Amendments
Outline 1. Amendment passed during Zuliqar Bhutto’s regime 2.1. 1st Amendment 2.2. 2nd Amendment 2.3. 3rd Amendment 2.4. 4th Amendment 2.5. 5th Amendment 2.6. 6th Amendment 2.7. 7th Amendment 2. Amendments passed during Junejo’s regime under the influence of Gen Zia 3.8. 8th Amendment 3.9. 9th Amendment 3.10. 10th Amendment 3.11. 11th Amendment 3. Amendments passed during Nawaz, Benazir and Musharraf regime 4.12. 12th Amendment 4.13. 13th Amendment 4.14. 14th Amendment 4.15. 15th Amendment 4.16. 16th Amendment 4.17. 17th Amendment 4. Amendment passed during Zardari’s regime 5.18. 18th Amendment
4.1.1.Criticism
4.1.1.1 Danger to democracy 4.1.1.2 Politicians and political parties 4.1.1.3 Land and tax reforms made more difficult 4.1.1.4 People’s problem 4.1.1.5 18th Amendment a bill to fix the distortions made to the 1973 constitution 5.19. 19th Amendment 5.20.1. 19th Amendment challenging the constitutionality of the flawed 18th Amendment 5.20. 20th Amendment
Introduction
Constitutional history of Pakistan is dotted with various strong and weak points. It has all the major features of constitutional systems of the established democracies as inherited from British India. However, constitutional breakdowns, tensions between civil and military wings of the State, coups d ' etats, tug of war between judiciary and executive, and uncertainty about the role of Islam in the state have adversely affected the process of Constitutional development in Pakistan.
The 1970 elections were the first general elections in the country to be held on the basis of adult franchise. However, the election results that brought Sheikh Mujib-ur-Rehman 's provincial autonomist Awami League as the majority party in the National Assembly could not be reconciled by the military regime. The failure of dialogue between the regime, the Awami League and the Pakistan People 's Party, which had emerged as the majority party in two provinces of West Pakistan - the Punjab and Sindh paved the way for a crisis which the military regime trued to resolve by force. East Pakistan was subjected to military action on March 25, 1971. The military regime 's failure in crisis management led to its intensification and culminated in the separation of East Pakistan on December 16, 1971. On December 20, 1971, General Yahya Khan resigned and handed power to the leader of the Pakistan People 's Party, Zulfikar Ali Bhutto who took charge as President as well as Chief Martial Law Administrator. Bhutto lifted Martial Law in April 1972 after he got the approval of the Opposition for his interim Constitution to govern the country as long as the permanent Constitution was not made. Meanwhile, a Constitution Committee was formed, comprising members of the Government and the Opposition. The draft report of Constitution was presented in the Assembly on December 21, 1972. The Constitution was passed on April 10, 1973 after hectic debate and parlays between the Government and the Opposition. After being assented to by the President on April 12, the Constitution was enforced on August 14.
The Constitution of 1973 is the first Constitution of Pakistan made by a constituent assembly elected directly by the people on the basis of adult franchise. As all the political parties with membership in the Constituent Assembly voted for the Constitution, it could also be described as a unanimous Constitution. Moreover, as the political parties having representation from all the four provinces agreed to the Constitution, it could also be characterized as representing a federal contract.
Constitution is supreme document of Pakistan, consisting of a preamble, 280 articles, 6 schedules and 20 amendments. It identifies the state (its physical existence and its borders), people and their fundamental rights, state 's constitutional law and orders, and also the constitutional structure and establishment of the institutions and the country 's armed forces. The first three chapters establish the rules, mandate, and separate powers of the three branches of the government: a legislature, a bicameral Parliament; an executive branch governed by the Prime Minister as chief executive; and an apex federal judiciary head by Supreme Court. The Constitution lay the establishment of President of Pakistan who is the ceremonial figurehead (head of state) and its role is to represent the unity of the state. Unlike the previous legal documents of 1956 and 1962, the 1973 constitution cannot be changed; instead, constitutional amendments are added to it, altering its effect.
This constitution represented a compromise consensus on three issues: the role of Islam, the sharing of power between the federal government and the provinces, and the division of responsibilities between the President and the Prime Minister, with a greatly strengthened position for the latter.
AIMS AND OBJECTIVES
Source: Preamble of the constitution.
Islam was declared the state religion. The Constitution stated Pakistan 's official name as the Islamic Republic of Pakistan. Only a Muslim could become the President or the Prime Minister of Pakistan. No law repugnant to Islam shall be enacted and the present laws shall also be Islamized.
The Constitution provided for a federal system. The Federal Legislature is to function like the British Parliament. In order to allay the concerns of the provinces concerning the equitable distribution of legislative power, the constitution established a bicameral legislature with a Senate (the upper house), providing equal provincial representation, and a National Assembly (the lower house), allocating seats according to population.
Pakistan shall be a welfare state where the principles of equality freedom, justice, fair play, tolerance etc should prevail.
Adequate provisions shall be made for the minorities so that they can preserve and practice their religious norms.
Amendments in the constitution
Source:www.pildat.org briefing number 16,Modern constitutions pg 391 select constitutions pg 219
It is a parliamentary function in any democracy to make amendments in the Constitution. No constitution in the World can be so rigid that it cannot be amended. Therefore every written constitution provides for the procedure of amendment of the Constitution which is generally different and more stringent than the manner and procedure of ordinary legislation. Article 51 of the Constitution of Pakistan 1973 provides that the Parliament of Pakistan consists of the President and two Houses to be known as the National Assembly and the Senate. The Constitution provides for procedure to amend the Constitution under its Article 238 and 239. The Constitution, or any of its provisions, can be amended by an Act of Parliament provided it is passed by the votes of not less than two-thirds of the total number of members of the National Assembly and the Senate, each House voting separately. Unfortunately, ever since the commencement of the Constitution on 14 August 1973, Pakistan has suffered from absence of the Parliament for sustained periods of time. During the Martial Law of General Zia, both the Houses of the Parliament were suspended for about eight years (from July 1977 to March 1985). Similarly during the military regime of General Musharaf, both the Houses of the Parliament remained suspended for three years (October 1999 to October 2002). In addition, the National Assembly was dissolved in 1977, 1988, 1990, 1993 and 1996-97, the total period of dissolution adds up to more than one and half years. In this way, the Parliament did not exist or was not functional for a total period of twelve and half years out of forty years of the commencement of the Constitution. In other words, the Parliament in Pakistan has been functional only for less than twenty eight years under the Constitution. During the course of Pakistan 's chequered constitutional and political history, the Constitution has undergone frequent and comprehensive changes in the shape of Constitutional amendments which are briefly discussed below.
Amendment passed during Zuliqar Bhutto’s regime:
1st amendment.1974 * East Pakistan eliminated from Pakistan’s territory. * Changes in the strength of both houses of parliament. * Enactment relating to political parties
2nd amendment.1974 * Declaration of muslims, recognition of mirzaaes as minority.
3rd amendment.1975 * Changes in different procisions relating to emergency conditions. * Changes in preventive detention clauses.
4th amendment.1975 * Increase in seats of non-muslims in National Assembly. * Additional changes in the preventive detention clauses.
5th amendment.1976 * Alteration in the provisions relating to the appointment and term of provincial governors. * Changes in the service conditions of the chief justice of Supreme Court. * Changes in the service conditions of the chief justice of High Court. * Limitation on the jurisdiction of high court relating to preventive detention. * Extension in the period of bringing separation between executive and judiciary.
6th amendment.1976 * Changes in the retiring age of Chief Justice of Supreme Court and High court.
7th amendment.1976 * Holding of referendum under the order of president and its method. * Limitation on the jurisdiction of high court in case of military action.
Amendments passed during Junejo’s regime under the influence of Gen Zia
8th amendment.1985
The Constitution of 1973 of Pakistan envisaged a parliamentary system of government, with the balance of power tilted favorably towards the Prime Minister. The President could not exercise his powers without the concurrence of the Prime Minister. The 8th Constitutional Amendment, however, altered the form of the Constitution drastically. Passed by the Senate on November 14, 1985, the 8th Amendment tampered with almost 19 clauses of the Constitution and brought the office of the President of Pakistan almost at par with that of the Prime Minister. Main features are: * Balance between the powers of president and prime minister. Thus a Semi-Presidential Government was formed. * Extention in the power of the parliament. * Changes relating to composition of senate. * Changes on the aforesaid pattern in the provincial governmental structure.
9th amendment.1985 * Injunctions of islam as laid down in Quran and Sunnah, shall be supreme law and source of guidance of legislation to be administered through law enacted by the legislative bodies and for policy making. * Changes in the jurisdictions of court in order to judge the validity of existing laws in light of shariah and to bring them in conformity with islam.
10th amendment.1987 * Alteration in the article 54 of the constitution, substituting 130 days as requirement for holding the total duration of parliamentary session per year instead of 160 days.
11th amendment.1985 * Aims at giving protection to all orders and decrees CMLA and increasing presidential powers * “Objective Resolution” has been made operative part of Constitution
Amendments passed during Nawaz, Benazir and Musharaf’s regime
12th amendment.1991 * Added a new clause 212(b), aiming at establishment of special courts to eliminate lawlessness, violence and serious offences in society.(operative only for 3 years) * Salaries of Judges increased.
