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Decoding 18" Amendment

» Overview and Background

The Constitution of Pakistan, promulgated on 14th August 1973, originally

provided a parliamentary democratic system for Pakistan where executive
powers were vested in the Prime Minister (and federal minsiters), though,
subject to the general oversight of the parliament. Likewise, the executive
authority of the provinces rested with the chief ministers (and provincial
ministers) who were made accountable to the respective provincial
assemblies. The office of President at federal level and those of governors at
provincial level were kept symbolic in nature, in line with the norms and
spirit of parliamentary democracy.

However, in less than four years of promulgation of constitution, General Zia

ul Haq, the then Chief of Army Staff, imposed martial law on 5th July 1977.
In addition to holding the office of Chief martial law administrator, General
Zia ul Haq also assumed the office of President of Pakistan on 16th September
1978. After having ruled for almost 7 years, he confirmed for himself another
term of 5 years as President through a referendum held on 19th December
1984 following which general elections were held on non party basis on
February 28, 1985 under the Martial Law. The new parliament passed 8th
amendment to the constitution whereby unprecedented powers were
transferred to the President which virtually transformed the constitution
from parliamentary to semi-presidential. President held sway over the
political system to such an extent that he could send the elected government
packing by dissolving National Assembly under the infamous Article 58(2)(b).
Martial Law was then lifted on 30" December 1985. Four elected assemblies
were dissolved subsequently by the Presidents under Article 58 (2) (b) during
1988 to 1996.

The 8th amendment was, however, undone and Constitution was restored to
its original parliamentary spirit through 13%» amendment in 1997. However
General Pervaiz Musharaf overthrown the civilian Government by suspending
the constitution on 12th October 1999. Following the suit of his predecessor
Military Ruler, Zia ul haq, General Musharraf secured a 5-year presidential
term, in uniform, through a referendum held on 30th April 2002 following
which general elections were held on 10th October 2002. The parliament
constituted as a result of these elections passed 17th amendment, on 31st
December 2003. The 17» amendment was almost similar to 8" amendment,
under which the office of President was invested with enormous powers
including the powers to dissolve assemblies.

During the rule of General Pervaiz Musharaf, the exiled leadership of

Pakistan Peoples Party and Pakistan Muslim League (N) signed the famous
Charter of Democracy on May 14th 2006 wherein the leadership of both

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parties, inter-alia, pledged to do away with the amendments in the

constitutions introduced by military dictators, if they came to power.

» Constitution of a Special Committee of the Parliament

The Pakistan People’s Party came in to power as a result of General Elections

2008. The President of Pakistan, Asif Ali zardari, wrote a letter to Prime
Minster on 9th April 2009 for taking measures to free the constitution from
amendments introduced by dictators upon which a motion was approved by
the National Assembly to this effect on 10th April 2009 and by Senate on 29th
April 2009. A twenty-seven (27) member’s parliamentary committee for
constitutional reforms was constituted by Speaker National Assembly. The
committee included representation from all political parties and independent
members?*. The committee unanimously elected Mian Raza Rabbani as its
chairman. The committee set following objectives for amending the
constitution’.

Transparency in System

Minimalizing Individual Discretion

Strengthening Parliament and Provincial Assemblies

Provincial Autonomy

Independence of Judiciary

Further Strengthening Fundamental Rights

The Question of Merit

Good Governance

Strengthening of Institutions

It was decided that decisions would be taken through consensus, though any
member or party may express its stated position through a “note of
reiteration”, but all the members agreed to vote for the majority decisions. On
the basis of the unanimous proposals of the committee, the 18th Amendment
bill was adopted by the National Assembly on 8th April 2010 and by Senate
on 15% April 2010. The President of Pakistan signed the bill on 19th April
2010 thereby making the 18" amendment Part of the Constitution of
Pakistan.

» Major Provisions of 18th Amendment

Eighteenth amendment contained 102 provisions bringing substantial

changes to the constitution of Pakistan. However, only those provisions

24 Report of the Parliamentary Committee on Constitutional Reforms

(http:/ / www.na.gov.pk/uploads/ documents/ report_constitutional_18th_amen
d_bill2010_020410_.pdf)

25 Ibid
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Constitution & Politics In Pakistan 3 [0 W

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which had significant impact on constitutional and political system of
Pakistan are discussed here.

* Change of Name of North Western Frontier Province NWFP to

Khyber Pakhtunkhaw KP (Article 1)

The name of North Western Frontier Province (NWFP) was changed to Khyber
Pakhtunkhawa (KP) in order to meet the demand of Pashtun nationalist
parties. The province of NWFP was carved out of the neighboring province of
Punjab in year 1901 by Lord Curzon during colonial rule and it was named
on its geographical identity instead of the identity of the people living there.
The Pashtuns therefore had been demanding to rename their province in
accordance their ethnic identity. The initial proposal for the name was
“Pakhtunkhaw” only, however the word “Khyber” was added when Hindko
speaking population of Hazara Division protested over the proposed name
which, according to them, was not reflecting their identity. Thus the word
“Khyber” was thus added to appease Hazrawals though it did little to placate
them, in view of many political observers.

* Change in Spelling of Sindh and Balochistan (Article 1)

The spelling of Sind was changed to Sindh and Baluchistan to Balochistan.

* Suspension and Holding the Constitution in abeyance also

decaled as high treason (Article 6)

The first constitution of Pakistan was promulgated on 231 March 1956 but
was abrogated with in less than two and half years of its promulgation, on 7th
October 1958, when Major General Sikandar Mirza imposed martial law in
the country. The second constitution, promuigated on 8th June 1962, met
the same fate on 25" March 1969 when General Yahya Khan imposed
another martial law and abrogated this constitution.

