Thursday May 30, 2024

The 18th Amendment

By Dr Naazir Mahmood
March 25, 2023

To understand the significance of the 18th Amendment we need to keep in mind at least three earlier amendments: 8th, 13th, and 17th. In addition, the Charter of Democracy signed in 2006 also played a role during the development and drafting of the 18th Amendment.

After the devastating nine-year dictatorship of General Musharraf from 1999 to 2008, the constitution of Pakistan was in a bad shape. Just like Maj-Gen Iskandar Mirza, Generals Ayub Khan, Yahya Khan, and Ziaul Haq, Musharraf too wanted to have a presidential veto in almost everything that the parliament or prime ministers did. The abrogation of the 1956 constitution by Iskandar Mirza, the introduction of the 1962 presidential constitution by Gen Ayub Khan, the promulgation of the LFO by Gen Yahya Khan, the 8th Amendment by Gen Zia and the 17th Amendment by Gen Musharraf, all had the same aim.

The second Nawaz-Sharif government, through the 13th Amendment in 1997, tried to undo the 8th Amendment and transferred most of the presidential powers to the prime minister. But within a couple of years the 13th Amendment and the constitution itself became paralysed by a military coup. In 2003, Gen Musharraf forced parliament to pass the 17th Amendment to formally undo the 13th. In 2006, Benazir Bhutto and Nawaz Sharif – leaders in exile of the two largest and most popular political parties – signed a Charter of Democracy and vowed to abide by it.

By 2008, Benazir had lost her life for democracy and Gen Musharraf had to resign after the elections. Asif Zardari assumed office of the president and promised to undo the 17th Amendment through a parliamentary process. In April 2010, the National Assembly removed the power of the president to dissolve parliament unilaterally. From a semi-presidential system, the country once again became a parliamentary republic. Through the 18th Amendment the North-West Frontier Province received its new name, Khyber Pakhtunkhwa, whereas the provinces became more self-governing with more financial and legislative autonomy.

The amendment successfully countered the sweeping powers of the president that Gen Zia and Musharraf had amassed in their office; the then president Asif Zardari was willing to relinquish these powers. It aimed to decrease political instability in the country; it is mainly thanks to the 18th Amendment that the country has now seen three consecutive democratically elected parliaments complete their five years in office.

For the first time, Pakistan has experienced a 15-year spell of democracy, albeit unstable at times. The first democratic spell was for 11 years when Maj-Gen Iskandar Mirza and Gen Ayub Khan terminated in 1958. The second was for five years that Gen Zia aborted in 1977, and the third was from 1988 to 1999 that Gen Musharraf interrupted.

The 18th Amendment reversed many infringements on the constitution, and it was the first time in the history of Pakistan that a president voluntarily gave up most of his powers in favour of the prime minister. The amendment repealed the 17th Amendment and the LFO of Gen Musharraf and lifted the ban on anyone holding the office of prime minister or chief minister for a third time.

Gen Musharraf had done this to prevent both Benazir Bhutto and Nawaz Sharif from becoming prime ministers again as they had held the office twice in the 1990s, albeit without completing their terms. The change would benefit Nawaz Sharif; still the PPP government facilitated it and, in a way, paved the way for him to come back to power in 2013 – that was the beauty of democracy. Now holding the constitution in abeyance became tantamount to high treason. For the benefit of provinces, the Council of Common Interests (CCI) reconstituted with the prime minister as its chairperson; it had to meet at least once in 90 days.

The amendment also restructured the National Finance Commission (NFC) Award. An independent judicial commission would now recommend the appointment procedure of superior judges and a parliamentary commission would decide the final names of judges. Instead of the president appointing the chief election commissioner (CEC), now the amendment required that the treasury and the opposition hold consultations to develop a consensus for the appointment of the CEC. The amendment also established a high court in Islamabad and high-court benches in Mingora and Turbat. For the first time the government constitutionally recognized the children’s right to education by inserting a new section under Article 25A.

The amendment provided a constitutional guarantee that the state will offer compulsory and free education to all boys and girls up to age 16. Over a dozen ministries found themselves mostly devolved to the provinces after the 18th Amendment. These included the ministries of education, culture, special initiatives, labour and manpower, local government and rural development, minority affairs, population and social welfare, sports, tourism, women development, youth affairs, and zakat and usher. The 18th Amendment genuinely tried to improve transparency in the political system and minimize individual discretion, so vital for strengthening parliament and provincial assemblies.

The amendment altered nearly a third of the constitution and its impact was both legally and symbolically significant. It effectively countered the quest for absolute power by not granting the PM or the president all the powers, as previously used to happen. Now it became much harder to weaken parliament and subdue the judiciary, which ultimately Imran Khan tried to do with nearly unconditional institutional support – but failed. The 18th Amendment also attempted to reduce the erosion of civil liberties and political freedoms in the country.

Now targeting political opponents and human rights violations become much more difficult, which again Imran Khan tried with varying degrees of success. That a 27-member Parliamentary Committee on Constitutional Reforms – with Raza Rabbani as chairperson – drafted the amendment, testifies to its democratic credentials. The committee members had a free and frank atmosphere to discuss constitutional matters. They made their decisions based on their constitutional and political expertise rather than the whims of a military dictator who could mutilate the constitution at his discretion and get validation by the courts.

It is pertinent to note that the committee met 77 times and revisited all 280 articles of the constitution of which 102 articles underwent additions, amendments, or deletions. It was an unprecedented overhaul of the constitution, which by all means became a landmark achievement with cooperation from across the political spectrum. The inclusive nature of the process made it the best constitutional exercise in 50 years. The constitution now clearly stipulates that no court has the authority and power to validate any abrogation or subversion of the constitution, which is high treason.

The amendment also increased the number of fundamental rights in the constitution by inserting the right to a fair trial (Article 10A), right to information (Article 19A) and right to education (Article 25A). By transforming centre-province relations, the 18th Amendment redistributed power between the state and its federating unit, as it became a kind of reconciliation between the provincial aspirations and the central government. As the amendment also abolished the concurrent list it expanded the administrative and legislative responsibilities of the provinces. It devolved laws governing contracts, marriages, diseases, educational curriculums, environmental pollution, labour, trade unions, and 40 other areas, to the provinces.

The redistribution of resources enhanced provincial capacity to meet financial burden of new responsibilities by reconfiguring the inter-provincial revenue distribution formula which now considers the level of backwardness and poverty with inverse population density of a province. Unfortunately, the provinces have not been all willing to follow the amendment in letter and spirit, such as their reluctance to establish a local government system and devolve administrative, financial, and political authority to the elected representatives of local governments in accordance with Article 140A.

The writer holds a PhD from the University of Birmingham, UK. He tweets @NaazirMahmood and can be reached