18TH 

AMENDMENT – A BACKGROUND
Passed on April 8, 2010, the 18th Amendment aimed at taking away the powers of the
President to dissolve the Parliament. A brief introduction to the Constitutional history is
needed to comprehend the change. The Act of India 1935 served as the first constituent
document of Pakistan, dividing Pakistan on ethnic grounds thereby creating the fault
lines that have somewhat existed to date.
The Constitutions of both 1956 and 1962 were abrogated. In October 1958, President
Iskandar Mirza abrogated the Constitution. Then, the Constitution of Pakistan 1962 had
a very short life and was abrogated in 1969 and the power passed on to General Yahya
Khan. Yahya abolished the one-unit system opting for holding general elections on one-
man one-vote basis.
It was under General Zia-ul-Haq that the right of the President to dissolve the President
by enacting the 8th Amendment was inserted in the Constitution. Removed by Nawaz
Sharif during his second stint as the Prime Minister, the right found its way back during
the reign of General Pervez Musharraf.
The 18th Amendment brought about major changes in the Constitution of Pakistan
1973, including taking away the right of President of Pakistan to dissolve the
Parliament. However, the 18th Amendment was much more expansive in nature,
changing the very face of the governance structures.
The Constitution of Pakistan 1973 was created in a backdrop of bloodshed and the
country splitting into two in 1971. The atmosphere was one of despair. Essentially, the
Constitution laid emphasis on being based on Islamic principles. It laid emphasis on
being a Federal Parliamentary based instrument. It laid emphasis on provincial
autonomy. It laid emphasis on supremacy of Judiciary. It also laid emphasis on
Fundamental Rights. Unfortunately, it continued to flirt with the fault lines laid down in
The Government of India Act 1935.
 The Constitution of 1973 changed face when 8th and 17th Constitutional Amendments
found a way in. The changes inflicted havoc upon the democratic structure of the
document centralizing power at the expense of provincial autonomy.
The nation then saw the birth of the Charter of Democracy in 2006 – a document signed
by late Benazir Bhutto and Nawaz Sharif in year 2006 followed by an All Parties
Conference where members pledged struggle against Musharraf to establish a
democratic order in the country.
Movement to implement ‘Rule of Law’ gained momentum, leading to ouster of General
Musharraf from power. The then President Asif Ali Zardari constituted a Special
Committee of Parliament to suggest Constitutional amendments not only to stop
abrogation of the Constitution but also to create laws so that different provinces may be
free to manage the issues and needs unique to their province with greater freedom to
undertake decisions.
Out of 342 Members of National Assembly, 292 voted in favour of the 18th Amendment.
The Amendment brought about major structural changes in the Constitution:
1. It conferred powers upon the Prime Minister that he did not have making him a
powerful Head.
2. It turned the President into a toothless tiger.
3. It allowed the Prime Minister to hold the seat more than two times largely seen as
facilitation for Nawaz Sharif to become Prime Minister a third time.
4. It took away right from the courts to endorse Constitution being suspended (as
happened when Musharraf taking power where few judges opposed, and many took
oath under the PCO)
5. It took away right of the President to impose emergency rule in any province or
dissolve Parliament until with the concurrence of the Prime Minister.
6. Appointments of Chiefs of Army, Navy, Air force, Chairman Joint Chiefs of Staff
Committee and Governor to be appointed upon advice of PM. (Quoted)

INTRODUCTION:
  It is said that the most significant clause of a constitution is its amending clause (Levinson,
1995). It allows the constitution to be a living document—to evolve over time through
various amendments that enunciate collective decisions on key issues. The 18th
Amendment to the Constitution of Pakistan passed in April 2010 is one such historic
amendment that sought to decentralize power in important ways.