13th amendment.1997 * Curtailed the controversial powers of the president. * President to seek Prime Minister’s advice on performing its functions
14th amendment.1997 * Clause added to article 63. It discourage changing of party affiliation on the part of parliamentarians, with punish in the form of loss of membership. * Also empowers the party leaders to take drastic action against party members who express views against party police, on the floor of house.
15th amendment.1998(proposed) * This bill was passed by national assembly in oct.1998 by two-third vote but the stage regarding its approval by the senate due to the force of unfavorable circumstances. Consequently the proposed amendment could not mature. * The amendment seeks to establish the recognition of quran and sunnah as supreme law. * Guaranteeing non-interference in the safeguards and rights of non-muslims. * Alteration in the method of amendment.
16th amendment.1999 * Slight alteration in article 27, Clause 1. * Safeguards against discriminations in federal services regarding reserved seats provided by the constitution for different areas for a period of 20 years in order to secure proper representation of all regions and classes. The aforesaid period has been extended for 40 years.
17th amendment and Legal Framework Order(LFO).2003
The Supreme Court of Pakistan granted power to amend the Constitution to General Musharraf in the judgment of the case titled “Zafar Ali Shah V. General Pervaiz Musharaf” (PLD 2000 S.C. 869). Musharraf in purported exercise of such power promulgated Legal Framework Order 2002 (LFO) on 21 August 2002 amending 29 Articles of the Constitution. Important features of LFO are enumerated below:- * Musharaf was entitled to work as president and Army Chief simultaneously under LFO; but the original article of 63 shall be operative from 31st December 2004 under this amendment and as such he will have to relinquish the charge as Army Chief on or before that date. * Political parties are required to hold intra party elections to elect their office bearers and party leaders. It has also been provided that no political party should promote sectarian, ethnic, regional hatred or animosity * Musharraf would relinquish the office of Chief Executive on such day that he might determine in accordance with the judgment in Zafar Ali Shah 's case. However, he would hold office of President of Pakistan for a term of five years from the day he assumed such office. * The seats in national Assembly were increased 342 with 60 seats reserved for women and 10 seats reserved for non Muslims. The number of seats in provincial assemblies was also increased. In Balochistan, the number of seats were raised to 65 (11 seats reserved for women and 3 for non Muslims); in NWFP, seats were raised to 144 (22 seats reserved for women and three for non Muslims); in the Punjab, seats were raised to 371 (66 seats reserved for women and 8 seats for non Muslims); and in Sindh, seats were increased to 168 (29 seats reserved for women and 9 seats for non Muslims). The seats in the Senate were increased to 100 with 16 seats reserved for women i.e. 4 from each province. * The president could again dissolve National Assembly at his discretion. Role of president as in 8th amendment was restored. * New disqualifications were added to Article 63 which includes persons convicted and sentenced to imprisonment as absconders, defaulters in the payment of loan from banks or cooperative societies amounting to Rs.2 million or more, defaulters of the payment of government dues and utility bills etc. * The Prime minister had no role to perform regarding the appointment of Chairman of Joint Staff Committee and of all Three Chief of Armed Forces. President shall have ultimate power of appointment. * Article 270(A) has been added validating all the laws made during the period of suspension of the constitution and actions taken there under.
* Article 152A (National Security Council), which was deleted under the 8th Constitutional Amendment, was added. It includes four men in uniform namely the Chairman Joint Chiefs of Staff Committee and three Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force. The functions of National Security Council (NSC) include consultation on strategic methods like sovereignty, integrity and security of the State and democracy, governance and inter provincial harmony.
Amendment passed during Zardari’s regime 18th amendment. * Parliament should declare the 17th Amendment to the Constitution and the Legal Framework Order (LFO) given by a dictator as without any legal authority and should be repealed. * NWFP should be renamed as ‘Khyber Pakhtoonkhwa’. * Good Governance by restricting the size of the Cabinet in to 11 per cent of the members of Parliament and respective Provinces. * Four seats, one from each province, should be allocated in the Senate for the minorities to increase their strength. * It has been recommended that education to each child up to the age of 16 years be made compulsory. * Formation of the council of common interests should be revised with prime minister as its chairman. The council should meet at least once in 90 days besides abolition of the Concurrent List. * Prime Minister shall keep the president informed on all matters of internal and foreign policy and on all legislative proposals the federal government intends to bring before the Majlis-e-Shoora (parliament). * President could use the power of dissolution of the National Assembly when a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly, in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly for the purpose. * 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. * Under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an act of Majlis-e-Shoora (parliament). * Restriction imposed on the attorney general for doing private practice. * Inexpensive and expeditious justice should be ensured to the people as also the right of access to information without any hurdle. * The prime minister shall, in consultation with the leader of the opposition in the National Assembly, forward three names for appointment of the Chief Election Commissioner to a parliamentary committee for hearing and confirmation of any one person. * The parliamentary committee, to be constituted by the speaker, shall comprise 50 per cent from the opposition parties, based on their strength in Parliament to be nominated by the respective parliamentary leaders. In case there is no consensus between the prime minister and the leader of the opposition, each shall forward separate lists to the parliamentary committee for consideration, which may confirm one name. * The total strength of the parliamentary committee shall not exceed 12 members out of which one-third shall be from the Senate. Provided that when the National Assembly is dissolved and a vacancy occurs in the office of the chief election commissioner, the parliamentary committee shall comprise the members of the Senate only. * There shall be no restriction on the number of terms for the offices of the prime minister and chief ministers. * Prime minister would advise the president on appointment of the chairman of the chiefs of staff committee and chiefs of three armed forces. * The Senate shall consist of 104 instead of 100 members with the addition of one minority member from each province. * Working days of the Senate have been increased from 90 to 110. * Restriction on a person who has been dismissed from the service of Pakistan, service of a corporation or office set up or controlled by the federal government or the provincial government on ground of misconduct has been lifted. According to this amendment, a person could be elected as MP, three or five years after dismissal from the service. * A person shall be disqualified from being elected or chosen as, and from being, a member of parliament if he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled, by the federal government, the provincial government or a local government on ground of misconduct, unless a period of five years since his removal or dismissal; or unless a period of three years has elapsed since his removal or compulsory retirement. * The restriction on a person being elected as member of parliament, who has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or integrity or independence of the judiciary of Pakistan, or which defames or bring into ridicule the judiciary or the armed forces of Pakistan, unless a period of five years has elapsed since his release. * Chairman of the Federal Public Service Commission would be appointed by the president on the advice of the prime minister. Similarly, chairmen of the provincial public service commissions would be appointed by the governors on the advice of chief ministers. * Proclamation of emergency in the province due to internal disturbances would require a resolution from the provincial assembly. * If the president acts on his own, the proclamation of emergency shall be placed before both houses of parliament for approval by each house within 10 days. * On dissolution of the assembly or completion of its term, or in case it is dissolved under Article 58 or Article 112, a caretaker shall be selected by the president in consultation with the prime minister and the leader of the opposition in the outgoing National Assembly. Similarly, a caretaker chief minister will be appointed in consultation with the chief minister and the leader of the opposition in the outgoing provincial assembly. * Proclamation of emergency of the fourteenth day of October, 1999, the Provisional Constitution Order (PCO) No 1, the Oath of Office (Judges) Order, 2000, Chief Executive Order No 12 of 2002, Chief Executive Order No 19 of 2002, the amendments made in the Constitution through LFO, 2002, (Chief Executive Order No 24), the LFO (Amendment) Order, 2002, Chief Executive’s Order No 29 of 2002) and the LFO (Second Amendment) Order, 2002 (Chief Executive Order No 32 of 2002), notwithstanding any judgment of any court, including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect. * Judges of the Supreme Court, High Courts and Federal Shariat Court who were continuing to hold the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order 2000, shall be deemed to continue to hold the office as judge or appointed as such as the case may be, under the Constitution and such continuance or appointment, shall have effect accordingly. * Appointment of judges to the Supreme Court, there shall be a judicial commission. For appointment of judges of the Supreme Court, the commission, headed by the chief justice of Pakistan, shall also consist of two most senior judges of the apex court, a former chief justice or a former judge of the Supreme Court to be appointed by the chief justice in consultation with two member judges for a period of two years, federal minister for law and justice, Attorney General for Pakistan, and a senior advocate of the Supreme Court of Pakistan to be nominated by the Pakistan Bar Council for a period of two years. * The judicial commission for the appointment of High Court judge, headed by the chief justice of the High Court, would also include two most senior judges of the High Court, provincial law minister, a senior advocate to be nominated by the provincial bar council. * For appointment of judges of the Federal Shariat Court, the judicial commission shall also include the chief justice of the Shariat Court and the most senior judge of that court as its members. * Article 58-2(b) should be repealed and substituted with “Dissolution of the National Assembly”. * The substitution clause says that the president shall dissolve the National Assembly if so advised by the prime minister, and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the prime minister has so advised. Notwithstanding anything contained in Clause 2 of Article 48, the president may also dissolve the National Assembly in his discretion where, a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly in accordance with the provision of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose. * Passing of the bills: Recommended substitution in Article 70 with “introduction of passing of bills”, adding that a bill with respect to any matter in the Federal Legislative List may originate in either house and shall, if it is passed by the house in which it originated, be transmitted to the other house and if the bill is passed without amendment by the other house also, it shall be presented to the president for assent. * Bills presented in the house but not passed within 90 days of laying in the House shall be considered in a joint sitting of parliament. * Islamabad High Court to be established and the judges of the Islamabad High Court should be taken from the federal capital and four provinces.
