The 18th Amendment In The 1973 Constitution
The 18th Amendment in the 1973 ConstitutionFakhr-ul-Islam AbstractComparing with the 37 year checkered constitutional history (19732010), the first decade of 21st Century, brought some hope for Pakistan.That was adoption of 18th Constitutional Amendment. It was adamage-control exercise which was proposed by an All PartyParliamentary Committee (APPC). To what extent, the 18thConstitutional Amendment restored the original constitution and whatare its salient features, is the subject of this paper. Defects found in the18th Amendment created a head on collision between Parliament andjudiciary. However, these were subsequently rectified through the 19thAmendment passed after few months of the previous bill.Keywords: Constitution, Amendment, Parliamentary, PakistanAn Eventful Year: A Prelude to Unanimous AmendmentThe year 2007 proved to be decisive in shaping up political andconstitutional contours in Pakistan. Musharraf’s clash with judiciary,assassination of Benazir Bhutto and atmosphere of political conciliationin the parliament after 2008 election, paved the way for unanimity on18th Constitutional Amendment.Like other dictators, General Pervez Musharraf was scared ofjudiciary. He wanted to tame it so that he could smoothly implement hisagenda. Apart from removing judges of superior courts on the pretext ofnot taking oath under his Provisional Constitutional Order (PCO), hechanged eight chief justices during 1999-2007.1 Nevertheless JusticeIftikhar Muhammad Chaudhry, a hard nut, refused to give in. JusticeIftikhar had taken many sensitive cases for hearing in the Supreme Court.They included Missing Persons Case, Privatization of Karachi SteelMills case and Construction of Golf Course at a children Park inIslamabad. On the question of missing persons there had been anunpleasant meeting between Justice Iftikhar Muhammad Chaudhry andDirector General Inter Services Intelligence (ISI).2 After passing orders Dr. Fakhr-ul-Islam, Director, Pakistan Study Centre, University of Peshawar.Email: ifakhar@hotmail.com
Fakhr-ul-IslamThe 18th Amendment in the 1973 Constitutionby the Chief Justice in the above mentioned cases, the patience ofmilitary dictator came to its brim. Moreover, Musharraf planned tocontest election for the post of president, despite retaining army slot, andhe feared that if that was challenged in Supreme Court, Chief Justicemight disqualify him.3Accordingly Musharraf called Justice Iftikhar MuhammadChaudhry to army headquarter in Rawalpindi on 9th March 2007 and inthe presence of top army brass, asked him to tender resignation. To theirsurprise, Justice Iftikhar Muhammad Chaudhry flatly refused to oblige,resultantly he was ordered not to move. He was kept in custody tillanother senior judge of the Supreme Court Justice Javed Iqbal wasappointed a new Chief Justice.4 The ill-treatment meted out to JusticeIftikhar Muhammad Chaudhry resulted in wide spread protestdemonstrations from legal fraternity all over Pakistan. The moment wasgiven the title of Adliya Bachao Tehreek (Movement for protection ofJudiciary). The movement had two goals: (i) reinstatement of JusticeIftikhar Muhammad Chaudhry (ii) restoration of independence of thejudiciary.5 The lawyers’ movement continued till restoration of JusticeIftikhar Muhammad Chaudhry and other senior judges.Benazir Bhutto returned in the midst of lawyers’ movementafter her self-imposed exile in October 2007. Her return added charge topolitical atmosphere in Pakistan. However, she was murdered in a bombblast in Rawalpindi on 27th December 2007. People’s Party supporters inPakistan, in general, and in Sindh , in particular, strongly reacted to herassassination. Farahnaz Isfahani wrote that the Banazir’s murder “hasunleashed a wave of emotion throughout the country” The violent PPPworkers inflicted heavy damages on public properties.6 However, both,Asif Ali Zardari( her husband) and son Bilawal Zardari tried to cooldown the wide spread demonstrations. On his party website, Bilawalwrote:“For those in my country who would find it easier to walk away fromdemocracy and seek revenge through violence, I urge you to remembermy mother's words: democracy is the sweetest revenge. To plunge thecountry into more violence and chaos, would only play into the handsof those who hope for