Critical analysis of 18th amendment PDF

Preview

Summary

AssignmentSubmitted To; Sardar Waqar AbbasiSubmitted By; Faisal AliRegistration# 3552-FSL/LLB/FSection; ACourse Title; Constitutional LawAssignment Topic; Critical Analysis of18thamendmentFaculty of Shariah&LawCritical analysis of 18thamendmentBackground;The third and last constitution of Pa...

Description

Assignment Submitted To; Sardar Waqar Abbasi Submitted By; Faisal Ali Registration# 3552-FSL/LLB/F12 Section; A Course Title; Constitutional Law Assignment Topic; Critical Analysis of 18th amendment

Faculty of Shariah&Law 1

Critical analysis of 18th amendment Background; The third and last constitution of Pakistan that is constitution of 1973 has observed several amendments since its birth. It would be more interesting to know that same parliament which drafted it and passed it had made six amendments within few years of its enactment. The other amendments were brought by the later parliaments from time to time as per their necessities. Few amendments like 8 th and 17th were adopted by military dictators for their benefits and open the illegal and unlawful doors over democratic government. Finally Eighteenth amendment was introduced and passed by the civilian parliament and government unanimously. The eighteenth amendment was passed in April 2010; Senator Mian Raza Rabbani was leading the Parliamentary committee on Constitutional reforms who also proposed the draft of amendment before the parliament. It is said that this amendment regained the original status or image of constitution of 1973. It is believed that 18 th amendment was the historical achievement of the parliament which passed it unanimously and on consent basis, and surely 18 th amendment had a great resemblance to the constitution of 1973. It is also said that for the first time in history a president surrendered his powers to the prime minister willfully and almost all politicians showed consensus, maturity and tolerance to each other’s view. It is very true that this amendment brought 30% changes into the constitution and 102 out of 280 articles were amended, inserted, added, substituted or deleted by the amendment.

Some Mentionable works of the amendment

Love Affair with Democracy; The amendment’s biggest achievement is considered that it had created a connection of love and a desire for continuity of democratic system, while on other side it had showed hatredness and sense of avoidance towards dictorial rule. The amendment created way for democratic rule and blocked all possible ways for undemocratic, unlawful usurper. Senator Raza Rabbani who played pivotal and leading role for documentation of the said amendment said that “it is beginning of the democratic era in the country”. He further clarified that this amendment kicks out Legal Framework Order (LFO) issued in 2002, and chief executive’s orders of 2002 issued by a dictator who unlawfully encroached over a democratic system. He further added that all laws 2

including 17th amendment made by government of General Parvaiz Musharraf as unlawful act with the constitution of 1973. He further said that dictatorship has no place in the pages of constitution of Pakistan at least”. For creating real affection with democracy the list of high treason acts further been expended by inserting acts of mischief with the constitution, the suspension of constitution holding in abeyance, abrogation or subversion. So that to hinder the possible ways of coup takeover. Even then those would be held guilty of high treason who provided assistance either directly or indirectly, so that to prevent every possible way of usurper.

Civil Rights Impotency; The second mentionable achievement of Eighteenth amendment is its giving importance and especial favor for fundamental rights. Exclusive rights of basic education, fair trail and right to information were unanimously inserted and obviously in a case of arrest or detention, a fair trial was made obligatory. Though the addition of new article 19A the right to information (RTI) been added. This says that anyone can have the access to matters or information of public affairs, no one can be denied of such rights. It was also admitted that the state shall have a responsibility to provide basic education to all children aging from 5 to 16 years. Along with other rights, the right of association or joining in union has been as a right to every citizen, all will have a free choice to join any group, party, or association, no one is bound to not associate himself to any group.

