Professional Documents
Culture Documents
18th Amendment Research
18th Amendment Research
“The Constitution is not an instrument for the government to restrain the people; it is an
instrument for the people to restrain the government” (Patrick Henry) 1736-1799
2
2. Introduction. Eighteenth Amendment Act to 1973 constitution was unanimously passed with
the support of all political parties in the Parliament and was promulgated on 20 April 2010. The Act
includes 102 amendments in all, which amended, substituted, added or deleted various provisions
of the Constitution of the Islamic Republic of Pakistan. The Amendment has huge implications on
the overall allocation of subjects between the Federation and the provinces, entailing a structural
shift in the roles and responsibilities at the provincial level. The concurrent list (with 47 subjects)
stands abolished while the provinces have been given the additional responsibilities to handle the
business of 17 federal ministries. Importantly, the provinces now have an exclusive role in policy-
making in crucial sectors such as health, education, agriculture and environment to name a few.
th
While the 18 Constitutional amendment may augur well for the future of the federation, it remains
to be seen if it has a positive impact on the existing governance and service delivery regime. ‘Will
the shift in responsibilities to the provincial tier have the desired impact on the lives of the common
man? Given the human, financial and other resources at the disposal of provinces, will they be able
to cope with the additional responsibilities? These were some of the questions asked during the
constitutional reforms process. These questions are still relevant, more so for the policy makers and
implementers functioning at different tiers of government.
th
At the provincial level, the process of 18 Amendment should necessitate hiring of core staff in the
departments, including their training or re-designation to fulfil the requirements of effective policy
process. Environmental experts, engineers, archaeologists and finance specialists will now be needed
with the new powers at the provincial levels (especially in the smaller provinces). The provinces will
also need to get down to the serious business of framing new laws and ensuring that they are no
replicas of archaic colonial legal frameworks. This amendment has provided an opportunity for
provincial legislatures to review outdated, conflicting or discriminatory laws, as well as to close gaps
in the legislative framework for development and public welfare at a devolved level.
The detractors of this process allege that the post-18th Amendment changes were done in haste and
lack any imagination. Instead of thinking out of the box, many of the functions of the abolished
Ministries/Divisions have been retained at the Federal level – rather ‘dumped’ with other Divisions
like Cabinet, Inter-Provincial Coordination and Planning and Development. It is
argued that the under-performance and weak capacities of these institutions was already a matter of
concern, and that they will find it difficult to adapt to the newer role. Further, many legal,
3
administrative, financial and capacity issues need to be addressed at the provincial level to make the
th
18 amendment work in addition to considerations of collaboration and coordination with the federal
government in many areas of national concern. It is understood that extensive and detailed work still
needs to be done to effectively implement the Amendment. The provincial governments also need to
institute governance reforms, prioritize expenditures and increase own revenues. Given this
background, this paper will carry out a strategic appraisal of crucial sectors of education, health and
th
agriculture and assess the impact of the 18 Constitutional Amendment on the prevailing governance
And service delivery regime in these areas………….
3. Aim. To carry out an in-depth analysis of 18th Amendment Act and its overall
expected / anticipated effects, while laying focus on ensuing devolution of provincial
autonomy and its implications.
4. Sequence of Presentation
a. Part I –
b. Part II
c. Part III
d. Part IV
4
PART – I
h. The constitution also gave the definition of a Muslim. A person who believes in
Tauheed or Oneness of Allah and in the prophet hood of Hazrat Mohammad
(P.B.U.H) as the last prophet of Allah was described as a Muslim.
i. Laid down that only Muslims would be elected as President and Prime Minister of
Pakistan.2
imposed two duties on them, loyalty to the Republic and obedience to the law. 5
l. The Constitution conferred several fundamental rights to the people such as the
right to life, liberty, equality and freedom of speech, trade and association.6
b. 2nd Amendment. This was passed on 21 Sep 1974, it explains as who is a no-
Muslim. Through this act Ahmedis were declared as Non Muslims explicitly.
c. 3rd Amendment. This act was passed on 18th Feb 1975. It was introduced to
curtail rights of detainees and more powers were given to detaining
authorities for preventive detentions.
