May Issue 2010

The haste with which the National Assembly passed the 18th Amendment on April 8, and subsequently the Senate on April 15, is beyond comprehension. It took two long years to draft this document, and the parliamentarians were then given just a few hours to discuss it. It is a sad reflection on the calibre of our politicians that they did not ask for additional time for a prolonged discussion and spent whatever time they had eulogising Raza Rabbani and the prime minister.

No doubt democratic forces should be congratulated for their rare unanimity on the text of the 18th Amendment — as was the case with the original Constitution of 1973 — and for taking steps in the right direction. However, the PPP needs to recognise that a single party should never claim credit for a national document like the constitution or its amendments, as it is not possible to achieve consensus without the cooperation of all concerned parties.

Many claimed that the 18th Amendment, once passed, would restore the constitution back to its original form. This is certainly not the case as the 8th Amendment introduced by General Zia-ul-Haq has been retained, with slight modifications, and other amendments made since then, are being kept intact, including some major ones undertaken by General Musharraf.

The 8th Amendment was much more comprehensive than the latest modification to the constitution, which has adopted all the amendments introduced by General Zia as chief martial law administrator from the day of his take-over in July 1977, up until the passage of the amendment by parliament in November 1985.

Zia’s amendment brought about a plethora of changes in the constitution, such as the insertion of the Objectives Resolution in the preamble, which is not legally binding, but has been relied upon by the superior courts in some judgments while interpreting the constitution. Almost all the changes introduced by General Zia either attempted to Islamise the constitution or enhance presidential powers at the expense of the prime minister.

His changes included giving the president the power to ask the PM, or the cabinet, to reconsider their advice to him, and the withdrawal of the power to question the exercise of discretionary powers by the president on any grounds whatsoever (Article 48). This alteration has been retained with only a slight modification that the president, or the governors, can do so only within 15 days of the advice — if given.

The 8th Amendment notoriously gave the president the power to dissolve the National Assembly under Article 58(2)(b), if in his opinion ‘a situation has arisen in which the government of the federation cannot be carried on in accordance with the provisions of the constitution and an appeal to the electorate is necessary’ has been withdrawn. A similar power bestowed upon the governor to dissolve the provincial assembly has also been withdrawn.

Prior to the 8th Amendment, the executive authority of the state was exercised by the federal government in the name of the president. The amendment through Article 90 vested this authority directly in the president instead, to be exercised by only him. The 18th Amendment has failed to alter this important article back to its original version; and thus the power will continue to be used by the president on the federation’s behalf; this is obviously not what is intended under a parliamentary system of government.

The 8th Amendment also gave the president the power to appoint the provincial governors at his discretion after consultation with the PM (Article 101), and also the chiefs of the three armed forces — Article 243(2)(c) — without any mention of even consulting — forget acting upon the advice of — the PM. This presidential power has now been subjected to the advice of the PM.

These changes brought about by the 18th Amendment by modifying the 8th Amendment are positive and have been appreciated by almost all. The sad part is what the latest amendment has failed to accomplish.

It has failed to delete the Objectives Resolution from the constitution, which is not needed and does not fit into its structure. The 8th Amendment replaced Article 62 (qualifications for membership of parliament) and Article 63 (disqualification of membership) completely, and replaced it with conditions that are difficult, if not impossible to fulfil. Under these changes, a member of parliament must be ‘of good character;’ ‘should’ not commonly be known as one who violates Islamic injunctions; ‘has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;’ ‘is sagacious, righteous and non-profligate and honest and ameen;’ ‘has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.’

A member stands disqualified if ‘he is propagating any opinion … prejudicial to the ideology of Pakistan … or morality … or the integrity or independence of the judiciary … or who defames or brings ridicule to the judiciary or the armed forces; or if `he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect.’

It is nothing short of shocking that while parliament, led by the Raza Rabbani committee, did not touch any of the other provisions in Articles 62 and 63, including the ones mentioned above, it deleted clause (g) from Article 62 that dealt with moral turpitude and giving of false evidence, and added the words “there being no declaration to the contrary by a court of law” at the end of clause (f) that dealt with honesty and righteousness. Clause (l) has been deleted from Article 63. It related to being found guilty of a corrupt or illegal practice under any law, and the phrase “he has been convicted by a court of competent jurisdiction” has been added before the words in clause (g) that deal with the ideology and integrity of Pakistan. The reference to additional qualifications through an act of parliament has also been deleted from Article 62. These changes do not require any explanation, and constitute an attempt to protect the corrupt and those convicted for misuse of power.