Remedy for deprived Classes and Provinces; Eighteenth amendment has also won another achievement that is to provide especial care for those classes which have been neglected throughout, the amendment committed to keep especial eye to deprived classes of the society, so as to compensate and provide remedy for the wrongful attitude that they have faced, and so that the constitution may balance the equality among all classes of the society and may do especial efforts for removing discrimination against any particular class. To convert written theories into practical, it has been ratified that Non-Muslim communities (Minority) will have 4 reserved seats in senate (upper house), after the eighteenth amendment for the next election of senate one Non-Muslim from each province will be elected on reserved seat for senate. Provinces which were neglected by the centre deliberately were supposed to be compensated after enforcement of the amendment at any cost. The amendment provided more autonomy and federal will have less involvement with affairs of the provinces.

3

Empowering both Houses; The democratic institutions like Upper house (Senate) and lower house (National Assembly) were given more authority power by the eighteenth amendment. This has been a remarkable achievement of the said amendment. Authority like Prime minister’s referendum may be decided by joint parliament, prior to this amendment parliament was only restricted for the procedure and compiling of the referendum only. The legislation authority has also been limited to the parliament only, which means that the sole authority to legislate any law would be parliament only, especial care has also been created so that not to delay, which is the time for consideration as any bill passed by the parliament in this context, the president would have only 10days to consider, while previously president had 30days for consideration on any bill. Besides exclusive powers on legislative sphere, parliament had been awarded further powers like in case of emergency by president; the proclamation would be brought before both houses for approval which indicates its impotency and worth. Along with such powers, parliament has also a vital role in appointment of judges and election commission. The senate’s role has also been enhanced, by doing this all units of federation will get proper and equal importance. After enforcement of 18th amendment the President will have to submit report on principles of policy not only before national assembly but also before Senate, as prior to this amendment president was supposed to submit a report to national assembly only. The working days of senate has been increased from 90 days to 110 days to make the institution more effective and progressive. So to conclude this I may say that the powers, authorities and jurisdictions of the democratic institutions have been enhanced a lot after the amendment, which not only strengthen the institution but also the people indirectly.

Transfer of Presidential Powers; One of the major achievements of the eighteenth amendment is that the Prime Minister has regained constitutional powers as were awarded him by the constitution of 1973. The prime minister’s power were snatched by the regime of General Zia ul Haq first then in the era of General Musharraf. After the amendment the executive authority would have been exercised by the federal government and the government would be consisted of federal ministers, and Prime Minister who would act as a chief executive of the government. Also the President shall have no role in the appointment of Prime Minister rather Prime Minister would be elected by voting of the national assembly members. The chief executive will not be answerable to president for cabinet decisions, or his minister’s decision. Although Prime Minister Will only have to keep 4

President aware of Foreign Policy, internal affairs and legislative moves taken by the government. The power of dissolution of national assembly by the President has also been limited, the amendment restricted President’s power in this context, the President will have only power to dissolve assembly when vote of no confidence has been passed by against the Prime minister, and in the other situation, President can only dissolve national assembly when Prime minister advises him to do so, and then President will have to announce a fix date of election within 90days and will appoint a care taker setup to run the affairs of the country. President will have to appoint a care taker Prime minister and a care taker cabinet with the consultation of outgoing Prime minister and opposition leader. The legislative powers of President have also been minimized like the power for holding referendum on any issue of national importance been transferred to Prime minister after the enforcement of the amendment. Prime minister will hold any referendum with the approval of the joint sitting of the parliament.

Limitation of Cabinet; Another highly mentionable work of eighteenth amendment is that it had restricted number of federal cabinet; this was highly appreciated by the all as major developed countries of the world have very limited ministers even having large governmental system with highly population. This attitude of the amendment received warmed welcome by the mass. The amendment has prescribed only 11% of the total number of the parliamentarians who can constitute a federal cabinet. By limiting ministries the burden of expenditures on national accounts would surely be reduced, prior to this amendment there were maximum strength of ministers who have nothing to do but to hold a title and earn money unjustifiably but the amendment put serious restriction so as to save national money which indeed have to be invested upon nationals directly rather to fill bellies of the ministers. The amendment had another admirable achievement that is it had also restricted advisors for chief ministers of provinces to 5 numbers only, by this lot of money can be saved and can be used in a better place. By restricting cabinet the amendment not only protected national accounts to be vested but also reduced the chances of bribing to independent candidates of national or provincial assemblies by offering ministries to them by the ruling government.