d. 4th Amendment. This act was passed on 25th Nov 1975. Through this
constitutional jurisdiction of High court were forbidden in grant of bails to
persons in preventive detention7. Constitutional jurisdiction of High Court
was also curtailed in matters of grant of stay on recovery assessments,
collection of public revenue etc. The most redeeming feature of this act
was allocation of six special seats to the minorities in National Assembly
and Provincial Assembly ( Punjab 3 to 5)8
e. 5th Amendment. This act was passed on 15th Sep 1976, Major changes brought
by this act9 were as under:-
(1) The Governor of the province was not be a permit resident of that
province.???????????
(2) Period of separation of judiciary from executive was enhanced from three
to five years.???????
(3) Chief Justice of Supreme Court will hold office for a pd of five years ,
unless he retires on completion of 65 years of age before that
(4) Certain other amendment with regards to tenure of judges and
restriction of jurisdiction of supreme court to issue directions was
restricted to what is granted in constitution only
f. 6th Amendment. This act was hurriedly passed on 4th Jan 1977 and mainly
dilated upon the extension of tenure of Chief Justices beyond the age of
retirement10.
g. 7th Amendment. This act was passed on 16th May 1977. This amendment
provisioned to demonstrate confidence in the Prime Minister.???? Moreover
7
Constitution (Fourth Amendment) Act, 1975 Act LXXI of 1975. PLD 1975 Central Statutes 337.
8
Khan, Hamid, Constitutional and Political History of Pakistan, Edition 2001, pp.523-24.
9
Ibid. pp.532-36.
10
Ibid., pp 538
8
this amendment barred the High Court from exercising jurisdiction to any
area wherein Armed forces were acting in aid of civil power?????.
h. Revival of Constitution 1973 Order and 8th Amendment. Supreme Court of
Pakistan, in the case titled Nusrat Bhutto V Chief of Army Staff conferred the
power to amend constitution to on General Zia-ul-Haq. Exercising such powers
Gen Zia on 2 Mar 1985, comprehensively amended the constitution
through a Presidents’ Order known as Revival of Constitution 1973 Order
1985 11(RCO). The RCO made fundamental alterations in the constitution and
as many as sixty five articles out of total 280 were amended / altered
/substituted / added/modified/ deleted/ omitted. Important salient of RCO and
8th amendment are briefly enumerated as under.
(1) RCO
(a) Objective Resolution 1949 was made part of the constitution
with significant modification pertaining to minorities.
(b) Electoral College for election of President was modified so as
to include both houses of Parliament and all four Provincial
assemblies.
(c) President was empowered to dissolve the National Assembly at
his discretion.
(d) Seats reserved for women in National Assembly increased from ten
to twenty.
(e) Member in senate was raised from sixty three to eighty seven
including five seats for technocrats
(f) Time period provided for President / governor to assent to bills
passed by respective National/ Provincial assemblies was increased
from seven to forty five days.
(g) President / Governor could appoint any member of the National /
Provincial Assembly as Prime Minister / Chief Minister respectively,
who in his opinion could command the confidence of a majority of
the members of respective Assembly.
11
Ibid. pp 668-74
9
12
Ibid. pp. 817-18
13
Constitution (Fourth Amendment) Act, 1975 Act LXXI of 1975. PLD 1975 Central Statutes 337.
14
Ibid. pp.927-30
12
votes in favour and 15 against it. The Bill was initially not presented before the
Senate since Nawaz Sharif did not have simple two third majority.
Nevertheless, in 1999 the Nawaz Sharif’s Government was overthrown by
General Musharraf in Oct 1999. Significant clauses of the bill were as under:-
(1) The Holy Quran and Sunnah of Holy Prophet(Peace be Upon Him)
shall be the supreme Law of Pakistan
(2) Federal Government shall be under obligation to enforce shariah, to
establish salat, to administer Zakat, to promote Amir Bil Maroof and
Nahi Anil Munkir.
(3) Federal Government may issue directives for implementation of the
clauses and may take necessary action against state functionaries
for non-compliance of said directives.
