Forget about the fact that Zardari is, like it or not, the President and is bound by the advice of only the Prime Minister and no one else, although he should consult with the Chief Justice regarding the appointment of the judges. But consultation's meaning cannot be stretched to binding advice. And we don't need anyone, including Aitzaz Ahsan, to interpret that for us.
Some say that the definition of consultation is provided by Article 260 (Chapter 5; Interpretation). That is incorrect. That definition was inserted by the Legal Framework Order (LFO) of 2002, which was unconstitutional, leaving aside the fact that it violated the letter and spirit of 1973 Constitution. The Supreme Court had, in effect, given Musharraf the power to amend the Constitution. That itself was a violation of Article 6.
The LFO was given protection through the 17th amendment, which itself was unconstitutional, because it came as a result of an ultra vires Supreme Court decision. Now how can PML(N) support a clause that was sanctified by the infamous and ultra vires 17th amendment.
The same is true about Al-Jihad Trust Case [PLD 1996 SC, 324] because an over-zealous bench changed the meaning of the word 'consultation' in the original Constitution to mean binding advice. The Supreme Court can interpret the Constitution, but cannot change its basic character in violation of its letter and spirit.
If 'binding advice' had been the intention, there was no need to use the word 'consultation'. According to the letter and spirit of the Constitution, only the advice of the Prime Minister is binding. If there is a conflict between 'consultation with the Chief Justice' and advice of the Prime Minister, the advice of the Prime Minister will have to prevail, otherwise the whole character of the Constitution will be distorted and subverted because the Prime Minister, being the elected leader, is the chief executive.
As far as the written Constitution is concerned, the definition of consultation [other than that provided in Al-Jihad case] was inserted in Article 260 through the Legal Framework Order of 2002. It is clear that the military and the judges have tampered with the Constitution as and when it suited them. Neither of them have the rights that exceed that of the elected representatives of the people.
That is the spirit of the Constitution because according to the objectives resolution, sovereignty belongs to Allah and is to be exercised by the people through their 'chosen representatives' and not by the army or the judiciary. The parliament, and not the Constitution, army, or the judiciary should and can exercise sovereignty in view of the unambiguous definition of sovereignty provided in the objectives resolution, which is an integral part of the Constitution. But the army and judiciary have time and again trampled on that spirit with impunity and without any accountability.
The only way is to repeal all the amendments, as quickly as possible, in accordance with the Charter of Democracy without any further delay as only the parliament's act can have real sanctity and not those of judges whose history is tainted with open and secret collaboration with the military dictators. And there is a legal precedent of what consultation means. The long history of even a misruled country like Pakistan does not have a precedent where the advice of the Chief Justice is binding on the head of the state in matters relating to the appointment of judges.