Caretaker setup and Election Commission; New and improved rules by adopting eighteenth amendment have made the system to flourish without flaws. The clear laws have provided a road map to keep system moving without 5

hindrances. As the amendment had made mandatory for caretaker Prime minister or his cabinet not to participate in any election until the hold the office and even their spouse, children will not be eligible to contest the election. The attitude provided by the amendment was to make sure the least chances of impartiality by the caretaker setup, as human is full of errors, so to reduce the chances of any favoritism by the caretaker setup they have been deprived of participation in any election until their time of office finishes. It had also been remarkable that for elections of Prime minister for federal or Chief ministers for provinces there would be open ballet system for voting rather than secret system so that to make the elections more transplant and reduce every possibility of horse-trading or vote purchasing or any factor of influence over any member to vote in his favor. This amendment has also been appreciated and welcomed because it had prescribed a procedure for appointment of chief election commission and other four members of the commission. The procedure is that the Prime minister for the appointment of the election commission would first consult with the opposition leader, and if the built a consensus then Prime minister would forward 3 names to parliamentary committee which would have to announce or short list anyone of them.

5th High Court by the Provision; Another beauty of the amendment is that it had added 5 th high court in the country by a separate provision. The amendment has also removed few ambiguities in the constitution which created troubles for interpretation. It had made clear that if any court issued verdict against any member of the parliament regarding his misconduct, honesty, any statement against integrity or sovereignty of the state, and other so many things explained in article 62, 63 of the constitution of the 1973 would create ground for disqualification of the member from the parliament and any kind of action can be brought against him as per laws.

Concurrent List; The 18th amendment has also abolished concurrent list of legislation, the concurrent list is the list of items where both federal and its units(Provinces) has jurisdiction for legislation but in case of conflict of legislation on same matter or subject then federal legislation would have more impotency and would prevail. Initially this list was added in government of Indian act 1935(pre partition) era and was given by our British colonial masters, then this list was added and dropped from Pakistani constitutions throughout, this list was part of the constitution of 1973, but now after addition of 18th amendment this list has been removed. By this provincial autonomy has risen to some extent. It is worth full to know that a federation is a multi tier system of government where there is a centre (Federal) and other units (Provinces), in this scenario both entities have jurisdiction to 6

legislate as there are almost 25 federal countries where both of governments have the jurisdiction to legislate. In the constitution of 1973 there were 47 subjects in the concurrent legislative list few like marriage and divorce, infant and minor adoption, arms, firearms and ammunition, environmental pollution and ecology, population planning and social welfare, tourism and all such subjects were included in the concurrent list where both federal and provinces had right to legislate, but after 18th amendment federal has limited powers and it has surrendered its extra jurisdictional authorities to its units that are provinces. After the implementation of the new amendment the devolution of ministries like environment, health, education, agriculture, sports, food, women development, minority’s affairs, labor and manpower are great steps to make provinces more autonomous.

