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18 Amendment

th

Revenge of Pakistani Democracy

By: Shehzad Masood Roomi
“Democracy is a government of the fools, for the fools, by the fools.” (George Bernard Shaw) The stated objective of the 18th amendment was to decontaminate the constitution from all the authoritarian amendments made by military rulers particularly 17th amendment. This was deemed necessary by parliament for various state organs to work in cohesion. The question is, has 18th amendment got its stated objective served? The answer is NO. Instead, this very amendment has taken away the essence of democracy from the entire political system in the country. This amendment is nothing but an attempt to hijack country's constitution making institutes. Apart from that, recent amendment is going to hurt the state by opening too many Pandora boxes. The recent amendment was supposed to take powers from president and give them back to the parliament and to the prime minister in order to reverse the impact of 17th amendment. Ironically instead of giving powers back to parliament and Prime Minister ’s Office, this
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amendment has turned both these institutes into rubber stamps by conceding many of the existing powers of these institutes to some (possibly) non-elected individual politicians. 18th amendment is going to do following in the future; It would bring more corruption to Pakistani politics by uprooting rule of law, it would promote sham democracy in Pakistan by allocating powers to non-elected people, it would shake national integrity and 18th amendment would undermine vital national institutes and below is how; Death of rule of law and justice Now even a corrupt, ineligible and incompetent politician, as party head, would be able to manipulate the whole political system in the country. This was achieved by making some very disturbing changes in article 63. This article deals with the eligibility of political contesters in general elections. This amendment has ruined the idea of rule of law and justice. Amendments made in article 63 would enable every convicted criminal to be part of the parliament after five years

of his release from jail irrespective of the fact why that person was convicted. This can also include promoting anti-state propaganda, bringing defamation and ridicule to Pakistan. This has been achieved by removing Article 63(1)(I) from constitution and by amendingArticle 63 [1][g]. Article 63(1)(p) has been removed altogether as this clause was to prohibit absconders to enter into political process of the country. With these critical changes in article 63, political elite has turned itself morally naked in front of public. Nowhere in the world can a similar amendment even be contemplated but here in Pakistan, ironically, no one has any objection to these changes. For record below is exact text changed items in article 63 in 18th Amendment; (Excerpt from Article 63 in constitution before 18th amendment) 63. Disqualifications for membership of Majlis-e-Shoora (Parliament) (1)A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:(g)he is propagating any

It seems that through amended article political elite has legalized all the corruption and misuse of various public offices. prejudicial to the ideology of Pakistan. 18th amendment would only encourage corrupt ones to join in. (g) he has been convicted by a court of competent jurisdiction for propagating any opinion. or (i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government. In 18th amendment the following clauses of the article has been substituted as following. the following shall be substituted. on conviction for any offence involving moral turpitude. By looking at amended article 63 it is evident that political elite of Pakistan has compromised over strongest safeguard of democracy i. namely. or acting in any manner. or acting in any manner. unless a period of five years has elapsed since his release. Prior to 18 amendment.opinion. prejudicial to the Ideology of Pakistan. integrity or security of Pakistan. Provincial Government or a Local Government on the grounds of misconduct or moral turpitude. unless a period of five years has elapsed since his release. or (h) he has been. Not only clauses have been changed but some clauses are no more present in newly amended article. a member of the Majlis-e-Shoora (Parliament). or the maintenance of public order. sentenced to imprisonment for a term of not less than two years. Now it is worth noting that there is no mention of taking corrupt and convicted persons back into political process ever again in original text of article 63 but according to new amendments it will become possible for the convicted criminals and absconders to come back and be part of the political process all over again. rule of law. unless a period of five years has elapsed since his dismissal. and from being. controlled.In the Constitution. for Article 63. or (p) he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force. or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan. Disqualifications for membership of Majlis-e-Shoora (Parliament) (1) A person shall be disqualified from being elected or chosen as. or (h) he has been convicted by a court of competent jurisdiction on a charge of corrupt practice. or the sovereignty. moral turpitude or misuse of power or authority under any law for the time being in force. or morality.e. or the integrity or independence of the judiciary of Pakistan. or the integrity or independence of the judiciary of Pakistan. Corruption and misuse of authority are considered atrocious crimes in any democracy in the world but unfortunately in Pakistan corruption is not a concern to the law makers. defection was NOT applicable to a member of parliament in case of his/her vote to constitution bill (amendment) as pe r his/he r BRASSTACKS 16 . (Changes are in bold) 21. or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan. by the Federal Government. Without rule of law any democracy would be a complete sham and it would have no public approval as no public issue would be solved by subsequently formed sham democratic system in the country. Another undemocratic change is the way defection clauses Masood 63(A) by: Shahzad of article Roomi would be applied to manipulate MPs' th conscience. Promotion of Sham Democracy Instead of putting law makers' selection under stricter checks. or the sovereignty. integrity or security of Pakistan.63. or (I) he has been dismissed from the service of Pakistan or service of a corporation or office set up or. Substitution of Article 63 of the Constitution. Provincial Government or a Local Government on the ground of misconduct.