democracy's failure. The terrorists have no usefor democracy, and the current government fears it. We must unite andrise above both”7Cashing on post-assassination emotions and sympathies, PPP bagged 124seats in the house 342, emerging biggest party but still away from simplemajority. She had to rely on coalition partners to form governments incentre and provinces. The following table shows results of February2008 election:The Dialogue187Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 ConstitutionParty Position in the 2008 ElectionSource: Associated Press of Pakistan http://www.app.com.pk/electionThe above table shows that although Pakistan People’s Party emergedlargest party with 124 seats in National Assembly, but it was still 47seats short of simple majority (171 seats) required for election ofSpeaker, Deputy Speaker and Prime Minster. So the only option open forCo-Chairperson Asif Ali Zardari was to enter into alliance with variouspolitical forces. The first to approach was Pakistan Muslim League(Nawaz), the second largest party in National Assembly with 91members. Later on, he was able to muster support of MQM, ANP andother political groups in the National Assembly. Prime Ministerialcandidate Yousaf Raza Gilani fielded by PPP was unanimously elected.In fact that spirit of unanimity facilitated desirable changes in the 1973constitution.Parliamentary Committee on Constitutional Reforms (PCCR)The task of proposing amendments in the Constitution was assigned tothe 27 member Parliamentary Committee on Constitutional Reforms(PCCR), led by Mian Raza Rabbani. The Committee proposed 95amendments in approximately 70 articles of the Constitution. Onmajority of amendments, the PCCR took unanimous decisions. However,on renaming of NWFP and judges appointment, there occurred adeadlock but that was over come. On March, 31, 2010, the committeesigned the draft. Federal Minister for Water and Power Raja PervaizAshraf was the first one to sign the draft followed by ProfessorKhursheed Ahmed (Jamaat-e-Islami), Aftab Ahmed Khan Sherpao (PPPS), Syed Naveed Qamar, Dr Babar Awan, Haji Lashkari Raisani, (PPP)The Dialogue188Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 ConstitutionIshaq Dar, Sardar Mehtab Ahmed Khan Abbasi, Ahsan Iqbal, AbdulRazaq Taheem (PML N) Wasim Sajjad, S M Zafar, Humayun Saifullah(PM-Q), Dr Farooq Sattar, Haider Abbass Rizvi(MQM) , AfrasyabKhattak, Haji Muhammad Adeel (ANP), RehmatUallah Kakar (JUI),Baluch leaders Mir Israr Ullah Zehri, Hasil Bizenjo Abdul RahimMandokhel and Shahid Bugti, and last but not the least Munir KhanOrakzai (FATA) with the Committee Chairman, Raza Rabbani puttinghis signature at the very end.8 Some features of the Act are discussedbelow:The 18th AmendmentThe 18th Amendment in the 1973 constitution combines in itself almost100 amendments and it has affected 83 articles which ,269,2709The 18th Amendment has almost undone the impacts of the 8thAmendment (enacted by Gen. Zia ul Haq) which had altered over 90Articles of the Constitution, and the 17th Amendment (enacted by Gen.Pervez Musharraf) which had altered 26 Articles of the ConstitutionThe new name of the NWFP is to be Khyber-Pakhtunkwa. ThePML-N which had long held out on this issue finally agreed to this namechange. Similarly, spellings of names of two other provinces werechanged from “Baluchistan” to “Balochestan” and “Sind” to “Sindh”. Noexplanation was made public as to what difference those spellingchanges would make? However, Sindhi and Balochi members ofParliamentary Committee on Constitutional Reforms (PCCR) opined thatthe former spellings were legacy of British imperialism.10Article 6 of the 1973 Constitution provides for punishment ofperson found guilty of High Treason. As a result of the 18th Amendment,this article has been changed considerably. A new clause 6(2A) has beenadded which reads that an act of high treason mentioned in Article 6shall not be validated by any court including Supreme Court and a HighCourt. We have noticed in the case of all military take-overs in Pakistanthat abrogation/suspension of constitutions and imposition of militarylaws have been validated by the superior judiciary and subsequentindemnity by the post-martial Law assemblies. Hopefully the new clauseadded to Article 6 will play the role of deterrence for the judiciary in thedays to come. 11In the Fundamental Rights and Principles of Policy chapters, fewgood things have been added. In order to guarantee the right of everyThe Dialogue189Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 Constitutioncitizen of Pakistan to enjoy fair trial and have an access to information inall matters of public importance, a new articles 10 A and 19A have beeninserted. Moreover, another new Article 25-A has been added to thesame chapter which provides for free and compulsory education to allchildren of the age five to sixteen years. In order to remove disparities inservices to people of different areas, a proviso was added to article 27.As per article 29, the report of Principles of Policy will now be discussedin Senate as well. Previously it was discussed in National Assemblyonly. Through addition of a new paragraph to article 38 of Principles ofPolicy, disparities regarding share of provinces in various services havebeen removed. 12The famed article 58 (2) (b), which had first been inserted intothe Constitution by Gen. Zia ul Haq, allowed the President to dissolveParliament, and which was re-enacted by Gen. Pervez Musharraf, hasbeen removed from the Constitution 13One of the significant changes introduced through the 18thAmendment was the one incorporated in Article 175. Previously onlySupreme Court of Pakistan and four provincial High Courts werementioned in clause (1) of that article. Now Islamabad High Court hasalso been added. Similarly, the old practice was that President used toappoint judges of Supreme Court and High Courts in consultation withChief Justice but now the same function will be performed by a JudicialCommission and a Parliamentary Committee.14 A new article 175A wasadded to the Constitution which provided for Judicial Commission and aParliamentary Committee. For appointment of judges to the SupremeCourt, the 7-member commission is to be consisted of Chief Justice ofPakistan as its chairman, two most senior judges of Supreme Court, aformer Chief Justice or a former judge of Supreme Court, Federal LawMinister, Attorney General of Pakistan, and a senior Advocate ofSupreme Court nominated by Pakistan Bar Council, as members. For theHigh Courts, the above commission shall also include four moremembers i.e. Chief Justice of the concerned High Court, a most seniorjudge of the High Court concerned, provincial Law Minister and a senioradvocate to be nominated by the provincial Bar Council.15For appointment of judges to Islamabad High Court, the JudicialCommission will also include Chief Justice and the most senior judge ofthat court. Finally, for appointment of judges to Federal Shariat Court,the commission shall also include the Chief Justice and most seniorjudge of that court. 16As for as Parliamentary Committee for appointment of judges isconcerned, it shall consist of eight members; four each from the Senateand the National Assembly. Of the 8-member Committee, 4 each shall befrom treasury and opposition benches to be nominated by leaders of theThe Dialogue190Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 ConstitutionHouse and the opposition respectively. The chain of communication hasbeen set as the commission will send nominations to the ParliamentaryCommittee, which shall confirm these nominations by simple majoritywithin 14 days. The Committee may also reject nominations comingfrom the Commission with three-fourth majority thereby asking thecommission to send new nominations. The Parliamentary Committeewill forward list of confirmed nominations to the President of Pakistanfor appointment.17The Act ensured Provincial autonomy. The following articleswere either partially or fully altered. 70, 142, 143, 144, 149, 157, 160,161, 167, 172, 232, 233, 234.The issues included production ofelectricity; National Finance Commission affairs; natural gas; borrowingof provinces; emergency provisions and legislative powers.18The mostimportant change was Article 142(b) and (c) give right to provincialassemblies to make laws with respect to criminal law, criminal procedureand evidence. Similarly Article 270AA provides that all existing lawswill remain in force unless provincial assemblies replace them by newlaws.19Another land mark feature of the 18th amendment is therestoration of parliamentary form of government. In this connectionarticles: 46, 48, 75, 90, 91, 99, 101, 105, 116, 129, 130, 131, 139, 231and 243 got affected.20 The areas where of more powers were given toparliament, provincial assemblies and Prime Minister included: duties ofPrime Minister to President; holding of referendum; Assent to bills bypresident and governors; status of Prime Minister as Chief Executive,Election of Prime Minister by NA, Conduct of Business, appointment ofprovincial governors, provincial cabinets,executive authority ofprovinces, election of chief ministers, duties of chief ministers togovernors, provincial governments’ conduct of business and appointmentof services chiefs.21How far the office of Prime Minister or institution of parliamenthave been strengthened is evident from these facts. Previously as perarticle 46, the Prime Minister was bound to inform President of alldecisions taken in cabinet and the President could ask for reconsiderationof certain decisions. Nevertheless after the amendment the power ofreconsideration by the president lapsed. Article 48 empowered onlyPresident to hold referendum on issues of national importance. Afteramendment, now the Prime Minister will consult joint sitting ofparliament to hold referendum.22The Act “purged” the name of Gen. Zia-ul-Haq as Presidentfrom the ConstitutionThe Dialogue191Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 ConstitutionThe 19th AmendmentThe 19th Amendment was incorporated in the constitution in a quicksuccession after the 18th Amendment. It was passed by NationalAssembly on 22nd December 201023. In fact the 19th amendment was arectification of the previous i.e. 18th amendment act. Some parts ofConstitutional (Eighteenth Amendment) Act, 2010, were challenged inthe Supreme Court of Pakistan. Of them Article 175A regardingappointment of judges was significant. 24 The 17-judge bench of the SC,headed by the Chief Justice of Pakistan Iftikhar Muhammad Chaudhryreturned to the parliament with reservations, recommendations andobservations the new procedure of appointment of superior judges forSupreme Court, Federal Shariah Court and High Courts. Earlier theCourt expressed reservations expressed regarding constitution of the 7member Judicial Commission during hearing of the petitions challengingsome provisions of the 18th amendment particularly in reference to theappointment of judges of superior courts.25In the post 18th amendment constitution, article 175A providedfor the Judicial Commission headed by Chief Justice of Pakistan. Itconsisted of members such as: two senior most judges of the apex court,a retired judge of SC, Attorney General of Pakistan, Federal LawMinister and a senior lawyer nominated by Pakistan Bar Council.26The court objected to making administration as part of thecommission and giving parliamentary committee veto power onrecommendations of Judicial Commission27 The Supreme Court videParas 7 and 13 of the aforesaid Order made a reference to the Parliamentfor re-consideration of the provisions of Article 175A in the light of theobservations made in the above order.28 As such, the 19th AmendmentBill gave effect to certain amendments in the Constitution after givingconsideration to the observations of the Supreme Court. As a result of19th Amendment Act, a total of 26 amendments have been fitted into sixArticles i.e. 81, 175, 175A, 182. 213 and 24629 Salient features of the Actare given below: In order to include judges of the newly established IslamabadHigh Court in the list of those who will get remunerations fromthe Federal Consolidated Fund, amendment were incorporated inArticle 81 of the Constitution. Similarly for chargingadministrative expenditure of Islamabad High Court, paragraph(b) of article 81 was amended accordingly. 30 Once again Islamabad High Court was inserted in article 175.Thus it was decided that in the Constitution, Article 175, for theExplanation the following shall be substituted, namely,Explanation. Unless the context otherwise requires, the wordsThe Dialogue192Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 Constitution ‘High Court’ wherever occurring in the Constitution shallinclude ‘Islamabad High Court’31The most important aspect of the 19th amendment wasincorporating changes in the Article 175Aof the constitution.They were: (a) in clause (2), in paragraph (ii) and in paragraph(iii), for the word ‘two’ the word ‘four’ shall be substituted. It isa part of the 19th Amendment where the parliament fullyimplemented the October 2010 directives of the Supreme Courtby doubling the number of judges in the commission. Needlessto say, the Chief Justice, in addition to the four judges, will bepart of the commission.32Similarly in paragraph (iv) of clause (5), 15 years legal practicein a High Court has been made mandatory for the member ofcommission coming from lawyers’ community. Under 18Amendment, only nomination by the concerned Bar Council wasrequired. 