The article claims that:

In different countries with developed political systems, including US and India, apex courts have struck down constitutional amendments.

This is not true. No constitutional amendment has ever been struck down by a US court. Actually, that would not be possible as in US law the written constitution is considered the supreme law of the land.

Courtesy their power of judicial review, courts in countries like the US, India, Germany, United Kingdom, Canada and Sweden etc literally enjoy unchallengeable supremacy over their respective legislative houses, a research conducted by The News shows.

Mr Shah’s research is incomplete and his conclusion is incorrect. Shah cites the famous Marbury versus Madison case of 1803, but fails to report that this case was decided exactly as it was in order for the Supreme Court to avoid challenging the US Constitution.

In fact, the US Supreme Court found that Mr Marbury had a right to his commission as Justice of the Peace, but that the Supreme Court did not have the right to force the Secretary of State to deliver the commission. The Supreme Court was asked to issue a ‘Writ of Mandamus’ or a command to the Secretary of State to deliver the commission to Mr Marbury, but the Supreme Court found that it did not have the constitutional authority to do so.

The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.

The Supreme Court stated specifically that the Constitution is the highest law and that the Supreme Court cannot disobey what is written in the Constitution. So the law that was supposed to give the Supreme Court the ability to issue such commands was struck down.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Sabir Shah even provides the evidence against his spurious claims. As he reports, Article III of the US Constitution says:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

In the US, the legislative body of Congress can write in a law a few sentences telling that no court can review a particular law. And what is the result? The courts respect this because it is written in the Constitution that the legislature has the right to do so.

This is simply more of what Americans are calling the“journalistic garbage” that is coming from our media.

This is not the first time that The News has published incorrect information about judicial review and how courts treat their constitutions in other countries. It should be the last.

In The News today, the top stories include one article about the historic constitutional reforms – the same number as about Shoaib’s marriage. No fewer than four stories are about the Swiss case. The constitutional reforms are a historic event, regardless of what political party anyone belongs to, and yet they are receiving less reporting than a legal debate.

And it’s not just the number of articles that is troubling. Consider the language that is being used in what are supposed to be news reports (not opinion columns). Take a look at the language used in the News article about the historic constitutional reforms.

Nowhere in the article is President Zardari mentioned by name, despite the fact that he was integral to the proposition and passage of this historic package. Instead, the article is reported as if Raza Rabbani had invented and passed the package of reforms all by himself. Actually, the reforms required the leadership of the PPP, the political party Zardari co-chairs, and could not have been enacted with his support.

Consider how this same package is being reported in the international media. The Christian Science Monitor wrote:

“It’s a massive political boost to [Zardari],” says Cyril Almeida, a political columnist for Dawn, Pakistan’s leading English-language daily. “It’s not the standard practice in Pakistan to give away powers. It’s more the reverse, where people consolidate or accumulate powers.”

Mr. Almeida points out, however, that Mr. Zardari will retain leverage over Prime Minister Yousef Raza Gilani in his capacity as co-chair of their ruling Pakistan People’s Party (PPP).

“The President is honoring our party’s commitment to restore the 1973 constitution and undo the usurpation of the authority of the people’s house by military dictators,” says Farahnaz Ispahani, Mr. Zardari’s spokeswoman, referring to former Pakistani ruler Gen. Zia ul-Haq.

…

The 27-member parliamentary committee, which included all parties and was led by the PPP, announced late Wednesday that it had reached a consensus, almost 10 months after convening. They approved the draft of the constitutional amendment, which is set to be presented for a vote in the lower and upper houses of parliament.

With the draft bill alone, however, the reforms are essentially a “sealed deal,” says Rasul Baksh Rais, a professor of political science at the Lahore University of Management Sciences.

It is a “gain for democracy and democratic forces in the country,” he says.

Consider also the reporting from The Telegraph:

The deal was last night hailed by President Asif Zardari who told The Daily Telegraph it was a “historic moment” for the country’s democratic forces, and the fulfilment of his late wife Benazir Bhutto’s dream.

“The pledges made with the people to restore the 1973 Constitution have been honored. It is a victory for the democratic forces, a culmination of decades old struggle and a fulfilment of the dream of my wife Shaheed Mohtarma Benazir Bhutto,” he said.

“All political parties and democratic forces deserve credit for it. The Pakistan Peoples Party is specially pleased as it marks the end of distortions introduced into the Constitution,” he added.

The agreement was also welcomed by former prime minister Nawaz Sharif, the leader of the main opposition Pakistan Muslim League (N) who said it was a welcome example of consensus. “This proves that political leadership in Pakistan, once it joins hands, rising above petty differences, can resolve the most difficult of issues,” he said.

