Introduction
2. A Brief History
of Constitutional Development
3.
Federalism under
1973 Constitution
4.
Constitutional
Amendments
5.
The 18th
Amendment to the Constitution
6.
Strengthening of
the Parliamentary System of Pakistan
6.1.
Revoking Article 58(2)B (President = PM powers)
6.2.
Role of the Senate was also enhanced (23 senator from each province)
6.3.
Article 91(4) (cabinet member = responsible = Senate/NA)
6.4.
Article 89 (ordinance = X = in the absence of Senate/NA)
7.
Administrative
Relations Between Centre and Provinces
7.1.
Revision of Article 140 (A) (transfer of authority, creation of LG)
7.2.
Revised Article 144 (right to repeal or amend)
7.3.
Improved Article 156 (improved NEC)
7.4.
Amendment of Article 160 (A) (NFC award = share increased to 57.5%)
7.5.
Amendment of Article 172(3) (equal sharing of gas, oil & water)
8.
Enhanced the Role
of the Council of Common Interests
8.1.
Amended Article 153 (2) (PM = head of CCI + CM of provinces + 3M of FG)
8.2.
A new clause was added as 157 (3) (CCI = resolve the conflict of the power sharing)
9.
Independence of
Judiciary
9.1.
Article 175(A) (appointed of judges = judicial commission)
10 Provided Fundamental Rights
10.1.
Article 10 was amended (right free and fair trial)
10.2.
The revision of Article 17 (freely join or form association)
10.3.
Article 19 (A) was added (media = question official)
10.4.
Article 25 (A) (free education till the age of 16)
11. Removal of Discretionary Powers
11.1.
Article 232 was amended (president = emergency = should be accepted by PA)
12. Ensured Women Empowerment
12.1.
Article 34 (women quota, 5% ticket, women participation in every field)
13. Dealing With Treason
13.1.
Alteration of Article 6 (who abrogates the constitution = guilty of high treason)
14. Criticism
18th Amendment
Introduction
The historic 18th Amendment to the 1973 Constitution of Pakistan
was passed by the Zardari government in 2010; ever since then, it has been
under debate. Some criticize it while
some appreciate it. The critics argue that it has created a governance gap by
giving more authority and freedom to provinces without assuring any checks and
accountability.
While its advocates state that it has strengthened federalism
and has put an end to dictatorial or non-representative governments. Therefore,
it made sure that authority is never misused again in the future.
A Brief History of Constitutional Development
After the demise of Quaid-e-Azam and then Liaqat Ali khan a
few years later, a vacuum, a void was created as there was no suitable person
to fill their respective places. This void was filled by the civil
services—bureaucrats—which later made an alliance with the military and used
the politicians against one another as pawns.
The civil-military combined rule lasted for almost 33 years
with 3 military coups; first in 1958, second in 1977, and third in 1999.
Furthermore, three constitutions were drafted and enforced during this time
period. The first constitution was abrogated by President Sikander Mirza, a
former bureaucrat, he then appointed General Ayub Khan as Chief Martial Law
Administrator.
Ayub Khan introduced the 1962 constitution in which
over-centralization was observed and the subjects that came under the
responsibility of the provinces were handed over to the center. Furthermore,
Ayub Khan was replaced by General Yahya Khan and he issued his Legal Framework
Order (LFO) which resulted in the disintegration of Pakistan.
Federalism under 1973 Constitution
The 1973 constitution was introduced under Zulfiqar Ali
Bhutto’s presidency, somehow, a much better model of federalism was observed.
It had many significant features that were later enhanced by amendments. From
1947 till 1973 Pakistan had only experienced a unicameral legislature. It
relied on the National Assembly leading to population-based representation in
the Parliament and not equal representation.
The drawback of unicameral was that larger areas with less
population couldn’t voice their issues. This issue was resolved in the 1973
constitution; a bicameral legislature was introduced with an upper
house—Senate—with equal representation from all provinces and a lower
house—National Assembly—with population-based representation.
The resources, authority, and subjects were divided between
the center and provinces, a significant feature of a true federation. It also
stated that the constitution will be revised after 10 years if more reforms
were needed in the future.
Constitutional Amendments
The political atmosphere of the country, however, did not
calm down and Z.A Bhutto was overthrown by General Zia ul Haq in 1974. He made
the first 8 amendments to the constitution. The first amendment was made in
1974, while the 8th was finalized in 1985.
The 8th amendment, although controversial, highly increased
the authority of the president. In total, fourteen articles were amended under
the 8th amendment. Therefore, these amendments fully deteriorated the essence
of federalism and changed parliamentary form to a semi-presidential form of
government.
More amendments were introduced under the Chief of Army Staff
General Pervez Musharaf’s rule, another martial Law administrator. He declared
an emergency in the country in 1999 after Prime Minister Nawaz Sharif refused
to allow his plane to land in Karachi on 13th October 1999.
The military reacted rapidly and placed the Prime Minister
under house arrest and surrounded the airport’s control tower. On 15th October
1999, an emergency was declared and the constitution was suspended by General
Musharaf.
The significant 17th amendment was made to the constitution
in 2003 by the Chief-turned-President, Musharaf. He added some articles of the
LFO to the constitution. The LFO increased the tenure of judges of higher
courts to three years under articles 62 and 65, respectively.
