Monday, November 15, 2010

ARDESHIR COWASJEE ARTICES : Legacy of the Great Amenders

Chief Justice of Pakistan Iftikhar Chaudhry noted that the landmark judgment handed down in the 1996 Al Jehad case clearly identified the fact that the constitution of Pakistan has consistently been under pressure from either parliament or the army, ably assisted by our famed Great Amenders.
What is involved in the 18th Amendment matter is the doctrine of basic structure of a constitution and the power of parliament to alter it through amendments. But the basic structure of the 1973 constitution is yet to be defined — or perhaps it defies definition.
The basic structure doctrine is criticised by parliament as being judicial legislation. However, as we live in times in which the people at large have little inclination to care about such matters, is it not up to our courts to ensure that the rights of the people are not manipulated?
The major issue before the Supreme Court is the manner of the appointment of judges, a perennially sensitive issue. Military generals and civilian parliamentarians, backed by the heroic black coats and the bar associations, have at times manipulated judicial appointments so as to make quite sure that the men judging should be doing so in their particular cause as opposed to that of the people or of the law.
As to the basic structure, well that was altered within four hours of the promulgation of the 1973 constitution by Presidential Order F.24(1)/73-Pub., which declared that the right to move any court for the enforcement of 10 of the guaranteed fundamental rights stood suspended. A great start, and an endorsement of the right of one man, the prime minister of the day, to have his say and tinker with this sacred ‘basic structure’.
In May 1974 we come to the First Amendment to the constitution which involved — well, guess — the judiciary. It decreed that “If any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that High Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and, while so attending the sittings of the High Court, the Judge shall have the same power and Jurisdiction as a Judge of that High Court.…”
It also completely excluded the armed forces of Pakistan from the jurisdiction of the courts, another blow to the basic structure, to the fundamental rights and the equality of all under the law. Amending Article 199 of the constitution, the parliamentarians bent their heads: “An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.” The reason? Anyone’s guess.
The Second Amendment later in 1974 struck once again at the basic structure and fundamental rights declaring an entire community to be a minority after it had been part of the majority since the country’s birth.
The Third Amendment of 1975 curtailed the rights of a d├ętenu, and the Fourth Amendment of that same year forbade high courts from granting bail to any person detained under preventative detention laws.
In 1976, it was again the turn of the judiciary. In a National Assembly debate one member accused the judiciary of encroaching upon the functions of the legislature and the executive and of acting outside the constitution. Thus, the Fifth Amendment fixing the term of the chief justice of Pakistan for a five-year duration and that of high court chief justices to a maximum of four years. The powers of the Supreme Court and the high courts were curtailed. A judge could be transferred from one court to another without his consent and if he objected it would be deemed he had retired from office.
The Sixth Amendment, also of 1976, fixed the retirement ages of the Supreme Court and high court judges with the express intent of making a high judicial appointment desired by the party in power. The last of the PPP amendments came in May 1977, less than two months prior to Gen Zia’s coup. It catered for the holding of a referendum to demonstrate confidence in the prime minister — a move repugnant to the parliamentary system.
So, in the first three years of the life of this constitution, which lingers on in a non-definable shape, its basic structure was attacked with impunity. Thereafter came the Eighth Amendment which made a mockery of the basic structure doctrine, as did the 17th Amendment, and as it may be found does the 18th Amendment.
In Marbury vs Madison, 5 US, (1 Cranch) 137 (1803) the US Supreme Court laid down the bedrock of the independence of the judiciary, declaring also that the court had the right to strike down legislation if it believed it to be in violation of the fundamental rights guaranteed by the US constitution. How many times have the fundamental rights of the Pakistani nation been violated through constitutional amendments?

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