63A. irrespective of has unsuccessfully tried twice to its military or civilian incarnation. had no opportunity to push his/her own role in appointment of judges. Clause 4 of Article 17 is no more part of the constitution. By looking at political history higher courts was with Chief Justice of of the country it is safe to assume that Pakistan and political parties. This commission bypassed. A new seven elected PM will have to see towards member judicial commission has been raised to appoint judges in High Court party head for every move. both in every political head would use such government or in opposition. Latest display of such heinous tried to hold the power over judiciary. In presence of this clause intra-party elections were a BRASSTACKS 17 political impasse was the way ANP got NWFP renamed by blackmailing other parties on 18th amendment's approval. Applying defection on a member of parliament who is intending to vote for or against any constitutional bill will take away the freedom of speech from MPs something very critical for a real democracy. Keeping in mind. it would be the worst case scenario. etc. as worse form of governance as it to simply intimidate or entice him. After 18 amendment it is not a constitutional obligation anymore to select a party head through an intra-party election. outside the parliament among party authority of appointing new judges in heads.( l ) I f a m e m b er o f a Parliamentary Party composed of a single political party in a House. As parliament would be and Supreme Court. Like dictatorship all these Military dictatorship in a meddlers would have to do is to parliamentary federation is conceived negotiate with one person. Dictatorship. b ut w h at abo u t ci v ili an what could this job be? Well.(a) resigns from membership of his political party or joins another Parliamentary Party. undermine premium intelligence usually opposes all the democratic institute of Pakistan. Through agenda ahead by black mailing other this process political leadership has parties. Personal likes and dislikes in this practice have the parliament. Not only armed forces but authority as office of country's chief executive unless he himself is acting judiciary has been also politicized th like party head as well otherwise an through 18 amendment. current foreign meddling in Pakistani politics this arrangement can be suicidal not only for political system (democracy) but for the country itself. Below is amended text and changes are shown in bold words. “Party He ad” irrespective to fact if he himself is member of parliament or not. As there will be no election within the parties so political parties would become personal property of one entity. Current amendment will not failed the whole democratic system in only undermine parliament but office the past. or (ii) a vote of confidence or a vote of noconfidence. Previously. Unfortunately so-called champions of democracy in Pakistan have made sure that all the political parties would become hostage to single entity. and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration.conscience. to get the “job done”and et c. constitutional obligation for all th political parties. ISI. in the past. or (b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs. in relation to(i) election of the Prime Minister or the Chief Minister. He may be declared in writing by the Party Head to have defected from the political party. or (iii) a Money Bill or a Constitution (Amendment) Bill. It would be prudent to ask the parliamentarians what their role would be in constitution making in the future? . sound like conspiracy theory but in fact current government. the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him. Party Head. Recently authority to appoint speech etc. Disqualification on grounds of defection. undermines almost all the national whatever is workable in a given institutes like parliament and judiciary situation. clearly on norms like rule of law. Pakistan in current situation of Prime Minster will also lose its cannot afford any political turmoil. With change in article 63A there is no guarantee that parliament services chiefs in armed forces has would be able to function freely ever been given to Prime Minister but in again as any debate on any pertaining presence of 18th amendment it will be issue would be futile as real decision eventually the party head who would now lies with party head and not with appoint the services chiefs. it may dictatorship in same federation? Well. freedom of instructions from abroad. so any new political and would consist of entities like attorney constitutional problem will be settled general of Pakistan. To ensur e authoritarian control over political parties' further article 17 has been edited as well. Now it would become easier for foreign meddlers to interfere in Pakistan's internal political affairs by overlooking national institutes like national assembly and Undermine Vital National Institutes senate.