The framers of the current constitution being cognizant of the fate of two
previous constitutions attempted to prevent the current constitution from
being abrogated (as were the two previous constitutions) and inserted article
6 according to which abrogation or subversion of the constitution was
declared as a high treason. The punishment for High treason under “High
Treason (Punishment) Act 1973” was prescribed as either death penalty or
life imprisonment. This made our political leadership satisfied that no one

will dare to abrogate the constitution again in view of the penalty of high
treason.

However, this satisfaction proved to be short-lived because another martial

law was imposed on 5th July 1977 by General Zia Ul haq. However, the
General didn’t abrogate the constitution rather held it in abeyance in order to
evade the charge of “High Treason” because suspending or holding in
abeyance the constitution was not declared as “High Treason”. The

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constitution remained suspended/ held in abeyance till 2rd March 1985 till it
was revived under “Revival of the Constitution of 1973 Order 1985”.

Another military takeover took place on 12th October 1999 and on this
occasion too, the constitution was put under suspension instead of being
abrogated. The constitution remained under suspension until being revived
in year 2002. The constitution was suspended yet again on 3rd November
2007. This implies that the purpose for which the Article 6 was added to the
constitution could not be achieved because the constitution could not survive
extra constitutional adventures (martial laws). The military rulers evaded the
offence of high treason by suspending the constitution instead of abrogating
it. Against this backdrop, in order to prevent any extra constitutional
adventure under the guise of “suspension” or “holding in abeyance of the
constitution”, both the acts “suspension” and “holding in abeyance of the
constitution” have been included in the definition of “High Treason”. Now
(following 18th amendment) the Article 6(1) reads as under

* “Any person who abrogates or subverts or suspends or

holds in abeyance, or attempts or conspires to abrogate or
subvert or suspend or hold in abeyance, the Constitution

by use of force or show of force or by any other

unconstitutional means shall be guilty of high treason.”

= Bar On the Courts to Validate Acts of High Treason/ Extra

Constitutional Adventures (Article 6-2A)

All the martial laws, except the one imposed by General Yayhah Khan, were
validated by the Apex Court of Pakistan. The first martial law was validated
by the Supreme Court of Pakistan under Dossoo Case (PLD 1958 SC 533).
The Military takeover of General Zia and General Mushraf got validation
under Nusrat Bhutto Case (PLD 197G SC 657) and Zaffar Ali Shah Case (PLD
200 SC 869) respectively. The Martial Law of General Yayha Khan was
however declared unconstitutional and illegal under Asma Jillani Case (PLD
1972 SC 139). Likewise, the emergency imposed by General Musharraf on 3rd
November 2007(which was in fact another martial Law) was declared
unconstitutional by the Supreme Court under case titled as Sindh High
Court Bar Association Vs Federation of Pakistan (PLD 2009 SC 789). Under
18" amendment Article 6(2A) has been inserted in the Constitution which

prohibits the Judiciary to validate the Acts of High Treason, in following manner:

* “An act of high treason mentioned in clause (1) or clause

(2) shall not be validated by any court including the

Supreme Court and a High Court”.

= Right to Fair Trial (10-A)

Right to fair trial was inserted in the constitution under 18th amendment. It
is a very pertinent right for protection of citizens against unfair treatment.
This right to Fair Trial is incorporated in UN Declaration on Human Right

—
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officer, 4

Constitution. Balitics dn Pakistan z NOA

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1948. In Pakistan, this right was granted under 18th amendment through
Article 10-A which reads as under

* “Right to Fair Trial (10-A): For the determination of his

civil rights and obligations or in any criminal charge
against him a person shall be entitled to a fair trial and
due process. “

* Right to Information (19-A)

Right to information ensures access of public to every information related to the

Government institutions and such private entities which are being funded by the
public resources. Right to information reinforces the concept of accountability of
the Government its people. This right inserted in the constitution under 18™
amendment provides that:

* “Right to information: very citizen shall have the right to

have access to information in all matters of public
importance subject to regulation and reasonable
restrictions imposed by law.”

= Right to Education

18" amendment granted right to education to the children of age 5-16 by declaring
it a responsibility of the state under Article 25-A which is reproduced herein

below.

= Right to education: The State shall provide free and compulsory

education to all children of the age of five to sixteen years in such
manner as may be determined by law.

* Omission of the condition of holding Intra party Elections (Article

17)

The condition of holding intra party elections, inserted under 17th

amendment, was done away with.

* Withdrawal of Presidential Powers of Dissolving National

Assembly ( Article 58-2b)

The President of Pakistan was empowered to dissolve assemblies under 8th

amendment in the constitution passed during year 1985. This power was
however withdrawn under 13th Amendment in year 1997 but again President
was empowered to dissolve assemblies under 17th amendment passed in year
2003. The 18th amendment withdrew the power of president from the
President by deleting Article 58(2)(B). Likewise, the power of Governor to
dissolve provincial assembly was omitted under article 112 of the

Constitution.
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* Seats for Non-Muslims in the Senate (A 59)

Four seats, each from one of the provinces were created for non-Muslims in
the senate of Pakistan.

*» Party Head empowered to get a member of parliament/provincial

assemblies disqualified on account of defection

Article 63-A was inserted in the Constitution of Pakistan by virtue of which

any member of the house could be disqualified on floor crossing (voting
against the party lines) under 14h amendment. The power of removal was
given to the “parliamentary leader”. Under 18th Amendment this power has
been conferred upon the “party head” instead of “parliamentary leader” even
if the former (party head) is not member of the Parliament.