These are fair an un-biased reports that do not favor any particular political party or agenda. They are simply providing the information to their readers who can then make up their own minds. Why can’t our press report like this? Instead, we have national media groups putting out articles about constitutional reforms that do not even mention the name of the President!

Pakistan’s media has sacrificed too much to free itself from censorship. Why would it now decide to censor itself. Please, do not sacrifice the facts for some political agenda. Instead, report the facts without any bias and let the people make up their own minds.

Sunday’s article in The News by Rauf Klasra is an excellent example of this type of poor reporting. Klasra writes,

President Asif Ali Zardari’s sweeping powers to impose emergency in the country will be clipped in the upcoming constitutional amendment package…

…

Likewise, President Asif Ali Zardari’s powers are proposed to be transferred to the judicial commission and parliamentary committee of both the houses of parliament.

The powers described here do not belong to Zardari. They belong to the President. This is an important point to consider. If another person becomes President after the next elections, Zardari would not keep any Presidential powers. The powers belong to the office, not the person.

Consider the way that Rauf Klasra describes other proposed constitutional changes:

…the upcoming constitutional amendment package, which also envisages absolute powers to the Parliamentary Commission to reject, with two-thirds vote majority, any proposed judge of the Supreme Court/high court referred to it by the Judicial Commission of Pakistan headed by the Chief Justice of Pakistan.

Notice that Klasra does not write, “referred to it by the Judicial Commission of Pakistan headed by Iftikhar Chaudhry.” This is because Iftikhar Chaudhry happens to be serving as Chief Justice, but he will not always be such. Actually, the office is not the man. So changes to the powers of the office are neither an affront nor a reward to the man.

The Nation also fails to properly report the reforms, also suggesting that the reforms are targeting an individual. In an unsigned report, The Nation writes that,

President Asif Zardari will lose prerogatives under the proposals, which are designed to guarantee the sovereignty of parliament and devolve power to provincial governments in a country plagued by regional insurgencies against the overbearing federal government.

This turgid sentence obviously more rightly belongs on the editorial page than in a news report, but notice that the sentence begins by stating that “President Asif Zardari will lose prerogatives.” Actually, Zardari will not lose any prerogatives, the office of President will return powers that had been previously seized by previous undemocratic governments.

This brings us to the next important point. The tone of many articles, not limited to the two quoted above, suggests that parliament is somehow punishing Zardari with the package of constitutional changes. Actually, Zardari had previously campaigned on returning powers that Generals Ziaul Haq and Musharraf had claimed for themselves.

Even the anti-Zardari newspaper The Nation admits in its editorial that “When [the constitutional reform package] is tabled before and passed by parliament, it will have restored the balance of powers between the president and prime minister…”

The Nation‘s editorial goes on to complain that Zardari is including reforms beyond undoing the changes, but they still admit that “This is not to deny that here is a need for some basic constitutional amendments beyond the dictatorial tamperings…”

When reporting on constitutional reforms, journalists need to take a non-political perspective. The changes have long been discussed and are no surprise. Likewise, they are changes to specific offices not specific individuals. To say that “Zardari is having his wings clipped” is incorrect and misleading to the public.

Please save the opinions for the editorial page and only report the facts.

The report claims that a petitioner has asked the CEC to investigate whether Zardari was eligible to stand for office under under Article 63(2) (3) read with articles 5, 25, 50, 62 and 63 of the Constitution. The petitioner claims that, with the Supreme Court’s voiding the NRO, Zardari has become retroactively ineligible to stand for the office of President under Article 41(2) that says a candidate must be qualified to be elected as member of the National Assembly.

The Dawn report fails to note, however, that Article 41(6) of the Constitution states quite clearly that, “The validity of the election of the President shall not be called in question by or before any court or other authority.”

In fact, the only means provided in the Constitution for removing a sitting President are in Article 47: “Notwithstanding anything contained in the Constitution, the President may, in accordance with the provisions of this Article, be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct.”

While it might be of some academic interest as to the retroactive eligibility of Zardari, the fact is that he was elected and Article 41(6) legitimizes that election. Moreover, at the time of the election, all the facts available now were available then, so there is no new information that would have changed the outcome of the election other than the voiding of the NRO, which was, of course, not void at the time of the election. To quote a common phrase, you cannot un-ring the bell.

Readers of Dawn‘s report may be misled into believing that President Zardari’s election could be retroactively voided, causing a crisis of leadership in the government. In fact, the Constitution clearly says this is not true. In the future, Dawn should make sure that it’s reports include all the important facts so that readers are able to fully understand important situations.