Pakistan’s constitutional history and 18th Amendment

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By Lt. Gen ® Abdul Qayyum

Constitution of a country is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity. It may be a written constitution like ours or uncodified like that of UK, which is in the form of numerous fundamental acts of legislation, court cases conventions or treaties. Longest written constitution is that of India, containing 444 articles. However, American constitution, active since 1789, is the oldest constitution. As regards Pakistan, it came into being

in 1947 as a dominion within the Commonwealth. Formulation of constitution was top priority in the mind of the founding father who in February 1948, in a radio talk addressed to the people of Pakistan, said,

“The constitution of Pakistan is yet to be framed by Pakistan’s Constituent Assembly. I don’t know what the ultimate shape of the constitution is going to be, but I am sure it will be a democratic type, embodying the essential principles of Islam. Today, these principles are as applicable in actual life as these were 1300 years ago. Islam and its idealism has taught us democracy”

Jinnah unfortunately could not fulfil his dream and passed away in September 1948.

Subsequently, In 1949, the constituent Assembly first passed the Objective Resolution, while Indian legislators succeeded in-passing their country’s constitution in 1951.  However Pakistan’s first constitution saw the light of the day in 1956 and was unfortunately abrogated in 1958.  Similarly, Pakistan’s second constitution which was passed by a dictator in 1962 saw its demise in 1972.  Fortunately thereafter, we succeeded in framing our current constitution on 10th April 1973 which is our supreme Law even today. It has however undergone 26 amendments so far which is a normal process world over.

The very first amendment pertains to the removal of name of former East Pakistan, the 2nd declared Ahmadis as non-Muslim minority, 8th amendment introduced semi presidential system while 9th brought in the Shariah Law. Similarly, 13th amendment stripped power of the president to dissolve the assemblies. 14th amendment pertains to dismissal of members of the parliament if they defected. Gen Parvez Musharraf again managed to empower the president to dissolve assemblies by passing 17th amendment. 18th amendment passed a decade ago ,again not only stripped presidential power to dissolve assemblies but also amended 102 (out of 280) other articles of the constitution.

Those who support 18th amendment in its entirety, rightly plead that it has not only ensured provincial autonomy as promised in the constitution but also restored 1973 constitution in its original parliamentary form .Besides, 18th amendment has purged the constitution of changes made by the dictators to consolidate their rules. This amendment has shut doors for LFO ,PCO Judges, given  right of ownership to provinces on their oil/gas and other mineral resources , strengthened inter-provincial mechanism through Council of Common Interest , streamlined system for selection of judges, reinforced Election Commission of Pakistan and put restrictions to curtail once agreed share of fiscal resources for provinces in the NFC award .

However there is a school of thought which while generally agreeing with the very spirit of the amendment, raises certain issues as under:

1)    Parliamentarians’ constitutional right to review certain articles and make positive changes with the requisite 2/3 majority cannot be denied.

2)    Since 18th amendment changed more than 1/3 of the constitution through substitutions, amendments and even removal of some articles. It, needed more meaningful deliberations specially so when it was initially passed in an undue hurry with merely two days discussion in the NA in which  only 18 members participated out of 342 while 2nd and 8th amendments were deliberated in the Parliament for60 and 41 days respectively. Besides it may be noted that discussion on 1973 constitution continued for two months and Seven days,

3)    One school of thought strongly believes that 18th amendment did attempt to restore the original character of 1973 constitution but the deep surgery process resulted in the amputation of the original document. For example, articles 62 and 63 lay down certain conditions for candidates which are difficult to ascertain. For example, candidates cannot be a known violator of Islamic laws; he has to be good in character, sagacious, righteous and Ameen.

4)    In article 63-A (disqualification on grounds of defection) member is expected to side with his political party even against his conscious while voting for a constitutional amendment.

5)    Article 160 (3A) lays down that shares of Provinces in the NFC award cannot be less than the previous year. This is being regarded as an unreasonable restriction specially under the circumstances when a country can face a lethal pandemic, a national calamity, or a war like situation?

6)    Article 140A which binds provinces to devolve political, administrative, and financial powers to local governments, needs further improvement to ensure that the provinces have no option but to implement this.

7)    Article 213 which pertains to appointment of Chief election commissioner and the members of the Commission also needs a review in view of recent deadlock which made election Commission of Pakistan totally dysfunctional.

8, Abolishment of concurrent list with one stroke of pen is also considered to have been done in an undue haste while India still retains 52 items in its concurrent list as part of 7th schedule.

There is no doubt that parliamentary committee on constitutional reforms did this splendid job in their 77 settings. Articles like 10-A giving right of fair trial, 19-A giving right to information and 25-A insuring right for education are very good additions provided that these are implemented in true letter and spirit. However, realistic review of the constitutional provisions is always a constant process which is done world over and even our present opposition in Pakistan including PPP agrees. The only point is that the government in power needs to come out with specific recommendations which should be deliberated with open mind and implemented if 2/3 majority of both houses agrees. Vague statements in newspapers and irresponsible emotional talk-show discussions are mere wastage of time.

In the face of lethal pandemic which is poised to overtake everything including politics and economy, such discussions at present are ill timed. We therefore need to show national cohesion to first save public lives, provide food security and take appropriate measures to minimize damage to our national economy.

(The author is a former Pakistani general officer and is presently member of Senate. General Qayyum has served as Chairman, Pakistan Ordinance Factories. He has also been Chairman, Pakistan Steel Mills. He regularly speaks at national and international forms on various subjects especially the security affairs.