* Abolition of Concurrent List (Article 70)

The concurrent list appended to the Schedule-IV of the Constitution

contained 47 subjects on which both parliament and Provincial assemblies
could legislate. However, the federal Law held precedence over provincial laws
made in connection with the concurrent list as provided under article 143 of
the Constitution. This List was however abolished while 44 of the 47
subjects devolved to provinces whereas three of its subjects, i.e boilers,

electricity, and legal, medical and other professions were transferred to

federal legislative list.

* Bar on extension of ordinance for more than once (Article 89)

Ordinance is a temporary Law issued by the President at Federal Level

(Article 89) and Governor at Provincial Level (Article 128) for 120 days and 90
days respectively. Previously ordinances could be extended for unlimited
period but 18% amendment has put a restriction on extension of an
ordinance for more than once.

* Limit of two terms for the Prime Minter done away

with/abolished/withdrawn/revoked (Article 91)

General Pervaiz Mushraf issued a decree titled as “The Qualification to Hold

Public Offices Order, 2002” which prevented any person to hold the office of

Prime Minster or of a chief Minister for more than twice. The article 2 of the
Order read as under

* “Qualification to hold certain public offices.

Notwithstanding anything contained in the Constitution or
any other law for the time being in force, a person who
has, at any time, held the office of the Prime Minister, or
that of a Chief Minister of a Province or a combination of
such offices for two terms, irrespective of whether any
one of the two or both the terms of office were completed

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or not, shall not be qualified to hold the office of the Prime

Minister or that of a Chief Minister”.

The 18% amendment has however abolished this condition and now no
restriction remains in place to limit the terms for holding the office of the

Prime Minster of Pakistan. The proviso of Article 91(5), inserted after 18th
Amendment states that:

* “Provided that there shall be no restriction on the number

of terms for the office of the Prime Minister”.

* Restriction on the size of cabinet (Article 92)

Large size of cabinet put the national exchequer under undue burden.
Pakistan has witnessed large size of cabinets in political government. The
18th amendment has however attempted to prevent this practice by

restricting the size of cabinet to 11 percent of the total strength of Parliament

in following manner.

* “Provided further that the total strength of the Cabinet,

including Ministers of State, shall not exceed eleven

percent of the total membership of Majlis-e-Shoora

(Parliament):”

For example, the formula can be applied on the current strength of the
Parliament as under:

(No of MNAs+No of Senators) * 11%

= (342+100) *11/100

= 442*0.11

= 48.62

= 49 when rounded off.

This implies that size of cabinet cannot increase from 49 members. Likewise,
the size of provincial cabinet was restricted to 15 members or 11 percent of
the strength of the respective provincial assembly, whichever is higher, under
article 130(6) of the Constitution.

* Powers of appointment of Governors transferred to PM (Article 101)

Under 18th amendment, the President was required to appoint Governors of

the Provinces on advice of Prime Minster. Under 17th amendment the power
of appointment of Governor lied with the President who could appoint
Governor with consultation of PM which was not binding on the President.
(Consultation was not binding whereas advice of the PM is binding on the
President)

« Local Governments Made Mandatory under the Constitution

(Article 140-A)

A strong system of Local governments ensures effective public service delivery

and participation of the public in the affairs of governance at gross root level.

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The local governments were made mandatory first time under Lega]
Framework Order 2002. The Article 140-A reads as under.

* 140-A Local Governments: Each Province shall, by law,

establish a local government system and devolve political,
administrative and financial responsibility and authority
to the elected representatives of the local governments.

* Reconstitution and empowerment of CCI (Article 153)

The council of common interest established under Article 153 of the

constitution provides a forum to the federal government and provinces where
they can discuss and resolve disputes in order to maintain a spirit of political
harmony. Under 18th amendment the council has been reconstituted with
following composition.

= The Prime Minister who shall be the Chairman of the Council;

= The Chief Ministers of the Provinces;

* Three members from the Federal Government to be nominated

by the Prime Minister from time to time.

The council has been required to have a permanent secretariat and entrusted
to resolve disputes over generation of electricity and construction of hydro-
projects.

* Bar on reduction in provincial share of NFC Award (Article

160(3A)

The cumulative provincial share in NFC Award /ederal divisible pool cannot
be reduced from previous Award. For instance, the provincial share under
the current NFC is 57.5% which can not be reduced further. (Complete
details of NFC given in a separate section)

* Provinces empowered to raise International Loan (Article 167(4))

The 18% amendment has empowered the provinces to raise domestic or

international loans under the conditions specified by the National Economic

Council.

* Joint and equal ownership of Gas and Mineral oil by the center
and the respective province (172 (3)).

The ownership of gas and mineral oil has been vested jointly and equally in
the federal government and the province where these resources are situated.
= Establishment of Islamabad High Court (Article 175 (I))

There was no High Court for the Federal Capital territory. The 18th
amendment has established “Islamabad High Court” for federal Capital

territory.

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* Institutionalization of Appointment of Judges (175-A)

An institutionalized mechanism for appointment of judges has been provided

where power of appointment of judges has been vested in two bodies:

* Judicial Commission of Pakistan headed by the Chief Justice

of Pakistan with two judges of the Supreme Court (increased to
4 under 19th Amendment), one retired judge of Supreme Court,
attorney general and Law minster being its members. In case of
the appointment of judges of high court, the members include
chief justice of that high court, the most senior judge (senior
Pusine Judge) of that High Court, Provincial Law Minster and a
member of the provincial bar council will also be the members
of Judicial Commission of Pakistan.

* Parliamentary Committee comprising of 8 members with equal

representation of treasury (Government) and opposition
benches. The members are two be equally drawn from Senate
and National Assembly. The recommendation for appointment of
judges is made by the Judicial Commission whereas parliamentary
Committee can reject the recommendations with two third
majorities.