(4) Bill to amend constitution to remove any impediments in enforcement of
matter relating to Shariah, may originate in either House and if passed by
simple majority could be transmitted for approval of other House.
p. 16th Amendment. Sixteenth Amendment was promulgated on 5th August 1999 to
extend the quota system in services until August 2013.
q. Legal Frame Work Order (LFO) and Seventeenth Amendment. After the over
throw of Nawaz Sharif Government, the Supreme Court of Pakistan granted
power to General Musharraf to amend the constitution. General Musharraf
in exercise of such powers promulgated ‘Legal Frame Work Order 2002’
(LFO).
(1) LFO. Important features of LFO are enumerated below:-
(a) Political parties are required to hold intra party elections to elect
their office bearers and party leaders.
(b) Seats in National Assembly were increased to 342 with 60 seats
reserved for women and 10 seats reserved for non-Muslims.
(c) President was again empowered to dissolve National Assembly at
his discretion. Article 58(2) (b) was revived.
(d) New disqualifications for members of parliament were added.
(e) Article for defection clause was amended.
13
maximum powers and amid Nawaz’s experience of being victim of Article 58(2)
(b). Throughout Pakistan's political history, horse-trading and defection within
various parties created problems. Through the Fourteenth Amendment Nawaz
Sharif also addressed the problem of defection by parliament members. The
Fifteenth Amendment which could not be passed was also presumed to be an
effort by Nawaz to acquire additional powers for himself.
d. Gen Musharraf 1999- 2008. Legal Framework Order 2002 has been sanctified
by postulating that nobody can challenge it in any court of law "on any ground
whatsoever." Many believe that the L. F. O. 2000 has been enforced without
any regard for the Constitutional and democratic norms and proprieties. LFO
not only repealed the thirteenth amendment but also authorized the President to
enjoy the power of dismissing the Prime Minister along with his Cabinet and the
Parliament. With the adoption of the Legal Framework Order 2002, Pakistan
was virtually advanced from the parliamentary form of government to the
presidential system. Through Seventeenth Amendment basically the Legal
Framework Order 2002 was accepted as part of the Constitution with minor
modifications. 17th amendment also favoured the continuation of Gen
Musharraf’s as President by making Article 63(1) (d) of the Constitution
inoperative till December 31, 2004. Article 63(1) (d) deals with the
disqualification for membership of Parliament. Amid suspension of this article,
Gen Mushaarff became eligible to be elected as President while holding the
office of COAS.
a. Rationale for the Seventeen Amendments. If we carry out a critical appraisal
of the rationale / reasons which lead to these Seventeen amendments, it will be
evident to us that most of the amendments were either incorporated to benefit
the individual leaders and to extend / support tenure in their respective offices
or were triggered amid other political motives. The attached Annexure reveals
that very few Amendments were made to improve the Governance in the
country, to protect human rights or to strengthen the democracy. Since it’s been
39 years since the 1973 Constitution has been promulgated; therefore average
17
democracy. Interestingly, since it’s been 225 years since the US constitution
has been promulgated; therefore average median time the US Constitution has
been subjected to amendment comes to around after every eight years.
amendments must also be ratified by the states. The attached Annexure bring to
light that out of the total 97 x amendments, x amendments were made to protect the
human rights, 43 x amendments were made to strengthen democracy / federation
while 34 x amendments were made to improve day to day governance in the
country. Taking cognizance of culture of subcontinent, Indian constitution was
also subjected to 5 x amendments, which were brought in support of leaders /
Individuals at helm of affairs. Another fact about the amendment worth
highlighting is that 13 x amendments were incorporated to cater for aspiration of
scheduled casts, whereas 9 x amendments were made to curb the insurgency in
the State of Punjab.
