ARTICLE (March 09 2010): The Parliamentary Comm-ittee for Constitutional Reforms (PCCR) is about to deliver the much delayed reforms to purge the Constitution of the dross attached to it by the 17th Amendment, while also attempting to resolve some other issues of long standing like the quantum of provincial autonomy and changes to the concurrent list. Main features of the changes needed were already outlined in the Charter of Democracy (CoD) drawn up by ML-N's Nawaz Sharif and Benazir Bhutto of PPP in May 2006.

The constitutional committee is led by Senator Rabbani and has representation from all political parties. It is hardly surprising that the committee has departed from some of the CoD formulations, since this is nearly four years after that event.

For example, the CoD clause that prevents a judge, who has ever taken oath under a PCO from being appointed judge has been dropped. Otherwise CJP Iftikhar Chaudhry would have been disqualified and what a loss that would have been for the judicial system of the country and its much wider disastrous repercussions on the reforms initiated by the judiciary.

A lot of PPP politicians and some others keep taking swipes at the CJP on that oath in 2000, ignoring the popular support the change enjoyed at the time. They also deliberately ignore the fact that by his subsequent, courageous and steadfast conduct, the CJP can be considered to have completely lived down that blemish.

Ironically, many of those taking pot shots at the CJP have a corrupt past, a corrupt present and are likely to have a corrupt future unless stopped by actions set in motion by CJP Iftikhar and his team! Also the idea of a separate Constitutional Court has been dropped.

One of the main proposals is in respect of appointment of judges to superior courts which is already attracting a lot of comment - a great deal of it adverse. Under the proposal, there will be a Judicial Commission, which will propose one name for each vacant position (instead of three names envisaged in the CoD) and a Parliamentary Commission, which will scrutinise and finalise the names of judges to be appointed.

For appointments to the Supreme Court, the 6-member Judicial Commission will comprise Chief Justice of Pakistan, two senior-most judges of the Supreme Court, the Law Minister, the Attorney General of Pakistan and one nominee of the Pakistan Bar Council.

The Commission will nominate by majority vote, one person per vacant position and send the names to the 8-member, which will comprise 4 members each from the ruling party and the opposition whose names would be proposed by the respective party leaders in Parliament.

The Parliamentary Commission would scrutinise the names proposed by the Judicial Commission and finalise them. The recommendation of the Judicial Commission can be rejected by the Parliamentary Commission with two-thirds majority. It is seen from the composition of the Judicial Commission that although it has the right to initiate names, the judiciary's position has been considerably diluted, vis-à-vis the non-judiciary members in the Commission.

Since a simple majority would be necessary for recommending a name, the three non-judiciary members, the Law Minister, the Attorney General, and the Pakistan Bar Council nominee, could jointly block a name on which the CJP and two senior most members of the Supreme Court may be in agreement.

The Law Minister and the Attorney General will be seen as representatives of the executive (whatever the executive side or Parliamentary Committee for constitutional reforms may say) while the Pakistan Bar nominee may not necessarily reflect the view of a majority of black coats since the bar councils are indirectly elected bodies unlike the various bar associations to which office-bearers are elected by a large number of lawyers. But the bar associations do not, at present, have all-province or all-Pakistan representative top bodies.

The idea that the opinion of the Chief Justice of Pakistan - in an important judicial matter - carries no more weight than that of the Law Minister, or the Attorney General or even the Pakistan Bar Council nominee, as the PCCR proposal implies, would be particularly galling for the legal fraternity at large.

In case of high court judges' appointments, the composition of the Judicial Commission will be expanded to include also the chief justice and the senior-most judge of the respective high court, the law minister of the respective province and an advocate to be nominated by the bar council of the respective province. The above objections, therefore, should apply in these cases as well.

The reactions to the proposals have been varied. One view is that an attempt has been made to strike the reasonable balance between the pillars of the trichotomy, whereas others, including many legal practitioners, are highly critical of what they see as an attempt to dilute the authority of the judiciary to favour the executive branch.

Barrister Akram Sheikh, advocate of Supreme Court and former Vice-Chairman of Pakistan Bar Council, has come out very strongly against the PCCR proposals on the subject, even going to the extent of calling them a conspiracy to divide the lawyers.

He argues, not without logic it seems, that the executive has apportioned to itself a pivotal role in the selection of judges. In his view, the Pakistan Bar Council and the Attorney General have no business being members of the Judicial Commission whereas the Law Minister of the Federal government should be a non-voting member to provide government input in respect of the nominees.