33As per routine, National Assembly may be dissolved eithercompleting its term or otherwise while Senate is a permanentbody. In the 18th Amendment, it was not specified as what wouldbe the fate of Parliamentary Committee for appointment ofjudges when such an eventuality occurs. For this purposeadditional wording was a\inserted in the proviso of clause (9) asfollows:“Provided that when the National Assembly is dissolved, thetotal membership of the Parliamentary Committee shallconsist of the members from the Senate only mentioned inparagraph (i) and the provisions of this Article shall, mutatis34mutandis, apply.” Unlike the 18th Amendment, now rejection of JudicialCommission’s nomination of judges by the ParliamentaryCommittee will require two things (a) Recording of reasons (b)three-fourth majority of committee’s total membership, for thispurpose provisions of clause (12) of Article 175 wereamended/substituted.35For clause (13), the substitution was that the Committee shallsend the name of the nominee confirmed by it or deemed to havebeen confirmed to the Prime Minister who shall forward thesame to the President for appointment.36As far as bringing conduct of judges under discussion inlegislature is concerned, Article 68 of the constitution puts baron it. However in the 19th Amendment clause (16) was addedThe Dialogue193Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 Constitution which states that the provisions of Article 68 shall not apply tothe proceedings of the Committee.37For the appointment of Ad hoc judges in the Supreme Court,Article 182 of the Constitution was amended. Now appointmentof those judges will be possible for Chief Justice of Pakistanonly after consultation with the Judicial Commissionasprovided in clause (2) of Article 175A.38Article 213 of the constitution specifies number of members ofParliamentary Committee for appointment of judges. So after the19th amendment, in Article 213, in clause (2B), (i) for the secondproviso, these words shall be substituted, “Provided further thatthe total strength of the Parliamentary Committee shall be twelvemembers out of which one-third shall be from the Senate.” 39 and(ii) in the third proviso, for the words “Parliamentary Committeeshall comprise” the words “total membership of theParliamentary Committee shall consist of” shall be substituted.40Article 246 of the Constitution gives details of the Tribal Areasof Pakistan. After the 19th amendment, in paragraph (a), subparagraphs (iii) and (iv) were omitted and in paragraph (c) aftersub-paragraph (iii) the new sub-paragraph containing words“Tribal Areas adjoining Lakki Marwat district” were inserted.Similarly after sub-paragraph (iv) the new sub-paragraphcontaining words “Tribal Areas adjoining Tank district;” wereinserted. 41As mentioned earlier, the 19th Amendment was a positive response to thedirectives of Supreme Court which were conveyed to the Parliament inthe October 2010 interim order. The 100% increase in the number ofjudges in the Judicial Commission was a leap forward. However, the 19thAmendment did not accommodate another important observation of theSupreme Court regarding appointment of judges. The Court had desiredin October 2010 Order that in case the Parliamentary Committee rejectsnomination of a judge, then that rejection should be put to judicial reviewbut the amendment ignored the same. Another power taken away fromthe Chief Justice was that approval of Judicial Commission was mademandatory for appointment of ad hoc judges.ConclusionRules, regulations and constitutional provisions are mechanical in naturewhile societies are organic. Therefore rules and statues are changed offand on so that these are adjusted to the needs of a society. However, inthe case