11. Constitution of Nigeria and its Evolution. Nigeria has had a series of
constitutions. The current constitution was enacted on 29 May 1999, inaugurating
the Nigerian Fourth Republic. Nigeria's first constitution as a sovereign state was
enacted by a British order in council so as to come into force immediately upon
independence, on 1 October 1960. Under this constitution Nigeria was a Common
Wealth Monarchy sharing its ceremonial head of state with the United Kingdom and a
number of other countries such as Canada. Independent Nigeria's second constitution
established the country as a Federal Republic and came into force on 1 October 1963
(Nigeria's third anniversary as an independent nation). The 1963 constitution, which
was based on the Westminster system. This system continued in operation until a
military coup in 1966, which overthrew Nigeria's democratic institutions. The 1979
constitution, which brought in the Second Republic, abandoned the Westminster
system in favour of an American -style presidential system, with a directly elected
executive. The 1979 constitution was again overthrown by a military coup on the last
day of 1983. The 1993 constitution was intended to see the return of democratic rule
to Nigeria with the establishment of a Third Republic but was never fully implemented,
and the military resumed power until 1999. The 1999 constitution restored democratic
rule to Nigeria and remains in force today. In January 2011, two amendments of the
1999 constitution were signed by President Good luck Jonathan, the first modifications
since the document came into use in 1999.
20
PART – II
Generic Appraisal of 18th Amendment Act (1973 Constitution)
1. Composition - Parliamentary Review Committee.15 26 - Member all party
Parliamentary Committee on Constitutional Reforms was established on June 21, 2009
and formally it started its work in the second week of July. This committee was headed
by Senator Mian Raza Rabbani. The 26 members committee included only 11 members
from mainstream political parties, i.e. PPP and PML and PML (N). Party wise
composition of the committee was as under :
a. PPP: 5
(1) Senator Mian Raza Rabbani
(2) Raja Pervez Ashraf, Minister for Water & Power
(3) Syed Naveed Qamar, Minister for Petroleum & Natural Resources
(4) Dr. Babar Awan, Minister for Law Justice & Parliamentary Affairs
(5) Senator Lashkari Raisani
b. PML (N) : 3
(1) Senator Muhammad Ishaq Dar
(2) Sardar Mehtab Abbasi, MNA
(3) Ch Ahsan Iqbal, MNA
c. PML (Q) : 3
(1) Senator Waseem Sajjad, Leader of Opposition
(2) Senator S. M. Zafar,
(3) Humayun Saifullah Khan, MNA
d. MQM : 2
(1) Dr Farooq Sattar, Minister for Overseas Pakistanis
(2) Syed Haider Abbas Rizvi, MNA
e. ANP : 2
(1) Senator Afrasiyab Khattak,
(2) Senator Haji Muhammad Adeel
15
Constitutional Reform Committee Report on 18th Amendment
21
f. JUI (F) : 2
(1) Maulana Fazal-ur-Rehman, MNA
(2) Senator Rehmatullah Kakar
g. Misc Parties : 9
(1) Senator Justice ® Abdur Razzaq Thahim, PML(F) Minister Local Govt
(2) Senator Israrullah Zehri, BNP(A), Minister for Postal Services
(3) Senator Prof. Khursheed Ahmed, JIP
(4) Senator, Dr Abdul Malik, NP
(5) Aftab Khan Sherpao, MNA, PPP(S)
(6) Ghulam Murtaza Jatoi, MNA, NPP
(7) Senator, Abdul Rahim Mandokhel, PKMAP
(8) Senator Shahid Hassan Bugti JWP
(9) Munir Aurakzai. MNA, IND
2. Time Template. 16It is pertinent to mention here that the 26-member Committee on
Constitutional Reforms was established on 21 June, 2009 and formally it started its
work in the second week of July. Committee proposed the 18 th Amendment bill after
thus the Committee has spent about 385 hours during its deliberations in nine months
and ten days. In the light of the above, the Committee proposed amendments to 97
Articles in the Constitution of the Islamic Republic of Pakistan, through (Eighteenth
16
Ibid.
17
Ibid, pp 7
22
committed to restore the 1973 Constitution and to initiate reforms aimed inter alia
at holding ‘free and fair’ elections. These environments made the political scene
conducive to develop a consensus on overthrowing the clauses /amendments
which have hurt either of the major political parties one time or the other. Beside
the broad consensus all political parties had their own individual agendas also,
which they were looking forward to contemplate through these amendments.