It restored Article 58(2)B which gave the president the
authority to dissolve the assemblies. The role of the Prime Minister was
diminished and that of the president was highly enhanced. Due to all these
unnecessary amendments, the structure of the constitution had distorted
terribly and a proper amendment was required. The 18th up to some extent fixed
many errors.
The 18th Amendment to the Constitution
This amendment contains some very strikingly significant
features. It aimed to restore parliamentary sovereignty;
· - by
transferring powers from the president to the prime minister,
· -decentralizing
the federal system,
· -improving
the relationship between the center and provinces,
· -and resolving the inter-provincial issues.
1.
Strengthening of the Parliamentary System of Pakistan
I.
Revoking Article 58(2)B
The role of the prime
minister was enhanced by
revoking Article 58(2)B and
handing over the authority back to him. The president’s power to appoint the governors was
also altered and the appointments were to be made by the president on
the advice of the prime
minister only.
II.
Role of the Senate was also enhanced
The role of
the Senate was also enhanced and 23 senators were to be elected from each province. Hence, to ensure equal representation; the seat
distribution for each province was made as follows:
· -14
general seats
· -4
reserved for ulema or technocrats
· -4
reserved for women
· -1 for non-Muslims or minorities
III.
Article 91(4)
The cabinet members will be held
responsible to both Senate and NA.
IV.
Article 89
Article 89 ensured that ordinances cannot be issued in the absence of the Senate or NA.
Therefore, strengthening and improving the parliamentary system of Pakistan.
2.
Administrative Relations Between Centre and Provinces
I.
Revision of Article 140 (A)
Revision of Article 140 (A) ensured
the transfer of authority
and a step towards good governance.
Each province was asked to
create a Local Government System. The administrative, political and financial responsibilities
were then transferred to the elected representatives of the local governments.
II.
Revised Article 144
Granted the right to repeal or amend any legislation crafted
by the Parliament for one or more provinces, on matters not mentioned in
the Federal Legislative List.
III.
Improved Article 156
The 18th amendment also improved the National Economic
Commission under the amended Article 156.
IV.
Amendment of Article 160 (A)
In the 2010 NFC award, the share of
the provinces was increased to 57.5% and also prevented its reduction.
V.
Amendment of Article 172(3)
Ensured
joint ownership of property, declaring equal
sharing of gas, oil, and territorial waters between the center and the
respective province. Therefore, enhancing the economic conditions of the
provinces.
Enhanced the Role of the Council of Common Interests
I.
Amended Article 153 (2)
According to amended Article 153 (2), the prime minister shall be the head
of CCI and the members will include the chief ministers of the provinces and three members from the federal
government nominated by the head.
II.
A new clause was added as 157 (3)
A new clause was added as 157 (3) which stated that the CCI will resolve the conflict of
power-sharing between federation and provinces.
Independence of Judiciary
Article 175(A)
A new procedure for the appointment of judges was introduced in Article
175(A) according to which the responsibility of appointing the judges was handed over to the Judicial
Commission.
Provided Fundamental Rights
The 18th amendment provided fundamental rights and made sure
that the citizens would be the major beneficiaries of the amendment. Therefore,
I.
Article 10 was amended
Article 10 was amended by adding 10(A) to it which gave the right to a free and fair trial.
I.
The revision of Article 17
The revision of Article 17 allowed the citizens of Pakistan to freely join or form any
association. Therefore, this amendment ensured that the rights of
citizens may not get violated in any situation.
II.
Article 19 (A) was added
Article 19 (A) was added that allowed the media to question any official in all
matters of public importance.
III.
Article 25 (A)
Article 25 (A) affirmed that the state shall provide free education to
children till the age of sixteen.
Removal of Discretionary Powers
Article 232 was amended
Article 232 was amended as such that if the president wishes to proclaim an emergency
in a province then the proclamation
should be accepted by the provincial assembly of the respective province.
Ensured Women
Empowerment
Article 34
In Article 34 women’s quota was introduced. 5% tickets were granted to women for direct
participation in elections thought it ensured women’s participation in every
field.
Dealing With Treason (disloyalty)
alteration of Article 6
The alteration of Article 6 declared that anyone who abrogates the constitution
shall be held guilty of high treason regardless of position and power.
Criticism
A few amended articles regularly remain under criticism of
the critics. For example, Article 160(3)A. The reduction in federal revenue
generation left the center with a considerably low budget.
Another criticized amendment is Article 142 as it has reduced
the control of the center on the provinces consequently making the center weak.
Many critics used words like confederation or loose federation due to these two
articles.
Another major defect in the eyes of critics is Article 17A.
The critics argue that intra-party elections to choose the head or party
president promote hereditary politics. Hence, there’s a need for their
elimination.
Moreover, the abolishment of the Concurrent List and handing
over almost 47 subjects to provinces isn’t considered very wise by many
analysts because the provinces are incapable of dealing with this increased
responsibility. Due to this amendment, the respective departments for
education, environment, drugs, crime, population, health, and national projects
got hit badly. The shifting of these subjects back to the federal government
should be considered.
Besides the above-mentioned criticized articles, three more
articles are usually the subject of critique. These articles include Article
24(A) on the right to education, Article 140(A) on the Local Government System,
and Article 153 on the CCI. These articles are very admirable but despairingly
no proper way is suggested to implement these provisions.