Constitution of Pakistan

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  Eighteenth and nineteenth amendment of constitution of Pakistan, 1973 Page 1 1.   Eighteenth amendment: 1.1   Introduction of eighteenth amendment: The historic 18th constitutional Amendment was passed unanimously in the National Assembly on April 8, 2010. The amendment embodies as many as 102 articles of the constitution. The basic features of the 1973 Constitution, that is Islamic Republic,  parliamentary democracy, federal structure, independence of judiciary have been retained in this amendment along with some other provisions, for example, the Objectives Resolution, Federal Shariat Court and some sections of the 17th Amendment. In the new dispensation, the  powers of the president to dissolve the National Assembly, the requirement of graduate qualification for parliamentarians have been deleted and new provisions for the appointment of  judges through a judicial commission have been incorporated. The biggest beneficiaries of the Amendment are of course the federating units, which will enjoy the long sought provincial autonomy as the Concurrent List stands dissolved. The renaming of NWFP as Khyber Pakhtunkhaw is a big achievement, though the tribal belt constituting FATA also needs to be renamed together with the revamping of the Frontier Crimes Regulation’s (FCR) into a more democratic body of laws. 1.2   Necessity and Purpose of Introducing 18 th Amendment   In the constitutional history of Pakistan military dictators and civilian presidents have tried to assume the powers of de facto rulers by refusing to serve under the constitution as ceremonial heads and letting the parliament and the cabinet work independently. They have tended to continue the colonial era politics and opposed the evolution of democratic  parliamentary culture in the country. With the exception of two brief periods, during 1973-77 and 1997-99 when parliament was allowed to play its due role, Pakistan has been ruled by executive dominated civilian and military governments. A parliamentary form of government envisions parliamentary sovereignty and independence of legislature in which elected representatives make laws and determine policies of the government. But flawed implementation of 1956 Constitution, the framing of 1962 Constitution which was Presidential in form, and amendments in the 1973 Constitution had distorted the traditions of parliamentary democracy in Pakistan, undermined parliam ent’s sovereignty and denied people their political, fundamental and civil rights. In the 1956 “Parliament and the State in Pakistan Case for Constitutional Reforms,” Strengthening Democracy through Parliamentary Development. Eighteenth Amendment Revisited 29 Constitution, a powerful President had made the  parliament irrelevant and the 1962 Constitution was a Field Marshal’s baby who was proposed  president for life. In the 1973 Constitution the Eighth Amendment, LFO 2002 and the Seventeenth Amendment gave sweeping powers to the Presidents at the cost of the Prime Minister and the Parliament. In the process, in Pakistan the central role of the Parliament in state affairs and policy making has systematically been undermined making it necessary to correct  Eighteenth and nineteenth amendment of constitution of Pakistan, 1973 Page 2 the democratic course by restoring the 1973 Constitution to its srcinal form through appropriate amendments so that the Parliament and elected governments could function with full freedom to play their constitutional role and the parliamentary tradition got firm roots in a sustainable democratic environment. Apart from this, to strengthen democracy, governance, ensure sufficient autonomy, to have independent judiciary and Election Commission and ensure  proper socio-economic development of the country following additional measures were required to be taken by having necessary provisions in the desired amendments to 1973 Constitution for example, For giving the country a stable political system, the constitution must have provisions to prevent the possibility of future military takeovers. Also a law should be made that all reports, which are laid in the National Assembly should also be presented in the Senate. In line with the provision of Article 91(4) the Executive should be made answerable to the Senate also as it is to the National Assembly. The constitution should bar the President from issuing ordinances when the senate is in session as he is during National Assembly session. This will ensure that all laws have the stamp of the collective wisdom of the Parliament. The constitution may also be amended to improve cohesion and internal functioning of political parties with a view to strengthening them in handling the country’s affairs. Constitutional safeguards should  be introduced to ensure that if government fails to maintain the indicators of the national economy at a healthy level it will itself resign failing which the judiciary would step in to do the needful. Through a constitutional amendment the judiciary should be made independent so that it can deliver justice to the people of Pakistan. There should be a constitutional provision to ensure that key officials and ministers of the government are appointed on merit through confirmation by the parliamentary committees which will assess their eligibility as is done in the US and some other countries. This should also include confirmation of appointments of  judges and ambassadors. All international and bilateral treaties should be ratified by the Parliament after necessary deliberations to remove any shortcomings and come into force only after such ratification.In the interest of provincial autonomy the concurrent list of subjects should be abolished to devolve the subjects to the provinces. Matters such as payment of royalties on oil and gas, ownership of natural resources, the power to levy taxes and revenue distribution by the provinces also need to be provided. 1.3   Main Features of 18th Amendment: The 18th Amendment has restored the federal and parliamentary spirit of the 1973 Constitution, most of the undemocratic constitutional changes inserted during authoritarian regimes of Zia and Musharaf (including 17th Amendment) have been removed. 1.   The amendment renames the former NWFP as Khyber Pakhtunkhawa in recognition of its ethnic identity. 2.   