of a Provincial Constitutional Court; the Chief Justice of another Constitutional Court who is next in seniority amongst the Chief Justices of the remaining Constitutional Courts, shall act as a member of the Council in his place.

The PPP draft stated that if, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.

The PPP draft stated that if, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Constitutional Court or of a Provincial Constitutional Court-(a) may be incapable of property performing the duties of his office by reason of physical or mental incapacity; or (b) may have been guilty of misconduct, the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter. If, after inquiring into the matter, the Council reports to the President that it is of the opinion (a) that the judge is incapable performing the duties of his office or has been guilty of misconduct and (b) that he should be removed from the office, the President may remove the judge from office.

(7) A Judge of the Supreme Constitutional Court or of a Provincial Constitutional Court shall not be removed from office except as provided by this Article.

(8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Constitutional Court and of the Provincial Constitutional Courts.

The PPP draft suggested an amendment to Article 210 that relates to Power of Council to enforce attendance of persons, etc. (1) For the purpose of inquiring into any matter, the Council shall have the same power as the Supreme Constitutional Court has to issue directions or orders for securing the attendance of any person or the discovery or production of any document; and any such direction or order shall be enforceable as if it had been issued by the Supreme Constitutional Court.

(2) The provisions of Article 204 shall apply to the Council as they apply to the Supreme Constitutional Court and a Provincial Constitutional Court.

211 Bar of Jurisdiction: The proceedings before the Council, its report to the President and the removal of Judge under clause (6) of Article 209 shall not be called in question in any court.