By Syed hammad khan
The key to all our Constitution can be found within the Government of India Act, 1935. This was a tool for the British to separate foreigners through religious, ethnic and cultural divides. However, the essential fault line was never corrected within the subsequent structure. Then, the 18th amendment triggered major constitutional changes including limits on the Presidential power, restored the parliamentary spirit of the 1973 Constitution, definition of “High Treason”, fundamental rights, judicial appointment, rename the previous NWFP as Khyber Pakhtunkhwa.
The Government of India Act, 1935 was the principal constituent instrument of Pakistan. In 1956 and 1962, the Constitution of Pakistan was abrogated. President Mirza abrogated the Constitution in October 1958. Then General Yaha came into power after the abolishing the 1962 Constitution of Pakistan. Under the leadership of General Zia Ul Haq, the President right to dissolve the parliament was incorporated by enacting the 8th amendment in the Constitution of Pakistan. Nawaz Sharif removed it during his second term as Prime Minister. This right was found again during the rule of General Pervez Musharraf. In 2006, the two main opposition leaders Benazir Bhutto and Nawaz Sharif signed the charter to restore the spirit of Constitution.
After the 2008 general election, the speaker of national assembly was asked by the President of that to make joint committee of all parties for the purpose to amend the Constitution within the light of instrument of democracy 2006. It consisted of 26 members. The PCCR elected Rabani as chairman. All parties participated in this constitutional amendment. It was passed in lower house on 8 April 2010 and in upper house on 15 April 2010. The head of state signed it on 19 April 2010.
It had been translated into law in good faith, becoming one of the best laws promulgated in the state and recorded in history. The parliament approved the 18th amendment to the Constitution in April 2010, which reintroduced democracy. This amendment was passed by consensus. This was the result of ten months of deliberations and also the result of the enthusiastic efforts of all groups in the Constitutional Committer of the parliament to reach a consensus.
According to the 18th amendment, the power of the Prime Minister has been greatly increased. But the most important impetus was the cancellation of two term suspensions to maintain that position. Pakistan has moved from a progressive law that imposes two term limits on the Prime Minister’s term to a retrograde law that enables over two term of office when the Prime Minister is in office which directly gives benefit to Nawaz Sharif to become Prime Minister on third term. This was the result of compromise deal between PML (N) and PPP.
The 18th amendment has shifted key Presidential powers to parliament and established its authority. This is a step towards implementing a parliamentary government and repealing Article 58 (2) B. The power of President to dismiss the lower house or submit issues to a referendum has been cancelled. The Prime Minister proposal is irrevocable in the appointment of the Governor, the head of services and head of the FPSC, the President must accept it. Article 90 has been changed and now the Federal executive agencies should not be led by the President, such power should be exercised by the Federal government in the name of the President which composed of the Prime Minister and Federal Ministers.
Provincial autonomy was the basis of the Independence movement. The Pakistan resolution clearly stated that Pakistan will become a country with sovereignty and autonomy for all provinces. The 18th amendment is an important step towards decentralization and strengthening of provincial autonomy. It has cancelled the concurrent list, and some subjects have been given
to the provinces. The 18th amendment enumerated areas where federal and provincial government can make law but in case of conflict federal law will prevail.
The judicial appointment process has always been one of the most controversial parts of the amendment. Pakistan civilian leadership has politicized numerous sectors of the state. Since President Musharraf removed Chief Justice Iftikhar Chaudary in 2007, leaders of the lawyer movement have been fighting for a more independent judiciary. The appointment process was made two step process, firstly the Judicial Commission which will be chaired by the Chief Justice of Pakistan and along with the members from Supreme Court and High Court, parliamentary committee which will consist of members from government and opposition side as well. The Judicial commission will nominate a nominee and a parliamentary committee will either confirm or reject it. After confirmation, the name of the nominee will be sent to the President for signature.
The basic rights in the Constitution have increased. These are the right to a security to person (Article 9), freedom of assembly (Article 16), right to speech (Article 19), freedom to profess religion (Article 20) and the most important one the right to education (Article 25 A). Now, it is the responsibility of the state to give education to all children between five to sixteen years in the manner prescribed by the law.
According to Article 25 A, every child can receive free education until 16 years. It seems that this may increase the literacy rate. The 18th amendment has had a profound impact on higher education. Federal units have the responsibility to give universities autonomy like Cambridge and Oxford routes, let them manage by themselves. But there are some issues in it like, the existence of the Higher Education Commission (HEC) has been questioned, but on April 12, 2011, the Supreme Court allowed it to perform its duties and functions under the HEC Regulations 2002. Whether the provinces have the position to develop curriculum and other relevant necessary foundations in terms of teachers, infrastructure and educators to use and execute this decentralization.
Everything has merits and demerits, like this 18th amendment has also some flaws, which are dark marks in the constitution. While confirming the supremacy of the parliament by abolishing the dictatorship from the Constitution, it maintains some well-known articles proposed by General Zia, which appeared to be under pressure from right-wing parties. Some retrogressive
and undemocratic provisions were also introduced including prohibiting minorities from holding the presidency. So, discrimination against religious minorities has been strengthened due to 18th amendment.
Since Pakistan’s 1973 Constitution came into effect, it has undergone various changes. Even the parliament that created it made six amendment to it in four years. Undoubtedly, serious efforts have been made to solve many problems through the 18th amendment. The amendment is an important milestone in the history of Pakistan. This marked the second move towards democracy since the constitution was drawn up in 1973. Parliament has gained more power than ever before. The functions and structure of the parliament, especially the functions of the senate and the Judiciary Election Committee, have undergone institutional reforms. There are undoubtedly some disputes, which are usually part of democratic decision-making, but with the passage of time it will be cover.
The writer Syed Hammad Khan is student of law at AWKUM you can reach him with firstname.lastname@example.org follow him on twitter @SyedHammadK