April 2010 shall go down in Pakistan’s history as an epoch-making month. For the sort of revolutionary changes to be made by the 18th Amendment in the country’s Constitution, reverting it to its original 1973 position, will go a long way in consolidating parliamentary democracy, ensuring provincial autonomy, keeping judiciary independent and improving governance. On April 8, the National Assembly unanimously passed the 18th Amendment, which is set to be approved likewise by the Senate in a short time.
The only other instance in Pakistan’s recent history, when all the mainstream and regional parties got together on the same platform to restore parliamentary democratic tradition was on the 1st of March 1997, when the Pakistan Muslim League of Nawaz Sharif soon after securing two-third majority in the Parliament removed the notorious Article 58-2/b from the Constitution. Tragically, the military regime of former President General Pervez Msharraf that came to power through the October 1999 coup reversed this democratic achievement by introducing 17th Amendment and incorporating the Legal Framework Order (LFO) in the 1973 Constitution.
The 62-page Constitutional Reforms Package constituting the 18th Amendment was prepared by the 27-member all-parties Parliamentary Committee on Constitutional Reforms chaired by PPP Senator Reza Rabbani. It repeals the 17th Amendment and LFO from the Constitution. Not just that, during its 79 extensive sessions since its inception in June 23 last year, the Committee revisited all 278 articles of the Constitution, proposed amendments to its 102 provisions regarding the powers of the president and the prime minister, the status of the provinces in a federal system, the issue of judicial autonomy, the rights of minorities—and much more. 96 of the them were unanimously approved by the National Assembly on April 8.
Credit to All Parties
Four days before National Assembly’s historic vote, on April 4, President Asif Ali Zardari graciously addressed the joint session of the Parliament, giving the credit for realizing this historic moment in the country’s history to all political parties in the government and in opposition. The day of his address—marking the death anniversary of Zulfiqar Ali Bhutto, the founding father of the ruling Pakistan Peoples Party—was symbolically important, because there can never be a bigger credit to the country’s first elected populist prime minister than to restore the truly parliamentary Constitution he gave to the nation 37 years ago.
Then, on April 6, the Federal Cabinet approved all the proposed radical changes in the Constitution. The same day, the 18h Amendment Bill was tabled in the National Assembly, with Prime Minister Yousaf Reza Gilani praising the said Committee members from all parties, including those such as Jamaat-e-Islami which had not contested the February 2008 elections, for the pioneering work. Senator Rabbani introduced the principal changes in the Constitution that 18th Amendment would make. Despite some dissenting notes written by the committee members about controversial sections of the 18th Amendment—for instance, the PML-Q’s reservation about renaming the Frontier province as Khyber-Pakhtunkhwa—the 18th Amendment Bill was expected to pass unanimously from both the National Assembly and the Senate.
"We have reasons to be proud. It is the first major Constitutional reform in more than three decades. Previously, there were piecemeal constitutional amendments but most of these were brought about to legitimize the unelected leaders and not for the cause of the people," said President Zardari, while adding that the amendments would make the Constitution “truly democratic and federal in character, and restore the provincial rights and the Parliamentary sovereignty.”
Commitment to Change
The initiative for the said constitutional reforms had come from the President himself two years ago when he addressed the joint session of the parliament for the first time after assuming the office of presidency. In his second address to the joint house of parliament in March last year, President Zardari proposed the establishment of the Parliamentary Committee on Constitutional Reforms, which has delivered in the second year of the current parliament. This is quite a remarkable achievement, especially if we take into consideration the bitter criticism President Zardari and the PPP-led government has continued to face from PML-N and its other political opponents on dilly-dallying on the issue of constitutional reforms.
It is equally remarkable achievement, keeping in view the unnecessary haste the country’s higher judiciary has shown with regard to the implementation of its December last year verdict on the National Reconciliation Ordinance (NRO). Like previous civilian regimes, the present government and its leadership had the choice of wasting its energy in a frivolous power struggle with the judiciary on the issue, but it chose not to. Instead, it let the parliamentary committee to move ahead and do what elected civilian governments should and must do: let democracy take roots in Pakistan, and not let the country lag behind in the march towards democratization several countries of the developing world have experienced in the last over two decades.
So comprehensive are the constitutional reforms covered by the 18th Amendment that it is rather impossible to narrate and analyze them one by one in a short article like this. It is suffice to mention some of the principal changes in the Constitution that this amendment brings about, especially those consolidating parliamentary democracy, strengthening federation and ensuring judicial autonomy.
