18TH Amendment makes a difference

Posted on March 2, 2011 by admin786| Leave a comment

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By Muhammad Saleem Exclusive Article The parliament recently made numerous fundamental changes in the Constitution of Pakistan by passing the 18th Constitutional Amendment under which the province of NWFP has been renamed as Khyber Pakhtunkhwa, the spellings of provinces of Baluchistan and Sind changed as Balochistan and Sindh, the scope of offence of high treason enhanced, three fresh fundamental rights added, Gen Zias name deleted from the Constitution, concurrent list abolished, besides various other changes were made. This has been regarded a significant step towards maturing the democratic process. Previously, high treason was defined as abrogating or subverting the Constitution by use or show of force or by other un-constitutional means or attempting or conspiring to do so. The practices by two former military dictators Gen Zia and Gen Pervez Musharaf indicated that they neither abrogated nor subverted the 1973 Constitution as was done with the Constitutions of 1956 and 1962 but they cleverly either suspended it or held it in abeyance to exonerate themselves from the charges of high treason. The new Amendment provides that whoever abrogates, subverts, suspends or holds in abeyance the Constitution by use or show of force or by other un-constitutional means or attempts or conspires to do so shall be guilty of high treason. This Amendment further adds that any High Court or Supreme Court of Pakistan shall not validate the act of high treason. The Constitution has now explicitly prohibited the superior courts from validating the act of high treason for the first time. Twenty fundamental rights were originally provided in the Constitution. By virtue of the 18th Amendment, an addition of three fresh fundamental rights has been made which are: a right to fair trial which provides that all persons shall be entitled to a fair trial and due process in civil and criminal proceedings; a right to information which provides that every citizen shall have the right to have access to information in all matters of public importance subject to reasonable restrictions imposed by law; and, a right to education which provides that free and compulsory education for children of the age of five to sixteen years shall be provided by the State. Gen. Zia got inserted his name in the Constitution in the year 1985 by becoming President of Pakistan as a result of referendum held in December, 1984. By virtue of the 18th Amendment, his name has been deleted from the Constitution. Previously, the President had power to hold referendum under the Constitution on any matter of national importance at his discretion or upon advice of the Prime Minister. Now the PM may exercise this power who will first refer the matter to both houses of the Parliament for its approval and then hold referendum. There were two lists in the Constitution which included Federal list and Concurrent list. Federal list consisted of those subjects in respect of which only the Federal government had power to legislate while both federal and provincial governments were empowered to legislate in respect of the subjects given in the Concurrent list. By virtue of 18th Amendment, the concurrent list has been abolished and as a result thereof, several federal ministries and divisions stand transferred to the provinces. Fresh provisions have also been inserted with regard to disqualification of members of Parliament for nonpayment of loan and utility bills. These fresh provisions provide that a person shall be disqualified for being elected as member of the Parliament if he/she has obtained loan worth two million rupees or more from any bank, cooperative society or financial institution in his own name or in the name of spouse or dependents which remains unpaid for more than one year or he/she has got such loan written off. Moreover, if a person or his

spouse or his dependents has defaulted in payment of government dues and utility bills including telephone, electricity, gas, water in excess of ten thousand rupees for six months shall also be disqualified to become a Member of the Parliament. The Amendment provides that the Attorney General as well as Advocate General cannot engage in private practice during their tenure of office. Previously, the President could nominate any person as acting Governor when the Governor was absent from Pakistan or was unable to perform his functions but now by virtue of 18th Amendment, the Speaker of Provincial Assembly shall act as acting Governor. The Constitution of 1973 did not provide the specific tenure of the Auditor General of Pakistan. 18th Amendment provides that the Auditor General of Pakistan shall hold office for a period of four years or till he attains the age of 65 years whichever is earlier. A separate High Court for Islamabad Capital Territory has been constituted under the 18th Amendment. For appointment of judges of superior courts, a Judicial Commission has been established whose composition is as under: Chief Justice of Pakistan, Chairman; two most senior judges of Supreme Court, Members; a former Chief Justice or Judge of Supreme Court to be nominated by the Chief Justice as Member; Federal Law Minister, Member; Attorney General of Pakistan, Member; A senior advocate of Supreme Court, Member to be nominated by Pakistan Bar Council for two years. Where the appointment pertains to Judges of High Court, the Judicial Commission shall also consist of: Chief Justice of High Court concerned, Member; The most senior Judge of High Court, Member; Provincial Law Minister, Member; A senior advocate to be nominated by Provincial Bar Council for two years as Member. The Amendment further provides that the Judicial Commission, by majority of its total membership, shall nominate to the Parliamentary Committee one person for each vacancy. The Parliamentary Committee shall consist of four Senators, and four MNAs. Out of these eight members, four shall be from treasury (two from each house) and four from opposition benches (two from each house). The nomination of members from the Treasury Benches shall be made by Leader of House while from the Opposition benches they shall be nominated by Leader of the Opposition. The Parliamentary Committee may either confirm the nominee of the Judicial Commission by majority of its total membership within 14 days or it may not confirm him by rejecting the nominee by 3/4th majority of its total membership in which case the Judicial Commission shall send fresh nomination. The Parliamentary Committee shall, in case of confirmation, forward the name of nominee to the President for appointment. It is pertinent to mention here that the composition and procedure of Judicial Commission and Parliamentary Committee have been further modified by 19th Amendment which provides that Judicial Commission shall now consist of four senior most Judges of the Supreme Court instead of previously two. Moreover, for appointment of High Court Judges, the Provincial Bar Council shall nominate an advocate as member of Judicial Commission who has at least 15 years practice of High Court. Furthermore, the Parliamentary Committee shall record its reasons for rejecting a nominee of Judicial Commission and forward its decision with said reasons to the Judicial Commission. The 18th Amendment lays down that the most senior Judge of High Court shall be nominated as chief Justice of High Court. This provision was not in existence before this Amendment. Peshawar High Court had its benches at Abbottabad and Dera Ismail Khan. A Bench at Mingora has newly been established by virtue of 18th Amendment. Balochistan High Court had bench at Sibi. Now a new bench at Turbat has also been established. Previously, the President had power to direct the Supreme Judicial Council to enquire into the conduct of a superior court judge. Now, this council may also enquire the conduct of a judge on its own motion. Previously, the President had discretion to appoint the Chief Election Commissioner. A new procedure has been introduced now whereby the Prime Minister shall forward three names in consultation with the opposition leader to a Parliamentary Committee which shall consist of 12 Members of Parliament. Now the President shall

appoint the Chief Election Commissioner on the recommendation of the Parliamentary Committee. Moreover, the tenure of the Chief Election Commissioner has also been enhanced from three to five years under this Amendment. By virtue of 18th Amendment, members of the caretaker cabinet and their family members are not eligible to contest the forthcoming elections. The Constitution provided that the President had power to proclaim emergency at his own. The said proclamation has now been made subject to approval by the Parliament. 18th Amendment says that when the President has proclaimed emergency at his own, the act of proclamation of emergency shall be placed before the Parliament for its approval within 10 days. Previously, the President had discretion to appoint Chief of Army Staff, Chief of Air Staff, Chief of Naval Staff, Chairman Joint Chiefs of Staff Committee and Chairman Federal Public Service Commission. The President shall now act on the advice of the Prime Minister for making these appointments under the 18th Amendment. President Musharafs steps of proclamation of emergency, Provisional Constitutional Order (PCO) and amendments made by him in the Constitution through Legal Framework Order have been declared un-constitutional by the Parliament through 18th Amendment. -The author is a law & Constitution expert based in Islamabad. He can be reached at saleem20061@hotmail.com