KEY FEATURES OF THE AMENDMENT

 STRENGTHENING KEY INSTITUTIONS
 The 18th Amendment has greatly strengthened two key constitutional institutions, that is,
the Auditor General of Pakistan and the Election Commission of Pakistan. The auditor-
general has been granted a fixed term of 4 years (Article 168), whereas, previously, the
term was to be determined by the Parliament through an Act. Other terms and conditions of
his service are to be determined by the Parliament.
 Similarly, provisions regarding the appointment and functioning of the election
commissioners have been amended to grant the office greater operational autonomy. The
term of office of the Chief Election Commissioner (CEC) has been enhanced from 3 years to
5 years. Previously, the President could appoint the CEC in his discretion, but the
Amendment prescribes a transparent procedure for the appointment. The amended Article
213 requires the Prime Minister to forward three names to a parliamentary committee after
consulting the Leader of the Opposition in the National Assembly. The parliamentary
committee is to be constituted by the Speaker and comprises at most twelve members—50
per cent from the treasury and 50 per cent from opposition parties to be nominated by
various parliamentary party leaders in the Assembly based on their respective strength.

 APPOINTMENT OF THE JUDGES

 s. A new Article (175A) was inserted in the Constitution, which created a Judicial
Commission of Pakistan for the appointment of judges to the Supreme Court, High Courts
and the Federal Shariat Court.
 The Commission was to comprise the Chief Justice of Pakistan and six other members—two
senior-most judges of the Supreme Court, a former Chief Justice or a former judge of the
Supreme Court nominated by the Chief Justice in consultation with the two judges, the
Federal Minister for Law and Justice, the Attorney General of Pakistan and a senior advocate
nominated by the Pakistan Bar Council

 DECENTRALIZING RESPONSIBILITY AND

AUTHORITY
  strengthening the position of provinces in the federation of Pakistan.
 The centralising tendencies of Pakistan’s military rulers also ensured further that the
promise of devolution in 1973 would remain unfulfilled. The 18th Amendment
abolished the concurrent list of the 1973 Constitution expanding the administrative
and legislative responsibilities of the provinces in Pakistan. The Amendment
devolved laws which govern marriage, contracts, the management of infectious and
contagious diseases, labour, educational curriculums, environmental pollution, trade
unions and forty other diverse areas to the provinces. It also altered the distribution
of resources in order for the provinces to meet the financial burden of these new
transferred responsibilities and reconfigured the inter-provincial revenue distribution
formula which now takes into account the levels of poverty (or backwardness) and
inverse population density of a province. It also renamed the North West Frontier
Province as Khyber Pakhtunkhwa. While the Amendment made significant steps
towards expanding the powers of the provinces, it did not render provincial
governments the sole governing authority within their territory. The 18th Amendment
inserted Article 140A which mandated that each province, by law, must establish a
local government system and devolve political, administrative and financial
responsibility and authority to the elected representatives of local governments.
  


