18th Constitutional Amendment

The passage of 18th Constitutional Amendment is a landmark event in the history of Pakistan.
The Special Committee of the Parliament headed by Senator Mian Raza Rabbani tirelessly and
very meticulously worked on the draft of the Constitutional Amendment. It was a rare moment
when the parliamentary parties have forged consensus on issues of national importance. This
historic move has amended around 102 Articles and restored the Constitution to its original
shape representing a true parliamentary federal structure.

Amendment XVIII (the Eighteenth Amendment) of the Constitution of Pakistan, was passed by
the National Assembly of Pakistan on April 8, 2010, removing the power of the President of
Pakistan to dissolve the Parliament unilaterally, turning Pakistan from a semi-presidential to a
parliamentary republic, and renaming North-West Frontier Province to Khyber Pakhtunkhwa.
The package is expected to counter the sweeping powers amassed by the Presidency under
former Presidents General Pervez Musharraf and General Muhammad Zia-ul-Haq and to ease
political instability in Pakistan.

The 'historic' bill reverses many infringements on Constitution of Pakistan over several decades
by its military rulers.The amendment bill was passed by the Senate of Pakistan on April 15, 2010
and became an act of parliament when a smiling President Asif Ali Zardari put his signature on
the bill on April 19, 2010. It was the first time in the history of Pakistan that a president
relinquished a significant part of his powers willingly and transferred them to parliament and the
office of the prime minister

Highlights of the 18th Constitutional Amendment:

 Amendment to Article 6 seeks to pre-empt military coups in future

 Article 58(2b) to be repealed, substituted with ‘Dissolution of National Assembly’

 President may dissolve NA in case no-confidence vote passed against PM

 Total strength of cabinet should not exceed 11% of total membership of parliament
 Governor should be a resident and registered voter of his/her province, he/she would be
appointed by president on prime minister’s advice
 Provinces required by law to establish local government systems, devolve political,
administrative and financial responsibility and authority to elected representatives
 PM to be chairperson of CCI, members to include CMs, 3 members from federal govt
 Amendment to Article 157 says federal government must consult provincial government
before installing hydroelectric power stations in any province
 PM to forward three names for office of CEC, in consultation with opposition leader in
National Assembly, to a parliamentary committee for confirmation
 Committee proposes insertion of Article 175(a) to deal with appointment of judges to Supreme
Court, high courts, Federal Shariat Court
 Committee proposes substitution of Article 243, says federal government ‘shall have control
and command of armed forces, supreme command of armed forces shall [rest with] … president

 President to appoint Joint Chiefs of Staff Committee chairman, chief of army staff, chief of
naval staff, chief of air staff
 NWFP will be renamed ‘Khyber-Pakhtoonkhawah’
 State will provide free, compulsory education to children aged between 5 and 16 years
 Amendments to Clause 1 seek substitution of ‘Baluchistan’ with ‘Balochistan’, ‘Sind’ with
‘Sindh’
 Insertion of clause sought to bar persons acquiring citizenship of foreign country from
contesting elections to parliament
 All elections under constitution, other than those of PM and CM, to be by secret ballot.

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.
The changes, however, were not well analysed. The short-sighted formation of the Amendment
is briefly but succinctly touched upon in a Dawn Editorial:
“Oddly, our parliamentarians didn’t see it fit to address even those of Gen Zia’s clauses that
directly impact them: the qualification and disqualification criteria in articles 62 and 63 that have
been infused with an ‘Islamic’ spirit. And stranger yet for a federal government formed by a
coalition of the country’s most secular parties, the clause dealing with the prime minister’s
election has been amended to make only Muslim members of the National Assembly eligible as
candidates. True, the oath of office that the prime minister has to take (set out in the third
schedule of the constitution) has always made clear that he/she has to be a Muslim and,
realistically speaking, there is a remote chance of a non-Muslim candidate emerging for the
prime minister’s slot. But it is an odd message to reinforce: don’t bother applying, you are
second-class citizens. That is what the government seems to have told the country’s religious
minorities.
Perhaps the government was afraid that visiting the Islamic clauses issue in this round of
constitutional change would have made the whole package controversial and jeopardize the
repeal of the 17th Amendment and the enhancement of provincial autonomy — the key demands
as we speak. Going forward though this should be less of a concern. If it means taking on the
fringe, ultra-conservative elements in politics and society, then so be it. There is something
terribly peculiar about the argument that a military general who toppled a government and
executed a prime minister before disfiguring the constitution drawn up by the country’s elected
representatives could be introducing ‘God’s laws’ which by definition are sacrosanct and
untouchable. Gen Zia exploited religion in the most cynical and destructive way possible to
prolong his hold on power. Parliament must undo the legacy of Gen Zia, and to do so it must re-
examine the Hudood and blasphemy laws too” (April 10, 2014).
Whereas there were many changes made in form of the 18th Amendment, the basic structures of
Article 62 and 63 was left untouched.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.

18th Amendment impact:

Pakistan’s parliament has passed the 18th Amendment’s that, among other changes, gives
the provincial governments greater autonomy under the constitution by abolishing the
concurrent list and other related provisions. The full impact of the amendment’s many
changes has yet to be fully analyzed and deliberated by key stakeholders.

The 18th amendment eliminates the “Concurrent List,” i.e. the 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 in 40 other diverse areas the provinces would have
exclusive jurisdiction and each provincial assembly will be responsible for drafting its own
laws on the issues. The 18th constitutional Amendment potentially impacts the mandate of
several Federal Ministries and by implication increases the roles and responsibilities of the
related institutions and administrative structures at the provincial level.

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). Provincial governments also now have
greater authority to raise domestic and international loans and give guarantees on the
security of Provincial Consolidated Fund. (Source: United Nations Development
Programme)

18th Amendment And Provincial Autonomy?

The people of small provinces were once again cheated away and the promise of provincial
autonomy was largely limited to cosmetic changes and use of buzz words such as abolition
of the concurrent legislative list containing subjects where the Federal government and the
four provincial had shared jurisdiction prior to the 18th amendment. Indeed, it was the long
standing demand of provinces to do away with concurrent list and restore sole provincial
 jurisdiction as provinces had enjoyed under British before Pakistan was created. What
actually has happened under the 18th amendment that the central government has assumed
the jurisdiction over most important subjects and let provinces have jurisdiction over less
important subjects. On top of this, a provision (Article 143) that before 18th amendment
allowed the federal government to enact laws only in the subjects covered under federal
legislative and concurrent legislative list have been extended giving authority to the Federal
legislature to void any acts passed by a Provincial Assembly. This means that an act passed
by a provincial assembly in a subject area that is totally under the jurisdiction of the
province can be voided by an act passed by the Federal legislature with simple majority.
Before 18th amendment such an act would have required a constitutional amendment. In a
country such as Pakistan, where one province had more members in the National Assembly
than the combined total of other provinces, this change gives the largest province of
Pakistan to override any provincial laws with ease as it could easily muster simple majority
from that province alone.

Questions raised by the 18th Amendment

The discussion on the 18th Amendment also raises several important questions:
Should the Federation absolve itself of its overall check and balance authority upon the
provinces?
Should the federal structure allow a variety of policies on same issue by different provinces?
What if there is conflict between the Provincial and Federal Government in how the approach
each subject?
Does the current arrangement make the Federal structures less effective?
Though supporters of the 18th Amendments say strong provinces ensure strong centre….. has
this happened on ground?
Were and are the provinces strong enough to rise to the challenge and take advantage of this
huge change in shape of 18th Amendment?
These are the questions that need to be answered by the Parliament while deciding on how to
govern the country in the near future.
Conclusion
A debate which often makes rounds in the media that some hidden hands want the reversal of the
said amendment. This is understandably an unsubstantiated allegation because of many reasons.
One, it is the Parliament which has the power to amend the laws or the Constitution. Two,
amendment in the Constitution requires two-third majority from both Houses. Three, reversal of
this amendment is not possible in anyway however amendments can be made by the parliament.
In that case, there is no harm if the people-elected have mulled over certain changes if needed.
Four, if amendment is contemplated which distorts the shape of the Constitution or the provincial
autonomy is undermined against the wishes of people, people of the federating units will resist
such attempts. Five, doors for dictators have been shut for good. Hence, the myths of reversal of
the 18th Constitutional amendment are debunked.
((The 18th Amendment has created a governance gap; where it has removed the Federal
umbrella, funneling finances to provinces without checks and accountability. The recent
revelations in the “Fake Accounts Case” in Sindh, if proved, will reflect the weakness of the
federation, but not necessarily at the cost of strengthening of the provinces. The
18th Amendment has so far not offered much to the common man and has neither managed to
lead to a smoother interaction between the federal and provincial levels.
Should PTI wish to put the house in order on this front, it is faced with a strong opposition,
having weak numbers but in the National Assembly and Senate. It is, therefore, all a game
of numbers. Even if a revisit is sought, one doubts much will come out of it. Which pretty
much leaves us with a constitution based on the Act of India 1935, the Articles included and
changed by Gen Zia and the 18th Amendment all joining together to create a recipe for
disastrous governance.))

http://www.pakistani.org/pakistan/constitution/amendments/18amendment.html

https://dailyurducolumns.com/column/dr-rasheed-ahmad-khan/18-wi-aaeni-tarmeem-aur-is-
ke-siyasi-muzmirat.aspx

https://crss.pk/story/the-18th-amendment-debate-in-pakistan/

https://nation.com.pk/13-Jul-2019/dissecting-18th-constitutional-amendment

http://www.cssforum.com.pk/general/news-articles/50945-18th-constitutional-amendment-
provincial-autonomy.html