CRITICISM
Danger to Democracy!
The discussion has started that a danger to the democracy from within has once more been created as for the emergencies the ‘safety valve’ of the dissolution of National Assembly by president has gone. It means the soft option for an ambitious or angry army. A strong view is that given our history, perhaps the Musharraf version of 58(2)(b) makes more sense: the Supreme Court has to validate a presidential dissolution of the National Assembly within 45 days.
Politicians and Political Parties
A question has arisen on an addition in the Constitution about qualification of a convicted politician. The addition describes that elapse of five years after conviction will change the unqualified person into qualified one. Again the persons dismissed and removed or compulsorily retired would qualify after the period of five and three years respectively. Apparently these provisions have been added to give relief to those politicians who were convicted during the military regimes but it will become a permanent shelter for the persons who are proved convicted on the charges of corruption, dishonesty and opposition to the ideology of Pakistan and after the passage of five years will again be able to contest the elections.
The voting or abstaining to vote on a Constitution Bill against the policy of the political party has been included in the list of causes to disqualify a parliamentarian on ground of defection from the political party. Moreover the declaration of defection from the party has been designated to the Head of the political party in place of Head of the Parliamentary Party because the leaders of political party may be different than the leaders of the parliamentary party in the houses of parliament. The party leaders outside the parliament have been strengthened through this law. While this law can increase the hold of leader of political parties, it can also develop party culture and prohibit flour crossing. If the elections within the parties are held regularly and fairly, these laws can establish a valuable political culture in the country. But many critics have expressed doubt on the motive of the politicians. It is observed that the deletion of the condition of the elections within parties is a move only to please the present leaders of the political parties.
The amendment has put a huge responsibility on the heads of the leaders of the political parties. It, in fact, has transferred the power of deposing the Prime Minister from President to the leader of the majority party. The power that the party chiefs may recall those members who deviate from the party line will constantly haunt the prime minister as much as the leader of the opposition. The significance of few party leaders in contrast with the members of party as well as parliament could be observed even during the process of the passage of amendment. The law-makers had to do less than did the few nominated members of the parliamentary committee in formation of the amendment. All of the members of parliament had just to endorse without speaking in favour or against what the leadership of the party had approved. Land and tax reforms made more difficult
Under the new governance arrangements, land and tax reforms may also be more difficult to accomplish in view of the split of services from goods and of agricultural income from ordinary income. The reform of the revenue sharing system (the NFC awards) to introduce results-based accountability while respecting provincial autonomy might also not be feasible since the provinces are unlikely to have an interest in any arrangements that move them away from the status quo of “autonomy without accountability” that comes with unconditional formula-based revenue-sharing federal transfers (the so-called manna from heaven transfers). In the absence of a legal framework for fiscal responsibility, the risks to macro-stability through provincial non-arms-length access to bank financing can be hardly overstated. Additionally, service delivery disruptions associated with political imperatives cannot be ruled out.
People’s Problems
After more than 60 years of existence, Pakistan still faces existential threats, mostly from within. The 18th Amendment may have unintentionally compounded these threats by reasserting a failed and outmoded model of federal governance. In Pakistan, both centralized federal governance and centralized provincial governance have failed to deal with deteriorating law and order and the delivery of basic services. Rather than assuring citizens their security of life, liberty, and property, government agencies are often seen as impediments to these and to citizens’ economic advancement. A severe criticism has been made on the plea that it did not answer to people’s problems. Ghinwa Bhutto said that that her party would support only those amendments which guaranteed people’s control of police and revenue departments. (Dawn, 2010, April 5) Considering it purely a constitutional matter that arranged the benefits to the politicians and not to public a number of smaller parties with less or no representation in the Parliament objected over the enthusiasm of the major parties for the amendment.
18th Amendment a bill to fix the distortions made to the 1973 constitution: The 18th Amendment was supposed to have cleansed the Constitution of the distortions and perversions introduced by Musharraf through the 17th Amendment, restore a parliamentary system of government and establish the legislative supremacy of parliament. What it has done instead is the exact opposite. It has introduced some new deformities in the Constitution in order to benefit the current ruling clique, substituted parliamentary rule with primacy of the party heads and provided for further inroads by the executive in the legislative field of parliament.
It does not stop there. By abolishing the Concurrent List, the 18th Amendment also incapacitates the federal government and legislature in several vital areas in which only action at the national level can be effective. This has been done in the name of greater provincial autonomy, although the deletion of the Concurrent List gives no new power to the provinces that they did not have already.
President the head of unoin
By failing to lay down expressly that the president, as the representative of the unity of the republic, will stand above party politics, the amendment has made it possible for Zardari to continue as de facto head of the government, and made a mockery of the new Article 90 which declares that the prime minister will be the “chief executive” of the country. The parallel with the ridiculously titled “President to Hold Another Office Act” passed by Musharraf in 2004 to validate his holding of the post of army chief simultaneously with that of president is evident. The only difference is that the second office that Zardari will hold besides the presidency is that of party head, not the army chief. But the result is the same. It makes the prime minister a puppet of the man in the Presidency.
Consolidating dynasty rule
Besides consolidating dynastic control of the country’s political system and strengthening the stranglehold of the exploiting class which enjoys the monopoly of political power and economic fruits, the 18th Amendment has also made Pakistan the safest country in the world for the corrupt politician. Zardari had therefore much to celebrate when he signed the amendment bill into law on April 19. His political allies and other parties also got their piece of the cake. The Sharif brothers can now aspire to any number of terms in their coveted posts and the ANP gets Pakhtunkhwa. Raza Rabbani, the proud author of the amendment bill, also had his moment of glory and repeatedly patted himself on the back for his great achievement.
Peoples problem
The people of Pakistan were the only losers in this great charade. For them, these celebrations have a farcical character. They have again been cheated of their right to a democratic system of government, good governance and checks on the rampant corruption that afflicts the country. It was history repeating itself. Like the 8th Amendment, which was meant to concentrate powers in the hands of Zia and prolong his rule, and the 17th Amendment, which did the same for Musharraf, the 18th Amendment too seeks to strengthen and extend the hold of the country’s current rulers on power. Tellingly, many of the same political stalwarts who voted for the earlier two amendments, among them none other than Gilani, also supported the latest one. Both Zia and Musharraf met a sorry end within a few years after their constitutional coups, but undoing their amendments turned out to be much more difficult. Again, making the present set of rulers answer for their alleged corruption might turn out to be the easy part. Undoing their depredations against the Constitution might be more problematic.
Concurrent list removed
Another controversial point of the 18th amendment is the abolition of the concurrent list from the 1973 constitution in favor of greater autonomy for the provinces. But the claim that the abolition of the concurrent list will give more powers to the provinces is false. They already have enough power on the subjects in this list which they share with the federation and will not get any additional powers as a result of its abolition. Many feel that some subjects could be transferred from the concurrent list to the provincial list, while the complete abolition of it was inappropriate and violative of one of the basic structures on which the 1973 constitution was founded.
In support of the deletion of the Concurrent List, Daultana has cited some “promise” made by the authors of the 1973 Constitution, and Kaira referred to commitments made in the Constitution as adopted originally. This is a myth, as anyone who has taken the trouble of reading the Constitution would know. Neither of them, nor anyone else, has so far divulged who made these promises, and to whom. Nor have they produced a shred of evidence to support their assertion. S M Zafar, a member of the Constitutional Reform Committee who was intimately involved in the drafting of the 1973 Constitution, has stated in his dissenting note that the founders of the Constitution did not make any commitment, expressly or otherwise, to omit the Concurrent List, and that this fact is borne out by historical record, including parliamentary reports.
Another myth is that the abolition of the Concurrent List has given to the provinces some powers which they did not have earlier. The fact is that they already have legislative and executive authority over concurrent subjects. What the abolition of the concurrent list has done is to take away these powers from the federation without giving any new powers to the provinces.
Mr Daultana writes in his article that with a federal and a provincial list in place, a concurrent list is unnecessary and its “prolonged existence” is against the essence of federalism. The first part of his statement is factually incorrect, because there is no provincial list in the 1973 Constitution. As regards the second part, the truth is that many countries with well-functioning federal systems have concurrent lists.