The 18th amendment’s key aspects

The 18th amendment enacts more than 100 changes, both large and
small to Pakistan’s constitution. The text of the amendment as
introduced in parliament can be read here, and this annotated copy of
the 1973 constitution identifies provisions introduced by President
Pervez Musharraf, making it a useful companion piece for analyzing
the scope of the new amendment’s changes.
Limits on presidential powers:The amendment limits presidential
powers following years of a strengthened presidency under President
Musharraf’s military regime in a number of different ways. These
include:
 Removing presidential powers to circumvent the normal
legislative process and limiting the amount of time the president
may consider bills passed by parliament before approving them
(Article 75)
 Transferring the power to submit matters directly to parliament
for a yes or no vote to the prime minister (Article 48)
  Removing the infamous Article 58-2(b) instituted by President
Musharraf, which granted the power to unilaterally dismiss
parliament under vague emergency provisions
 Consulting with the outgoing prime minister and opposition
leader on presidential appointments of caretaker governments to
manage the transition to a new government when parliament is
dismissed (Article 224)
Greater role for parliament and the prime minister: The
amendment transfers greater authority to the parliament and prime
minister through the following changes:
 Establishes the prime minister and his ministers as the federal
government and transfers the position of chief executive of the
nation from the president to the prime minister (Articles 90 and
99).
 Reduces the requirement for the prime minister to consult with
the president to a duty to keep him “informed” of policy matters
(Article 46).
 Requires that the president consult with the prime minister—
whose recommendations are binding—on all choices for
provincial governors (Article 101) and military service chiefs
(Articles 243 and 260), though the president remains the office
charged with their appointments. President Zardari will likely
retain influence over these appointments as party head of Prime
Minister Yousuf Raza Gilani’s PPP, but Gilani may attempt to
assert greater control over the party through this power.
 Removes limits on prime ministers serving more than two terms
(Article 91). This measure potentially paves the way for
opposition leader Nawaz Sharif’s return to that office, though he
has yet to contest a seat for the national assembly, instead of
opting to lead his party from outside parliament.
Judiciary composition and appointments:Conflicts between the
judiciary and President Zardari’s government over judicial
appointments and the prosecution of corruption cases have steadily
mounted over the past two years. Judicial appointment procedures
have been one of the most contentious parts of the amendment, and
despite compromise agreements essentially giving the chief justice the
deciding vote on nominations Supreme Court Bar Association leaders
have indicated their intentions to challenge the new system.
Pakistan’s civilian leadership has politicized many sectors of the
country’s civil service, and lawyers’ movement leaders have fought for
a more independent judiciary since the 2007 ouster of Chief Justice
Iftikhar Chauhdry by then-President Musharraf. Greater independence
for the judiciary may increase its willingness to go after political
corruption, but it also risks entrenching a self-selecting judicial
establishment with minimal options for public input on its actions or
composition.
 Neither president nor prime minister will have a direct role in
judicial appointments under the 18th amendment. The
appointments will instead be handled by a two-tier system—a
Judicial Commission will propose nominees and a special
parliamentary committee split evenly between the government
and the opposition will confirm them (Article 175A). The seven-
member Judicial Commission will be chaired by the chief justice,
who will effectively control four of the seven seats (with the
remaining three comprising the federal law minister, the attorney
general, and a senior lawyer of the Pakistan Bar Council).
 The addition of the seventh Judicial Commission member was a
last-minute change forced by Nawaz Sharif’s PML-N, which has
increasingly sought to associate itself with the lawyers’
movement. The addition has the effect of giving the chief justice
the deciding vote in commission deliberations.
 The Judicial Commission’s nominees appear to have their
confirmation guaranteed absent an extremely high degree of
parliamentary opposition to its suggestions. Rejecting a nominee
requires a three-quarters majority from the parliamentary
committee, and absent rejection a nominee is deemed confirmed
within 14 days regardless of whether a vote was taken or not.
Federal and provincial balance of powers: Tensions between the
central government and the provinces over the distribution of authority
and revenues date back to Pakistan’s inception and have prompted
some of its most traumatic upheavals, most prominently the 1971
secession of Bangladesh. Many of the country’s leading political
parties have long demanded increased autonomy for the provinces.
The 18th Amendment takes important steps toward resolving some of
these tensions through a devolution of authority and a strengthened
role for the Council on Common Interests, a joint federal-provincial
forum.
 The 18th amendment eliminates the “Concurrent List,” an
enumeration of areas where both federal and provincial
governments may legislate but federal law prevails. Laws
governing marriage, contracts, firearms possession, labor,
educational curriculums, environmental pollution, bankruptcy,
and 40 other diverse areas will now devolve to the provinces with
the list eliminated, and each provincial assembly will be
responsible for drafting its own laws on the issues.
Reformers have touted this measure as a necessary shift for a
more federal system, but there are some concerns about the
ability of provincial governments to assume effective regulatory
authority in these areas, which they are now bound to do by
June 30, 2011.
 Another important but under-reported change now specifies that
future National Finance Commission agreements—which set the
distribution of national revenues between the central government
and the provinces—cannot reduce the provinces’ share beyond
that given in the previous agreement (Article 160). This is a
move that may prompt intensified conflict between the central
government and provinces in future rounds of revenue
distribution negotiations.
Changing the Northwest Frontier Province’s name: The 18th
amendmentcontains a substantive restructuring of the Pakistani
government system, but it is the seemingly innocuous renaming of the
country’s Northwest Frontier Province, or NWFP, that has produced
some of the most heated political rhetoric thus far and rioting in some
parts of the province that has killed up to 10. The Awami National
Party, a nationalist party and governing coalition partner with its base
of support in the NWFP’s Pashtun community, has long pushed for the
renaming in order to bring it on par with the other provinces of Sindh,
Balochistan, and Punjab—all of whom draw their names from their
dominant ethnic groups.
Former Hazara Division residents (not to be confused with the ethnic
Hazara people of Afghanistan) in the NWFP are culturally and
linguistically distinct from the rest of the majority Pashtun province,
and both the PML-N and PML-Q parties, which possess electoral
footholds in the area, oppose the change. The PML-N finally agreed to
the compromise name “Khyber-Pakhtunkhwa” at the end of March, but
the PML-Q sharply opposed the prospective name change, seeing an
opportunity to press its rivals. Leaders from both PML parties have
since then endorsed protesters’ demands for a separate Hazara
province entirely.
The increased power accorded to provincial governments under the
18th amendment is a potential incentive for parties to support the
creation of more provinces. But it is unclear how much support these
proposals will garner outside the current cycle of local identity politics
—particularly given the military establishment’s longstanding
opposition to strong provincialism within the country.