* Institutionalization of appointment of Election commission of

Pakistan (Article 213)

The chief election commissioner and members of the Election commission of

Pakistan were previously appointed by the President in his discretion (as
provided in 17th amendment). The arbitrary mode of appointment always
remained subject to criticism.

The 18th amendment has however institutionalized the process. Now a 12

member’s parliamentary committee with equal representation of treasury and
opposition benches is empowered to make appointments of election
commission from amongst three names sent by the Prime Minster and Leader
of the Opposition.

In case of non-agreement of the Leader of the House and Leader of the

Opposition on three names, each of them then send three separate names to
the committee. The ultimate power rests with the committee.

* Appointment of Care taker Govt in consultation with the Leader

of the House and Leader of the Opposition (Article 224)

The concept of care taker governments in Pakistan was introduced under 8th
Amendment in the Constitution. The care taker government (at federal and
provincial level) are established for conducting general elections so that the
sitting government may not influence the process of election. However, the
impartiality of the care taker governments always remained questionable.

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For example, Glulam Mustafa .Jatoi was appointed as first ever Care Taker
Prime Minster in the history of Pakistan on dismissal of the Government of
Benazir Bhuttoo in 1990 but he was leader of the opposition against her
government and was also Head of Islami Jamhori Ittehad (IJI) constituted
against Pakistan People Party. Accordingly, his impartiality was questionable,
The subsequent appointments of care taker Governments contained similar
issues.

However, in 18th amendment, the care taker prime minster was required to
be appointed by consultation of the outgoing prime minister and leader of the
opposition in National Assembly and care taker Chief Minister was to be
appointed in consultation with the outgoing Chief Minster and Leader of the
opposition in respective provincial assembly.

Resolution of the respective provincial assembly made mandatory

for proclamation of emergency on account of Internal Disturbance

in a Province (Article 232).

It was declared that before imposing emergency in a province, a resolution

from the provincial assembly of that province would be required.

= Powers of appointment of services chiefs Transferred to PM

(Article 243)

Under 18th amendment, the president was required to appoint services chiefs
on advice of Prime Minster. Under 17%" amendment the power of such
appointments lied with the President who could appoint service chiefs with
consultation of PM which was not binding on the President. (Consultation
was not binding whereas advice of the PM is binding on the President).

= Deletion of the Name of General Zia ul Haq from the Constitution

of Pakistan (Article 270-A)

The proclamation of martial Law by Gneral Zia ul Haq and subsequent

actions taken by him including the referendum held by him on 11%
December 1984 (as consequence whereof he became President for five years)
were given constitutional protection under article 270 A of the constitution.
Under 18th amendment his name was deleted from the constitution.

= Declaration as to unconstitutionality and Illegality of the Actions

of General Pervaiz Mushraf (Article 270AA)

The military take-over by General Pervaiz Mushraf and all subsequent

actions taken by him were declared as unconstitutional and illegal.

» Word “Freely” inserted in the objective resolution for minorities

to profess their religion

The original text of the objective resolution provided that “adequate provision
shall be made for the minorities to “freely” profess and practice their religions
and develop their cultures”; however, word “freely” was omitted in the

El

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resolution under 8th Amendment while making the Objective Resolution part

of the Constitution.

The 18th amendment however inserted the word “freely” in accordance with

the original text.

» Sales Tax on Services Granted to Provinces

Previously under the domain of the Center, “Sales Tax on Services” was
transferred to the provinces by amending “Federal Legislative List” contained

in schedule 4 of the Constitution.

v' Major Provisions Summarized

Provision Article
Change of name of NWFP to KP (Change in spelling of Sindh 1
and Balochistan)
Suspension and holding in abeyance of the Constitution also 6
decaled as high treason
Bar on the courts to legalize extra constitution

: 6
adventures(martial laws)
Right to fair Trial 10-A
Right to information 19-A
Right to education 25-A
Doing away with the requirement of holding intra- party 17
elections
Withdrawal of Presidential powers of dissolving assemblies
(Like was powers of the Governors for dissolving Provincial 58/112
Assemblies were withdrawn under Article 112)
Seats for Non-Muslims in the Senate 59
Party Head empowered to get a member of
parliament/ provincial assemblies disqualified on account of 63-A
defection
Abolition of Concurrent List 70
Bar on Extension of Ordinance for more than once 89/128
Limit of two terms for the Prime Minter done away 91
with /abolished withdrawn /revoked
Restriction on the size of Federal cabinet
(Like wise size of provincial Cabinet was also restricted under 92/130
article 130)
Powers of appointment of Governors transferred to PM 101
Local Governments made mandatory under the constitution 140-A
Reconstitution and empowerment of CCI 153
Bar on reduction in provincial share of NFC Award 160(34)
Provinces empowered to raise international loan subject to 167

(4)

approval of NEC
Joint and equal ownership of Gas and Mineral oil by the 172

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center and the respective province

Establishment of Islamabad High Court 175

Institutionalization of Appointment of Judges 175-A
Institutionalization of appointment of ECP 213
Institutionalization of appointment of Care taker Govt 224
Powers of appointment of services chiefs transferred to PM 243
Name of General Zia ul Hag Omitted 270 A
Declaration as to unconstitutionality and Illegality of the 270 AA

Actions of General Pervaiz Mushraf

Word “Freely” inserted in the objective resolution for minorities

to profess their religion

Sales tax on services transferred to provinces Schedule 4

» Analysis of 18th Amendment

The 18th amendment was a landmark constitutional development which

brought radical changes in the constitutional and administrative structure of
Pakistan. In ensuing paras, well analyse the amendment from multiple
perspectives.