Other main matters: Apart from the above, there are several other matters, which are the subject of the PCCR proposals. The matter of devolution of presidential powers presently enjoyed by President Asif Zardari (almost the same as those enjoyed by his predecessor Musharraf) to the Prime Minister, may spring some surprises.

The more outspoken pro-Zardari PPP people have been making noises about the desirability of letting the President have some real powers - more than what is allowed under the 1973 Constitutions, although the current wisdom is for full restoration of the 1973 Constitution in this respect.

Another equally important issue is that of provincial autonomy and the treatment (abolition) of the concurrent list. There may be long discussions on the quantum of the provincial autonomy to be granted and the timeframe for abolishing the concurrent list. Two other matters, which otherwise do not have any significance at the national level, have nevertheless the potential to scuttle the whole process! One of these is the demand of the ANP, supported by PPP, for change of name of the NWFP province to Pakhtunkhwa.

The ANP has made this a make or break matter in respect of the constitutional proposals. An apparently new issue is the demand by Pakhtuns of Balochistan for an identity for themselves. They constitute a substantial percentage of the population of Balochistan, which makes the province multi-ethnic.

Pakhtunkhwa Milli Awami Party (PMAP), which claims that Pakhtuns number 40 to 45% in Balochistan should either have a separate province carved out of the present Balochistan, representing the Pakhtun part of the province or the latter should be detached from Balochistan and merged with the present NWFP.

Media: well done! Media continues to do a great job of exposing wrongdoing by the powerful and the privileged. The sight of a number of "suspects" being thrashed on their bare bottoms in public was something new in public view, though the practice was not. For some time, several channels were showing nothing else.

Police officers promised action against the "chittar" wielding policemen, politicians issued statements, the executive promised action, the judiciary took suo motu notice, in short, all hell broke loose! But, wait a second! Would you believe that the age-old practice was not known to police high ups or the law givers or the rulers and was being employed without their knowledge? It is this almost universal hypocrisy, which is more mind-bogging than the actual "chittrol".

But for the media alert, and a comprehensive one at that, the matter would probably have gone unnoticed as before. A wise and matter of fact assessment of the sorry situation was that our crime investigation practice is very weak. Therefore, instead of working hard to put together a strong case with irrefutable evidence against an accused, the police find it much more expedient to beat the hell out of the suspects to get a confession.

And if a number of innocent people get tortured - or even die - in the process, "it is too bad, but all in the line of duty"! Thus various incidents of torture of people, not proved guilty, are a symptom of a deeper malaise, which will require sustained, corrective and reformative action in all sincerity and honesty.

A TV channel did a great job in reaching out to a remote village in Balochistan where inbreeding (inter-marriages) over a long period have caused the spread of a skin disease, which has horribly affected the faces and other parts of the skin of a number of children and adults, disfiguring them and rendering them unable to lead normal life.

Following the TV coverage, the health department of the province "took notice" and sent a team to look into the matter. It will be recalled that some weeks back a similar situation (widespread skin problems) near Keamari, ie right next to our mega city of Karachi, had been reported graphically by a TV channel, which forced the city's health people to "take notice" (how abhorrent the term has become) of the matter. We hope the media will cover follow up actions by health authorities in both cases.

Another item in the media is an alert about "Swiss Cartons" containing evidence pertaining to the "Swiss case" in which President Zardari is the main accused. The boxes were seen in a TV clip some weeks ago being brought to England from Switzerland under mysterious circumstances by (old faithful) Wajid Shamsul Hasan, our High Commissioner in UK and now allegedly shifted to his residence with alleged mala fide intention. Any one looking into this to follow up smart leads provided by the media?

TAILPIECE: Rehman Malik, our Minister of Interior, has been "acquitted of corruption and misuse of authority" charges by the Accountability Court, according to a newspaper report. Malik was accused of using his influence in 1995 as additional Director FIA to favour his brother-in-law's firm, in a matter of allocation of 50,000 tons of bitumen. A senior NAB official has been quoted in the report as saying: "The criminal justice system is being cheated in a unique fashion to the benefit of the accused" and that the cases "cannot be pursued on merit without replacing the present prosecutors by independent ones".

This fact is quite clearly understood by the judiciary under CJP Iftikhar Chaudhry on the one hand, and by the executive under President Asif Zardari on the other from different perspectives and explains why both are respectively acting the way they are acting! The wisdom and necessity of the accused among "the bold and the beautiful" stepping down from their positions of authority till the cases against them are settled, is being proved as never before. (owajid@yahoo.com)

Copyright Business Recorder, 2010