The historic 18th Amendment to the 1973 Constitution of Pakistan was passed by the Zardari government in 2010; ever since then, it has been under debate. Some criticize it while some appreciate it. The critics argue that it has created a governance gap by giving more authority and freedom to provinces without assuring any checks and accountability.
While its advocates state that it has strengthened federalism and has put an end to dictatorial or non-representative governments. Therefore, it made sure that authority is never misused again in the future.
A Brief History of Constitutional Development
After the demise of Quaid-e-Azam and then Liaqat Ali khan a few years later, a vacuum, a void was created as there was no suitable person to fill their respective places. This void was filled by the civil services—bureaucrats—which later made an alliance with the military and used the politicians against one another as pawns.
The civil-military combined rule lasted for almost 33 years with 3 military coups; first in 1958, second in 1977, and third in 1999. Furthermore, three constitutions were drafted and enforced during this time period. The first constitution was abrogated by President Sikander Mirza, a former bureaucrat, he then appointed General Ayub Khan as Chief Martial Law Administrator.
Ayub Khan introduced the 1962 constitution in which over-centralization was observed and the subjects that came under the responsibility of the provinces were handed over to the center. Furthermore, Ayub Khan was replaced by General Yahya Khan and he issued his Legal Framework Order (LFO) which resulted in the disintegration of Pakistan.
Federalism under 1973 Constitution
The 1973 constitution was introduced under Zulfiqar Ali Bhutto’s presidency, somehow, a much better model of federalism was observed. It had many significant features that were later enhanced by amendments. From 1947 till 1973 Pakistan had only experienced a unicameral legislature. It relied on the National Assembly leading to population-based representation in the Parliament and not equal representation.
The drawback of unicameral was that larger areas with less population couldn’t voice their issues. This issue was resolved in the 1973 constitution; a bicameral legislature was introduced with an upper house—Senate—with equal representation from all provinces and a lower house—National Assembly—with population-based representation.
The resources, authority, and subjects were divided between the center and provinces, a significant feature of a true federation. It also stated that the constitution will be revised after 10 years if more reforms were needed in the future.
The political atmosphere of the country, however, did not calm down and Z.A Bhutto was overthrown by General Zia ul Haq in 1974. He made the first 8 amendments to the constitution. The first amendment was made in 1974, while the 8th was finalized in 1985.
The 8th amendment, although controversial, highly increased the authority of the president. In total, fourteen articles were amended under the 8th amendment. Therefore, these amendments fully deteriorated the essence of federalism and changed parliamentary form to a semi-presidential form of government.
More amendments were introduced under the Chief of Army Staff General Pervez Musharaf’s rule, another martial Law administrator. He declared an emergency in the country in 1999 after Prime Minister Nawaz Sharif refused to allow his plane to land in Karachi on 13th October 1999.
The military reacted rapidly and placed the Prime Minister under house arrest and surrounded the airport’s control tower. On 15th October 1999, an emergency was declared and the constitution was suspended by General Musharaf.
The significant 17th amendment was made to the constitution in 2003 by the Chief-turned-President, Musharaf. He added some articles of the LFO to the constitution. The LFO increased the tenure of judges of higher courts to three years under articles 62 and 65, respectively.
It restored Article 58(2)B which gave the president the authority to dissolve the assemblies. The role of the Prime Minister was diminished and that of the president was highly enhanced. Due to all these unnecessary amendments, the structure of the constitution had distorted terribly and a proper amendment was required. The 18th up to some extent fixed many errors.
The 18th Amendment to the Constitution
This amendment contains some very strikingly significant features. It aimed to restore parliamentary sovereignty by transferring powers from the president to the prime minister, decentralizing the federal system, improving the relationship between the center and provinces, and resolving the inter-provincial issues.
Strengthening of the Parliamentary System of Pakistan
The role of the prime minister was enhanced by revoking Article 58(2)B and handing over the authority back to him. The president’s power to appoint the governors was also altered and the appointments were to be made by the president on the advice of the prime minister only.
The role of the Senate was also enhanced and 23 senators were to be elected from each province. Hence, to ensure equal representation; the seat distribution for each province was made as follows:
- 14 general seats
- 4 reserved for ulema or technocrats
- 4 reserved for women
- 1 for non-Muslims or minorities
Furthermore, according to Article 91(4) of the 18th amendment under the 1973 constitution, the cabinet members will be held responsible to both Senate and NA. Article 89 ensured that ordinances cannot be issued in the absence of the Senate or NA. Therefore, strengthening and improving the parliamentary system of Pakistan.
Administrative Relations Between Centre and Provinces
The 18th amendment revised Article 144 of the constitution and provincial assemblies were granted the right to repeal or amend any legislation crafted by the Parliament for one or more provinces, on matters not mentioned in the Federal Legislative List.
Article 160 (A) placed a bar on reduction in provincial share in the National Financial Commission (NFC) award. The constitution states that the NFC is to be revised after every five years and to periodically make recommendations to the president.