Chapter 3-A of the constitution which deals with the Federal Shariat Court has not been touched at all. This is again Zia’s gift to the nation. The court’s functioning can easily be handled by the present Supreme Court.

The Parliamentary Committee on Constitutional Reforms in its meetings held from June 25, 2009 to the first week of April 2010 could not sort out the issue about the renaming of the NWFP. Eventually, a name that was agreed to in haste has resulted in turmoil in parts of the province, and may even result in its division. Many have already died protesting against the new name, and property worth millions has been destroyed.

The Awami National Party (ANP) does not have much to show for its two-year rule in the Frontier province. It was hoping that it would at least appease the Pakhtoon segment of the population, which is its major vote bank, by changing the name of the province. The name of the NWFP has been changed to Khyber Pakhtunkhwa, however, this strategy has backfired. The Amendment has also changed the spelling of ‘Baluchistan’ to ‘Balochistan,’ and ‘Sind’ to ‘Sindh.’

The changes in Article 6 have now rendered suspending or putting in abeyance the constitution as high treason. The Supreme Court and the High Court have been barred from validating the abrogation of the constitution. This is an obvious attempt by parliament to stop the superior courts from validating a military take-over — and probably the most that it can do in this respect. Once the military assumes control, it is a fait accompli and the courts, if they deem appropriate, can easily override this clause in the name of national interest.

The clause requiring all political parties to hold internal elections has been deleted from Article 17. Only the members of the parliamentary committee and the parliament can explain the logic behind this anti-democratic deletion. Senator Rabbani has defended it in parliament on the grounds that it was a legacy of General Musharraf and an attempt by the military government to create hardships for the political parties, particularly the PPP and the PML-N. He failed to acknowledge that many of the additions made by the Musharraf regime have been retained — and there was no harm in keeping this clause as well as it was a positive one, like some of the other ones that have been kept.

Could it be that clauses that favour the politicians and political parties have not been touched while those trying to control them have been removed?

The 18th Amendment has now made it a fundamental right of every individual (not just a citizen of Pakistan) to have a fair trial and be entitled to the due process of the law. However, the people do not figure anywhere in this ballgame.

Every citizen has now been given the right to access information, subject to regulation and reasonable restrictions imposed by law. This is a welcome addition but the conditionality relating to regulations and reasonable restrictions leave a lot to be desired; however, with time, the superior courts may remove some of these restrictions.

One noteworthy feature is the addition of Article 25-A , which obligates the state to provide free and compulsory education to all children from age five to 16 “in such manner as may be determined by law.”

Discrimination in the civil service of Pakistan on the basis of race, religion, caste, sex, residence or place of birth is prohibited under the constitution’s Article 27(1). A proviso has been added that empowers the parliament to enact a law to redress the under-representation of any class or area in the service of Pakistan. This is an attempt to by-pass this article through a simple act of parliament, rather than going through the exercise of amending the constitution.

The constitution contains 11 articles (29-40) which are called the Principles of Policy. It is the duty of each organ and authority of the state to act in accordance with them. Action on these principles is subject to availability of resources, and the responsibility of deciding as to whether the principle in question is being adhered to also depends on the relevant organ or authority of the state. The validity of an action or of a law cannot be called into question on the basis of these principles. The president, however, is obligated to prepare and present to the National Assembly, each year, a report on the observance and implementation of these principles.

The proposed 18th Amendment now requires such a report to also be presented in the Senate. It is a different matter that the president, since the article’s introduction in the Constitution in 1973, has never presented this report to date in the Assembly.

A new Principle of Policy is being proposed to be added as Article 38(g), regarding the share of the provinces in the federal services, including the federally owned autonomous bodies and corporations.

Article 46 has been drastically changed to the detriment of the president, and the proposal now requires the PM only to keep the president informed on all matters of internal and foreign policy. The power of the president to give directions to the PM that was inserted through General Zia’s 8th Amendment stands withdrawn. The power of the president to refer a matter to a referendum has also been deleted.