19th amendment * In draft the committee proposed 26 amendments in six articles of the constitution including articles 81, 175, 175-A, 182, 213 and 246 * By amending Article 182 of the constitution, the 19th Amendment has withdrawn powers from the chief justice of Pakistan for the appointment of ad hoc judges and transferred them to the Judicial Council of Pakistan (JCP). Under the proposed bill, the president will now carry out the appointments on the recommendation of the JCP. * Amended clause 2 of the Article 175-A and now under the proposed amendment, four instead of two most senior judges will be appointed in the JCP. * By rectifying a disagreement in the 18th Amendment, the constitutional reforms committee made an amendment in Article 246 of the constitution in the proposed bill through which the Tribal Areas, adjoining Laki Marwat and Tank districts, have be declared a part of FATA. * Formerly called High Court for the Islamabad Capital Territory is now named the Islamabad High Court by introducing amendments in articles 81 and 175. * To remove the Supreme Court’s apprehensions on the future of the Parliamentary Committee for Appointment of Judges in case the National Assembly was dissolved, the constitutional reforms committee proposed an amendment in Article 175-A through which the parliamentary committee comprising senators will take decisions with regards to appointment of judges. * Amendment in Article 175-A which binds the parliamentary committee to justify its decision in case it rejected any nominee of the Judicial Commission for the appointment of judges. * By amending clause 13 of the Article 175-A, the committee included the prime minister in the appointment of judges. * Earlier, in the 18th Amendment, the prime minister had no role and the parliamentary committee had to forward the nominees to the president. * Committee meetings will be held in camera and a record of its proceedings shall be maintained. * The parliamentary committee will be allowed discuss and consider the conduct of judges but parliament would not be allowed to discuss the conduct of judges. * The criterion for the representation of the provincial bar councils in the Judicial Commission for the selection of the chief justices of high courts has also been explained. * The senior advocate of the provincial bar council with 15 years of experience will be included in the JC. 19th Amendment challenging the constitutionality of the flawed 18th Amendment: In its interim order in October on petitions challenging the constitutionality of amendments made by the 18th Amendment, the Supreme Court did not express its opinion on the merits of the issues raised. It only deferred further hearing of the case to the last week of January 2011 pending a reconsideration by parliament of Article 175-A, which lays down a new procedure for appointments to the superior judiciary. In this connection, the Court also listed some specific suggestions (para 10 of the order) to amend this Article. In addition, the Court gave its interpretation (para 15) on the manner in which this Article would be implemented.
The Supreme Court’s order was widely welcomed at the time as it averted what looked like an imminent clash between the judiciary and the legislature. Since then, parliament has passed the 19th Amendment, accepting most of the suggestions for amendments to Article 175-A. This is to be welcomed. As suggested by the Court, the strength of the Judicial Commission which makes nominations to the superior judiciary has been raised from seven to nine, by adding two more senior Supreme Court judges; and the parliamentary committee which is empowered to approve or reject the proposed candidate will be required to meet in camera and to record the reasons for its decisions.
While the 19th Amendment is pretty clear with regard to “suggestions” made in the Supreme Court’s order – some were accepted, while the others were rejected – the position regarding the Court’s interpretation of the manner in which Article 175-A is to be implemented (para 15 of the order) remains somewhat opaque. It is regrettable that parliament did not address this question in the 19th Amendment. We do not know whether that was intentional or another sign of incompetence. But this ambiguity will remain until it is clarified in another constitutional amendment or in a court judgment The government’s claim that the 19th Amendment has resolved the argument over the constitutionality of the 18th Amendment will be coming under test before the Supreme Court when it resumes hearing of the case at the end of the month. The Court will then be pronouncing itself on the merits of the case – not only on the revised Article 175-A but also on the other provisions of the 18th Amendment, which have been challenged on grounds that they are inconsistent with the “basic structure” of the constitution, a doctrine that the Court did not reject in its interim order.
Whatever the verdict of the Supreme Court, there is no justification for the government’s claim that the adoption of the 18th and 19th Amendments is “a triumph for parliamentary democracy”. Shaukat Aziz, the very model of a sidekick, enjoyed more authority as prime minister under Musharraf than Gilani does today under Zardari. The ministers owe their jobs and their loyalty to Zardari and treat the prime minister with polite disdain. It is clearer than ever before that Gilani is a dummy and the supposedly sovereign parliament does not even serve as a debating society.
20th amendment.2012 * Enhanced the power of election commission of Pakistan. * President has no role in selecting caretaker Prime Minister. * Formation of a team for the caretaker Prime minister consisting of 8 members: 4 from the ruling party and 4 from the opposition. * In case of deadlock the decision of election commission is to prevail.
Recommendation. * Further amendment should focus on strengthening the democratic institutional frame work of the state. * Our basic problem is that we lack the basic principles and requisites of democracy. The constitution lays a parliamentary form of government but it’s a misfortune that the politicians changed the shape of constitution according to their sweet will. * Able leaders should be elected. * Pakistan suffered a lot as a result of coup d’état. * Measures to be taken to reduce the interference of military in the politics. * Constitution to be strictly enforced. * Promotion of education. * Promotion of tolerance . * Like the Iranian Constitution referendum should be held after the approval of an amendment by majlis-e-shura. * Media should play its role in promoting political awareness. * Pressure groups should play their role in politics. They shouldn’t work for themselves only, but for the welfare of a common man. * Rule of law should prevail in the country. No one should be allowed to play with the constitution.
Conclusion
From the above narration it is self-evident that the Constitution of Pakistan has been repeatedly and frequently amended. Some of these amendments particularly the Eighth and the Seventeenth Amendments have changed the face of the Constitution.
First seven Amendments were passed during the government of Zulfiqar Ali Bhutto. The Eighth Amendment was passed in 1985 during the Prime Minister ship of Junejo but under the gaze of General Zia. Tenth Amendment was also passed during Junejo government. Twelfth Amendment was passed during the first government of Nawaz Sharif. Thirteenth, Fourteenth and Sixteenth Amendments were passed during the second government of Nawaz Sharif. The Seventeenth Amendment was passed during Jamali Government but obviously at the behest of General Musharaf. The rest passed by the PPP’s government under the president ship of Asif Ali Zardari.
A peculiar feature of the history of the Constitutional Amendments is that most of the Amendments were passed hurriedly without reference to Parliamentary Committees. Even there were no readings of the amendment Bills and the vote of both Houses on such Bills were rushed on the basis of brute majority. In the case of Fourth Amendment, the opposition members were physically thrown out of the Parliament at the time of the passing of the Amendment. There have been amendments where Amendment Bills were moved and passed around mid night. Even the parliamentarians did not have the copy of the Bill before it was actually moved in the Parliament. Where there was an impression that the amendment Bill would not be favoured by the President or the Establishment, clandestine strategies were adopted, particularly in case of Thirteenth and Fourteenth Amendments so that the Establishment would not have time to react and defeat such Amendment Bills. The Eighth Amendment was passed after lengthy Parliamentary debate spread over six to eight weeks. There was some Parliamentary debate over the Second and Fifth Amendment. The Sixth Amendment, which was meant to favour one person, was passed clandestinely without any debate. The Seventeenth Amendment was deliberately rushed through the Parliament with Establishment breathing down the neck of the Parliament in order to ensure that it was passed by both Houses before the holding of the SAARC Conference in the first week of January 2004.
It is irony of fate that the politicians of Pakistan play with the constitution and amended it according to their sweet will. Instead of acting upon the constitution their will dominated and the constitution was modified. Personal interest dominates over public interest. Hence all the amendments that were made are according to the wishes of selfish rulers.
References * Preamble of the 1973 constitution. * www.pildat.org briefing number 16 * Modern constitutions pg 391 * select constitutions pg 219 * www.ccse.net.org/ass * Source: http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/letters/17-Feb-2012/20th-amendment * http://www.panishani.com/2012/12/20th-amendment-explained * http://docs.google.com/viewer?a=v&q=cache:IEAB2xfOMg4J:ipripak.org/factfiles/ff95.pdf+ppp%27s+role+after+2008+general+election+pdf&hl=en&gl=pk&pid=bl&srcid=ADGEEShDfuFmquFgWK8BSuoYFBTRDN0_AKab4J01qIbfm6yuOLDfjg-ldWhGIhP-gI97Vr1UvsnIjiHexXkoMhFOVwAsA-O2H7ieNLn9Axr8HwCYvj6Nm9bTneZaCVGBqL5mqRpBX94U&sig=AHIEtbSfk-Wh3MlHsx6dvya1qGcpvOScwQ * http://nation.com.pk/pakistan-news-newspaper-daily-english-online/Politics/09-Dec-2009/Zardari-gained-financial-benefits-after-graft-charges-dropped
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References: * Preamble of the 1973 constitution. * www.pildat.org briefing number 16 * Modern constitutions pg 391 * select constitutions pg 219 * www.ccse.net.org/ass * Source: http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/letters/17-Feb-2012/20th-amendment * http://www.panishani.com/2012/12/20th-amendment-explained * http://docs.google.com/viewer?a=v&q=cache:IEAB2xfOMg4J:ipripak.org/factfiles/ff95.pdf+ppp%27s+role+after+2008+general+election+pdf&hl=en&gl=pk&pid=bl&srcid=ADGEEShDfuFmquFgWK8BSuoYFBTRDN0_AKab4J01qIbfm6yuOLDfjg-ldWhGIhP-gI97Vr1UvsnIjiHexXkoMhFOVwAsA-O2H7ieNLn9Axr8HwCYvj6Nm9bTneZaCVGBqL5mqRpBX94U&sig=AHIEtbSfk-Wh3MlHsx6dvya1qGcpvOScwQ * http://nation.com.pk/pakistan-news-newspaper-daily-english-online/Politics/09-Dec-2009/Zardari-gained-financial-benefits-after-graft-charges-dropped .