Competing political interests / agendas of political parties were in shape of
omitting Intra party election, lifting of ban from third term of prime minister,
changing the name of provinces or repealing the qualification clauses for election
to the parliament. These interior motives of political parties coupled with genuine
need to restore the constitution in its original spirit and motivated them in
developing broad consensus on the policy of give and take. Individual aims /
agendas specific to a particular party shall be highlighted while we give an over
view of the 18th amendment. Under this prevailing favourable environments,
President Zardari asked the Speaker of the National Assembly to constitute an
all-party committee of both Houses of Parliament, to propose amendments to the
Constitution in light of the Charter of Democracy. It was commonly understood
that this was intended to rid the constitution of 17th amendment and to bring it in
line with the spirit of Charter of Democracy.
18
Constitution of Islamic Republic of Pakistan
25
matters enumerated in this list. The Concurrent Legislative List (CLL) (47 subjects)
contained provisions related to criminal law, criminal and civil procedure, evidence,
marriage, wills, bankruptcy, arbitration, contracts, transfer of property, removal of
prisoners, preventive detentions, explosives, drugs and medicines, environment,
population and social welfare, welfare of labour, trade unions, regulation of labour,
electricity, curriculum, syllabus, standards of education, Islamic education, Zakat,
tourism, legal, medical and other professions and fees and statistics related to any
matter in this list. These subjects fell under the concurrent domain of Parliament and
Provincial Assemblies. The residuary subjects (not contained in any list) fell under the
exclusive domain of provinces.
6. Overview of 18th Amendment19. The Constitution20 (Eighteenth Amendment) Act,
2010 was unanimously passed with the support of all political parties in the Parliament
and was promulgated on 20 April 2010. The Act includes 102 amendments in all, which
amended, substituted, added or deleted various provisions of the Constitution of the
Islamic Republic of Pakistan. Beside its overall impact, the Amendment also has huge
implications on the allocation of legislative subjects between the Federation and the
provinces, entailing a structural shift in the roles and responsibilities at the provincial
level. An overview of major Clauses of 18th Amendment in the order of precedence /
linkage with scope of seminar are enumerated as under :-
a. Abolishment of Concurrent List.21 18th amendment, abolished the Concurrent
Legislative List (CLL) bringing all subjects contained therein, with certain
exceptions, under the exclusive domain of provinces. Subjects like (Lotteries,
duties in respect of succession to property and estate duty in respect of
property) were deleted from FLL-I bringing them in the exclusive domain of
provinces. Few subjects from FLL-I (major ports, national planning and national
economic coordination, census and extension of powers of police force to other
provinces) and CLL (electricity and legal, medical and other professions)
were moved to FLL-II; besides, some new entries (regulatory authorities under
19
Constitutional Reform Committee Report on 18th Amendment, Annex E.
20
Report, Strategic Appraisal of 18th Amendment , Senior Management Wing National Management College
21 Hamid, Shahid, Briefing Paper on 18th Constitutional Amendment at PILDAT Jul 2010
26
Council should meet at least once in 90 days. Overall, due to this Amendment,
18 federal ministries would cease to exist, with most of their functions
devolved to the provinces.
(The aspect of devolution and its related ramification shall be handled in detail
in the next presentation / part)
b. New Entries in Federal List - Part II. In view of abolishment of concurrent list
few subjects enumerated below have been transferred to Part II of federal
legislative list22. The change means that all policy decisions on these subjects
will henceforth be within the domain of the Council of Common Interests:-
(1) Electricity.
(2) Major Ports.
(3) All regulatory authorities established under the federal Law.
(4) National planning, national economic coordination and scientific /
technological research.
(5) Supervision and management of public debt
(6) Census.
(7) Extension of powers and jurisdiction of police force belonging to
any province.
22
Ibid.
27
23
Ibid.
24
Ibid.
28
25
Constitutional Reform Committee Report on 18th Amendment
29
26
Constitutional Reform Committee Report on 18th Amendment, Para 60.
27
Ibid. Annex E
28
Ibid
29
Constitutional Reform Committee Report on 18th Amendment.