Annexure

* Provisions of the 18t: amendment well received by the majority of

Public opinion

v' Promotion of transparency and Good Governance (19-A)

The right to information inserted through 18th amendment is aimed at

promoting transparency under Article 19-A. Public has been empowered to
have access to the information related to public affairs. This is one of the
fundamental principles of democracy. The people can then make informed
decisions. Access to information enhances accountability of the decision
making process of the government and serves as a deterrent against corrupt
activities.

v Institutionalization of constitutional appointmantiy3zsz24)

The mechanism for institutionalized appointment of Judges, ECP and care

taker governments under Article 175-A, 213 and 224 respectively, has ended
arbitrary appointments based upon personal likings and disliking. These
institutions are the fundamental pillars of democracy. The merit based
appointments are meant to strengthen these institutions.

v' Promotion of democratic values (10-A, 19-A, 25-A)

Democracy is a culture instead of being a system. The edifice of democracy is

built upon number of pillars which include inclusive decision making, rule of
law, accountability, protection of rights, public awareness and empowerment
etc.

The three fundamental rights, right to Fair Trial (Article 10-A), Right to
Information (Article 19-A) and Right to Education (25-A) added under 18th
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amendment are amongst these fundamental pillars meant to strengthen

democratic values in the society.

v' Enhanced role of opposition in the political dispensation (175-A,

213, 224)

Opposition is said to be the second wheel of the chariot of democracy. The

democracy cannot function without active participation of opposition. The
18" amendment has empowered the opposition in that he parliamentary
committees constituted for appointment of judges and Election Commission
of Pakistan have equal representation of opposition and t

This has strengthened the role of opposition in the political system.

v Decentralization of powers (70, 140-A)

The 18" amendment has devolved number of subjects to the provinces as a

consequence of abolition of concurrent list. Like wise 18 the amendment
further envisages devolution of powers to local tiers. Article 140-A call upon
the provinces to establish local bodies on strong footings.

v Attempt to prevent extra constitutional adventures(Articl6):

The amendments made in Article 6 attempts to prevent extra constitutional

adventures. The suspension or holding in abeyance of the constitution is
declared as high treason thereby preventing the future military takeovers
through suspension of the Constitution. Likewise, courts have been barred
from protecting the military takeovers.

v" Restoration of the constitution in its original parliamentary

spirit

Certain provisions inserted through 17" amendment flouted the spirit of

parliamentary democracy". This include article 58(2)(b) which empowered
the President to dissolve National Assembly and on the same analogy
provincial governors were empowered to dissolve provincial assembly under
article 112. This is against the spirit of parliamentary democracy. In
parliamentary democracy, the power to remove the head of government rest
with the house of parliament which elects him. Likewise, important
appointments such as that of services chiefs (Article 243), Election
Commission (Article 213) and Governors (Article 101) etc were placed under
the authority of President. Giving such powers to the president transform the
Parliamentary system into Presidential one. The 18% amendment has
removed entrusted these powers to the Prime Minister.

26 These provisions were initially inserted under 8" amendment in 1985 but
undone in 1997 under 13th Amendment.

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* Provisions of 18t* amendment subjected to wider criticism

v Low fiscal space with the federation (160 (3A), 172)

The biggest criticism on 18th amendment emanates from its financial

repercussions. The critics maintain that it has put the federation under
financial constraints because the bulk financial resources have been
transferred to the provinces. A statement of the current Prime Minister

published in Media manifests the views of federation?’

/ * “SUKKUR: Prime Minister Imran Khan has said "after the

18th Amendment, the federation has become bankrupt. He
said at the start of every fiscal year the centre has to face
fiscal shortfall to the tune of Rs 600 billion due to debt
servicing, federal transfers to the provinces, and defense
budget that leaves nothing for development.” He said he is a
democratic leader not king to distribute handouts.

Addressing a rally at Khangarh in Ghotki on Saturday, he

said out of Rs 4.5 billion collected by the centre every year in
taxes, Rs 2,500 billion are transferred directly to the
provinces including Sindh. “He said Rs234 billion were given
to Sindh in the last ten years as gas royalty but "how much
of that was spent on Ghotki as almost 70% of the gas comes
from Ghotki."

The major implication of 18" amendment include restriction

on reduction of provincial share of NFC Award(160(3A)),
giving equal share to the provinces in ownership of gas and
Mineral oil (Article 172) and transfer of “Sales Tax on
Services” to the provinces.”

v' Complaints of Non cooperative attitude of provinces towards

the federation (Art 70, 160 (3A), 232;

The amendment in Article 70, 160(3A), 232 have increased political and
financial autonomy of the provinces. The Federation complains that after
getting powers under 18% amendment, the provinces are reluctant in
extending required cooperation towards the center. Though the provinces are
independent to the extent of powers invested in them by the constitution, the
federation has bigger responsibilities to discharge such as defense, security
and foreign relations.

The federation needs cooperation of the provinces for these functions which
provinces are allegedly not extending. The Prime Minister of Pakistan

27 https://www.thenews.com.pk/print/ 451 183-18th-amendment-turned-

centre-into-a-pauper

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lamented that non provision of data by the provinces on time lead to wheat
crises in Pakistan. Likewise, the provinces refused to surrender a share of

NFC to federation for financing of CPEC, debt servicing and security

expenditures etc.

v' Doing away with the restriction on the terms of PM serves as a

hurdle in emergence of new leadership (91).

The critics say that restriction of two terms for the prime minister provides
opportunity to the new leadership to emerge. One person who remains longer
in power may adopt dictatorial tendencies. However, the 18th amendment
has abolished this condition and one can become Prime Minister of Pakistan
as many times as one can win elections. This has squeezed opportunities to
the new leadership to make its place at the national political stage.

v. No mechanism for enforcement of the provisions of 18th

amendment

Many of the provisions of 18th" amendment remain unimplemented. For

example, local governments have yet to be established on a strong footing.