4.1.1.Criticism
4.1.1.1 Danger to democracy 4.1.1.2 Politicians and political parties 4.1.1.3 Land and tax reforms made more difficult 4.1.1.4 People’s problem 4.1.1.5 18th Amendment a bill to fix the distortions made to the 1973 constitution 5.19. 19th Amendment 5.20.1. 19th Amendment challenging the constitutionality of the flawed 18th Amendment 5.20. 20th Amendment
Introduction
Constitutional history of Pakistan is dotted with various strong and weak points. It has all the major features of constitutional systems of the established democracies as inherited from British India. However, constitutional breakdowns, tensions between civil and military wings of the State, coups d ' etats, tug of war between judiciary and executive, and uncertainty about the role of Islam in the state have adversely affected the process of Constitutional development in Pakistan.
The 1970 elections were the first general elections in the country to be held on the basis of adult franchise. However, the election results that brought Sheikh Mujib-ur-Rehman 's provincial autonomist Awami League as the majority party in the National Assembly could not be reconciled by the military regime. The failure of dialogue between the regime, the Awami League and the Pakistan People 's Party, which had emerged as the majority party in two provinces of West Pakistan - the Punjab and Sindh paved the way for a crisis which the military regime trued to resolve by force. East Pakistan was subjected to military action on March 25, 1971. The military regime 's failure in crisis management led to its intensification and culminated in the separation of East Pakistan on December 16, 1971. On December 20, 1971, General Yahya Khan resigned and handed power to the leader of the Pakistan People 's Party, Zulfikar Ali Bhutto who took charge as President as well as Chief Martial Law Administrator. Bhutto lifted Martial Law in April 1972 after he got the approval of the Opposition for his interim Constitution to govern the country as long as the permanent Constitution was not made. Meanwhile, a Constitution Committee was formed, comprising members of the Government and the Opposition. The draft report of Constitution was presented in the Assembly on December 21, 1972. The Constitution was passed on April 10, 1973 after hectic debate and parlays between the Government and the Opposition. After being assented to by the President on April 12, the Constitution was enforced on August 14.
The Constitution of 1973 is the first Constitution of Pakistan made by a constituent assembly elected directly by the people on the basis of adult franchise. As all the political parties with membership in the Constituent Assembly voted for the Constitution, it could also be described as a unanimous Constitution. Moreover, as the political parties having representation from all the four provinces agreed to the Constitution, it could also be characterized as representing a federal contract.
Constitution is supreme document of Pakistan, consisting of a preamble, 280 articles, 6 schedules and 20 amendments. It identifies the state (its physical existence and its borders), people and their fundamental rights, state 's constitutional law and orders, and also the constitutional structure and establishment of the institutions and the country 's armed forces. The first three chapters establish the rules, mandate, and separate powers of the three branches of the government: a legislature, a bicameral Parliament; an executive branch governed by the Prime Minister as chief executive; and an apex federal judiciary head by Supreme Court. The Constitution lay the establishment of President of Pakistan who is the ceremonial figurehead (head of state) and its role is to represent the unity of the state. Unlike the previous legal documents of 1956 and 1962, the 1973 constitution cannot be changed; instead, constitutional amendments are added to it, altering its effect.
This constitution represented a compromise consensus on three issues: the role of Islam, the sharing of power between the federal government and the provinces, and the division of responsibilities between the President and the Prime Minister, with a greatly strengthened position for the latter.
AIMS AND OBJECTIVES
Source: Preamble of the constitution.
Islam was declared the state religion. The Constitution stated Pakistan 's official name as the Islamic Republic of Pakistan. Only a Muslim could become the President or the Prime Minister of Pakistan. No law repugnant to Islam shall be enacted and the present laws shall also be Islamized.
The Constitution provided for a federal system. The Federal Legislature is to function like the British Parliament. In order to allay the concerns of the provinces concerning the equitable distribution of legislative power, the constitution established a bicameral legislature with a Senate (the upper house), providing equal provincial representation, and a National Assembly (the lower house), allocating seats according to population.
Pakistan shall be a welfare state where the principles of equality freedom, justice, fair play, tolerance etc should prevail.
Adequate provisions shall be made for the minorities so that they can preserve and practice their religious norms.
Amendments in the constitution
Source:www.pildat.org briefing number 16,Modern constitutions pg 391 select constitutions pg 219
It is a parliamentary function in any democracy to make amendments in the Constitution. No constitution in the World can be so rigid that it cannot be amended. Therefore every written constitution provides for the procedure of amendment of the Constitution which is generally different and more stringent than the manner and procedure of ordinary legislation. Article 51 of the Constitution of Pakistan 1973 provides that the Parliament of Pakistan consists of the President and two Houses to be known as the National Assembly and the Senate. The Constitution provides for procedure to amend the Constitution under its Article 238 and 239. The Constitution, or any of its provisions, can be amended by an Act of Parliament provided it is passed by the votes of not less than two-thirds of the total number of members of the National Assembly and the Senate, each House voting separately. Unfortunately, ever since the commencement of the Constitution on 14 August 1973, Pakistan has suffered from absence of the Parliament for sustained periods of time. During the Martial Law of General Zia, both the Houses of the Parliament were suspended for about eight years (from July 1977 to March 1985). Similarly during the military regime of General Musharaf, both the Houses of the Parliament remained suspended for three years (October 1999 to October 2002). In addition, the National Assembly was dissolved in 1977, 1988, 1990, 1993 and 1996-97, the total period of dissolution adds up to more than one and half years. In this way, the Parliament did not exist or was not functional for a total period of twelve and half years out of forty years of the commencement of the Constitution. In other words, the Parliament in Pakistan has been functional only for less than twenty eight years under the Constitution. During the course of Pakistan 's chequered constitutional and political history, the Constitution has undergone frequent and comprehensive changes in the shape of Constitutional amendments which are briefly discussed below.
Amendment passed during Zuliqar Bhutto’s regime:
1st amendment.1974 * East Pakistan eliminated from Pakistan’s territory. * Changes in the strength of both houses of parliament. * Enactment relating to political parties
2nd amendment.1974 * Declaration of muslims, recognition of mirzaaes as minority.
3rd amendment.1975 * Changes in different procisions relating to emergency conditions. * Changes in preventive detention clauses.
4th amendment.1975 * Increase in seats of non-muslims in National Assembly. * Additional changes in the preventive detention clauses.
5th amendment.1976 * Alteration in the provisions relating to the appointment and term of provincial governors. * Changes in the service conditions of the chief justice of Supreme Court. * Changes in the service conditions of the chief justice of High Court. * Limitation on the jurisdiction of high court relating to preventive detention. * Extension in the period of bringing separation between executive and judiciary.
6th amendment.1976 * Changes in the retiring age of Chief Justice of Supreme Court and High court.
7th amendment.1976 * Holding of referendum under the order of president and its method. * Limitation on the jurisdiction of high court in case of military action.
Amendments passed during Junejo’s regime under the influence of Gen Zia
8th amendment.1985
The Constitution of 1973 of Pakistan envisaged a parliamentary system of government, with the balance of power tilted favorably towards the Prime Minister. The President could not exercise his powers without the concurrence of the Prime Minister. The 8th Constitutional Amendment, however, altered the form of the Constitution drastically. Passed by the Senate on November 14, 1985, the 8th Amendment tampered with almost 19 clauses of the Constitution and brought the office of the President of Pakistan almost at par with that of the Prime Minister. Main features are: * Balance between the powers of president and prime minister. Thus a Semi-Presidential Government was formed. * Extention in the power of the parliament. * Changes relating to composition of senate. * Changes on the aforesaid pattern in the provincial governmental structure.
9th amendment.1985 * Injunctions of islam as laid down in Quran and Sunnah, shall be supreme law and source of guidance of legislation to be administered through law enacted by the legislative bodies and for policy making. * Changes in the jurisdictions of court in order to judge the validity of existing laws in light of shariah and to bring them in conformity with islam.
10th amendment.1987 * Alteration in the article 54 of the constitution, substituting 130 days as requirement for holding the total duration of parliamentary session per year instead of 160 days.
11th amendment.1985 * Aims at giving protection to all orders and decrees CMLA and increasing presidential powers * “Objective Resolution” has been made operative part of Constitution
Amendments passed during Nawaz, Benazir and Musharaf’s regime
12th amendment.1991 * Added a new clause 212(b), aiming at establishment of special courts to eliminate lawlessness, violence and serious offences in society.(operative only for 3 years) * Salaries of Judges increased.
13th amendment.1997 * Curtailed the controversial powers of the president. * President to seek Prime Minister’s advice on performing its functions
14th amendment.1997 * Clause added to article 63. It discourage changing of party affiliation on the part of parliamentarians, with punish in the form of loss of membership. * Also empowers the party leaders to take drastic action against party members who express views against party police, on the floor of house.
