Thursday May 23, 2024

The 20th and 21st amendments

By Dr Naazir Mahmood
April 03, 2023

The 20th Amendment was the last major achievement of the PPP government which constantly found itself on the receiving end of an irate CJP’s anger. Parliament passed the 20th Amendment in February 2012 to finalize a caretaker setup and hold fair and free elections, and other matters related to the chief election commissioner (CEC) office and members of the Election Commission.

Under the new mechanism, both the PM and the opposition leader would hold a consultation meeting to agree on the caretaker setup. If that failed, the amendment required to constitute an eight-member committee with four members each from the government and the opposition – at the centre and the provinces – to nominate a caretaker prime minister and provincial chief ministers. If the committee also failed to evolve consensus on a caretaker setup within three days, the ECP would make such appointments. The CJP shall administer the oath to the CEC who shall do the same with new members of the Election Commission.

Under the 20th Amendment, the provision of not holding an office of profit applies to the members of the ECP, as for the CEC. With the detailed specifications for a caretaker setup, there was a reduced chance of an imported caretaker prime minister – like we had Moin Qureshi in 1993. After the 20th Amendment, the ECP became much more powerful as it had the authority to install a caretaker setup by minimizing the government’s direct role in the appointment and removal of its members, to avoid confrontation.

Another important provision was that the Election Commission would have four members – one from each province – for five years, and the government would have to follow the same procedure to seek their removal, as is the case with high court judges. It is worth-mentioning that the Supreme Court had directed the federation to constitute the ECP in accordance with the amended constitution and to legally cover the by-elections by the CEC in the interregnum. In 2013, there was a smooth transition from the PPP to the PML-N that had won the general elections under a caretaker setup as stipulated by the 20th Amendment.

The 19th and 20th Amendments sought to make the electoral, judicial, and political system more transparent and free of conflicts, but unfortunately if the past decade is any guide the intentions of these amendments remained unfulfilled. This was mainly because of some judicial and political manipulations in which both political and non-political forces played their roles. Imran Khan and his party refused to acknowledge their defeat in the 2013 elections and opted for demonstrations and protest with a prolonged sit-in in 2014 in Islamabad.

In December 2014, the country experienced its worst terrorist attack on the Army Public School in Peshawar that claimed nearly 150 lives of students and teachers. The incident shocked the nation and called for some stringent measures against terrorism in the country. There arose a demand for speedy trial courts to tackle terrorism cases in the country under military supervision. Parliament passed the 21st Amendment in January 2015, amending Article 175 and the First Schedule of the constitution with a sunset clause which causes the amendments to expire in two years. The most significant provision of the 21st Amendment was the establishment of speedy trial courts for terrorist offences – waging war against Pakistan and acts of threatening the security of the country.

By an amendment to the First Schedule of the constitution, more laws became part of it which included the Pakistan Army Act 1952; the Pakistan Air Force Act, 1953; the Pakistan Navy Act, 1961; and the Protection of Pakistan Act, 2014. Initially the government fell short of the required two-thirds majority, but then the 21st Amendment got through parliament with near consensus. Members of the National Assembly belonging to the JI and the JUI-F abstained from voting. The then prime minister Nawaz Sharif vehemently advocated for this amendment as it sought to try hardcore terrorists.

The PPP was not in favour of military courts as it had suffered under the summary trial courts that General Zia established to target pro-democracy forces in the country in the 1980s. But the PPP changed its stance and ‘swallowed the bitter pill’ by voting for the 21st Amendment. The bill steered quickly with exemption from scrutiny by a house standing committee, soon after its introduction. The Nawaz Sharif government assured parliamentarians that nobody would misuse the new law.

The main concern of several religious parties was on the specification of religious and sectarian groups in the bill. While lawmakers from the MQM and the PPP were of the view that if the bill removed any specifications in relation to religious and sectarian groups engaged in terrorist activities, the amendment would have no real meaning. Those who advocated for the bill cited extraordinary circumstances and situations that demanded special measures for speedy trials of certain offences relating to terrorism and insurrection against the state. To make the 21st Amendment more understandable, it would not be out of place to reproduce the exact text of the controversial clause as follows:

“Any person who is, or claims, or is known to belong to any terrorist group or organisation using the name of religion or a sect and raises arms or wages war against Pakistan, or attacks the armed forces of Pakistan and law enforcement agencies, or attacks any civil or military installation in Pakistan, or kidnaps any person for ransom or causes death of any person or injury, or is in possession, storage, fabrication or transport of explosives, firearms, instruments, articles, suicide jackets, or vehicles designed to be used for terrorist acts, or does any act to overawe the state or any section of the public or a sect or a religious minority, or to create terror or insecurity in Pakistan or attempts to commit any of the said acts, within or outside Pakistan shall be punished under this act.”

The 21st Amendment also explained that the expression ‘sect’ would mean a sect of religion and “does not include any political party registered under any law for the time being in force.” The amendment also received extra protection through the following clause: “the provisions of this Act shall have effect, notwithstanding, anything contained in the constitution, any law for the time being in force or any judgement of a court including the Supreme Court.”

In a sense, there was some similarity between the 19th and the 21st Amendments as both came about at the behest of non-political forces. A major difference was that the 19th Amendment was not time-bound and is still haunting the nation, whereas the 21st Amendment had a sunset clause to expire after serving its purpose in two years.

Some observers considered both amendments as a betrayal of the democratic cause and parliamentary supremacy; they believed that parliament should not bend to any arm-twisting from non-political institutions, which also should not ask for constitutional amendments. Some religious parties called the 21st Amendment a conspiracy to turn Pakistan into a secular state. The JI and the JUI-F were the same parties that had validated the 17th Amendment 12 years earlier in 2003 to bolster General Musharraf’s autocratic rule.

The fact remains that most of the leadership of terrorist organizations emanated from parties that maintained good relations with jihadi organizations since the dictatorship of Gen Ziaul Haq in the 1980s.

The writer holds a PhD from the University of Birmingham, UK.

He tweets @NaazirMahmood and can be reached at: