18th Amendment Research

7/21/2019 18th Amendment Research

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18TH AMENDMENT – IMPACT ANALYSIS

1. Scope. Scope of the Seminar shall be as under :-a. Concise appraisal of previous Seventeen amendments in order to ascertain their

rationale and pattern

b. Salient aspects of 18th amendment and its expected and anticipated effects.

c. Appraisal of challenges encountered in devoting federal ministries / subjects in

accordance with 18th amendment

d. Evaluation of the need for a new amendment to iron out its negative impact.

e. Recommend way forward to enhance well being of Federation of Pakistan in line

with the spirit of constitution as well as aspirations of people of Pakistan.

“The Constitution is not an instrument for the government to restrain the people; it is an

instrument for the people to restrain the government” (Patrick Henry) 1736-1799



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2. Introduction. Eighteenth Amendment Act to 1973 constitution was unanimously passed with

the support of all political parties in the Parliament and was promulgated on 20 April 2010. The Act

includes 102 amendments in all, which amended, substituted, added or deleted various provisions

of the Constitution of the Islamic Republic of Pakistan. The Amendment has huge implications onthe overall allocation of subjects between the Federation and the provinces, entailing a structural

shift in the roles and responsibilities at the provincial level. The concurrent list (with 47 subjects)

stands abolished while the provinces have been given the additional responsibilities to handle the

business of 17 federal ministries. Importantly, the provinces now have an exclusive role in policy-

making in crucial sectors such as health, education, agriculture and environment to name a few.

While the 18th

Constitutional amendment may augur well for the future of the federation, it remains

to be seen if it has a positive impact on the existing governance and service delivery regime. ‘ Will

the shift in responsibilities to the provincial tier have the desired impact on the lives of the common

man? Given the human, financial and other resources at the disposal of provinces, will they be able

to cope with the additional responsibilities? These were some of the questions asked during the

constitutional reforms process. These questions are still relevant, more so for the policy makers and

implementers functioning at different tiers of government.

At the provincial level, the process of 18th

Amendment should necessitate hiring of core staff in the

departments, including their training or re-designation to fulfil the requirements of effective policy

process. Environmental experts, engineers, archaeologists and finance specialists will now be needed

with the new powers at the provincial levels (especially in the smaller provinces). The provinces will

also need to get down to the serious business of framing new laws and ensuring that they are no

replicas of archaic colonial legal frameworks. This amendment has provided an opportunity for

provincial legislatures to review outdated, conflicting or discriminatory laws, as well as to close gaps

in the legislative framework for development and public welfare at a devolved level.

The detractors of this process allege that the post-18th Amendment changes were done in haste andlack any imagination. Instead of thinking out of the box, many of the functions of the abolished

Ministries/Divisions have been retained at the Federal level – rather ‘dumped’ with other Divisions

like Cabinet, Inter-Provincial Coordination and Planning and Development. It is

argued that the under-performance and weak capacities of these institutions was already a matter ofconcern, and that they will find it difficult to adapt to the newer role. Further, many legal,



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administrative, financial and capacity issues need to be addressed at the provincial level to make the

18th

amendment work in addition to considerations of collaboration and coordination with the federal

government in many areas of national concern. It is understood that extensive and detailed work stillneeds to be done to effectively implement the Amendment. The provincial governments also need to

institute governance reforms, prioritize expenditures and increase own revenues. Given this

background, this paper will carry out a strategic appraisal of crucial sectors of education, health andagriculture and assess the impact of the 18

th

Constitutional Amendment on the prevailing governance

And service delivery regime in these areas………….

3. Aim. To carry out an in-depth analysis of 18th Amendment Act and its overall

expected / anticipated effects, while laying focus on ensuing devolution of provincial

autonomy and its implications.

4. Sequence of Presentation

a. Part I – b. Part II

c. Part III

d. Part IV



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PART – I

CONTEXTUAL APPRAISAL OF 1973 CONSTITUTION

Socio Political Context - 1973 Constitution

1. Pakistan got its first constitution in 1956. This constitution preamble itself from

Objective Resolution of 1949 (Attached as Annexure >>>>>) and fostered a

parliamentary form of Government. 1956 Constitution life however was not more than

two years, as after 1958, the first Martial Law this constitution was abrogated. From

1958 to 1962, Pakistan remained under Martial Law. General Ayub gave a new

constitution based on a ‘Presidential’ for m of government in which the head of state was

elected indirectly through union councillors. Nevertheless, ‘1962 Constitution’ followed

certain guidelines of ‘Objective Resolution’, contained Islamic provisions and,addressed distribution of power between provinces. In 1969, once President Ayub was

forced to leave amid street protests, second Martial Law was imposed by then CinC,

General Yahya under whose reign East Pakistan was separated in 1971. After

dismemberment of Pakistan, Mr Z A Bhutto was elected as prime Minister under whose

time in power the 1973 constitution was enacted... This parliament continued to function

till 1977, when massive street protests amid allegations of rigging in election lead to the

third Martial Law of Gen Zia Ul Haq, who instead of abrogating the constitution;

suspended it.

2. Gen Zia’s Martial Law continued till 1985. During that rule certain amendments were

made in the constitution to create a balance between powers of the President and

Prime Minister and additional powers were also given to the Senate. Presidential

powers to dismiss a government / Prime Minister were accorded vide Article 58(2) (b).

In 1985 elections were held and in March the same year the assembly started

functioning again. The ‘Constitution of 1973’ was restored with amendments and Martial

Law withdrawn. In 1988, President Zia using his constitutional powers dissolved the

national assembly and dismissed the Junejo government. Fresh elections in 1988

brought in Ms. Benazir Bhutto as Prime Minister. The constitution with Zia era

amendments continued till 1999, which was the longest period the constitutional system

worked.



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3. In October 1999, General Musharraf suspended the constitution. The Supreme

Court upheld its validity on ‘doctrine of necessity’, but the new thing was that it gave

deadline for holding elections within three years. Elections were resultantly held in 2002

and Martial Law withdrawn. President Musharraf made further amendments in the

Constitution. However, in 2007 the Constitution was suspended for around six weeks

and then restored.

4. Structural Variance which Distinguished 1973 Constitution. The most prominent

characteristic of this Constitution was that it accommodated proposals from the

opposition parties and hence almost all the major political parties of the country

accepted it. The 1973 Constitution is a consensus document and has all what a good

federal constitution requires. However, few clauses / articles which distinguished it

from the previous two constitutions are briefly enumerated as under:-

a. 1956 Constitution was though Parliamentary / Federal but has a unicameral

legislature, whereas 1962 promulgated a presidential form of government with

unicameral legislature. 1973 Constitution promulgated a Federal parliamentary

form of Government with Bicameral legislature consisting of two Houses i.e.

National Assembly and The Senate.

b. Objective Resolution of 1949 was made part of the Constitution.

c. In light of the previous experience, the Constitution of 1973 was more Islamic in

character than the previous ones. Emphasis was made to establish a real

Islamic system in all aspects of social life

d. The Islamic character in the constitution was retained and a ‘Council of Islamic

Ideology’ was set up to advice on steps for establishing a system in accordance

with Islamic aspirations.

e. In the ‘1973 Constitution’ some additional strings were given to the Prime

Minister.

f. Explanation provided in constitution that explains as who is a non-Muslim

through 2nd amendment act

g. Official name of Pakistan was declared as "Islamic Republic of Pakistan" and

Islam was declared as the state religion of Pakistan.1

1 Constitution of Islamic Republic of Pakistan, Article 2.



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h. The constitution also gave the definition of a Muslim. A person who believes in

Tauheed or Oneness of Allah and in the prophet hood of Hazrat Mohammad

(P.B.U.H) as the last prophet of Allah was described as a Muslim.

i. Laid down that only Muslims would be elected as President and Prime Minister of

Pakistan.2

j. Judiciary was made free and independent.3

k. The Constitution guaranteed a right to the citizens4; to be protected by law, and

imposed two duties on them, loyalty to the Republic and obedience to the law. 5

l. The Constitution conferred several fundamental rights to the people such as the

right to life, liberty, equality and freedom of speech, trade and association.6

5. Recap of Previous Seventeen Constitutional Amendments .It is a parliamentary

function in any democracy to make amendments in constitution. No constitution in the

world can be so rigid that it cannot be amended. The constitution or any of its provisions

can be amended by an act of Parliament, provided it is passed by votes of not less than

two thirds of the total number of members of the National Assembly and Senate.

However no amendment affecting the limits of the province can be made unless such

amendment has been approved by respective provincial assembly with two third

majorities. Before moving on to the 18th amendment, its clauses and its analysis , it is

considered vital to recap your memory about the high points of amendments prior to

18th Amendment Act

a. 1st Amendment. It was passed on 8 May 1974, vital areas were:-

(1) Reasonable restriction on freedom to from association imposed by

law in the interest of sovereignty/ integrity of Pakistan.

(2) Permissible period between two sessions of Senate and NA was

reduced from 130 to 90 days.

2 Ibid, article 41. 3 Ibid, Article 175. 4 Constitution of Islamic Republic of Pakistan, Article 9,12 and 25. 5 Khan Hamid, Constitutional and Political History of Pakistan, Edition 2001, Chapter 22, pp 486-508. 6 Constitution of Islamic Republic of Pakistan, Article 8 and 10.



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b. 2nd Amendment. This was passed on 21 Sep 1974, it explains as who is a no-

Muslim. Through this act Ahmedis were declared as Non Muslims explicitly.

c. 3rd Amendment. This act was passed on 18th Feb 1975. It was introduced to

curtail rights of detainees and more powers were given to detaining

authorities for preventive detentions.

d. 4th Amendment. This act was passed on 25th Nov 1975. Through this

constitutional jurisdiction of High court were forbidden in grant of bails to

persons in preventive detention7. Constitutional jurisdiction of High Court

was also curtailed in matters of grant of stay on recovery assessments,

collection of public revenue etc. The most redeeming feature of this act

was allocation of six special seats to the minorities in National Assembly

and Provincial Assembly ( Punjab 3 to 5)8

e. 5th Amendment. This act was passed on 15 th Sep 1976, Major changes brought

by this act9 were as under:-

(1) The Governor of the province was not be a permit resident of that

province.???????????

(2) Period of separation of judiciary from executive was enhanced from three

to five years.???????

(3) Chief Justice of Supreme Court will hold office for a pd of five years ,

unless he retires on completion of 65 years of age before that

(4) Certain other amendment with regards to tenure of judges and

restriction of jurisdiction of supreme court to issue directions was

restricted to what is granted in constitution only

f. 6th Amendment. This act was hurriedly passed on 4th Jan 1977 and mainly

dilated upon the extension of tenure of Chief Justices beyond the age of

retirement10.

g. 7th Amendment. This act was passed on 16th May 1977. This amendment

provisioned to demonstrate confidence in the Prime Minister.???? Moreover

7 Constitution (Fourth Amendment) Act, 1975 Act LXXI of 1975. PLD 1975 Central Statutes 337. 8 Khan, Hamid, Constitutional and Political History of Pakistan, Edition 2001, pp.523-24.

9 Ibid. pp.532-36.10 Ibid., pp 538



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this amendment barred the High Court from exercising jurisdiction to any

area wherein Armed forces were acting in aid of civil power ?????.

h. Revival of Constitution 1973 Order and 8 th Amendment. Supreme Court of

Pakistan, in the case titled Nusrat Bhutto V Chief of Army Staff conferred the

power to amend constitution to on General Zia-ul-Haq. Exercising such powers

Gen Zia on 2 Mar 1985, comprehensively amended the constitution

through a Presidents’ Order known as Revival of Constitution 1973 Order

1985 11(RCO). The RCO made fundamental alterations in the constitution and

as many as sixty five articles out of total 280 were amended / altered

/substituted / added/modified/ deleted/ omitted. Important salient of RCO and

8th amendment are briefly enumerated as under.

(1) RCO

(a) Objective Resolution 1949 was made part of the constitution

with significant modification pertaining to minorities.

(b) Electoral College for election of President was modified so as

to include both houses of Parliament and all four Provincial

assemblies.

(c) President was empowered to dissolve the National Assembly at

his discretion.

(d) Seats reserved for women in National Assembly increased from ten

to twenty.

(e) Member in senate was raised from sixty three to eighty seven

including five seats for technocrats

(f) Time period provided for President / governor to assent to bills

passed by respective National/ Provincial assemblies was increased

from seven to forty five days.

(g) President / Governor could appoint any member of the National /

Provincial Assembly as Prime Minister / Chief Minister respectively,

who in his opinion could command the confidence of a majority of

the members of respective Assembly.

11 Ibid. pp 668-74



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(h) Federal Ministers and Ministers of State were too be appointed by

President on the advice of the Prime Minister.

(i) Procedure for passing motion of no confidence against Prime / Chief

Ministers was altered and requirement of giving name of alternate

candidate was omitted.

(j) Number of general constituencies for Muslims was raised from 200

to 207; in addition to that 10 seats were reserved for the minorities.

(k) Seat in Provincial assemblies for minorities were also raised.

(l) Another significant change brought about by RCO was that a large

number of additions to Qualification and Disqualifications for

becoming members of Parliament were introduced.

(m) President was empowered to request one of the judge of supreme

Court to act as Chief Justice of a High Court

(n) Permanent benches of High Court were incorporated in the

constitution.

(o) President was conferred discretionary powers to appoint Chairman

Joint Chief of staff Committee and Chief of Army, Naval and Air

Staffs.

(p) All martial Law orders and regulations were validated and complete

indemnity against suits and prosecution provided.

(q) Appointment of governor of province was left to discretion of

President.

(r) A National security Council was constituted, which was to

include the president, prime Minister, The Chairman of senate, the

Chairman of Joint Chief of Staff Committee and Chief of the three

Armed Forces.

(2) 8th Amendment. In milieu of the RCO, 8th Amendment bill was moved

and passed on 11th Nov 1985. Although 8th Amendment did not make

extensive changes in the RCO, yet it modified some of the alteration

made through RCO. In total eighteen articles were amended,

modified, added, varied or omitted. Power or the President were



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slightly reduced and correspondingly extended to the Prime Minister

and the Cabinet. Though in material terms powers of president were not

curtailed much, yet enactment of 8th amendment led the way to lifting of

martial law. Salient of amendment made in RCO through 8 th amendment

bill were as under:-

(a) Period of giving assent by President to bills passed by parliament

was reduced from forty five to thirty five days

(b) President power to dissolve National Assembly was made

conditional and period to hold election was reduced from 100

to 90 days.

(c) The power of president to appoint prime Minister was limited to

a period of five years i.e. until 20th March 1990.?????

(d) President retained the power to appoint Governors of the provinces

but in consultation with Prime Minister.

(e) Power of Governors to appoint Chief minsters was limited to a

period of three years i.e. until 20th march 1988.

(f) Governor could dissolve the Provincial Assemblies but subject to

approval of the President.

(g) Provision for establishment of National Security Council was

omitted.

(h) ‘Validation’ of martial law orders and regulations was substituted

with word ‘Affirmation’

i. 9th Amendment. This bill was moved during Prime Minister Junejo’s

Government. The bill intended to expand the injunction of Islam and Quran

and Sunna was to be supreme law and source of legislation. This bill was

never passed by the Parliament.(then how it became part of the law

j. 10th Amendment. This act was passed on 29 March 1987. Through this bill

number of days for which National Assembly was required to meet each

year was reduced from 160 to 130.

k. 11th Amendment. This bill was moved on 31st Aug 1989 as ‘Private

Members’ Bill, it sought to restore twenty women seats in the National



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Assembly. However on assurance of Government to introduce the same

bill very soon the bill was withdrawn by its movers.????????

l. 12th Amendment. This amendment was passed by the Parliament on 28th July

1991. The main purpose was the establishment of special courts for

heinous offences. Other provisions were related to salaries of judges of

Supreme Court and High Court. This was a temporary amendment and was

to last for a period of three years only i.e. until july1994.

m. 13th Amendment. This amendment was moved and passed in a matter of

minutes on 4th Apr 199712. Salient of this amendment are as under:-

(1) The most significant step was the deletion of article 58(2) (b), which

provisioned President to dissolve National Assembly13.

(2) Corresponding powers of Governors to dissolve Provincial Assemblies

were also done away with.

(3) Power of President to appoint Provincial Governors was also curtailed.

(4) Discretionary Powers of President to appoint Chief of Armed Forces was

also taken away.

n. 14th Amendment. This amendment was passed on 3rd July 1997, once Prime

Minister Nawaz Sharif had a two third majority in both Houses of the

Parliament. The amendment was introduced to put to an end to the

problem of defection by the members of parliament. This amendment was

also rushed through in matter of minutes around midnight and was passed

unanimously.

o. 15th Amendment. This Bill was moved in Aug 1998 by Nawaz Sharif

Government14. The amendment, if passed, could have profound impact on the

character of the constitution. Although this amendment could not be finally

passed. Moreover the bill generated heated debate throughout the country.

Opposition in the Parliament was almost united against the bill and even some

members of PML (N) were also against the amendment. This bill was tabled

before the National Assembly on 9th October 1998, which passed it with 151

12 Ibid. pp. 817-1813 Constitution (Fourth Amendment) Act, 1975 Act LXXI of 1975. PLD 1975 Central Statutes 337. 14 Ibid. pp.927-30



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votes in favour and 15 against it. The Bill was initially not presented before the

Senate since Nawaz Sharif did not have simple two third majority.

Nevertheless, in 1999 the Nawaz Sharif’s Government was overthrown by

General Musharraf in Oct 1999. Significant clauses of the bill were as under:-

(1) The Holy Quran and Sunnah of Holy Prophet(Peace be Upon Him)

shall be the supreme Law of Pakistan

(2) Federal Government shall be under obligation to enforce shariah, to

establish salat, to administer Zakat, to promote Amir Bil Maroof and

Nahi Anil Munkir.

