The 18th Constitutional Amendment

Daily: The Statesman
Date: 16.04.10

The Constitution of 1973 was a consensus document in the post-1971 (East Pakistan)
debacle period which not only debunked the ethno-social and politico-economic fault lines
but the post-debacle phase also offered an opportunity to get rid of the military dictatorship.
Consequently, the Constitution of 1973 not only tried to fill up the crevices but the
document also tried to introduce representative democracy in the country. That was how
the Constitution of 1973 was a document predicated on the principles of federalism,
(pledges for) provincial autonomy and independence of judiciary, parliamentary democracy,
and the fundamental rights of citizens.

Thirty years spanning from 1977 to 2007 laid open many aspects of the Constitution of
1973 challenging the basic aim of making the Constitution. In response, the Charter of
Democracy (CoD) was the latest accord bringing the political parties of diverse opinion to
one page and the stint of General Pervaiz Musharraf was the latest dictatorial era
damaging both democracy and the spirit of the Constitution and that blatantly.

The aim of the 18th Constitutional Amendment is to restore the original spirit of the 1973
Constitution. In that way the amendment is unique in the long list of amendments and in that
way the amendment is considered equal in stature to the making of the 1973 Constitution.

The amendment aims for plugging the loopholes already existed or created afterwards
(under the pretext of ‘doctrine of necessity’) in the original version of the Constitution. In
this regard, Article 6 may be cited as the hallmark of the original 1973 Constitution and
Article 270 as the backdoor allowing constitutional violations which were justified later on
through both 8th and 17th Constitutional Amendments. The 18th Amendment has
expanded the functional sphere of Article 6 to preclude all possibilities of subversion of the
Constitution; that is how the prohibitive aspect becomes one of the characteristic features
of the 18th amendment. In a way, thirty years (1977-2007) of the country were spent in
efforts how to subvert the Constitution with impunity but now, through the amendment, the
steps are in place how to thwart constitutional subversion and hold the culprits – both active
and passive – accountable.

The 18th Constitutional Amendment is bound to have lasting effect on unity of Pakistan as
the amendment grants administrative autonomy (by abolishing the concurrent list) to the
federating units when the financial autonomy has already been offered through the recently
announced NFC Award. Again, after more than thirty years, it has been realized by all that
a strong centre is inimical to the character of federation and is in fact a negation to the
concept of federating units (provinces). Similarly, it has also been realized that provincial
autonomy (both financial and administrative) does not mean disunity of federation but a
source of strength of federation. In this way, all apprehensions and fears regarding the
outcome of decentralization of power are evaporated. That is a healthy sign and indicates
beginning of a new era for Pakistan.

While dealing with the matters of the judiciary and its independence, Parliament seems to
have double-checked the privilege of parliamentary supremacy and, perhaps,
independence. In a country where the parliamentary form of government is practised, the
judiciary is not to be considered a rival or competitor but one of the three arms of the
government. Once appointed, the judges declare court decisions independent of any
influence of the executive or Parliament, the other two arms. That is the problem area
related to the judiciary in Pakistan: who may be appointed to issue what decisions. At least
the past speaks for the situations where one kind of appointments gave birth to one kind of
court decisions; will the future follow the past is the next best question. That is why the 18th
Constitutional Amendment entails the question where should lie the administrative
(appointment) powers of the judiciary – within the institution or out of it?

In Pakistan, the recent history of independence of judiciary starts from 2007 (excluding the
period consumed by the Dogar court).  The judiciary still needs time to get mature to
translate the principle into reality: whosoever is appointed will deliver decisions independent
of the sway of the appointing authority, whether judicial or executive.

A positive point of the amendment which perhaps outshines every point else is it is
obligatory on the State to provide free and compulsory education (at both primary and
secondary levels) to children. In this respect, Pakistan is a late starter. After more than sixty
years of independence, the State has finally decided to own its citizens and take care of
them. That is a good omen and holds potential for introducing a change in Pakistan after
two decades when the generation educated today will become of the vote-casting age,
besides bestowing the fruits of progress and development on Pakistan.

There are several areas which should have been dealt in a better way. For instance, there
was a chance for bringing the tribal areas into the national mainstream by changing their
administrative and recognition stature. Similarly, it seems that a better method should have
been adopted to include concerns of the people of Hazara Division in adopting the new
name of the NWFP.

There has been raised a lot of hue and cry in the National Assembly on exclusion of the
provision that made it compulsory on the political parties to arrange intra-party elections.
The provision was inserted through 17th Amendment to discourage the legacy factor
rampant in the political parties.

The point is intra-party elections of the political parties is an issue internal to the political
parties. No doubt, the Constitution is not meant for dealing with internal affairs of the
political parties, it is up to the voters to decide who should they vote for: the party which is
holding on to any sort of legacy or the party which relies on democratic traditions?
Nonetheless, the attached bad news is that the party chairman has been made all powerful
to dismiss even the elected prime minister belonging to his party. In this case, the voters
have no choice: either to support the legacy factor or stay away from the electoral exercise.
That is how the dark shadow of this Constitutional Amendment may pave the way for
introduction of the next amendment or the crisis coming in between.

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