Critics of the Amendment; No one can have a same view, as there are two sides of the coin, one cannot deny the other side so as the 18 th amendment has its criticism too. The critics of the amendment say that in its most practical terms the centre(federal) posses all powers and authorities with itself and had only transferred the autonomy in papers. Critics believe that concurrent list has not been abolished fully rather some conditions have been changed or replaced. The ministries that exist in province have the same existence in the federal too. If we talk especially about province Balochistan then it would not be wrong to say that federal government has more influence over the specific province more than other province. The federal involvement had been caught continuously into affairs of the province like law and enforcement, unlawful control over natural resources and political interference are clear evidence of involvement where province has zero level of autonomy. If we shuffle the pages of history we shall come to know that Balochistan and Khyber Pakhtunkhwa endorsed the constitution of 1973 on condition that concurrent list would be removed not late than 10 years, but promise yet not been fulfilled wholly as claimed. The amendment proclaimed that the province with natural resources and minerals will share 50:50% of the total revenue with the federal government but its violation continuously exists, and it was decided that natural resource producer province will first fill the needs of the province and then will share with other province but we see that natural gas of Balochistan is not been provided to the province but is unjustifiably distributed to other provinces which is clear violation of the provisions . it is the biggest critic that federal keeping all revenue generating ministries with itself and had only given non revenue generating ministries to provinces and claims for awarding autonomy to provinces which is biggest lie indeed. The critics believe that such all discrimination and unjust attitude of federal with provinces especially small and deprived province are done deliberately so as to get benefits from them.

7

Ambiguity; Some paradigm says about the 18 th amendment that it possesses some ambiguity or vague provisions which create room for confusion not only for commons but also for governments and legal communities as well. The Planning Commission has inquired government to make clear stance about jurisdiction and responsibility of province and federal on the oil and gas sector, so to avoid any confliction. They say that with unclear rules and laws no company would be ready to invest healthy amount with risk, they believe that there need to be mirror image rules to attract multinational companies for heavy investment, the official of the Planning Commission said that in the situation of ambiguity about laws both federal and provinces are giving their own versions or interpretations of rules which male ground for confusion.

Conclusion; Eighteenth amendment in its true picture is the biggest achievement and change in the constitution so far after the dictatorship era. The positive attitude of the President for surrendering his all executive powers to Prime minister is really admirable. The previous amendments brought by military chiefs changed the message and essence of the constitution of 1973, but new addition of amendment in the shape of 18 th amendment kicked out illegal and unlawful changes into the constitution. It is said that the amendment if not wholly but brought the real image of the constitution of 1973. It was noticed that for the first time in history political parties and politicians showed real maturity and built consensus while keeping political hatredeness aside. The unanimous bill passed was welcomed by the majority although there has been a lot of criticism on the other side, some say about its vagueness on few provisions, some say that its only document with zero enforceability, some say provinces are still not autonomous and have to take homework from the federation and federal is playing double game by keeping revenue generating ministries with itself and giving lollipop to provinces on the name of autonomy, such all views exist we have to see positivity and major changes brought by the amendment are really enough for the start of democratic institution.

8

Bibliography; The 18th Amendment in the 1973 Constitution  Fakhr-ul-Islam The Lahore Journal of Economics 17 : SE (September 2012): pp. 387–424 

The 18th Constitutional Amendment: Glue or Solvent for Nation Building and Citizenship in Pakistan

Balochistan and Eighteenth Amendment  Abdul Basit Mujahid World Café: Topic 6 “18th Amendment & Beyond: Re-thinking Development in Pakistan” July 25, 2011 10:00 – 11:30 am Shamadan II  Serena Hotel, Islamabad Eighteenth Amendment in the Constitution of Pakistan: Success and Controversies Mahboob Hussain Assistant Professor, Department of History, University of the Punjab  Quaid-i-Azam Campus, Lahore, Pakistan  http://www.dawn.com/news/570524/18th-amendment-and-education-by-dr-shahidsiddiqui  https://iaoj.wordpress.com/2010/05/02/18th-amendment-and-provincial-autonomy-anunfinished-job/  http://nation.com.pk/columns/11-Apr-2010/18th-Amendment-and-Clause-4  http://www.thenews.com.pk/Todays-News-9-312232-18th-Amendment-five-years-on  http://mediaobserver.pk/ambiguities-of-the-18th-amendment/  http://www.cssforum.com.pk/general/news-articles/32558-hamid-mir-analysis-about18th-amendment.html  http://tribune.com.pk/story/820769/ambiguities-of-the-18th-amendment/  h...