APPRECIATION OF 18TH AMENDMENT

 Unanimously adopted by parliament in 2010 after two years of the
major parties, the 18th Amendment virtually overhauled the 1973
Constitution. The amendment includes 102 important articles and has
made the 1973 Constitution more democratic.

 Connection with the Democracy

 Attachment with the democracy and abhorrence with the dictatorial rule. The
amendment paves the way for democratic rule in the future and tries to block all the
ways, which were used in the past to derail the democratic system.

 It repeals the Legal Framework Order 2002 as well as Chief Executive’s Orders of 2002
and declares that they were made without lawful authority. It also repeals the
Seventeenth Amendment which was passed during the government of Gen. Musharraf.
All of these laws have been observed as the encroachments in the constitution made
under military ruler and repealing them means the proclamation that there is no place
for dictatorship at least in the pages of the constitution of Pakistan.
 CIVIL RIGHTS
 Rights of education, fair trial and information have been added in the constitution and the
clauses about right of association have been repaired. A fair trial and due process has been
made obligatory in case of arrest and detention. The constitution for the first time provides,
through the insertion of a new article 19A the right of information under which every
citizen has the right to have access to information in all matters of public importance. Again
for the first time the duty of state for education to all children of age 5 to 16 years has been
included in the constitution.

COMPENSATION TO DEPRIVED CLASSES AND

PROVINCES
 More importantly, the 18th Amendment provides the provinces with
strong legislative and financial autonomy. Surely, there have been some
problems of capacity and coordination between the centre and the
provinces, but provincial autonomy has turned the country into a true
federation by removing the basic cause of friction among the provinces
on the distribution of resources. The system could be further improved
by the devolution of power to local governments. Unfortunately, the
political parties, which are the greatest champions of provincial
autonomy, are not willing to devolve power to the lower level.
 One argument put forward by the sceptics is that the administrative and
financial autonomy granted to the provinces under the 18th Amendment
has paved the way for a confederal structure, thus weakening the
authority of the federal government. The criticism is baseless. There
may be some issues related to security and finances but greater
autonomy strengthens the state rather than weakening it.
 A unitary form of government cannot keep a multinational country
united. A major cause of political instability in the country has been the
over-centralised rule under military regimes. That has also been the
reason for the rise of militant nationalism in parts of the country. There
is some credence to the argument that the 18th Amendment has
contributed to the country’s remaining on the path of democracy with
political transitions through the electoral process.
 A unitary or a presidential form of government does not provide the
solution to our myriad political and financial problems. Strongmen
cannot bring long-term political and financial stability, a lesson we
should have learnt from successive military rules that left the country
more divided. In fact, federalism provides greater dynamism to the
system. The provincial governments are closer to the reality and serve
the people much better.
 Perhaps the most important legacy of the 18th Amendment has been the
restructuring of the National Finance Commission award. It increased
the share of fiscal resources to the provinces to 57 per cent. The
insertion of Article 160 (3A) also required that the share of the provinces
in each NFC award could not be less than the share given in the previous
award. The amendment also gives the control of mineral resources to
the provinces, removing one of the major causes of alienation of the
smaller provinces that had accused the centre of exploitation.
 Critics of the 18th Amendment claim that the transfer of a large part of
fiscal resources to the provinces limits the financial space for the federal
government which is responsible for defence expenditure and debt
servicing that constitute the biggest chunk of the budget. But many
economists refute the argument saying that the federal government is
still left with a surplus after paying for defence and debt servicing to
meet other expenses. True, the economy is in bad shape but it is not
because of the 18th Amendment. The economy is critical to national
security but equally important is the continuation of the democratic
process, however flawed.

