18th Amendment: Challenges and Response
Introduction
The Eighteenth Amendment of the Constitution of Pakistan was passed by the National Assembly of Pakistan on April 8, 2010, and came into effect on April 19, 2010. This Amendment to the Constitution of the Islamic Republic of Pakistan, 1973, is not only a major change in the powers of the President but in the structures, resource generation, and service delivery of the Federal and Provincial governments as well.
Main provisions
The main provisions of the Amendment are as follows:
1. The name of the former president of Pakistan, Gen Zia ul Haq, has been removed from the text of the Constitution
2. The 17th Amendment and Legal Framework Order as introduced by Musharraf have been repealed
3. North-West Frontier Province has been renamed Khyber Pakhtunkhwa
4. The ban on third-time prime ministership and chief ministership has been lifted
5. Holding the constitution in abeyance is tantamount to high treason
6. The Council of Common Interests (CCI) has been reconstituted with the prime minister as its chairperson and the body should meet at least once every 90 days
7. A judicial commission will recommend the appointment procedure of superior judges and the final names of judges will be decided by a parliamentary commission
8. A Chief Election Commissioner will be appointed through consensus between the treasury and the opposition
9. Establishment of Islamabad High Court and benches of high courts in Mingora and Turbat
10. Recognition of the children’s right to education and insertion of a new section under Article 25A to provide a constitutional guarantee that the state will provide free and compulsory education to all girls and boys up to age 16.
11. The power to dissolve the parliament was withdrawn from the President.
Main Features of the 18th Amendment
Some of the main features of this Amendment are as follows:
1. Unanimous Decision
The 18th Amendment is a piece of legislation carried out with consensus; not even one lawmaker voted against it. All parliamentary parties (17) had representation in Senator Mian Raza Rabbani-led Parliamentary Committee on Constitutional Reforms (PCCR) including Pakhtunkhwa Milli Awami Party with only one member in Parliament then. The consensus was evolved on 104 changes in the Constitution by inviting suggestions from the public at large in addition to parliamentary input; 986 proposals were received from civil society that took nine months to examine. Each amendment finalized by PCCR was subject to approval from the leadership of political parties through their representatives in the committee.
2. Change in the form of Government
The 18th Amendment not only reversed many infringements on the Constitution of Pakistan over several decades by its military rulers but also removed the power of the President of Pakistan to dissolve the Parliament unilaterally, turning Pakistan from a semi-presidential to a parliamentary republic. Similarly, the powers of the President of Pakistan to dissolve Parliament and appoint governors have also been taken away. Neither the president nor the governor can dissolve Parliament without the advice of the prime minister, nor can governors dissolve provincial assemblies without the advice of their respective chief ministers. It was the first time in Pakistan’s history that a president relinquished a significant part of his powers willingly and transferred them to parliament and the office of the prime minister.
3. Introduction of Institutionalised Power
The 18th Amendment has also introduced the unique concept of “institutionalized powers” by giving parliament the authority instead of the President or Prime Minister to determine the number of ministers, to ensure that the Council of Common Interests and National Economic Council offer annual reports, to review candidates for the appointment of judges, and to determine the NFC’s share in terms of percentage. Further, the Election Commission could not exist in its absence, and aspects like caretaker governments, referenda, or new commissions such as the National Commission on the Status of Women (NCSW) and National Commission for Human Rights (NCHR) must also follow due process with the parliament
4. Bar on Parliamentary Validation of Martial Law:
This was the first time that a Parliament refused to validate martial law. The Parliament formed after the 1985 elections endorsed the changes made during the martial law of Gen. Ziaul Haq, and the Parliament set up after the 2002 elections validated tampering with the Constitution done by Gen. Pervez Musharraf. However, the PPP-led Parliament did the opposite. Musharraf’s Legal Framework Order 2002, its amended versions, and the 17th Amendment to the Constitution were repealed through the 18th Amendment.
5. No More Martial Law/Validation by Court
In another first, this constitutional amendment has eliminated the chance of any martial law in the future. Although Iskander Mirza abrogated the Constitution of 1956, no military dictator has ever done this with the Constitution of 1973. Instead, it was either suspended or held in abeyance to capture power, whereas the Supreme Court of Pakistan validated these adventures. The 18th Amendment has broadened the definition of treason through changes in Article 6 bringing in a loop the judges who would validate in addition to generals thus ending an era of the doctrine of necessity. Article 6 (2A) reads: “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.”
6. Provincial Autonomy
Eminent constitutional lawyer Zafarullah Khan has rightly termed the 18th Amendment the “New Constitutional Software of Pakistan”, which led to amendments in half of the 34 articles related to provincial autonomy. In essence, it had rewritten the federal-provincial pact and was different from other legislative, administrative, and fiscal reforms in the sense that it had originated from within, unlike most donor-pushed reforms.
The 18th Amendment empowered the provinces, giving them a constitutional voice, whereby the federal government could not impose an emergency without the consent of the provincial government. Further, Article 140-A was introduced to set minimum standards for the establishment of local government bodies by the provinces, and fundamental rights such as the right to a fair trial, the right to education, and the right to information were expanded.
Distribution of fiscal resources is one of the most critical issues, as the 7th National Finance Commission Award announced in 2009 provided for distributing 57% of the funds among provinces in line with the agreed formula, and the remaining 43% was allocated to the federal government. This was the opposite of what Gen. Musharraf did, using his discretion while announcing the 6th NFC award in 2006. He had kept 57% for the federal government, and the remaining 43% diverted to the provinces.
The 7th NFC award was made part of the Constitution through the 18th Amendment, which set this formula of 57–43 as a minimum limit, as the next award may increase but can’t decrease this share. Meanwhile, Balochistan and Sindh have not yet pressed the royalty on natural resources, which was due to them after the enforcement of the devolution plan.
The 18th Amendment has strengthened the two institutions, that is, the Council of Common Interests and the National Economic Council. Both have a pivotal role in balancing the development concerns among federating units and federal-provincial relations. Although they had been in existence for a long time, only eleven meetings were held from 1973 until 2010, which badly reflects on the successive governments. After the 18th Amendment, there is a constitutional requirement for a CCI meeting every 90 days to be headed by the prime minister and attended by chief ministers, among other members.
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