It seems that government and political parties have created yet another judicial crisis in the country. Some subjects were shared between center and province through a concurrent list. Shaking National Integrity Provincial autonomy has remained a painful experience of Pakistani nation and this dogma never met with political acceptance ever since 1971 until now. In 18th amendment this list has been abolished altogether and all 47 subjects included in this list have been moved to provinces. th Last but not the least. In federations all over the world having two or three legislative lists is not a problem. there. constitutional subjects have been moved from provincial list to federal list exactly opposite to something Pakistan's newly born democracy is trying to achieve. Sub nationalist ANP hijacked whole constitutional reform BRASSTACKS 18 . All the constitutions made in Pakistan since independence rejected political autonomy in its absolute incarnation but current “engineered” gove rnment in Islamabad has resurrected this old buried issue once again. 18 amendment has stirred ethnolinguistic politics in Pakistan by renaming NWFP province as KhyberPakhtunkhwa. This process is going to test the nerves of law makers as some of the subjects in previously present concurrent lists are such which can't be handed over to provinces alone like Electricity. But this is not the first bane of the 18th amendment. to make laws for specified subjects.Judicial commission has already been challenged in Supreme Court by Pakistan Bar Council and court will listen to the petitions against the formulation of Judicial Commission soon. Pakistan since independence was deemed as a strong federation with certain provisions with provinces. India since 1950 is maintaining more than one legislative list and surprisingly.Another crisis is in the making in shape of KhyberPakhtunkhwa and provi ncial autonomy. The changes in Schedule IV and Article 70 of the constitution have posed new administrative challenges to provincial governments about how to shift subjects which were enlisted in concurrent list previously? But an even bigger challenge at hand is how center and province would agree on formulation of proposed implementation commission before 5th of May 2010 and how this commission is going to complete devolution of subjects to the provinces before 13 June 2011? Both dates set in 18th amendment draft. Pakistani constitution like many other federations (including India) had more than two legislative lists dealing with jurisdictions. of center and provinces.

Ethnic politics is on the rise which is another disturbing sign for the federation. Saraiki etc. It is not a secret that real agenda of ANP and other sub nationalists demanding more provinces on ethnic basis is to convert federation of Pakistan into a loosely bounded confederation with p r o v i n c e s h a v i n g m ax im u m autonomy. From its pure historic incarnation it is wrong as till 1901 the province was integral part of Punjab. Demand of further dividing province on ethnic base has got momentum as well in Hazara division. There are more non-Pushtuns in Khyber Pukhtunkhwa(KPK). Legalization of corruption. New name is not justified by any plausible reason. It is a factual error on part of many senior analysts who consider Khyber Pukhtoonkhwa(KPK) as a Pushtun majority province. Creating an independent Pakhtun state is an old agenda of sub nationalist leadership of ANP. . The clauses discussed in this write up must be re evaluated in the parliament with intense brainstorming so that a true vibrant. It was British Empire who divided Punjab on ethnic basis for its own agenda of minimizing threat of revolt from Pushtuns of Punjab and Afghanistan so British came up with a plan of divide and rule which served their purpose successfully. government is standing against judiciary once again. Changing province name in any country maybe not an issue at all but in Pakistan word “Pakhtunistan” or “Pukhtunkhwa(KPK)” has a very disturbing history which dates back to Pakistan movement in 1940s. enco ur ag ing no n d emo cratic political culture and sowing ethnic loathing in nation are few heinous things 18th amendment is going to give to already problematic Pakistan. Demography of former NWFP got changed during 1980's with a massive influx of refugees from Afghanistan BRASSTACKS 19 but they were never accepted as part of local population and would eventually leave Pakistani areas once Afghanistan achieved some durable peace. There is a real threat of confrontation among various ethnic groups in Pakistan as now many sub nationalist elements in other provinces are raising voices for new provinces by further dividing Pakistan on ethno-linguistic basis which would culminate on weakening the federation. Repercussions over this name for NWFP are already showing signs. dependable and clean democratic culture can be nurtured in Pakistan. Conclusion As a result of this amendment. Numbers of lives lost in violent incidents particularly in nonPushtun divisions of the province.program over this demand and threatened other parties to not let amendments pass if new name is not accepted. Eradication of authoritarian and non democratic clauses from constitution is mandatory for sustainable democracy in the country but the way 17th amendment has been removed it is shameful and perfidious not only for democracy but for the whole nation. There are other ethnic groups like Hazarwals (the Hindko speaking people). Demographically speaking Pakistan is a very diverse country.