A milestone in Constitutional History of Pakistan
Ideally Constitution of a country epitomizes hopes and aspirations of a nation and serves as a social contract between the citizens and the state. Authored in the spirit of history, culture, political experience and character of a populace, Constitution of a nation is the product of design based on privileged political choices. Constitutions are living/organic documents and can be amended according to political and economic context of the time.
The Committee in addition to its Terms of Reference, while examining the various provisions of the Constitution, 1973, kept in view the following amongst other criteria:-
(1) Transparency in system.
(2) Minimizing individual discretion.
(3) Strengthening Parliament and Provincial Assemblies.
(4) Provincial Autonomy.
(5) Independence of the Judiciary.
(6) Further strengthening fundamental rights.
(7) The question of merit.
(8) Good governance.
(9) Strengthening of Institutions.
The Committee invited suggestions/proposals and amendments from the public at large through the press and received a total number of 982 recommendations/proposals and amendments through this process.
The Committee asked its members, who represented various political parties to submit their proposals for amendments to the Constitution and also took up certain Private Member’s Bills pertaining to amendments in the Constitution, introduced in the Senate of Pakistan. The total number of such amendments was 91.
The Committee held a total number of 77 meetings, with each meeting at an average lasting 5 hours, thus the Committee has spent about 385 hours during its deliberations.
The passage of 18th Constitutional Amendment Bill was the moment many political leaders and civic activists of Pakistan had struggled for decades. President, Asif Ali Zardari signed the 18th Constitutional Amendment Bill on April 19, 2010 that was earlier passed unanimously by both houses of the Parliament. This development can be regarded as a historic milestone in the constitutional history of Pakistan.
The 26-members Parliamentary Committee on Constitutional Reforms, representing 14 political parties and one member from Federally Administered Tribal Area (FATA), took over nine months to develop a consensus draft bill, although different parties have added separate notes of reiterations to outline their individual party positions. This consensus is a remarkable development. Politicians had demonstrated similar maturity by showing extraordinary flexibility for consensus building during the formulation of the 1973 Constitution.
The framers of the 1973 Constitution envisioned Pakistan as a federal parliamentary democracy. Unfortunately, dictators exploited the Constitution to gain power and centralized their authority by inserting amendments which altered the basic design of the constitution from federal parliamentary to qausi presidential. The changes made in the Constitution by two military dictators through the 8th and 17th Amendments not only weakened the democratic institutions but also deprived the provinces of their legitimate constitutional rights
The 18th amendment has restored the federal and parliamentary spirit of the 1973 constitution. Further, most of the undemocratic constitutional changes inserted during the authoritarian regimes of Zia and Musharaf, who ruled Pakistan for nearly 20 years during the past three decades, are removed.
The 18th amendment’s key aspects:
Identity: The amendment gives identity to former NWFP as the province has been renamed: Khyber Pakhtunkhwa.
Expands Fundamental Human Rights: The 18th amendment expands the scope of fundamental human rights given in the constitution. The amendment affirms the Right to fair trial and due process, Right to information and Right to education for the citizens of Pakistan.
Empowered Parliament: Approval of landmark 18th amendment restores a genuine parliamentary system in the country. The amendment transfers key presidential powers to the parliament and establishes its supremacy. The amendment not only empowers parliament but also restores the powers which has been made presidential in substance after the 17th amendment. It removes presidential power to circumvent the normal legislative process and limit the amount of time the president may consider bills passed by the parliament before approving them. The 18th amendment Bill removes the Presidential power to unilaterally dismiss the parliament. It requires the President to consult with the Prime Minister regarding all appointments. It removes limits on prime ministers serving more than two terms to strengthen the parliament.
Judicial Appointments: Judicial appointment procedures have been one of the most contentious parts of the amendment. President and Prime Minister will have no direct role in judicial appointments after the 18th amendment. An independent Judicial Commission will propose nominees and a special parliamentary committee comprised of government and the opposition will confirm them.
Balance of Powers between Centre and Provinces: The 18th amendment takes important steps toward devolution of authority and enhancing provincial autonomy. It scraps the Concurrent Legislative List of subjects and empowers the provinces. The amendment also expands the scope of Council of Common Interests (CCI). The CCI will become a powerful constitutional body comprised of representatives of centre and provincial government to decide key matters. The National Economic Council (NEC) has been reformed with an advisory role to review overall economic condition of the country and to advise the Federal and Provincial government to formulate plans in this regard.
National Finance Commission Award: Another important step is the distribution of national revenues that is protected under this amendment and provinces’ share can not be reduced beyond that given in the previous National Finance Commission award.
Approval of long awaited 18th amendment is welcomed by all sections of society and termed a triumph of democracy. The passage of 18th Constitutional Amendment Bill is a journey towards democratic empowerment of the state. It is hoped a beginning of constitutional review process and a foundation of future direction for a strengthened federal system in Pakistan.
Mapping discourse on Constitutional Reforms-2010
Broad National Consensus:
|
|||||
| Matrix | Broad stands across the political spectrum | ||||
| Issues
|
New Social Contract in the light of 1940 resolution i.e. new constitutionProvincial control over natural resources | Maximum Provincial AutonomyRespect Diversity
(Acknowledging identity e.g. Khyber Pakhtunkhwa, languages) Informal support for Charter of Democracy |
Expand the scope of fundamental rights. Enforceable Principles of PolicySecular character of the Constitution
Independence of judiciary |
Restoration of original Constitution of 1973Supremacy of the Parliament
(Balance of power) Broad consensus on Charter of Democracy |
More Islamization |
| Parties | No parliamentary representation | ANP, NP, PKMAP, BNP-A, JWP | NGOs, Bar Associations etc | PPP, PML-N, MQM,PML-Q, PPP-S, NPP | JUI-F, JI |
| Strategy | Proposals to the Committee & Media | Members of Committee | Proposals to the Committee/Media, & interaction with political parties
Constitutional petitions |
Members of Committee | Members of Committee |
| Ideological orientation | Nationalists | Left | Civil Society(Left-Centre-Right) | Centre | Right/ religious |
Post 18th amendment discourse:
- Call for creation of new provinces (In the wake of protests in Hazara (presently part of Khyber Pakhtunkhwa), call for creating Seraiki province (South Punjab), Bahawalpur province and recognizing Pakhtunkhwa areas in Balochistan etc).
- Debate over the Supremacy of the Parliament (creator), the Constitution (creation) and the Judiciary (creation with the context of trichotomy of power)
- Supreme Court Bar Association and some leading lawyers have questioned the powers of the Parliament to amend the Constitution and have challenged the new mechanism for the appointment of judges.
Mapping Discourse: Prepared by Mr. Zafarullah Khan, Centre for Civic Education, Pakistan