Article 25-A provides right of education but more than 25 million children of
schooel going age are out of school.

The Council of Common Interest is required to meet once in every quarter

(three months) but its meetings don’t take place for years. So number of the
provisions of 18" amendment which sound promising remain restricted to

the book only. No mechanism had been devised for practical implementation
of such provisions.

v' Potential Risk of Contradictory Standards on different Subjects

After 18" amendment the subjects such education, food safety inspection of
agriculture, air and water pollution, consumer product, highway safety and
health have been devolved to the provinces making the provinces free to
devise their own standards on these subjects. Contradictions in standard
may be problematic for individuals and businesses. Ideally, these standards

should be uniform across the federation which has, however, become difficult
after 18th amendment.

v' Subjects which can be better managed at federal level have been
devolved to provinces

Another criticism at 18th amendment is about devolution of certain subjects

to the provinces which could have been better managed federal level. Two
years after passage of 18" amendment, in year 2012 many patients died in
Punjab Institute of Cardiology due to use of substandard medicine. It
transpired later that the medicine was approved by the Health Department of
Sindh because Drug Regulation was a provincial subject after 18th
Amendment. On realization that drug regulation could be managed better at
federal level, the provincial assemblies surrendered this subject to the

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Recent Cpnstitutional Debates !

Federation under Article 144 of the Constitution, following which, Drug

Regulatory Authority of Pakistan” was established at federal level under Drug
Regulatory Authority of Pakistan Act 2012. This implies that devolution of
drug regulation to the provinces was a wrong decision at first place. Likewise
devolution of certain other subjects such as disaster management, food and
environment is also held by the critics to be a wrong decision as these
subjects could be better managed at federal level.

> Challenges in Implementation of 18the Amendment

v" Reservations of Federal Government as to Over-Empowerment of

Provinces

Certain elements in the federal government have expressed reservations over

18th amendment on its various aspects. The criticism ranges from devolution
of the subjects to provinces which should have remained with the center to
shortage of finances with the center. These elements also maintain that the
provinces have become all powerful and do not cooperate with the center in
implementation of polices at national level. In this environment of mistrust,
the implementation of 18th amendment in its true spirits remains a challenge
and many controversies surrounding 18th amendment have yet to be resolved
even after a decade of its passage.

v' Center-Provinces disputes on Distribution of Powers (Labor Laws,

Accountability and HEC etc.)

The disputes over devolution of subjects under 18%" amendment are still in
place. The provinces are demanding abolition of Higher Education
Commission (HEC) at federal level on account of the subject having been
transferred to the provinces but the center is not ready to accede this
demand. The controversy over hospitals in Karachi was taken to the Supreme
Court. Likewise, the center is unable to increase pension under Employees
Old-Age Benefit Institution (EOBI) becaue labour laws are under the domain
of provinces.

v' Overlapping of Jurisdiction with regard to certain subjects.

There are some subjects which have overlapping jurisdiction under 18th
amendments. For instance, “Education” has been devolved to the provinces
but the subject of “Standards in institutions for higher education and research,
scientific and technical institutions” (entry No 12 of part-Il of Federal
Legislative lis) is with center. This overlap sometimes leads to controversies
over the extent of jurisdiction to be assumed by the center and provinces.

28 Disaster Management was also surrendered by the provinces

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v' IMF Condition to reduce Share of Provinces under NFC:

International Monetary Fund (IMF) has pressed the Government of Pakistan

to reduce the share of provinces in NFC award?. However, the 18th
amendment is a hurdle in any reduction in the share of provinces in the
award as envisaged under Article 160(3A).

v' Political Uncertainty

In an environment of political uncertainty, there remains a great deal of

mistrust amongst the political stakeholders. Long term decisions cannot be
taken under this environment.

v' Centralized Civil Service

The top administrative positions of the provinces (Chief Secretary, Inspector

General of Police etc) are held by the officers of Federal Services (All Pakistan
Service under article 240(a) of the constitution). Appointment of federal
officers against provincial posts is another challenge to the spirit of
devolution.

v' Incapacity of the Provinces to take over the devolved subjects

Provinces have shown their incapacity in managing certain subjects. For

example, the subject of “Environment Protection” was devolved to provinces
after 18% amendment. However, concerns have been expressed that the
provinces lacks capacity to effectively discharge their responsibility with
regard to environmental governance. The Urban Unit conducted a study
titled as “Restructuring and Capacity Building of Environment Protection
Department” for The Provincial Environment Protection Department of
Punjab (EPD). The report of this study? highlights the issues of capacity
with provincial apparatus entrusted with environmental governance in the
provinces.

Vv" Reluctance of Provinces to Devolve Powers to the Local

Government as envisaged under 18th Amendment (140-A).

Provinces were required to establish strong local governments under article

140-A of the Constitution. But unfortunately, the provinces have been found
reluctant to devolve authority to the local tiers which flouts the spirit of 18th
amendment.

29 https://tribune.com.pk/story/ 1823103/ 1-imf-proposes-cut-provincial-share-

nfc
30 https://epd.punjab.gov.pk/ system/ files/ 2.0%20GAP%20Report. pdf

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Recent Constitutional Debates

TL.CGUTTIT

v' CCI not exercising the role envisioned in the Constitution (153):

Council of Common Interest is a forum which provides an opportunity to the

center and provinces to resolve their disputes in amicable manner. The 18th
amendment provided that meeting of CCI will be held once in every quarter.
However, its meeting is not held for years due to which controversies relating
to 18th amendment remain unaddressed.

» How to Overcome the Challenges

* Resolution of Disputes through Political Means: The

controversies and disputes surrounding 18th amendment may
be resolved through political means. Bringing these issues to
the public evokes political distrust and resentment. Smaller
provinces have raised concerns over the talks of roll back of 18th
amendment. The political parties may hold meaningful and
objective discussions on these issues for their resolution.

= Capacity Building of the Provincial Apparatus: The provinces

should enhance their capacities in managing the subjects
devolved to them. For example, the sales tax on services was
devolved to the provinces under 18th amendment pursuant to
which the provinces established “Revenue Authorities”.
However, the provinces are borrowing the services of federal
officers of Inland Revenue Service for running these authorities
who come for a limited period of time on deputation basis. The
provinces therefore should develop their human resource to run
these authorities.

* Decentralization of Civil Service: The centralized bureaucracy

is another hurdle in devolution of powers in Pakistan. The
successive attempts by the government for reformation of
bureaucracy have been foiled. It is therefore necessary that civil
service should be reformed in accordance with the spirit of 18th
amendment.

* CCI to play its constitutional role effectively: Council of

Common Interest is a very important forum under the
constitution for promoting smooth relations between federation
and its units. The Constitution provides for its permanent
secretariat and regular meetings, at least once in a quarter. This
forum however remains dormant due to internal differences. In
order to resolve all the issues related to 18th amendment, the
CCI should be made effective in accordance with the spirit of the
Constitution.

* Strengthening of Democratic Institutions and Norms: In a

democratic dispensation, solution to all the problems lies in
democratic and political process. The democratic process should
be allowed to take its course. Political parties should be
strengthened by making them function on democratic

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Gi onstitutionp§nBelitéemlevRakistan HN

principles. Important decisions must be taken in the

Parliament. The solution to most of the political problems lies in
adherence to the principles of democracy.

Islamic Provisions in the Constitution of Pakistan

The demand of a separate homeland in the shape of Pakistan by the Muslims

of India was premised upon their desire to preserve Islamic identity. The
country was acquired on the name of Islam where Muslims could practice
their religion without any fear. Therefore, the predominant majority of this
country wanted the Islamic values to be incorporated in the law of the state.
The successive constitutions framed in Pakistan therefore contained certain
provisions which were specifically meant to promote Islamic values.

The current constitution of Pakistan was promulgated on 14% of August

1973. Like previous constitutions, the current constitution also contains
Islamic provisions some of which were part of the original constitution while
others were added during subsequent amendments. These provisions are
discussed hereunder.

» Objective Resolution Being Preamble of the Constitution

The first constitutional development in this country after its creation took
place on 12th March 1949 when the constituent Assembly of Pakistan passed
the objective resolution. Through this resolution, the assembly defined
fundamental principles which the future constitution of Pakistan would be
based upon. The nature of constitution envisaged under the objective
resolution was Islamic and democratic,

The text of the resolution is reproduced below.

* “Whereas sovereignty over the entire universe

belongs to Allah Almighty alone and the authority
which He has delegated to the State of Pakistan, through
its people for being exercised within the limits prescribed
by Him is a sacred trust;

= This Constituent Assembly representing the people of

Pakistan resolves to frame a Constitution for the
sovereign independent State of Pakistan;

» Wherein the State shall exercise its powers and authority

through the chosen representatives of the people;

* Wherein the principles of democracy, freedom, equality,

tolerance and social justice as enunciated by Islam
shall be fully observed;

* Wherein the Muslims shall be enabled to order their

lives in the individual and collective spheres in
accordance with the teachings and requirements of
Islam as set out in the Holy Quran and the Sunnah;

www.csshewspaperandmagazine.com

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{oo} RecenhGonstiiudioughDebates

* Wherein adequate provision shall be made for the

minorities to [freely] profess and practice their religions
and develop their cultures;

* Wherein the territories now included in or in accession

with Pakistan and such other territories as may hereafter
be included in or accede to Pakistan shall form a
Federation wherein the units will be autonomous with
such boundaries and limitations on their powers and
authority as may be prescribed;

* Wherein shall be guaranteed fundamental rights

including equality of status, of opportunity and before
law, social, economic and political justice, and freedom of
thought, expression, belief, faith, worship and
association, subject to law and public morality;

» Wherein adequate provisions shall be made to safeguard

the legitimate interests of minorities and backward and
depressed classes;

* Wherein the independence of the Judiciary shall be fully

secured;

= Wherein the integrity of the territories of the Federation,

its independence and all its rights includ-ing its sovereign
rights on land, sea and air shall be safeguarded;

* So that the people of Pakistan may prosper and attain

their rightful and honored place amongst the nations of
the World and make their full contribution towards
international peace and progress and happiness of
humanity.”

Like two previous constitutions of Pakistan which incorporated objective

resolutions in their respective preambles, current constitution has also
objective resolution in its preamble.

v' Name of the state being Islamic Republic of Pakistan

Similar to previous two constitutions, the current constitution of Pakistan

under its article 1 names the state as being “Islamic Republic of Pakistan”.

v' Islam being official religion of the of the state

The article 2 of the current constitution declares Islam as official religion of

the state. No such declaration was, however, made in previous constitutions.

v' Objective resolution being substantive part of the constitution

Though, objective resolution was kept as a preamble in the current

constitution on its promulgation. However, the preamble is not substantive
part of the constitution and thus not binding in nature. A preamble is
analogues to preface in a book. The constitution substantively starts from
article 1 and the provisions contained in the preamble have only a persuasive

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otlicery

ation,

ConstitutiomdraPaoli¢tes.demPakistan

2 Pascrtem 2

/moral value. This implies that what is contained in the preamble cannot
pressed enforcement through courts. Against this backdrop, the objective
resolution was made substantive part of the constitution under 8th
amendment to the constitution, passed in 1985, through insertion of Article
2-A in the constitution.

* “The principles and provisions set out in the Objectives

Resolution reproduced in the Annex are hereby made
substantive part of the Constitution and shall have effect
accordingly”.

v" Restriction on Freedom of speech in the interest of glory of Islam

The constitution of Pakistan gives the fundamental right of freedom of speech

to the citizens under article 19. However, this right cannot be exercised to
compromise the glory of Islam.

v' Islamic Way of life

Article 31 of the Constitution of Pakistan emphasizes upon the state to

promote Islamic way of life. The text of the article is reproduced below.

“1) Steps shall be taken to enable the Muslims of

Pakistan, individually and collectively, to order their lives
in accordance with the fundamental principles and basic
concepts of Islam and to provide facilities whereby they
may be enabled to understand the meaning of life
according to the Holy Quran and Sunnah.
(2) The State shall endeavour, as respects the Muslims of
Pakistan, —
(a) to make the teaching of the Holy Quran and
Islamiat compulsory, to encourage and facilitate
the learning of Arabic language and to secure
correct and exact printing and publishing of the
Holy Quran;
(b) to promote unity and the observance of the
Islamic moral standards; and
(c) to secure the proper organization of zakat
3[ushr,] auqaf and mosques.”

v' End of Riba

Riba translated as “usury” or its more common name “interest “is increment
(amount in addition to the loan) taken by the lender on the money lent.
Islam prohibits Riba/Usury in all its forms. However, the modern economy is
heavily dependent upon “interest”. The economy of Pakistan is also not free
from Riba because it is used in both domestic as well as foreign transactions.
The Article 38(f) requires the state to end Riba as early as possible However
this article is under the chapter of “Principles of Policy” of the Constitution
which are just the moral guidelines and not binding in nature. As regards the
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pr

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Recent Gopstiutional I Debates

use of Riba in Pakistan; the Federal Shariat Court in its Judgment in year
1991 had declared that all Laws allowing “Riba” were repugnant to Islam.
This decision was upheld by the Shariah Bench of Supreme Court of
Pakistan in year 2000. However, later, in 2002 Shariah Bench of Supreme
Court of Pakistan while hearing Review petition of its earlier judgment
referred the matter back to federal Shariat Court which is pending in that
court as yet.

v' Friendly relations with Muslim World

The Article 40 of the Constitution requires the state to maintain friendly

relations with the Muslim World in following manner.

* “Strengthening bonds with Muslim world and promoting

international peace. The state shall endeavor to preserve
and strengthen fraternal relations among Muslim
countries based on Islamic unity, support the common
interests of the peoples of Asia, Africa and Latin America,
promote international peace and security, foster goodwill
and friendly relations among all nations and encourage
the settlement of international disputes by peaceful
means.”

v" President to Be Muslim

Under Article 41 of the Constitution of Pakistan, only a Muslim can become

President of Pakistan. Same condition was in place under previous two
constitutions.

v' Seats for Ulema in Senate

Seventeen seats have been reserved in the Senate of Pakistan for Technocrats
including Ulema. The qualification of an Aalim is provided under section 2(2)
of Election Act 2017 which states that:.

= “Aalim” means a Muslim scholar who—

(a) holds a degree or a sanad requiring conclusion of at
least sixteen years of education recognized by the Higher
Education Commission; and
(b) has at least twenty years’ experience as a teacher or
researcher in fields relating to the principles and
philosophy of Islam and Islamic law;”

v Knowledge of Islamic Teachings and Observance of Islamic

injunctions being the condition precedents for becoming member
of legislature

The Article 62 of the Constitution contains eligibility criteria for membership

of Parliament/Legislature. The sub articles “d”, “e” and “f” relates to Islamic
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d

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Constitution Loli Politics In Pakistan i NOA

injunctions. These provisions lay down following eligibility criteria for

membership of Parliament for a candidate.

“(d) he is of good character and is not commonly known as one

who violates Islamic Injunctions;

(e) he has adequate knowledge of Islamic teachings and

practices obligatory duties prescribed by Islam as well as
abstains from major sins;

(f) he is sagacious, righteous, non-profligate, honest and ameen,

there being no declaration to the contrary by a court of law;”

No such condition was however placed in previous two constitutions.

v' Prime Minster to Be Muslim

Only a Muslim can become Prime Minster of Pakistan under Article 91 of the
Constitution of Pakistan. No such condition was incorporated in previous
two constitutions. In fact, the constitution of 1962 was Presidential one in
which no office of Prime Minster existed. The Constitution of 1956 though
contained the office of Prime Minster, there was no requirement for him to be
Muslim only.

v Federal Shariat Court

Federal Shariat Court was established in May 1980 by the then Military
Ruler General Zia Ul Haq. Through President’s Order No.1 of 1980
(Constitution (Amendment.) Order, 1980” issued on 26%" may 1980. The court
is vested with the powers to declare any law in Pakistan being violative of
Sharia. The court comprises of maximum Eight Judges of which not more
than three can be Ulemas.

v" Prohibition on framing of laws in violation of Shariah

Article 227 of the constitution prohibits framing of laws in violation of Islamic

Injunctions. The text of the article is given below.

= Provisions relating to the Holy Quran and Sunnah.

(1) All existing laws shall be brought in conformity with
the Injunctions of Islam as laid down in the Holy Quran
and Sunnah, in this Part referred to as the Injunctions of
Islam, and no law shall be enacted which is repugnant to
such Injunctions.
[Explanation. __ In the application of this clause to the
personal law of any Muslim sect, the expression "Quran
and Sunnah" shall mean the Quran and Sunnah as
interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (1) only
in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of
non-Muslim citizens or their status as citizens.

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