The main irony in Pakistan’s political system was that constitutionally it was parliamentary but the President as head of the state had greater powers than the Prime Minister as head of the government Consolidating Parliamentary Democracy. The removal of Article 58-2/b ends the arbitrary power of the President to dismiss an elected government. With this, Mr Zardari becomes the first president in the country’s history to surrender his powers vested in the Constitution. He can still dismiss the government, but only after a vote of no confidence is passed against it in the parliament, as is the conventional norm in all parliamentary systems. Being a head of the state, he will still appoint the military chiefs, but only with the advice of the prime minister.
Article 58-2/b was a tool used frequently between 1987 and 1996 to demolish elected democracies in the country. The removal of this clause, often justified by detractors of democratic rules in Pakistan as a “safety valve” to prevent military coups, means the offices of the prime minister and chief ministers, the national and provincial assemblies and governments can now be more proactive in realizing public aspirations for a qualitative change in the country’s political, economic and social structure. Even during the last two years when these anomalies were still part of the Constitution, the PPP-led government did deliver radically on issues such as the Balochistan Reforms Package and the National Finance Commission Award (NFC).
The 18th Amendment also removes the name of Gen. Zia-ul-Haq as President from the Constitution. While the genie of the most notorious military leader in the shape of jihadi terrorism continues to haunt the nation, cleansing the Constitution from his nomenclature is important, in terms of discouraging future military adventurism in the country’s politics. The present army leadership has preferred that democracy should take further roots in the country, because its priority has radically shifted to what it should actually do: concentrate on the task of ensuring domestic and external security of the nation. By expanding the scope of Article 6 of the Constitution, the 18th Amendment has stated in no unclear terms that not only those from the military actually subverting the Constitution but their traditional collaborators in the country’s higher judiciary will also be tried for high treason.
Besides ensuring parliamentary supremacy in its true sense, the 18th Amendment builds upon the historic successes such as the NFC award by ensuring that provinces enjoy greater autonomy—which, in other words, implies that the country’s federal system becomes stronger.
The principal measures towards ensuring provincial autonomy in the 18th Amendment is that it abolishes all items from the Concurrent List, and hands them over from the Federation to the provinces. The Council of Common Interest, which is to be headed by the prime minister and to meet more frequently, has been given additional powers and the provinces have been given more say on national matters by enhancing their representation in the Council.
Moreover, as stated before, the name of the North-West Frontier Province (NWFP), which was a geographical expression dating back to British colonial times in the Indian subcontinent, has been changed to Khyber Pakhtunkhwa, reflective of the region’s ethnic composition.
The 18th Amendment ensures independence of judiciary by creating a Judicial Commission for appointment of judges to the Supreme Court. The Commission, headed by the chief justice, shall consist of two most senior judges of the apex court, a former chief justice or a former judge of the Supreme Court to be appointed by the chief justice in consultation with two member judges for a period of two years, federal minister for law and justice, Attorney General, and a senior advocate of the Supreme Court to be nominated by the Pakistan Bar Council for a period of two years.
Other salient features of the 18th Amendment include restricting the size of the Cabinet to 11 per cent of the members of Parliament and respective Provinces, and restricting the Chief Ministers to keep only five advisors, increasing the Senate seats to 104 with four more minorities seats, and increasing the working days of the Senate from 90 to 110, and making the education to each child up to the age of 16 years compulsory.
Under this amendment, the prime minister, in consultation with the leader of the opposition in the National Assembly, will forward three names for appointment of the Chief Election Commissioner to a parliamentary committee for hearing and confirmation of any one person. Moreover, there will be no restriction on the number of terms for the offices of the prime minister and chief ministers. Chairman of the Federal Public Service Commission will be appointed by the president on the advice of the prime minister. Similarly, chairmen of the provincial public service commissions would be appointed by the governors on the advice of chief ministers.
Proclamation of emergency in the province due to internal disturbances would require a resolution from the provincial assembly. If the president acts on his own, the proclamation of emergency shall be placed before both houses of parliament for approval by each house within 10 days.
Under the 18th amendment, on dissolution of the assembly or completion of its term, or in case it is dissolved under Article 58 or Article 112, a caretaker shall be selected by the president in consultation with the prime minister and the leader of the opposition in the outgoing National Assembly. Similarly, a caretaker chief minister will be appointed in consultation with the chief minister and the leader of the opposition in the outgoing provincial assembly.
All of the above-mentioned salient features of the 18th Amendment, apart from the key changes narrated previously, will improve democratic governance, promote working relationship between the ruling and opposition parties, expand the country’s literacy rate, ensure independence of the Election Commission and Public Service Commissions, and restrict the chances of imposition of emergency rule in the country. In the long-run, just to reiterate what is stated at the start, the 18th Amendment will go a long way in consolidating parliamentary democracy, strengthening federation and ensuring independent judiciary in Pakistan.
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