15th amendment.1998(proposed) * This bill was passed by national assembly in oct.1998 by two-third vote but the stage regarding its approval by the senate due to the force of unfavorable circumstances. Consequently the proposed amendment could not mature. * The amendment seeks to establish the recognition of quran and sunnah as supreme law. * Guaranteeing non-interference in the safeguards and rights of non-muslims. * Alteration in the method of amendment.
16th amendment.1999 * Slight alteration in article 27, Clause 1. * Safeguards against discriminations in federal services regarding reserved seats provided by the constitution for different areas for a period of 20 years in order to secure proper representation of all regions and classes. The aforesaid period has been extended for 40 years.
17th amendment and Legal Framework Order(LFO).2003
The Supreme Court of Pakistan granted power to amend the Constitution to General Musharraf in the judgment of the case titled “Zafar Ali Shah V. General Pervaiz Musharaf” (PLD 2000 S.C. 869). Musharraf in purported exercise of such power promulgated Legal Framework Order 2002 (LFO) on 21 August 2002 amending 29 Articles of the Constitution. Important features of LFO are enumerated below:- * Musharaf was entitled to work as president and Army Chief simultaneously under LFO; but the original article of 63 shall be operative from 31st December 2004 under this amendment and as such he will have to relinquish the charge as Army Chief on or before that date. * Political parties are required to hold intra party elections to elect their office bearers and party leaders. It has also been provided that no political party should promote sectarian, ethnic, regional hatred or animosity * Musharraf would relinquish the office of Chief Executive on such day that he might determine in accordance with the judgment in Zafar Ali Shah 's case. However, he would hold office of President of Pakistan for a term of five years from the day he assumed such office. * The seats in national Assembly were increased 342 with 60 seats reserved for women and 10 seats reserved for non Muslims. The number of seats in provincial assemblies was also increased. In Balochistan, the number of seats were raised to 65 (11 seats reserved for women and 3 for non Muslims); in NWFP, seats were raised to 144 (22 seats reserved for women and three for non Muslims); in the Punjab, seats were raised to 371 (66 seats reserved for women and 8 seats for non Muslims); and in Sindh, seats were increased to 168 (29 seats reserved for women and 9 seats for non Muslims). The seats in the Senate were increased to 100 with 16 seats reserved for women i.e. 4 from each province. * The president could again dissolve National Assembly at his discretion. Role of president as in 8th amendment was restored. * New disqualifications were added to Article 63 which includes persons convicted and sentenced to imprisonment as absconders, defaulters in the payment of loan from banks or cooperative societies amounting to Rs.2 million or more, defaulters of the payment of government dues and utility bills etc. * The Prime minister had no role to perform regarding the appointment of Chairman of Joint Staff Committee and of all Three Chief of Armed Forces. President shall have ultimate power of appointment. * Article 270(A) has been added validating all the laws made during the period of suspension of the constitution and actions taken there under.
* Article 152A (National Security Council), which was deleted under the 8th Constitutional Amendment, was added. It includes four men in uniform namely the Chairman Joint Chiefs of Staff Committee and three Chiefs of Staff of the Pakistan Army, Pakistan Navy and Pakistan Air Force. The functions of National Security Council (NSC) include consultation on strategic methods like sovereignty, integrity and security of the State and democracy, governance and inter provincial harmony.
Amendment passed during Zardari’s regime 18th amendment. * Parliament should declare the 17th Amendment to the Constitution and the Legal Framework Order (LFO) given by a dictator as without any legal authority and should be repealed. * NWFP should be renamed as ‘Khyber Pakhtoonkhwa’. * Good Governance by restricting the size of the Cabinet in to 11 per cent of the members of Parliament and respective Provinces. * Four seats, one from each province, should be allocated in the Senate for the minorities to increase their strength. * It has been recommended that education to each child up to the age of 16 years be made compulsory. * Formation of the council of common interests should be revised with prime minister as its chairman. The council should meet at least once in 90 days besides abolition of the Concurrent List. * Prime Minister shall keep the president informed on all matters of internal and foreign policy and on all legislative proposals the federal government intends to bring before the Majlis-e-Shoora (parliament). * President could use the power of dissolution of the National Assembly when a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly, in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly for the purpose. * 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. * Under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an act of Majlis-e-Shoora (parliament). * Restriction imposed on the attorney general for doing private practice. * Inexpensive and expeditious justice should be ensured to the people as also the right of access to information without any hurdle. * The prime minister shall, in consultation with the leader of the opposition in the National Assembly, forward three names for appointment of the Chief Election Commissioner to a parliamentary committee for hearing and confirmation of any one person. * The parliamentary committee, to be constituted by the speaker, shall comprise 50 per cent from the opposition parties, based on their strength in Parliament to be nominated by the respective parliamentary leaders. In case there is no consensus between the prime minister and the leader of the opposition, each shall forward separate lists to the parliamentary committee for consideration, which may confirm one name. * The total strength of the parliamentary committee shall not exceed 12 members out of which one-third shall be from the Senate. Provided that when the National Assembly is dissolved and a vacancy occurs in the office of the chief election commissioner, the parliamentary committee shall comprise the members of the Senate only. * There shall be no restriction on the number of terms for the offices of the prime minister and chief ministers. * Prime minister would advise the president on appointment of the chairman of the chiefs of staff committee and chiefs of three armed forces. * The Senate shall consist of 104 instead of 100 members with the addition of one minority member from each province. * Working days of the Senate have been increased from 90 to 110. * Restriction on a person who has been dismissed from the service of Pakistan, service of a corporation or office set up or controlled by the federal government or the provincial government on ground of misconduct has been lifted. According to this amendment, a person could be elected as MP, three or five years after dismissal from the service. * A person shall be disqualified from being elected or chosen as, and from being, a member of parliament if he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled, by the federal government, the provincial government or a local government on ground of misconduct, unless a period of five years since his removal or dismissal; or unless a period of three years has elapsed since his removal or compulsory retirement. * The restriction on a person being elected as member of parliament, who has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or integrity or independence of the judiciary of Pakistan, or which defames or bring into ridicule the judiciary or the armed forces of Pakistan, unless a period of five years has elapsed since his release. * Chairman of the Federal Public Service Commission would be appointed by the president on the advice of the prime minister. Similarly, chairmen of the provincial public service commissions would be appointed by the governors on the advice of chief ministers. * Proclamation of emergency in the province due to internal disturbances would require a resolution from the provincial assembly. * If the president acts on his own, the proclamation of emergency shall be placed before both houses of parliament for approval by each house within 10 days. * On dissolution of the assembly or completion of its term, or in case it is dissolved under Article 58 or Article 112, a caretaker shall be selected by the president in consultation with the prime minister and the leader of the opposition in the outgoing National Assembly. Similarly, a caretaker chief minister will be appointed in consultation with the chief minister and the leader of the opposition in the outgoing provincial assembly. * Proclamation of emergency of the fourteenth day of October, 1999, the Provisional Constitution Order (PCO) No 1, the Oath of Office (Judges) Order, 2000, Chief Executive Order No 12 of 2002, Chief Executive Order No 19 of 2002, the amendments made in the Constitution through LFO, 2002, (Chief Executive Order No 24), the LFO (Amendment) Order, 2002, Chief Executive’s Order No 29 of 2002) and the LFO (Second Amendment) Order, 2002 (Chief Executive Order No 32 of 2002), notwithstanding any judgment of any court, including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect. * Judges of the Supreme Court, High Courts and Federal Shariat Court who were continuing to hold the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order 2000, shall be deemed to continue to hold the office as judge or appointed as such as the case may be, under the Constitution and such continuance or appointment, shall have effect accordingly. * Appointment of judges to the Supreme Court, there shall be a judicial commission. For appointment of judges of the Supreme Court, the commission, headed by the chief justice of Pakistan, shall also consist of two most senior judges of the apex court, a former chief justice or a former judge of the Supreme Court to be appointed by the chief justice in consultation with two member judges for a period of two years, federal minister for law and justice, Attorney General for Pakistan, and a senior advocate of the Supreme Court of Pakistan to be nominated by the Pakistan Bar Council for a period of two years. * The judicial commission for the appointment of High Court judge, headed by the chief justice of the High Court, would also include two most senior judges of the High Court, provincial law minister, a senior advocate to be nominated by the provincial bar council. * For appointment of judges of the Federal Shariat Court, the judicial commission shall also include the chief justice of the Shariat Court and the most senior judge of that court as its members. * Article 58-2(b) should be repealed and substituted with “Dissolution of the National Assembly”. * The substitution clause says that the president shall dissolve the National Assembly if so advised by the prime minister, and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the prime minister has so advised. Notwithstanding anything contained in Clause 2 of Article 48, the president may also dissolve the National Assembly in his discretion where, a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly in accordance with the provision of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose. * Passing of the bills: Recommended substitution in Article 70 with “introduction of passing of bills”, adding that a bill with respect to any matter in the Federal Legislative List may originate in either house and shall, if it is passed by the house in which it originated, be transmitted to the other house and if the bill is passed without amendment by the other house also, it shall be presented to the president for assent. * Bills presented in the house but not passed within 90 days of laying in the House shall be considered in a joint sitting of parliament. * Islamabad High Court to be established and the judges of the Islamabad High Court should be taken from the federal capital and four provinces.
CRITICISM
Danger to Democracy!
The discussion has started that a danger to the democracy from within has once more been created as for the emergencies the ‘safety valve’ of the dissolution of National Assembly by president has gone. It means the soft option for an ambitious or angry army. A strong view is that given our history, perhaps the Musharraf version of 58(2)(b) makes more sense: the Supreme Court has to validate a presidential dissolution of the National Assembly within 45 days.
Politicians and Political Parties
A question has arisen on an addition in the Constitution about qualification of a convicted politician. The addition describes that elapse of five years after conviction will change the unqualified person into qualified one. Again the persons dismissed and removed or compulsorily retired would qualify after the period of five and three years respectively. Apparently these provisions have been added to give relief to those politicians who were convicted during the military regimes but it will become a permanent shelter for the persons who are proved convicted on the charges of corruption, dishonesty and opposition to the ideology of Pakistan and after the passage of five years will again be able to contest the elections.
The voting or abstaining to vote on a Constitution Bill against the policy of the political party has been included in the list of causes to disqualify a parliamentarian on ground of defection from the political party. Moreover the declaration of defection from the party has been designated to the Head of the political party in place of Head of the Parliamentary Party because the leaders of political party may be different than the leaders of the parliamentary party in the houses of parliament. The party leaders outside the parliament have been strengthened through this law. While this law can increase the hold of leader of political parties, it can also develop party culture and prohibit flour crossing. If the elections within the parties are held regularly and fairly, these laws can establish a valuable political culture in the country. But many critics have expressed doubt on the motive of the politicians. It is observed that the deletion of the condition of the elections within parties is a move only to please the present leaders of the political parties.
The amendment has put a huge responsibility on the heads of the leaders of the political parties. It, in fact, has transferred the power of deposing the Prime Minister from President to the leader of the majority party. The power that the party chiefs may recall those members who deviate from the party line will constantly haunt the prime minister as much as the leader of the opposition. The significance of few party leaders in contrast with the members of party as well as parliament could be observed even during the process of the passage of amendment. The law-makers had to do less than did the few nominated members of the parliamentary committee in formation of the amendment. All of the members of parliament had just to endorse without speaking in favour or against what the leadership of the party had approved. Land and tax reforms made more difficult
Under the new governance arrangements, land and tax reforms may also be more difficult to accomplish in view of the split of services from goods and of agricultural income from ordinary income. The reform of the revenue sharing system (the NFC awards) to introduce results-based accountability while respecting provincial autonomy might also not be feasible since the provinces are unlikely to have an interest in any arrangements that move them away from the status quo of “autonomy without accountability” that comes with unconditional formula-based revenue-sharing federal transfers (the so-called manna from heaven transfers). In the absence of a legal framework for fiscal responsibility, the risks to macro-stability through provincial non-arms-length access to bank financing can be hardly overstated. Additionally, service delivery disruptions associated with political imperatives cannot be ruled out.
People’s Problems
After more than 60 years of existence, Pakistan still faces existential threats, mostly from within. The 18th Amendment may have unintentionally compounded these threats by reasserting a failed and outmoded model of federal governance. In Pakistan, both centralized federal governance and centralized provincial governance have failed to deal with deteriorating law and order and the delivery of basic services. Rather than assuring citizens their security of life, liberty, and property, government agencies are often seen as impediments to these and to citizens’ economic advancement. A severe criticism has been made on the plea that it did not answer to people’s problems. Ghinwa Bhutto said that that her party would support only those amendments which guaranteed people’s control of police and revenue departments. (Dawn, 2010, April 5) Considering it purely a constitutional matter that arranged the benefits to the politicians and not to public a number of smaller parties with less or no representation in the Parliament objected over the enthusiasm of the major parties for the amendment.
18th Amendment a bill to fix the distortions made to the 1973 constitution: The 18th Amendment was supposed to have cleansed the Constitution of the distortions and perversions introduced by Musharraf through the 17th Amendment, restore a parliamentary system of government and establish the legislative supremacy of parliament. What it has done instead is the exact opposite. It has introduced some new deformities in the Constitution in order to benefit the current ruling clique, substituted parliamentary rule with primacy of the party heads and provided for further inroads by the executive in the legislative field of parliament.
It does not stop there. By abolishing the Concurrent List, the 18th Amendment also incapacitates the federal government and legislature in several vital areas in which only action at the national level can be effective. This has been done in the name of greater provincial autonomy, although the deletion of the Concurrent List gives no new power to the provinces that they did not have already.
President the head of unoin
By failing to lay down expressly that the president, as the representative of the unity of the republic, will stand above party politics, the amendment has made it possible for Zardari to continue as de facto head of the government, and made a mockery of the new Article 90 which declares that the prime minister will be the “chief executive” of the country. The parallel with the ridiculously titled “President to Hold Another Office Act” passed by Musharraf in 2004 to validate his holding of the post of army chief simultaneously with that of president is evident. The only difference is that the second office that Zardari will hold besides the presidency is that of party head, not the army chief. But the result is the same. It makes the prime minister a puppet of the man in the Presidency.
Consolidating dynasty rule
Besides consolidating dynastic control of the country’s political system and strengthening the stranglehold of the exploiting class which enjoys the monopoly of political power and economic fruits, the 18th Amendment has also made Pakistan the safest country in the world for the corrupt politician. Zardari had therefore much to celebrate when he signed the amendment bill into law on April 19. His political allies and other parties also got their piece of the cake. The Sharif brothers can now aspire to any number of terms in their coveted posts and the ANP gets Pakhtunkhwa. Raza Rabbani, the proud author of the amendment bill, also had his moment of glory and repeatedly patted himself on the back for his great achievement.
Peoples problem
The people of Pakistan were the only losers in this great charade. For them, these celebrations have a farcical character. They have again been cheated of their right to a democratic system of government, good governance and checks on the rampant corruption that afflicts the country. It was history repeating itself. Like the 8th Amendment, which was meant to concentrate powers in the hands of Zia and prolong his rule, and the 17th Amendment, which did the same for Musharraf, the 18th Amendment too seeks to strengthen and extend the hold of the country’s current rulers on power. Tellingly, many of the same political stalwarts who voted for the earlier two amendments, among them none other than Gilani, also supported the latest one. Both Zia and Musharraf met a sorry end within a few years after their constitutional coups, but undoing their amendments turned out to be much more difficult. Again, making the present set of rulers answer for their alleged corruption might turn out to be the easy part. Undoing their depredations against the Constitution might be more problematic.
Concurrent list removed
Another controversial point of the 18th amendment is the abolition of the concurrent list from the 1973 constitution in favor of greater autonomy for the provinces. But the claim that the abolition of the concurrent list will give more powers to the provinces is false. They already have enough power on the subjects in this list which they share with the federation and will not get any additional powers as a result of its abolition. Many feel that some subjects could be transferred from the concurrent list to the provincial list, while the complete abolition of it was inappropriate and violative of one of the basic structures on which the 1973 constitution was founded.
In support of the deletion of the Concurrent List, Daultana has cited some “promise” made by the authors of the 1973 Constitution, and Kaira referred to commitments made in the Constitution as adopted originally. This is a myth, as anyone who has taken the trouble of reading the Constitution would know. Neither of them, nor anyone else, has so far divulged who made these promises, and to whom. Nor have they produced a shred of evidence to support their assertion. S M Zafar, a member of the Constitutional Reform Committee who was intimately involved in the drafting of the 1973 Constitution, has stated in his dissenting note that the founders of the Constitution did not make any commitment, expressly or otherwise, to omit the Concurrent List, and that this fact is borne out by historical record, including parliamentary reports.
Another myth is that the abolition of the Concurrent List has given to the provinces some powers which they did not have earlier. The fact is that they already have legislative and executive authority over concurrent subjects. What the abolition of the concurrent list has done is to take away these powers from the federation without giving any new powers to the provinces.
Mr Daultana writes in his article that with a federal and a provincial list in place, a concurrent list is unnecessary and its “prolonged existence” is against the essence of federalism. The first part of his statement is factually incorrect, because there is no provincial list in the 1973 Constitution. As regards the second part, the truth is that many countries with well-functioning federal systems have concurrent lists.
19th amendment * In draft the committee proposed 26 amendments in six articles of the constitution including articles 81, 175, 175-A, 182, 213 and 246 * By amending Article 182 of the constitution, the 19th Amendment has withdrawn powers from the chief justice of Pakistan for the appointment of ad hoc judges and transferred them to the Judicial Council of Pakistan (JCP). Under the proposed bill, the president will now carry out the appointments on the recommendation of the JCP. * Amended clause 2 of the Article 175-A and now under the proposed amendment, four instead of two most senior judges will be appointed in the JCP. * By rectifying a disagreement in the 18th Amendment, the constitutional reforms committee made an amendment in Article 246 of the constitution in the proposed bill through which the Tribal Areas, adjoining Laki Marwat and Tank districts, have be declared a part of FATA. * Formerly called High Court for the Islamabad Capital Territory is now named the Islamabad High Court by introducing amendments in articles 81 and 175. * To remove the Supreme Court’s apprehensions on the future of the Parliamentary Committee for Appointment of Judges in case the National Assembly was dissolved, the constitutional reforms committee proposed an amendment in Article 175-A through which the parliamentary committee comprising senators will take decisions with regards to appointment of judges. * Amendment in Article 175-A which binds the parliamentary committee to justify its decision in case it rejected any nominee of the Judicial Commission for the appointment of judges. * By amending clause 13 of the Article 175-A, the committee included the prime minister in the appointment of judges. * Earlier, in the 18th Amendment, the prime minister had no role and the parliamentary committee had to forward the nominees to the president. * Committee meetings will be held in camera and a record of its proceedings shall be maintained. * The parliamentary committee will be allowed discuss and consider the conduct of judges but parliament would not be allowed to discuss the conduct of judges. * The criterion for the representation of the provincial bar councils in the Judicial Commission for the selection of the chief justices of high courts has also been explained. * The senior advocate of the provincial bar council with 15 years of experience will be included in the JC. 19th Amendment challenging the constitutionality of the flawed 18th Amendment: In its interim order in October on petitions challenging the constitutionality of amendments made by the 18th Amendment, the Supreme Court did not express its opinion on the merits of the issues raised. It only deferred further hearing of the case to the last week of January 2011 pending a reconsideration by parliament of Article 175-A, which lays down a new procedure for appointments to the superior judiciary. In this connection, the Court also listed some specific suggestions (para 10 of the order) to amend this Article. In addition, the Court gave its interpretation (para 15) on the manner in which this Article would be implemented.
The Supreme Court’s order was widely welcomed at the time as it averted what looked like an imminent clash between the judiciary and the legislature. Since then, parliament has passed the 19th Amendment, accepting most of the suggestions for amendments to Article 175-A. This is to be welcomed. As suggested by the Court, the strength of the Judicial Commission which makes nominations to the superior judiciary has been raised from seven to nine, by adding two more senior Supreme Court judges; and the parliamentary committee which is empowered to approve or reject the proposed candidate will be required to meet in camera and to record the reasons for its decisions.
While the 19th Amendment is pretty clear with regard to “suggestions” made in the Supreme Court’s order – some were accepted, while the others were rejected – the position regarding the Court’s interpretation of the manner in which Article 175-A is to be implemented (para 15 of the order) remains somewhat opaque. It is regrettable that parliament did not address this question in the 19th Amendment. We do not know whether that was intentional or another sign of incompetence. But this ambiguity will remain until it is clarified in another constitutional amendment or in a court judgment The government’s claim that the 19th Amendment has resolved the argument over the constitutionality of the 18th Amendment will be coming under test before the Supreme Court when it resumes hearing of the case at the end of the month. The Court will then be pronouncing itself on the merits of the case – not only on the revised Article 175-A but also on the other provisions of the 18th Amendment, which have been challenged on grounds that they are inconsistent with the “basic structure” of the constitution, a doctrine that the Court did not reject in its interim order.
Whatever the verdict of the Supreme Court, there is no justification for the government’s claim that the adoption of the 18th and 19th Amendments is “a triumph for parliamentary democracy”. Shaukat Aziz, the very model of a sidekick, enjoyed more authority as prime minister under Musharraf than Gilani does today under Zardari. The ministers owe their jobs and their loyalty to Zardari and treat the prime minister with polite disdain. It is clearer than ever before that Gilani is a dummy and the supposedly sovereign parliament does not even serve as a debating society.
20th amendment.2012 * Enhanced the power of election commission of Pakistan. * President has no role in selecting caretaker Prime Minister. * Formation of a team for the caretaker Prime minister consisting of 8 members: 4 from the ruling party and 4 from the opposition. * In case of deadlock the decision of election commission is to prevail.
Recommendation. * Further amendment should focus on strengthening the democratic institutional frame work of the state. * Our basic problem is that we lack the basic principles and requisites of democracy. The constitution lays a parliamentary form of government but it’s a misfortune that the politicians changed the shape of constitution according to their sweet will. * Able leaders should be elected. * Pakistan suffered a lot as a result of coup d’état. * Measures to be taken to reduce the interference of military in the politics. * Constitution to be strictly enforced. * Promotion of education. * Promotion of tolerance . * Like the Iranian Constitution referendum should be held after the approval of an amendment by majlis-e-shura. * Media should play its role in promoting political awareness. * Pressure groups should play their role in politics. They shouldn’t work for themselves only, but for the welfare of a common man. * Rule of law should prevail in the country. No one should be allowed to play with the constitution.
Conclusion
From the above narration it is self-evident that the Constitution of Pakistan has been repeatedly and frequently amended. Some of these amendments particularly the Eighth and the Seventeenth Amendments have changed the face of the Constitution.
First seven Amendments were passed during the government of Zulfiqar Ali Bhutto. The Eighth Amendment was passed in 1985 during the Prime Minister ship of Junejo but under the gaze of General Zia. Tenth Amendment was also passed during Junejo government. Twelfth Amendment was passed during the first government of Nawaz Sharif. Thirteenth, Fourteenth and Sixteenth Amendments were passed during the second government of Nawaz Sharif. The Seventeenth Amendment was passed during Jamali Government but obviously at the behest of General Musharaf. The rest passed by the PPP’s government under the president ship of Asif Ali Zardari.
A peculiar feature of the history of the Constitutional Amendments is that most of the Amendments were passed hurriedly without reference to Parliamentary Committees. Even there were no readings of the amendment Bills and the vote of both Houses on such Bills were rushed on the basis of brute majority. In the case of Fourth Amendment, the opposition members were physically thrown out of the Parliament at the time of the passing of the Amendment. There have been amendments where Amendment Bills were moved and passed around mid night. Even the parliamentarians did not have the copy of the Bill before it was actually moved in the Parliament. Where there was an impression that the amendment Bill would not be favoured by the President or the Establishment, clandestine strategies were adopted, particularly in case of Thirteenth and Fourteenth Amendments so that the Establishment would not have time to react and defeat such Amendment Bills. The Eighth Amendment was passed after lengthy Parliamentary debate spread over six to eight weeks. There was some Parliamentary debate over the Second and Fifth Amendment. The Sixth Amendment, which was meant to favour one person, was passed clandestinely without any debate. The Seventeenth Amendment was deliberately rushed through the Parliament with Establishment breathing down the neck of the Parliament in order to ensure that it was passed by both Houses before the holding of the SAARC Conference in the first week of January 2004.
It is irony of fate that the politicians of Pakistan play with the constitution and amended it according to their sweet will. Instead of acting upon the constitution their will dominated and the constitution was modified. Personal interest dominates over public interest. Hence all the amendments that were made are according to the wishes of selfish rulers.
References * Preamble of the 1973 constitution. * www.pildat.org briefing number 16 * Modern constitutions pg 391 * select constitutions pg 219 * www.ccse.net.org/ass * Source: http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/letters/17-Feb-2012/20th-amendment * http://www.panishani.com/2012/12/20th-amendment-explained * http://docs.google.com/viewer?a=v&q=cache:IEAB2xfOMg4J:ipripak.org/factfiles/ff95.pdf+ppp%27s+role+after+2008+general+election+pdf&hl=en&gl=pk&pid=bl&srcid=ADGEEShDfuFmquFgWK8BSuoYFBTRDN0_AKab4J01qIbfm6yuOLDfjg-ldWhGIhP-gI97Vr1UvsnIjiHexXkoMhFOVwAsA-O2H7ieNLn9Axr8HwCYvj6Nm9bTneZaCVGBqL5mqRpBX94U&sig=AHIEtbSfk-Wh3MlHsx6dvya1qGcpvOScwQ * http://nation.com.pk/pakistan-news-newspaper-daily-english-online/Politics/09-Dec-2009/Zardari-gained-financial-benefits-after-graft-charges-dropped
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References: * Preamble of the 1973 constitution. * www.pildat.org briefing number 16 * Modern constitutions pg 391 * select constitutions pg 219 * www.ccse.net.org/ass * Source: http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/letters/17-Feb-2012/20th-amendment * http://www.panishani.com/2012/12/20th-amendment-explained * http://docs.google.com/viewer?a=v&q=cache:IEAB2xfOMg4J:ipripak.org/factfiles/ff95.pdf+ppp%27s+role+after+2008+general+election+pdf&hl=en&gl=pk&pid=bl&srcid=ADGEEShDfuFmquFgWK8BSuoYFBTRDN0_AKab4J01qIbfm6yuOLDfjg-ldWhGIhP-gI97Vr1UvsnIjiHexXkoMhFOVwAsA-O2H7ieNLn9Axr8HwCYvj6Nm9bTneZaCVGBqL5mqRpBX94U&sig=AHIEtbSfk-Wh3MlHsx6dvya1qGcpvOScwQ * http://nation.com.pk/pakistan-news-newspaper-daily-english-online/Politics/09-Dec-2009/Zardari-gained-financial-benefits-after-graft-charges-dropped .
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