In the 2010 NFC award, the share of the provinces was increased to 57.5%. The amendment of Article 160 (A) prevents the share of provinces from being reduced. Therefore, the 18th amendment made provinces relatively strong and ensured provincial autonomy in many matters. The enhancement of the Council of Common Interests (CCI) resolved the reaming issues of federation-province relations.
Revision of Article 140 (A) ensured the devolution of authority and a step towards good governance. Each province was asked to create a Local Government System. The administrative, political and financial responsibilities were then transferred to the elected representatives of the local governments.
The 18th amendment also improved the National Economic Commission under the amended Article 156, which takes care of the economic policies of the provinces and the federal government.
Amendment of Article 172(3) ensured joint ownership of property, declaring equal sharing of gas, oil, and territorial waters between the center and the respective province. Therefore, enhancing the economic conditions of the provinces.
Enhanced the Role of the Council of Common Interests
The Council of Common Interest, although a constitutional body, was insignificant over the past years. A new clause was added as 157 (3) which stated that the CCI will resolve the discords and conflict of power-sharing between federation and provinces.
According to amended Article 153 (2), the prime minister shall be the head of CCI and the members will include the chief ministers of the provinces and three members from the federal government nominated by the head.
Article 154 (3) granted CCI a permanent secretariat too. The Concurrent List was abolished and the subjects were divided into two lists respectively i.e. the Federal List Part I and the Federal List Part II.
Some subjects from Part I were also shifted to Part II and policy formulation and implementation of Part II came under the direct supervision of CCI. The 18th amendment improved the status of CCI by making these significant changes to the constitution.
Independence of Judiciary
A new procedure for the appointment of judges was introduced in Article 175(A) under the 18th amendment to the constitution of Pakistan. The responsibility of appointing the judges was handed over to the Judicial Commission, a body of seven people and headed by the Chief Justice of Pakistan. It also includes two senior judges of the Supreme Court, the Attorney General, the Federal Law Minister, a retired judge of the Supreme Court, and a senior advocate.
Moreover, Article 177 states that the president can also appoint judges in accordance with Article 175(A). It was done to make sure that courts may never give legal cover to military adventurism in the future.
Provided Fundamental Rights
The 18th amendment provided fundamental rights and made sure that the citizens would be the major beneficiaries of the amendment. Therefore, Article 10 was amended by adding 10(A) to it which gave the right to a free and fair trial. Article 19 (A) was added to ensure the right to information while maintaining transparency. It allowed the media to question any official in all matters of public importance.
Article 25 (A) affirmed that the state shall provide free education to children till the age of sixteen. The revision of Article 17 allowed the citizens of Pakistan to freely join or form any association. Therefore, this amendment ensured that the rights of citizens may not get violated in any situation.
Removal of Discretionary Powers
Article 232 was amended as such that if the president wishes to proclaim an emergency in a province then the proclamation should be accepted by the provincial assembly of the respective province. Moreover, if the president wants to acts on his own then he will have to get the approval of both houses of Majlis-e-Shura (Parliament) within ten days.
Article 243 clearly declared that the armed forces of Pakistan will now operate under the authority of the federal government Therefore, making it very difficult for a non-representative government to take over the country or to declare an emergency.
Ensured Women Empowerment
In the 18th amendment to the constitution, women’s quota was introduced. 5% tickets were granted to women for direct participation in elections and Article 34 ensured women’s participation in every field. An increase in the number of women competing in elections was witnessed right after this amendment was introduced.
For example in the 2008 elections women acquired 60 seats and in the 2013 elections, they acquired 70 seats in the National Assembly. Women were also declared equal citizens and discrimination against gender or caste was strongly discouraged.
Dealing With Treason
The alteration of Article 6 declared that anyone who abrogates the constitution shall be held guilty of high treason and courts cannot declare non-representative governments constitutional. It states that not just coup leaders but abettors will also be dealt with harshly and severely.
Furthermore, Article 4 preserves fundamental rights and states that the rights of citizens shall not be repressed or subjugated under any circumstances. If a person is found guilty of high treason then the punishment shall be declared by the Majlis e Shura.
A few amended articles regularly remain under criticism of the critics. For example, Article 160(3)A. The reduction in federal revenue generation left the center with a considerably low budget.
Another criticized amendment is Article 142 as it has reduced the control of the center on the provinces consequently making the center weak. Many critics used words like confederation or loose federation due to these two articles.
Another major defect in the eyes of critics is Article 17A. The critics argue that intra-party elections to choose the head or party president promote hereditary politics. Hence, there’s a need for their elimination.
Moreover, the abolishment of the Concurrent List and handing over almost 47 subjects to provinces isn’t considered very wise by many analysts because the provinces are incapable of dealing with this increased responsibility. Due to this amendment, the respective departments for education, environment, drugs, crime, population, health, and national projects got hit badly. The shifting of these subjects back to the federal government should be considered.
Besides the above-mentioned criticized articles, three more articles are usually the subject of critique. These articles include Article 24(A) on the right to education, Article 140(A) on the Local Government System, and Article 153 on the CCI. These articles are very admirable but despairingly no proper way is suggested to implement these provisions.
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