Sarmad Ali in daily times Pakistan has become a laboratory for constitutional experiments is the very first line of a book titled Constitutional Development in Pakistan by G W Choudhry. This seems relevant and reasonable in 2013 as the constitution of 1973 has had 20 constitutional amendments. Here, it seems pertinent to briefly put together a few lines on historical aspects concerning previous constitutions of Pakistan. In the 20 years it has had three constitutions. Firstly, the Government of India Act 1935, as adopted under the Indian Independence Act 1947, which was known as the’ interim constitution’ of the country and under which it was governed from 1947 to 1956. Secondly, the constitutional of 1956, officially designated the ‘late constitution’, framed as a result of the deliberations of two constituent assemblies over nine years of effort but which remained in operation for only two and a half years. Thirdly, when following a period of martial law and 44 months, constitutional government was restored on June 8, 1958 and a new constitution promulgated by Ayub Khan in accordance with the mandate that he had received from the people in 1960. The purpose of this article is to demonstrate the chronology of 1973 constitutional amendments in Pakistan. The article will consider all 21 amendments made by several parliaments starting from 1973 to 2013. Prime Minister Zulfiqar Ali Bhutto put into practice the 1973 constitution, and in the first five years he made seven amendments. He remains the only prime minister who in his tenure amended it more than any other to date. When Nawaz Sharif came to power in the 1990s, he made six attempts but succeeded in introducing only five, as one attempt was withdrawn. Muhammad Khan Junejo was successful in making two amendments out of three. General Ziaul Haq, who has the credit of ‘Islamisation’ of Pakistan, was provided a ‘licence’ by Junejo in the form of the eighth amendment, which can be regarded as a notorious amendment because it enabled General Zia to dissolve the elected parliament at any given time. It appears that the amendment in the constitution of 1973 was the worst one as it opened the gate for military dictators to overthrow parliament, dismiss prime ministers and get the control of the country by imposing martial law. When Benazir Bhutto became the prime minister in 1988, the Pakistan People’s Party failed to secure an absolutely majority in parliament, and therefore did not do any harm to the constitution of 1973. The National Assembly adopted the 1973 constitution unanimously but the process to introduce amendments in it began soon after. Six amendments were introduced between May 8, 1974 and January 4, 1977, and the seventh on May 16, 1977 in its short tenure. When Ziaul Haq dismissed Prime Minister Zulfiqar Ali Bhutto, he suspended the constitution and imposed an authoritarian rule. The Supreme Court of Pakistan sanctioned Zia’s martial law on the basis of the doctrine of necessity. The Supreme Court on July 7, 1977 endorsed the action of the chief martial law administrator, followed by the authorisation to the CMLA to inculcate necessary amendments in the constitution. The general elections of 1985 were non-party. Parliament had to pass the eighth amendment, which was mandatory for its own survival. A review of constitutional amendments revealed that the first amendment in the 1973 constitution was introduced on May 8, 1974, which reviewed 14 articles of the constitution including, 1, 8, 17, 61, 101, 127, 193, 199, 200, 209, 212, 259, 260 and 270, and the First Schedule were amended. Under these amendments, curbs were imposed on political parties, and they were barred from indulging in activities against national interest, besides making it mandatory on them to declare their source of income. It appears that to declare the source of income was sensible. Under the second amendment on September 21, 1974, changes were made in Articles 106, 209. The changes declared the Ahmadis non-Muslims, and seats were reserved for them in the Assemblies. It is arguable that Articles 106 and 209 were changed to appease the right wing entities to get their support in parliament. It also appears that this amendment has put Pakistan under immense pressure and test. The state of Pakistan has always appeased the right wing political parties as it has no sense of secularism. The foundation of Pakistan was made on religion and in the 1960s it was made clear that religion and the state were not separable. Fundamentalism, in the last 20 years, has increased and intolerance in society is at its peak, which is alarming. Through another amendment in the constitution on February 18, 1975, Articles 10 and 232 were amended . The executive was given the power to detain and arrest any person involved in activities against national security. The executive was also authorised to impose emergency in the country through a joint session of parliament. The review of constitutional history discloses that various laws pertaining to anti-terrorism were introduced. The purpose of introducing these laws was to arrest and detain politicians, intellectuals, and activists from all over Pakistan. Furthermore, it appears that the power given to the executive was unjustifiable. Under the fourth constitutional amendment, brought into effect on November 25, 1975 , changes were introduced in Articles 8, 10, 17, 19, 51, 54, 106, 199, 271, 272, 273, and the Fourth and First Schedules. Under these amendments, laws pertaining to fundamental rights were diluted and High Courts were barred from allowing bail to political detainees. The Fifth Amendment was on September 5, 1976 in which 16 Articles