of Pakistan, the successive rulers, whether dictators orThe Dialogue194Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 Constitutiondemocrats, incorporated amendments in constitution to serve theirpersonal interests.The case of 18th Amendment is different from previousamendments in the sense that it was introduced through all partisanapproach. The PPP-led Federal Government during 2008-2013 mighthave not performed well in other fields but on parliamentary sector, itachieved a landmark by adopting the 18th Amendment bill unanimously.In the foregoing pages, main features of the 18th Amendment have beentaken to account.After adoption of 18th Amendment, a serious rift emergedbetween judiciary and Parliament on the question of judges’ appointmentprocedure. Nevertheless both the organs of government wisely resolvedthe issue which resulted in incorporation of 19th Amendment in theconstitution.Hopefully, guaranteeing provincial autonomy and shifting ofpower balance to parliament and elected Prime Minister will usher newdemocratic era in Pakistan. The hanging sword of Article 58(2) (b) wasremoved which, together with other factors, enabled the electedgovernment to complete its term in 2013. The hitherto toothless ElectionCommission asserted itself and tough code of conduct was applied tointending candidates in the May 2013 general election. The appointmentof care taker governments in centre and provinces was exactly on thepattern suggested by the 18th Amendment. In short, the adoption of 18thAmendment will be remembered as a great occasion in the political andconstitutional history of PakistanThe Dialogue195Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 ConstitutionNotes & References1Sadaf Muhib, “The Myth of Judicial Independence in Pakistan”, MA thesis,(Pakistan Study Centre University of Peshawar, 2006-2008), 512Muhammad Aslam Lodhi, Adlia Ki Azadi: Haqeeqat ya Khwab?(Urdu)(Lahore: Tahir Sons, 2007), 163Sadaf Muhib, “The Myth of Judicial Independence in Pakistan”, loc.cit., 534Wakeel Anjum, Sach ka sooraj, (Urdu) (Lahore: Takhleeqat-e-Lahore, nd), 785 http://en.wikipedia.org/wiki/Lawyers%27 Movement (accessed on 8th May2013)6Farahnaz Isfahani , “The Impact of Bhuttos” in the Javed Leghari, Reflectionson Bnazir Bhutto (edi) (Karachi: SZABIST, 2008), 377 ctions%20on%20MBB.pdf (accessed on 8th May 2013)8The Daily News, Islamabad, (April 1, 2010)9Mian Raza Rabbani, A Biography of Pakistani Federalism: Unity in Diversity,(Islamabad: Leo books, 2012), 137-276.10ibid., 27011G.M. Chishty, Excellent on The Constitution of Islamic Republic ofPakistan”, With LFO Set of 4 Vol , (Lahore: Excellent Publishers, 2012), 1612ibid., 2213ibid., 7814Mian Abdul Ghafoor, The Constitution of Islamic Republic of Pakistan 1973,(Lahore: Imran Law Book House, 2010), 11615ibid., 11716Nafeer Ahmad Malik, The Constitution of Islamic Republic of Pakistan 1973,(Lahore: Irfan Law Books House, 2011), 14517Mian Abdul Ghafoor, loc.cit., 116-1718Extraordinary Gazette Government of Pakistan, 201019Ishfaq Ali, pp. 107-22720Mian Raza Rabbani, A Biography of Pakistani Federalism: Unity in Diversity,op.cit., 284-8621ibid.22ibid.23The Daily Balochistan Times, Quetta, 23-12-201024The Daily Statesman Peshawar, 23-12-201025The Daily Frontier Post Peshawar, 22nd October, 201026ibid27Judgment of the Supreme Court of Pakistan on 18th Amendment, available at: http://www.supremecourt.gov.pk/web/user files/File/18TH AMENDMENTORDER.pdf (accessed on May, 19, 2013)28ibid.29Zaka Ali, The Constitution of Islamic Republic of Pakistan (Lahore: IdealPublishers, 2013), 28630Nafeer Ahmad Malik, The Constitution of Islamic Republic of Pakistan 1973,op.cit., 267The Dialogue196Volume VIII Number 2
Fakhr-ul-IslamThe 18th Amendment in the 1973 Constitution31ibid.Mian Abdul Ghafoor, op.cit.,p.12133Ibid.34Ibid.35Zaka Ali, op.cit., p. 30136Ibid., p. n/part7.ch2.html (accessed on10th May 2013)38Ibid.39Ibid.40Zaka Ali, op.cit., p. n/part7.ch2.html (accessed on17th May 2013)32The Dialogue197Volume VIII Number 2
The 18th Amendment in the 1973 Constitution Fakhr-ul-Islam Abstract Comparing with the 37 year checkered constitutional history (1973-2010), the first decade of 21 st Century, brought some hope for Pakistan. That was adoption of 18th Constitutional Amendment.
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