The number of Senate seats has been raised to 104 from 100; the additional four seats will belong to minorities, who shall be elected by the provincial assemblies. This clause will become valid from the next election.

The president and the governors are now required to assent to a bill within 10 days instead of 30 and cannot re-promulgate ordinances. The total strength of the federal cabinet and of the provincial cabinets has been reduced to 11% of parliament, or provincial assembly. Conveniently, this provision, unlike the others will become operational from the next elections.

The attorney general and the advocate generals have been debarred from undertaking private practice and it has been made mandatory for the governor to belong to the province of his appointment. The president’s discretion to appoint an acting governor has been reduced by stipulating that the first right in this respect shall be that of the speaker of the provincial assembly.

Local government elections are to be held by the Election Commission.

Provinces now have the power to lodge complaints, even with regard to reservoirs, to the Council of Common Interests. The federal government has been bound to consult a provincial government before undertaking any hydroelectric projects. The excise duty collected on a wellhead of oil and gas shall go straight to the provinces. The provinces have also been empowered to secure international loans. Mineral, oil and natural gas shall from now on vest jointly between the provinces and the federal government.

The auditor general’s report shall now be presented to both the National Assembly and the Senate.

The Islamabad High Court has been recreated, much to the delight of the legal community in the capital; a judicial commission is going to be formed for the appointment of Supreme Court, High Court and Shariat Court judges. High Court benches are being created in Mingora and Turbat.

For the appointment of judges of the Supreme Court, the commission shall consist of the chief justice, two senior-most judges of the Supreme Court, a former chief justice or a former judge of the Supreme Court (to be nominated by the chief justice for a period of two years), the federal minister for law, the attorney-general and a senior advocate of the Supreme Court (nominated by the Pakistan Bar Council for a term of two years). The president has been bound to appoint the senior-most judge of the Supreme Court as the chief justice.

For the appointment of judges of a High Court, the commission, in addition to the members mentioned above, shall include the chief justice of the High Court to which the appointment is being made; the senior most judge of that High Court; provincial minister for law; and a senior advocate to be nominated by the provincial bar council for a period of two years.

The commission, by majority of its total membership, shall nominate to a parliamentary committee, consisting of four members from the Senate and four members from the National Assembly, one person for each vacancy. Out of the eight members of the committee, four shall be from the treasury benches (two from each house) and four from the opposition. The committee may confirm the nominee by majority of its total membership within 14 days, failing which the nomination shall be deemed to have been confirmed. If it rejects the nomination by a three-fourths majority of its total membership within the 14-day period, the commission shall then send another nomination. The committee shall forward the name of the nominee confirmed by it or deemed to have been confirmed to the president for appointment. It is unclear as to what would happen if the committee fails to forward the recommendation to the president, or the president refuses to declare the nominee as a judge.

The president can still impose emergency, but only after the concerned provincial assembly passes a resolution to this effect, or the president presents the emergency proclamation to parliament for approval. This change partly challenges one’s common sense as the emergency is invariably imposed against the wishes of a provincial government and the provincial assembly as it is the latter two which are usually suspended in such instances. The latter, therefore, is unlikely to ever pass a resolution calling for its own suspension.

Integrating the tribal areas into Pakistan and then bringing them into the mainstream is perhaps seen as one of the most effective steps that could help to defeat the menace of terrorism. Instead of doing anything in this respect, the 18th Amendment has added the areas adjoining Lakki Marwat district and the adjoining Tank district into the definition of tribal areas under Article 246.

The Concurrent List from the Fourth Schedule has been deleted in its entirety; and the Sixth Schedule dealing with certain laws that could not be amended without the president’s sanction; and the Seventh Schedule listing certain laws that may only be amended in the fashion of amending a constitution, have been deleted. About six entries from the federal list have been omitted thereby giving the provinces the power to legislate on them. Both the parliament and the provincial assemblies, however, have been given the power to legislate on criminal law, criminal procedure and evidence.

The parliamentary committee must be congratulated for doing a thorough review of the constitution, although more positive changes could have been brought about.

It is a pity that few changes are going to benefit citizens individually, and individual freedom is hardly going to be positively affected. Basically, the thrust of the changes relate to the issue of giving provinces more autonomy and the nationalist parties should rightfully be pleased with the outcome of the committee’s deliberations. Only time will tell how far these changes will contribute to the goal of strengthening the federation.