 The security to the shares of all provinces in all federal services has been provided through
the insertion of a sub-clause in Article 38.
 In order to remedy the conflict among the provinces, the Council of Common Interest (CCI)
will have a permanent secretariat and it shall meet compulsorily at least once in thirty days.
 CCI as an arbiter for resolution of disputes btw provinces and federal govt.
 The Federal government now, through insertion of a new provision in 157 (1) will have to
consult the concerned provincial government before taking a decision to construct hydro-
electric power station in any province.
 Politically too the provinces have been made more autonomous than before. The governor
of any province would be the voter and resident of the same province and shall not be taken
from any other province. For the imposition of emergency in a province, the requirement of
 a resolution of the concerned provincial assembly has also limited the dominance of the
Federation and increased the muscle of the provinces.
 The spellings of the names of two provinces written in the article 1 of the Constitution of
Pakistan have been corrected. Moreover North West Frontier Province has been renamed as
Khyber Pukhtunkhwa. The corrected spellings of Balochistan and Sindh and renaming of
Khyber Pukhtunkhwa mark the effort to please the regional political forces of the provinces
through recognition of their ethnic identities. Thus the perpetual claim of different ethnic
groups for the recognition of their identity has been accepted.
 To give the representation to non-Muslims in the Senate the seats of Senate have been
increased by four, the reserved seats for the non-Muslims

PRESIDENTIAL POWERS CURTAILED

 It struck down the 17th Amendment imposed by Gen Musharraf’s
government that had undermined parliament. It returned the powers to
parliament by removing Article 58(2)(b) that gave the president the
power to sack an elected prime minister.
 The Federal Government will consist of the Federal Minister and Prime Minister who would
be the Chief Executive of the Government. The President shall not appoint or invite Prime
Minister to hold office. On the other Prime Minister would be elected with simple majority
of the National Assembly. PM is only entitled to keep President informed on internal and
foreign policy and about legislative proposals not bound to tell cabinet decisions. Acc to art
48 president to function in accordance with the advice of the Cabinet or the Prime Minister.
 discretionary power of the President to dissolve the National Assembly, as in 58(2)(b), have
been deleted and for dissolution of the Assembly the President will have to follow the
advice of the Prime Minister or Cabinet.
 The dissolution of NA is discretionary power of the president only when vote of confidence
has been passed against the Prime Minister and no other member of the National Assembly
commands the confidence of National Assembly not otherwise.

 BETTERMENT OF EDUCATION
  Through it a new article, 25A, has been inserted into the constitution
that reads: “Right to education: The state shall provide free and
compulsory education to all children of the age of five to 16 years in such
manner as may be determined by law.” This is an important undertaking
by the state since education, in contemporary times, is considered an
important tool for enhancing one's chances for socioeconomic
development.
  In Pakistan, a large number of students do not have access to schools or
drop out before they reach the fifth grade. A major reason behind the
high dropout rate is poverty, and as a result a large number of children
remain illiterate and cannot become part of the literate human resource
group which is vital for the development of a country. An effective
implementation of this article of the constitution would without doubt
pave the way for enriching the national human capital.

LOOPHOLES IN THE 18TH AMENDMENT

 There are indeed some flaws left in the amendment that are dark
patches in the Constitution. While ensuring the supremacy of
parliament by removing dictatorial footprints from the Constitution it
retained some notorious clauses inducted by Gen Zia, seemingly under
pressure from the right-wing parties.
 Also some retrogressive and undemocratic clauses were introduced,
including barring non-Muslims from holding the office of president. So
discrimination against religious minorities has been strengthened under
the 18th Amendment. But the political parties shouting from the
rooftops in defence of the 18th Amendment would not mention these
flaws.
 Indeed, some provinces have experienced capacity problems in the
discharge of their responsibilities. But that can be resolved in due
course. For example, there is a need for a unified education system in
the country and for streamlining provincial laws. There is also a need for
revisiting some of the clauses of the amendment to remove the
incongruities. While protecting the devolution of power one must accept
that the Constitution is a living document and can be changed to make it
more workable. This can only be done through elected representatives.