30
not be able to delay its processing. This clause virtually empowers the head
of the majority party or coalition of parties to dictate who the prime
minister will be.
i. Intra - Political Parties Elections. As per Article 17,30 beside other things
Intra Political parties Elections has been done away on the pretext that
Political parties act 1962 already provides for such elections. As per
analysis31 of Mr Asif Ezdi, ex member of Pakistan Foreign Service, The way has
thus been cleared for the seamless succession of the next generation illustrious
political dynasties of country, which dominate Pakistan’s political arena.
j. Removal of Ban – Third Term Office of PM / CM. The restriction on a person
to be a third time Prime Minister / or Chief Minster has been removed.
k. Renaming of NWFP / Provinces. The North West Frontier Province32 has been
renamed as Khyber Pakhtunkhwa. Although soon after being renamed, it has
become controversial especially in the Hazara Division.
l. Size of Cabinet. The Number of Ministers, inclusive of State Ministers has
been restricted to 11 % of the total membership of the parliament i.e. 49
out of 446 members parliament. Nevertheless, the provision is to be effective
after next general elections.
m. Appointment of Judges. The appointement of judges shall be done by
seven members’ judicial commission headed by the Chief Justice of
Pakistan. The recommendations of judicial commission shall be sent to an
eight member Parliamentary committee with power to reject the
recommendation by not less than three fourth majority.????(19th
amendment)
(Eventual fate of this amendment has to checked)
30
Hamid, Shahid, Briefing Paper on 18th constitutional amendment at PILDAT Jul 2010
31
http://article.wn.com/view/2010/04/26/Monday_April_26_2010_By_Asif_Ezdi/
32
Constitutional Reform Committee Report on 18th Amendment.
31
p. Omission of Sixth and Seventh Schedule. The Sixth and Seventh Schedules
to the constitution have been omitted36. Sixth Schedule (attached as Annexure
.......) included thirty five laws, which could only be amended with the prior
consent of the President. Seventh Schedule included eight laws which could
only be amended in the manner provided for amendment of the constitution.
Now these laws will be treated as any other law on the statue books37.
q. Local Governments. Article 140-a related to devolution of power to local
Governments has been retained and expanded to provide that elections to
local Governments shall be held by the Election Commission of
Pakistan.38
r. Executive Authority of the Federation. After substitution of Article 90; Now the
Executive Authority of the Federation shall not vest in the President be
33
Ibid, Para 20 & 21
34
http://pkpolitics.com/2010/04/03/summary-of-18th-amendment/
35
Constitutional Reform Committee Report on 18th Amendment, Para 23
36
Ibid, para102 &103
37
Hamid, Shahid, Briefing Paper on 18th constitutional amendment at PILDAT Jul 2010
38
Ibid.
32
39
Constitutional Reform Committee Report on 18th Amendment, Para 28
40
Ibid, Para 4
33
(2) .
(3) Stance of Judiciary on 18th Amendment (spec on appointment of judges
in particular and overall 18th amendment in general).
(4) Provinces’ Stance / take on Amendment (Pre, Post and Now).
b. General Perception / Understanding of 18th Amendment.
(1) General Perception of People and Masses.
(2) Survey of Participants of NSWC 2012/ 13; based on Simple Key
Questions:-
(a) Has quality of Governance improved post 18th amendment?
(b) Has 18th Amendment achieved desired objectives?
(c) Has rationale for which 18th amendment was introduced met;
largely, partially, not at all?
(d) Is 18th amendment an end in itself or mean to an end?
(e) ______________________
(f) --------------------------------------------------
(g) ______________________
(h) ______________________
(These questions shall also form the basis of research for seminar and shall be On the
omission of the Concurrent Legislative List, the
process of devolution of the matters mentioned in the said List to the
Provinces shall be completed by the thirtieth day of June, two thousand and
eleven.
(9) For purposes of the devolution process under clause (8), the
Federal Govefll!l1ent shall.conStitute an Implementation Commission as it
may deem fit within fifteen days of the commencement of the Constitution
(Eighteenth Amendment) Act, 2010.",
PART – III
PART – IV