– It is being asked who the author of the Bill is.
October 11, 2024
By Xari Jalil
LAHORE
The official draft of the Bill for the Constitutional Amendments Package must be made public and circulated so that consensus is built accordingly. Civil society will not allow any amendment that cedes authority to the institutions not defined in Article 7 of the Constitution, or that enables them to avoid accountability.
These were part of the demands that emerged from a stakeholders’ consultation held in Islamabad on Thursday organized by the Human Rights Commission of Pakistan (HRCP).
Human rights lawyer, Hina Jilani put forward the demands made by civil society in the consultation and emphasized that they would not tolerate any kind of infringement on their basic rights accountability.
“Civil society will not tolerate any change in the Constitution that infringes on Article 8; and any constitutional amendment must involve a wider range of political stakeholders over and above Parliament alone,” she said.
The HRCP consultation was only the first phase of a discussion on the proposed Constitutional Amendment, and the human rights watchdog is expected to organize a much wider consultation with all stake holders. The consultation became a necessity after the controversy surrounding the proposed constitutional amendments package, o that a common agenda could be drawn among the civil society, the legal community and political parties.
The event was hosted by HRCP secretary-general Harris Khalique, HRCP co-chairperson Munizae Jahangir and director Farah Zia.
“The reason HRCP convened this roundtable conference, is because there was a perception that the package will infringe on the fundamental rights of people such as free and fair trials,” said Munizae Jahangir. “It may legitimize enforced disappearances and set up military courts for the trials of civilians. HRCP stresses that the parliament should not introduce any laws that curb civil liberties even further.”
‘No One Was Shown the Draft’
National Democratic Movement leader Afrasiab Khattak said that an authentic draft of the bill was necessary.
“It is all being done in a very questionable way,” he said, “There has been no consultation on it – this is the style of t military, and the way it is being brought about, seems like it is an ambush on the Supreme Court. If the executive will appoint the (head of judiciary), then there will be no difference between the judiciary of Gilgit Baltistan. What kind of powers will those be?”
Advocate Danish Khan Afridi said that there were many laws that were drafted under suspicious circumstances, including Article 8.
“It is important to note the timing of the 26th amendment that is under our discussion today. Its transparency too raises questions. No one has a single draft of this proposed amendment. It remains unconfirmed as to how many drafts are even out there. This too only emerged when a political leader demanded to see the draft.”
Afridi called for transparency, and the inclusion of all political parties in the discussion of the draft, as well as making the bill public.
Salahuddin Ahmed, former President of Sindh High Court Bar Association, said that there were clauses concerning national security in the draft. “There is no practical way of dividing constitutional jurisdiction between the Supreme Court and a constitutional court,” he said.
Threat to Fundamental Rights
Mustafa Nawaz Khokhar pointed out that hasty legislation broke parliamentary norms.
“The draft that is being circulated points to two main areas of concern – one, the matter of the federal constitutional court, and the other concerning fundamental rights. The point is if the basic structure of the judiciary is to be changed, then debate around it must be allowed and the nation must be shown how the changes do not threaten the independence of the judiciary.”
Raja gave the example of the 18th Amendment. “There were 77 meetings in total. In 2009, a committee was formed for this and invited suggestions from the public at large over a course of one month. Today we can see nothing of the sort, whereas the rules of both houses say that after the tabling of any legislation, it must appear as soon as possible in the Official Gazette for all to see.”
Raja also spoke about the issue of basic rights being threatened and questioned whether citizens had a right to know how the justice system would change and how their rights would be affected. He said that he had also filed a writ in the Islamabad High Court in this regard.
Meanwhile, PPP leaders Nayyad Bukhari and Farhatullah Babar supported the formation of a constitutional court.
However, Babar also endorsed all the issues discussed. He expressed his fear that the attack on fundamental rights may end up with enforced disappearances being given a constitutional cover. Since five years, the matter of internment centres is lying in the Supreme Court. “Civilians must not be tried in military courts,” he said. He said the existence of a constitutional court could be beneficial, in a federation where the federal and provincial were always at loggerheads – a constitutional court could serve to represent all provinces equally.
“If we can have a Senate to balance power, then why not a constitutional court with equal representation. One province should not dominate the system.”
Babar added that there was no space however where civil rights could be trampled.
Who is the author of this Bill?
Abid Saqi, former vice-chair of the Pakistan Bar Council, also questioned the authorship of the bill, calling for greater transparency. “This is why the draft was brought about in the darkness of the night,” he said. “Unfortunately, we still have no idea who the author of this draft is. Where did it come from, we do not know. We are discussing it under objection because it is an authorless document.
Secondly, this has never happened that the freedoms given by Constitution under democracy, are nullified or withdrawn. The parliament does not have this right or legislative competence, he said.
“In one of the clauses the ‘national security’ is used, and this can prove to be very dangerous, as it snatches away the powers of representing a civilian in the SC. Now, if anyone will be picked up because of ‘national security’, and that person goes missing, there will be no way that he or she is given any representation for their civil rights. We can already see this happening in Balochistan and KP.”
Awaam Pakistan leader and former prime minister Shahid Khaqan Abbasi, also said that the amendment was a means of controlling the judiciary. Till civil military relations are not addressed and the the elephant in the room is not mentioned, nothing can forth, said Shahid Khaqan. He also hinted at knowing where the bill came from.
Threat to Independence of Judiciary
PTI secretary-general Salman Akram Raja said that any amendment that allowed the government to ‘handpick’ constitutional court judges would hamper the independence of the judiciary.
“That night there was definitely an intention to have this draft passed,” he said. “When I saw the draft, I was horrified – we were saved by an eyelash. Yet it is still out there. And there is pressure to vote for it, and lawmakers are being pressured and blackmailed for these votes,” he said. “We have no reason to have the Federal constitutional court. Its in the nature of judicial interpretation, that there will be dispute. Instead of a constitutional court that is being proposed, we can always have a constitutional bench to transfer cases.”
Raja said that the draft was proposing a ‘pocket court’, and there is bound to be biased picking of judges not just in the SC but also in the high courts.
Lawyer Reema Omer felt that instituting constitutional courts was too radical a change in the current political context. “The charter of democracy called for constitutional courts because in 2006, the present judiciary had repeatedly called for martial law,” she said. “Therefore, in order to keep check on the judiciary, and to stop them from supporting authoritarianism, one can understand this. But today it is not relevant.”
Lawyers Munir Kakar and Munir Malik added that the proposed amendment would undo the gains of the 2007 lawyers’ movement.
Constitutional expert Zafarullah Khan, journalists Nasir Zaidi and Asmatullah Niazi, and Joint Action Committee (JAC) convener Irfan Mufti said that any constitutional amendments must be based on political dialogue, consensus, and public endorsement. Awami Workers Party representative Aasim Sajjad Akhtar pointed out that even this consultation reflected the polarisation inherent in society.
Responding to participants, PML-N leader Aqeel Malik said that the government had complied with the legislative process laid down in the National Assembly rules. He held that the bill would not infringe on Articles 8 or 199(4).
HRCP vice-chair Nasreen Azhar presented a vote of thanks.