including 101, 160, 175, 179, 180, 187, 192, 195, 196, 199, 200, 204, 206, 212, 260, 280, and the First Amendment were amended. Due to the Fifth Amendment, the Bhutto government impaired the working of an independent judiciary and the high court was stripped of the power to issue orders on fundamental rights. The Sixth Amendment in the constitution was introduced on January 4, 1977 , and considered Articles 179, 195, 246 and 260 for amendment. The Sixth Amendment added further curbs on the independence of the judiciary and the retiring age of the Supreme Court and High Court judges was fixed at 65 and 62 years, respectively. The seventh amendment in the constitution was made effective on May 16, 1977 under which Articles 101 and 245 were altered. The prime minister was given the power of referendum to prove his popularity and the judiciary was restrained from touching issues pertaining to the armed forces. On October 17, 1985 , the eighth amendment was carried, empowering the president to dissolve the National Assembly, appoint the services chiefs, governors of provinces, and designate the prime minister. It appears that two power centres were created and vast powers were vested in the president. Under these presidential powers, four successive elected governments could not complete their constitutional terms. The ninth amendment was presented in the National Assembly in 1988 but it could not be approved. The 10th constitutional amendment became effective on March 29, 1987. The 11th amendment was tabled in 1988 but it could not be passed. In that amendment bill, the restoration of special seats for women was proposed. Through the 12th constitutional amendment, Nawaz Sharif established special courts to ensure speedy trial of accused involved in heinous crimes. The 13th constitutional amendment became effective on April 4, 1997 . Through this amendment the powers of dissolving the assemblies were taken back from the president and vested in the prime minister. This amendment was made with the mutual agreement of government and opposition. The 14th amendment became effective on June 30, 1997 . Through this amendment political parties were empowered to terminate the parliamentary membership of their members involved in floor crossing to strengthen other political parties. The 15th amendment is about the Shariat Bill , which was approved on August 28, 1998. Through this amendment, the Holy Quran and Sunnah were declared the guiding principles for running government. Under the banner of an Islamic system, Sharif tried to get absolute powers. This amendment was passed by the National Assembly but could not be passed in the Senate. The 16th constitutional amendment became effective in 1990 . Through this amendment the period of the quota system was extended up to 2013. Only the Muttahida Qaumi Movement (MQM) voted against the move. The 17th amendment became effective in December 2003 in which the president got back the powers of dissolving the assemblies and the LFO was made part of the constitution. The unanimous passage of the 18th, 19th and 20th amendments restored the genuine parliamentary system and ensured more autonomy to the provinces, as 247 members from both government and opposition benches in the lower house voted for the amended version of the bill. No members present in the house voted against it. The amendment has set down a process to install a caretaker set-up and hold free and fair elections in the future. Through that, the PPP government has ensured free, fair and transparent elections in the country for future generations and an independent Election Commission of Pakistan (ECP). It is to the credit of the democratic government that from now on there will not be any imported caretaker prime minister in this country. Even a minor role for appointing the caretaker prime minister to hold general elections has been eliminated by the 20th Constitutional Amendment. The 20th Constitutional Amendment Bill 2012 has given the ECP sweeping powers by minimising government’s direct role in the appointment and removal of its members. Under the new mechanism of choosing caretakers, as envisaged by the amendment, both prime minister and leader of the opposition in the National Assembly would hold a ‘consultation’ on the matter. The process of finalising names must be completed within three days of the assembly being dissolved. In case the premier and the opposition leader fail to agree, an eight-member committee comprising four members from both sides will come up with its suggestions. If this panel also fails to agree, the ECP will then be empowered to send names to the president. The amendment also envisaged that four members, one from each province, would be chosen for five years and the government would have to follow the same procedure to seek their removal, as is the case with High Court judges. An incumbent prime minister or chief minister will continue to hold office till the appointment of their replacements. The amendment also allows political parties to make additional nominations to their lists for parliamentary seats reserved for women and minorities if an existing list is exhausted. In culmination, it is submitted that constitutional amendments have always been carried out to victimise the political structure of Pakistan. I daresay military dictators in the past abrogated the constitution by imposing martial laws to gain political benefits, which were vague and untenable in a modern age parliamentary democracy. Thus, the state pillars in coming years should work to strengthen democracy in Pakistan.
Posted on: Thu, 31 Oct 2013 19:12:12 +0000
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