KARACHI, Oct 23: The government is in constant violation of the Constitution both in letter and spirit, according to former federal law minister Khalid Anwer. Talking to Dawn on Wednesday, the lawyer, who argued the ousted premier Nawaz Sharif’s case against the October 1999 military takeover before the Supreme Court in what came to be known as Zafar Ali Shah case, said the period of deviation from the constitution should have come to an end on Oct 12. But, he said, Two weeks had elapsed since the balloting for the general election and no assembly session had been convened or scheduled. Under th Supreme Court judgment, he said, power should have been transferred by now. October 12 was the outer limit and the court had declared in so many words that polls to restore the constitutional rule could be held before the deadline.

He said that instead of transferring power, attempts were being made to extend or retain it in one form or another even after the general election.

He said the raft of orders and ordinances being issued at the end of the military rule had no justification under the Supreme Court judgment. The court had gratuitously allowed the Chief Executive to legislate and even amend the Constitution in order to implement his agenda and not to prolong his rule. Whatever state necessity was there till Oct 12, none legally or factually existed after that date. “The law of necessity is no longer applicable and no decree can be now be issued under the doctrine of state necessity,” he said.

He further said the Supreme Court never sanctioned the combination of the offices of heads of state and government in one person and left open the question of constitutionality of assumption of presidency by the Chief Executive; yet the President was exercising the restricted authority given by the court to amend the Constitution at will.

He asked what justification was there for amending the constitutional provisions relating to the retirement of judges when a parliament was about to take office.

The constitutional amendments inserted by the government, the former law minister emphasized, were not and could not be self-operative. He recalled that a revival of the constitution order containing the validation of the martial law actions was promulgated in March 1985 before the elections and the withdrawal of martial law and only those provisions of the RCO which were adopted by the parliament in November-December 1985 formed part of the Constitution.

“If the new parliament rejects the LFO wholly or partially, the order will cease to exist accordingly”, he said. The Constitution, he added, could be amended under its own provisions.

The argument that the Supreme Court was impliedly approving the government measures by not taking suo motu notice of violation of its judgment in the Zafar Ali Shah case, Mr Anwer said, was at best specious. “It would amount to a general licence to break laws till the enforcement machinery comes into action. According to the lawyer’s reckoning, the legislators-elect should have been sworn in and allowed to elect speakers and deputy speakers by now. Elections to the reserved seats and the Senate should have immediately followed. In the meanwhile, a member commanding majority in the National Assembly should have been invited by the president to become the prime minister. “Coalitions are made and unmade on the floor and in the lobbies of the house. The outgoing regime has no right to put together a majority”.