The 18th Amendment takes important steps towards devolution of authority and enhancing  provincial autonomy. It has scrapped the Concurrent Legislative List of subjects and those subjects with few exceptions have been transferred to the provinces. The amendment also expands the scope of the Council of Common Interests (CCI). The CCI will become a powerful constitutional body comprised of representatives of centre and provincial governments 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 governments to formulate plans in this regard. Another important step is the distribution of national revenues that is protected by the National Finance Commission under this amendment  Eighteenth and nineteenth amendment of constitution of Pakistan, 1973 Page 3 and provinces’ share cannot be reduced beyond that given in the previous Natio nal Finance Commission award. 3.   The definition of “high treason” has been expanded in Article 6. Henceforth, an act of suspending the constitution or holding it in abeyance or any attempt to do so shall also be considered high treason. It has also been added to the article that such act of high treason cannot now be validated by the Supreme Court or a High Court. This amendment is likely to discourage future military takeovers in Pakistan. 4.   The number of Fundamental Rights in the constitution has been increased. These are the right of fair trial (Article 10A), the right to information (Article 19A) and the right to education (Article 25A). It is now the responsibility of the state to provide free and compulsory education to all children from age 5 to 16 years in such manner as may be determined by law. 5.   Article 17 has been amended so as to do away with, amongst other things, intra political party elections. This appears to be a negative change which favours only senior leadership of  political parties. 6.   To safeguard against discrimination in services, a provision has been made that under representation of any class or area in the services of Pakistan is to be redressed by an Act of Parliament. 7.   The role of the Senate has been considerably enhanced. The annual report on implementation of Principles of Policy is to be presented before the Senate also. Unlike the previous position, now the President cannot promulgate an Ordinance while the Senate is in session. The number of days that the Senate may take to give its recommendations on money bills has been increased from seven (7) to fourteen (14). The Prime Minister and his/her Cabinet will now be collectively responsible both to the National Assembly and the Senate. The number of Senate Members has been increased from 100 to 104 by adding four seats for non-Muslims, one from each province. The number of compulsory working days for the Senate has also been increased from 90 to 110. 8.   The Amendment has transferred key Presidential powers to the Parliament and established its supremacy. The President’s discretionary powers to dissolve the National Assembly or to refer a question to a Referendum have been removed. To appoint the governors, the services chiefs and the Chairman Federal Public Service Commission the advice of the Prime Minister has been made binding for the President. Time limits have been fixed for the President to act on the advice given to him by the Prime Minister and his cabinet. The position and powers of the Governors in the provinces have also been reduced to that of President in the Federation. According to the amendments made in Article 90, the executive Authority of the federation shall not now vest in the President but be exercised in the name of the President by the federal government comprising the Prime Minister and Federal Ministers. The Prime Minister shall  be the Chief Executive. Rules of Business shall be made by the federal government and not the President.  Eighteenth and nineteenth amendment of constitution of Pakistan, 1973 Page 4 9.   In Articles 62 and 63 relating to qualifications and disqualifications for elections to the Parliament and the Provincial Assembly, there are some positive and some negative changes. Earlier a person was not qualified if he had been convicted for an offence involving moral turpitude or giving false evidence. This has been removed. This is not a good change since it clashes with the Islamic spirit of the constitution. On the positive side, in place of Musharraf era lifetime bans, time limits for disqualifications, i.e., five years from date of release in case of jail terms, five years from date of dismissal from public service, two years from date of compulsory retirement, have been reintroduced. 10.   In Article 63-A relating to defection, the main changes, to be effective after next general elections, are that disqualification for defection will be triggered on a reference made by Head of a Party (by whatever name called) in place of Head of a Parliamentary Party, and the Speaker or Presiding Officer will not be able to ‘sit on’ i.e., delay the referenc e. With this amendment the position and power of party heads like Mr Asif Zardari in the PPP, Mian  Nawaz Sharif in the PML-N, Mr Altaf Hussain in the MQM and some others has been strengthened. 11.   The restriction on a person to be a third-time Prime Minister and/or chief minister has been removed. Only a Muslim member can become Prime Minister. This amendment cleared the way for Mr Nawaz Sharif and Shahbaz Sharif for becoming PM and chief minister for the third time. 12.   The number of ministers, including ministers of state, has been limited to eleven per cent (11%) of the total membership of the Parliament  –   49 out of 446 members of Parliament. In case of the Provincial Assemblies, the number of cabinet members cannot be more than. 13.   11% of the total membership of a Provincial Assembly, whichever is higher. This provision is to be effective after the next General Elections.136 15. Article 140-A pertaining to devolution of power to local governments has been retained and expanded to provide that elections of the local governments shall be held by the Election Commission of Pakistan.137 This amendment will help in having fair elections. 14.   A new High Court has been created at Islamabad with its judges to be drawn from all four  provinces and the Islamabad Capital Territory. 15.   By amending Article 200 the provision for compulsory retirement of a High Court Judge in case he refuses to accept transfer to another High Court has been done away with. High Court Judges cannot now be transferred from one court to another without their specific consent even for short periods. 16.   The Election Commission of Pakistan has been considerably strengthened. The term of office of the Chief Election Commissioner (CEC) has been increased from three to five years. For the appointment of the CEC the Prime Minister and the leader of the Opposition in the  National Assembly shall agree on three names. The three names shall be sent to a Parliamentary Committee consisting of not more than 12 members of whom half will be from treasury benches and half from Opposition benches. The person selected by the
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