Dissecting 18th constitutional amendment

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

It has also addressed the long-standing demand for the provincial autonomy. The anti-state elements who are up in the arms against the state exploited the perception that the provinces are contributing significantly and in turn are given peanuts. Thus that very assumption was perceived to be the root cause of all of their sufferings. This devolution scheme has damaged the agenda of anti-state elements beyond repair after the devolution of more than 17 ministries and different divisions. Now the concurrent list remains abolished and provinces are given autonomy. The devolved ministries include health, education, mines and minerals, energy, etc.

Erstwhile NWFP’s name was changed to Khyber Pakhtoonkhwa. It was being demanded by the people of the region that they be provided the identity like other provinces. Further, the spellings of Baluchistan and Sind were changed to Balochistan and Sindh respectively which are in present-day use.

Article 6 which deals with the heinous offence of high treason has undergone two changes of great significance. One, the word “suspend” was inserted in the said Article. Two, neither any High Court nor the Supreme Court cannot validate an act of high treason. The Musharaf regime justified its unconstitutional steps under the guise of “Constitution is suspended” not abrogated. Both these changes in the Article 6 have almost shut the doors for the dictatorial regimes forever.

Moreover, in the fundamental rights chapter three very important Articles were inserted. 10-A “Right to fair trial”, 19-A “Right to information” and 25-A “Right to Education”, these three newly inserted articles helped broadening the basic rights. Owing to these advances, the legislatures have passed “Right to Information Act” so that the citizens may seek any information subject to reasonable restrictions such as any information which is confidential or which may endanger the security, etc. Another important law “Right to Free and Compulsory Education Act” under Article 25-A, which guarantees provision of free education from 5 to 16 years of age.

In addition to that, whenever the dictators are in power, they distort the Constitution in such a way that suits to their vested interests. General Zia through the 8th Amendment inserted Article 58(2)(b) which empowered the President of Pakistan to dissolve the National Assembly at his own discretion.  This has rendered the Constitution to semi-presidential form of government. The rest, as is said, is history. The Nawaz government stripped the president of these powers through the 13th Amendment. General Musharaf after take over re-inserted the same article under the 17th Amendment. That very Article, which was the brainchild of the dictators, was an irritant in the way of smooth functioning of the parliamentary system. Now, the president will Act on the advice of the prime minister.

Appointment mechanism of Supreme Court, High Court and Federal Shariat Court was revamped under the newly inserted Article 175A. Before 18th amendment, the judges were appointed by the president in consultation with the Chief Justice of Pakistan. Under Article 175A, the Judicial Commission of Pakistan and the Parliamentary Committee comprised of the both Houses of the Parliament are involved in the process of those appointments. The Judicial Commission recommends the names to the Parliamentary Committee. In case of rejection, the Judicial Commission forwards new recommendations and President notifies such appointments.

For electoral process, the election commission is appointed after the consultations between the prime minster and the leader of the opposition and the number of members of the commission has also been increased from two to four and one representing each province. Earlier, it was the president of Pakistan who appointed the election commission in his discretion or in consultation to the Prime Minster. These members of the Election Commission of Pakistan can be removed by the Supreme Judicial Council only thus ensuring them to work independently.

It the light of above-mentioned, can anyone ask the detractors of the 18th Amendment whether they have ever bothered to peruse the 102 changes introduced through this Amendment. Do they want to omit the word “suspend” from the Article 6 or the deletion of three fundamental rights-10-A, 19-A and 25-A, or the reversal of the judges or election commission appointment procedure? Do they not like the deletion of infamous 58(2)(b)?

Another debate which often makes rounds in the media that some hidden hands want the reversal of the said amendment. This is understandably an unsubstantiated allegation because of many reasons. One, it is the Parliament which has the power to amend the laws or the Constitution. Two, amendment in the Constitution requires two-third majority from both Houses. Three, reversal of this amendment is not possible in anyway however amendments can be made by the parliament. In that case, there is no harm if the people-elected have mulled over certain changes if needed. Four, if amendment is contemplated which distorts the shape of the Constitution or the provincial autonomy is undermined against the wishes of people, people of the federating units will resist such attempts. Five, doors for dictators have been shut for good. Hence, the myths of reversal of the 18th Constitutional amendment are debunked.

Lastly, this rare opportunity through which consensus was forged which culminated in this landmark outcome that offers shared benefits for all. Likewise, it restored the Constitution according to the spirit of the federal parliamentary structure. Nonetheless, they are the provinces whose pace is slow on those devolved departments. Other measures such as the share of provinces cannot be less than the last award. They are historic developments. It is time to fully operationalize the devolved departments instead of floating rumours regarding the all-important amendment and benefit to the optimum level.


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