Our comrade Dr Reeza Hameed explains that ‘The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President no longer has the power to remove the Prime Minister.’
Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution of Sri Lanka, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears. I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister. I disagree with this conclusion for the reasons I have given below. The tenure of Prime Minister’s office pre-Nineteenth Amendment is as follows.
The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he (1) is removed by the President, (2) resigns his office, or (3) ceases to be a Member of Parliament.” The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015. Continue reading
With its present policies, Pakistan is on its way to becoming a “cyber leper”. The speakers also agreed that cyber security is a matter of national security.
Despite being plagued by dictatorship and corruption, Pakistan does possess the ability to make advances, even leaps, in transparent and effective lawmaking. But as the recent conundrum disclosed by the contentious Prevention of Electronic Crimes Act 2015 (“the Act”) so ably demonstrates, even under the guise of democracy, Pakistan seems to be sleepwalking into rather dangerous territory. Described as quite draconian, controversial and retrograde when juxtaposed with the panoply of rights guaranteed by fundamental rights under Articles 9 to 28 of the Constitution of Pakistan 1973, the Act has been almost universally denounced. In a joint talk yesterday by Ammar Jaffri (formerly of the FIA) and Barrister Zahid Jamil, we learned that our country is doing poorly in writing robust legislation that targets root problems but does not compromise on individual rights. The basic flaw in the present approach to cyber crime in Pakistan appears to be that the wrong ministry is dealing with this important area of the law.
Rather than the ministry of interior, the task of prevention of electronic crime is erroneously allocated to the Ministry of Information Technology and Telecommunication. For example, in the UK, the country from which we inherited such a rich legal and institutional framework, the Draft Investigatory Powers Bill is moved on the Home Secretary Theresa May’s initiative. The Act introduces a series of new provisions that pose a grave risk to freedom of expression and privacy in Pakistan. It has been condemned in international circles for expanding surveillance Continue reading
Rampaging terrorism and bubbling militancy have menacingly plagued Pakistan since 2001. Parliamentary Secretary of Interior, Mariyam Aurangzeb, explained on 5 December 2014 that more than 50,000 people including army, police, and civilians had lost their lives in the war on terror, and the country had also lost 80 billion US dollars in this war. Before the ongoing military operation Zarb-e-Azb, the government was sincerely immersed in perusing peace talks with the Tehrik-i-Taliban Pakistan’s (TTP) leadership but then out of the blue seven gunmen affiliated with the TTP conducted a terrorist attack on the Army Public School in Peshawar on 16 December 2014 killing 145 people, including 132 school children aged between eight and eighteen years.
At that critical juncture, both the civilian and military leadership agreed to vigorously conduct a counter-terrorism and counter-militancy operation against terrorists aimed at permanently flushing out terrorists of all strides particularly the outlawed TTP. The first year of the operation was completed on June 15, in which Pakistani security forces cleared the North Waziristan tribal areas. According to Inter Services Public Relations Director General, Major General Asim Saleem Bajwa, since the launch of the operation 2,763 terrorists had been killed and 837 of their hideouts had been destroyed (with 253 tonnes of explosives recovered). On the other hand, 347 army officers and soldiers were martyred in the operation. Continue reading
At last, the Supreme Court’s opinion on the President’s reference has seen the light of day, albeit unofficially, and it makes miserable reading. The feature that stands out in the opinion is not only the unctuous tone which the Court has adopted in responding to the President’s request for an opinion, but also the sanctimonious view it has taken of the importance of its own opinion given in an advisory capacity, and the un-judicial language with which it has chosen to castigate those who have taken a view contrary to its own. The engagement of the Court in this manner on a controversial issue at the request of a person who sought its opinion on his capacity to stand for re-election at a poll that he was about to announce is bound to affect its own dignity and standing in the eyes of the public both at home and abroad.
The defining characteristic of the Court’s jurisdiction under Art 129 (Consultative jurisdiction) is that the question that is referred to it by the President must be one of public importance. The recent reference related to the qualification of the incumbent President in his individual capacity and nobody else. Continue reading
The Governor-General’s power of dissolution was withdrawn because the Independence Act did not permit him to dissolve the Constituent Assembly …
Despite its secular and democratic roots, Pakistan is a country where constitutional freedoms have been suppressed and coups, corruption and cronyism have prospered. Unsurprisingly, because it fell prey to dictatorship shortly after Independence, the country is often labelled a “failed state”. Perhaps somewhat ironically, over and above the grim reigns of despots like Ayub, Yahya and Zia, the demise of democracy in Pakistan is directly attributable to the judiciary. On the other hand, the decision in Maulvi Tamizuddin Khan (Petitioner) v Federation of Pakistan (Respondent No.1) & Others (Respondents) 1954 SHC 81 is an example of an early landmark judgment which set a different standard (analysed in detail below) for upholding the rule of law. To the people of Pakistan, who are damned by oppression, even six decades later, it symbolises what could have been a much brighter future.
Indeed, to this day, if anything, our indulgence in the Sind Chief Court’s rationale repays freedom and the rule of law which were shortchanged when this meticulous judgment was deplorably reversed by Muhammad Munir CJ in Federation of Pakistan v Maulvi Tamizuddin Khan PLD 1955 FC 240 where he sinfully held that the Governor-General’s assent was necessary to all laws passed by the Constituent Assembly. Continue reading
I have discussed in these columns some days ago the contention that President Rajapaksa is not qualified to fight an election for a third term by virtue of the operation of Article 31(2) of the Constitution. The repeal of that article by the Eighteenth Amendment does not remove the past operation of anything suffered under the repealed law. Since ex-CJ Sarath Silva first raised this issue, lawyers and non-lawyers have tried to make the case that Sarath Silva is wrong and that President Rajapaksa is not prevented by the Constitution to seek a third term.
I have pointed out, and so has Suri Ratnapala, that the relevant section of the Interpretation Ordinance to look at is section 6(3)(a). Yet, some commentators have relied on another section of the Ordinance, namely section 6(3)(b), and have argued that it does not apply to President Rajapaksa as he has not acquired a ‘penalty’ under that section! It is an argument that suffers from the fallacy of the false premise. Continue reading
Originating in the works of Henry de Bracton and William Blackstone, the doctrine of necessity has plagued Pakistan’s history and M Munir CJ has rightly been labelled “the destroyer of democracy in Pakistan”. From that perspective, the doctrine of necessity will never get stale in Pakistan’s history. To be sure, our country has, through its law courts, which ought to have protected democratic virtue but opted to fall into despotic vice, set unparalleled standards for venality by being the first free nation to apply “the doctrine” to murder democracy in its nascency. In this old post from the archives, our friend Dr Reeza Hameed, examines the extension of the doctrine to Sri Lanka and we are grateful to him for his contribution to our blog. His article, which also analyses the case of Pakistan, follows below.
The government has claimed that it has a mandate from the people to implement its manifesto promise to convene a constituent assembly consisting of the members of parliament to formulate and promulgate a new constitution, that will derive its form and validity from the expression of the political will of the people and that the proposed constitution will strengthen democracy by abolishing the executive Presidency and replacing it with a Cabinet and the doctrine of necessity and Kelsen’s theory of pure law have been pressed into service to support the introduction of a constitution outside the framework of the 1978 Constitution. Continue reading