Parliament is being asked this week to approve a major change in Article 6 of the Constitution envisaging trial under high treason charges of all those judges of the superior judiciary who would validate any future military coup, as they would be seen as abettors in the crime, writes Rauf Klasra.
The powers of the president to appoint the services chiefs and to dissolve the National Assembly are finally being proposed to be returned to the prime minister amid certain sweeping changes in the clauses pertaining to articles 62 and 63 to stop disqualification of any person from contesting the election or becoming member of parliament on charges of making speeches and comments against the judiciary and Army, unless convicted by a court of law.
Under the new constitutional package, the attorney general will not be allowed to indulge in private practice or accept lucrative fees from individuals or firms so long as he holds the office.
According to the proposed constitutional package being given final shape, clause 4 of Article 200 is being omitted from the Constitution which envisages that ‘if a judge of a high court who does not accept the transfer (by the president of Pakistan) to another high court under clause (i) shall be deemed to have been retired from his office and on such retirement shall be entitled to receive a pension calculated on the basis of length of his service as judge’. Now under the proposed arrangements, the powers of president to transfer a judge and subsequent punishment of retirement in case of his refusal have been deleted.
One of the proposed changes in the Constitution have also made it mandatory for the president to give his assent to any bill within ten days as against the existing thirty days, failing which the assent shall be deemed to have been given.
According to the available draft copy of the recommendations to be tabled in the National Assembly most probably this week, the committee members were in full agreement to bring about changes in Article 6 of the Constitution to apply high treason clause to all those judges who would validate military rule. They would be seen as abetters in the crime if they will give legal cover to military takeover in future. The first change in Article 6 is being proposed in clause (1) where after the word ‘subverts’ the words ‘or suspends or holds in abeyance’ shall be inserted.
Likewise after clause (2) the following new clause shall be inserted: ‘no court including the supreme court and high court shall validate an act of high treason mentioned in clause (1) or clause (2)’.
Now the revised Article 6 will read as ‘(1) any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert Constitution by use of force or by other unconstitutional means shall be guilty of high treason; (2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason. No court including Supreme Court and a high court shall validate an act of high treason mentioned in clause (1) or clause (2);
(3) Parliament shall by law provide for the punishment of persons found guilty of high treason.
A new article 8-A is also being introduced to give right to fair trial. The new article reads ‘Right to fair trial: For the determination of civil rights and obligations or in any criminal charge against him a person is entitled to a fair trial’.
Meanwhile, it has been confirmed to The News that powers of the president to appoint three services chiefs were being shifted to the prime minister. It was decided among the members that the Constitution should be brought back to its original position as on October 12, 1999. Before Mushrraf’s coup, former prime minister Nawaz Shairf had the powers to appoint services chiefs by virtue of constitutional changes made by Parliament in 1997. Farooq Khan Leghari had inherited these powers from Ghulam Ishaq.
General Pervez Musharraf got these powers back as well as the power to dismiss the National Assembly under Article 58-2(b) although unlike General Zia, Ghulam Ishaq Khan and Farooq Leghari, Musharraf did not dissolve the National Assembly. Now, once again the same powers are being returned to the prime minister.
Some important changes have also been recommended in Article 62. It is being proposed that clauses (g) and (i) of this article be omitted from the Constitution. Clause (g) reads: ‘a person shall not be qualified to be elected or chosen as a member of parliament if he has not been convicted for a crime involving moral turpitude or for giving false evidence.’
Clause (i) says: ‘a person shall not be qualified to be elected or chosen as member of parliament if he possesses such other qualifications as may be prescribed by act of parliament’.
Article 63 is also being rewritten in the new package. Clause ‘g’ of article 63 is being abolished. It says: ‘a person cannot be chosen a member of parliament if he is propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan or sovereignty, integrity of Pakistan or morality or the maintenance of public order or the integrity of independence of judiciary of Pakistan, or which defames or brings ridicule to the judiciary or the armed forces of Pakistan’. Now this clause will be substituted with following words: ‘a person shall be disqualified from being elected or chosen as member of parliament if he has been convicted by a court of competent jurisdiction for propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan or the integrity or independence of the judiciary of Pakistan or which defames or brings into ridicule the armed forces of Pakistan’. This means that any person who will make comments about judiciary and army would not be stopped from contesting elections or disqualified from parliament seat unless convicted by a court.
In a related change in clause (2), the following shall be substituted: ‘(2) if any question arises whether a member of parliament has become disqualified from being a member, the speaker or, as the case may be, the chairman, shall refer the question to the Election Commission within thirty days and should he fail to do so within aforesaid period, it shall be deemed to have been so referred to the Election Commission who shall decide the question within 90 days from its receipt and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant’.
In another related change in Article 63, clause (m) is being omitted which says: ‘a person shall be disqualified from being member of parliament or contest the election if he has been convicted under section 7 of the Political Parties Act 1962 (III of 1962), unless a period of five years has been elapsed from the date of such conviction’.
Likewise, the president’s powers to keep any bill within him for 30 days to put his signatures are also being clipped, as now he would be required to sign or resend the bill to the parliament within ten days. A clause is being inserted in Article 75 which reads: ‘gives his (president) assent to a bill within ten days failing which such assent shall be deemed to have been given’.
Changes are also being proposed in Article 89. Now president would not issue ordinance if the Senate is in session. Under the current law, the president cannot issue ordinance if the National Assembly is in session but now ‘Senate’ has been added to the relevant clause after the words ‘National Assembly’.
Changes are also being proposed in Article 104, which says: ‘speaker provincial assembly will act as or perform functions of governor in his absence. When the governor, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the speaker of the provincial assembly and in his absence any other person as the president may nominate shall perform the functions of governor until governor returns to Pakistan or as the case may be, resumes his function’.
Changes have also been proposed in Article 168, which deals with the appointment of auditor general of Pakistan. For clause (3) the following shall be substituted: ‘(3) the auditor general of Pakistan shall, unless he sooner resigns or is removed from the office
in accordance with clause (5), hold office for a fixed term of five years from the date on which he assumed such office or he attains the age of 65 whichever is earlier.’ Other terms and conditions of service of the AG shall be determined by an act of parliament and until so determined by the order of the president. In clause (6) for the words ‘such other person as the president may direct’, the words ‘the president may appoint the most senior officer in the auditor general department to’ shall be substituted.
Article 170 is also being amended and following new clause shall be added: ‘(2) the audit of the accounts of the federation and of the provinces and the accounts of any authority or body established by the federation or a province, shall be conducted by the auditor general of Pakistan, who shall determine the extent and nature of such audit’. The reports of the AG will also be laid down before the Senate.