Preface to the Fourth Edition
PREFACE TO THE FOURTH EDITION
The Constitution is the touchstone of our nation.
–the measure for constitutionalism and judicial review.
The Constitution (Eighteenth Amendment) Act, 2010 marks a watershed in our constitutional history. A legacy of dictatorship, the Constitution (Seventeenth Amendment) Act, 2003, was repealed and about a hundred, major and minor, changes were made in the ‘Basic Law’ of the land.
Today, as envisaged in the Constitution in 1973 and at least in theory, the Prime Minister is again the chief executive of the Federation and the President is the titular Head of State, denuded of the draconian unfettered power to dissolve the National Assembly and call fresh elections. A legacy of the ‘British Raj’ has also been disowned, in renaming the N.W.F.P. as the Province of Khyber Pakhtunkhwa.
The chapter on fundamental Rights now has a salutary reaffirmation of the ‘Right to fair trial’ for the enforcement of civil liberties and the safeguard of the system of criminal justice in Pakistan. Every citizen has now also been granted the ‘Right to information’ in all matters of public importance and the ‘Right to education’ up to the age of sixteen. In view of the failure of successive governments to ensure and allocate funds for enforcement of Fundamental Rights, it is imperative that public spirited persons take it upon themselves to initiate public interest litigation in order to bring home to the people the real benefits of these new civil rights.
Article 6, relating to High treason, was appropriately amended in order to avoid the possibility of Marital Law and unconstitutional dispensations in the future. The Article now provides that even a person who holds the Constitution in abeyance, — a disingenuous stratagem, used by collaborators in the past, to avoid culpability for subversion of the Constitution– shall be guilty of High treason and no Court shall validate such an act.
In order to ensure the appointment of independent persons of demonstrated integrity as judges of the Superior Courts a consensus based mechanism has been adopted in new Article 175A of the Constitution. The Judicial Commission of Pakistan shall first nominate the judges. Thereafter a Parliamentary Committee, setup under the said Article as well, may within fourteen days, by vote of a majority of its members, confirm the nomination. In the absence of such confirmation the nomination by the Judicial Commission will be deemed to have been confirmed. A new Islamabad High Court has also been established for the Capital territory.
The (Eighteenth Amendment) Act, further boldly addresses the demand of the under developed and deprived Provinces for greater autonomy and devolution. The ‘Concurrent Legislative List’ has been abolished and about 25 subjects on the said list are now within the ambit of the powers of the Provincial governments. However, the advantages of greater federalism have, in part, been defeated due to the establishment of useless and redundant ministries by the federal government, merely for political gain.
The necessity for the adoption of the (Nineteenth Amendment) Act, 2011 arose primarily due to lack of clarity and consensus as to whether the Judicial Commission or the Parliamentary Committee had the final word on the appointment of Judges of the Superior Courts. The (Nineteenth Amendment) Act has now put the controversy to rest in the new proviso to clause 12 of Article 175A. Pursuant thereto the Committee shall record the reasons for rejecting the nomination by the Commission. It has now been held that the reasons for rejection of a nomination would be subject to judicial review by the Supreme Court in each case.
The (Twentieth Amendment) Act, 2012 was passed in the back drop of the serious constitutional issue of validation of the election of successful candidates in bye elections, in the absence of a duly Constituted Election Commission. The new proviso to Article 219 now provides that till such time as the members of the Election Commission are appointed, the Commissioner shall remain charged with the duty of preparing and revising electoral rolls; organizing and conducting elections to the Senate or in order to fill casual vacancies in a House or a Provincial Assembly; and appointing Election Tribunals.
As a quid pro quo for supporting the said amendment, the Opposition parties, in the National Assembly, insisted on the inclusion of new Article 224A. The Article now ensures that in case the outgoing Prime Minister and the leader of the Opposition in the National Assembly or the outgoing Chief Minister and the leader of the Opposition in a Provincial Assembly concerned, do not agree on a person to be appointed as the care-taker Prime Minister or care-taker Chief Minister, as the case may be, within three days of the dissolution of the Assemblies; the names of the nominees shall be forwarded to a Committee to be immediately Constituted by the Speaker of the Assembly concerned. The Committee shall have equal representation of the Treasury and the Opposition.
In case of inability of the Committee, constituted by the Speaker concerned, to decide the matter within three days; the names of the nominees shall be referred to the Election Commission for a final decision, within two days.
I am grateful to Mr. Naeemuddin Siddiqui, former Director Library and Research at the High Court of Sindh for providing me with copies of the gazettes, with respect to the latest amendments in the Constitution of Pakistan and the successive President’s Orders, relating to the increase in salaries of judges of the Superior Courts of Pakistan; which were required to complete the manuscript for the latest edition of the work.
I would like to again laud the services provided by the Office Administrator of Zain Sheikh & Associates, Mr. Azhar Shahzad, who single-handedly finalized the manuscript for the fourth edition of the book as well. He also helped in the preparation of the additional footnotes required due to the passage of the Constitution (Eighteenth Amendment) Act, 2010, the Constitution (Nineteenth Amendment) Act, 2010 and the Constitution (Twentieth Amendment) Act, 2012.
In this connection I would also like to record my appreciation of the yeoman’s services of Mr. Kashan Anwar, who was involved in the research and proof reading of the manuscript of the book. Mr. Anwar has also maintained and developed my website on constitutional law, entitled, “The Constitution of Pakistan, 1973” www.pakistanconstitutionlaw.com. The related software on constitutional law, entitled “LAWMAN”, has been successfully and meticulously maintained and regularly updated by Mr. Muhammad Mehboob.
Finally, I would like to thank Ms Tanaz Minwalla and Mr. Mannan Hatim Ali of Creative Unit (Pvt) Limited, for designing an attractive cover for the present edition of the book.
April, 2012 ZAIN SHEIKH