(3) Federal Government may issue directives for implementation of the

clauses and may take necessary action against state functionaries

for non-compliance of said directives.

(4) Bill to amend constitution to remove any impediments in enforcement of

matter relating to Shariah, may originate in either House and if passed by

simple majority could be transmitted for approval of other House.

p. 16th Amendment. Sixteenth Amendment was promulgated on 5th August 1999 to

extend the quota system in services until August 2013 .

q. Legal Frame Work Order (LFO) and Seventeenth Amendment. After the over

throw of Nawaz Sharif Government, the Supreme Court of Pakistan granted

power to General Musharraf to amend the constitution. General Musharraf

in exercise of such powers promulgated ‘Legal Frame Work Order 2002’

(LFO).

(1) LFO. Important features of LFO are enumerated below:-

(a) Political parties are required to hold intra party elections to elect

their office bearers and party leaders.

(b) Seats in National Assembly were increased to 342 with 60 seats

reserved for women and 10 seats reserved for non-Muslims.

(c) President was again empowered to dissolve National Assembly at

his discretion. Article 58(2) (b) was revived.

(d) New disqualifications for members of parliament were added.

(e) Article for defection clause was amended.



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(f) Governor was to be appointed by president after consultation with

Prime Minister.

(g) Power of governor to dissolve Provincial Assemblies with prior

approval of President was revived.

(h) Local Government system was conferred constitutional status.

(i) Supreme Judicial Council was conferred the power to enquire

into matter of misconduct of judges.

(j) Election commission was enlarged by including four judges of

High Court, one each from each province.

(k) An article added to validate all laws made during the period of

suspension of constitution.

(l) Schedule VI was amended and a number of laws were added to the

list that could not be altered, repealed, or amended without previous

sanction of President.

(2) Seventeenth Amendment. LFO was never submitted before the

Parliament and Seventeenth Date………………… Amendment bill only

contained amendments which were made in constitution under the

assumption that LFO had become part of the Constitution. LFO had

amended / added twenty nine articles in the constitution, out of

which twenty were left untouched by this amendment. Salient of this

amendment are as under:-

(a) A new clause added to provide reference to supreme court within 15

days of dissolution of National Assembly under Article 58(2) (b). An

identical amendment was also made in article for dissolution of

provincial assemblies by the Governor.

(b) Article for establishment of National Security Council was deleted

or added please check???????.

(c) Protection provisioned to local Government Ordinance and Police

Order in Sixth Schedule was reduced to six years.

(d) An article was inserted to affirm and validate all amendments made

from 12 Oct 1999 onward.



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6. Median Time of Amendment of 1973 Constitution. It is evident that constitution of

Pakistan has been repeatedly and frequently amended. Some of these amendments

particularly the eighth and seventeen amendment had virtually changed the face

of the constitution. The constitution as it stands today after the 18th amendment

is completely different political and legal document then it was when originally

passed in 1973. Its structure particularly in terms of its provisions relating to system of

government and provincial autonomy has under gone a complete volte face. a peculiar

feature of the history of the constitutional amendments is that most of them were

passed hurriedly without reference to parliamentary committees and while relaxing the

rules regarding constitutional amendments. :-

Amdt NO YEAR GOVT HEAD

1st May 1974 Z A Bhutto

2nd Sep 1974 Z A Bhutto

3rd Feb 1975 Z A Bhutto

4th Nov 1975 Z A Bhutto

5th Sep 1976 Z A Bhutto

6th Jan 1977 Z A Bhutto

7th May 1977 Z A Bhutto

8th Nov 1985 Gen Zia/

9th Nov 1985 Gen Zia

10th Mar 1987 Gen Zia

11th Aug 1989 Benazir Bhutto

12th Jul 1991 Nawaz Sharif

13th Apr 1997 Nawaz Sharif

14th July 1997 Nawaz Sharif

15th Aug 1998 Nawaz Sharif

16th Aug 1999 Nawaz Sharif

17th Aug 2002 Gen Musharaff

18th 2010 Zardari



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7. Politico - Social Environments Triggering Amendments.

a. Zulifqar Ali Bhutto. 1973-1977. it is interesting to highlight after passing of 1973

constitution; within a span of four years government of Z A Bhutto incorporated

seven amendments into 1973 constitution. It is considered that few

amendments were brought about to improve governance and to control poor

law and order situation. Nevertheless, last three amendments, specially related

to referendum and judiciary were incorporated to favour Bhutto and continuation

of his regime. The Fifth Amendment on curtailing the power and jurisdiction of

the Judiciary was highly criticized by lawyers and political leaders. Sixth

Amendment which extended term of the Chief Justices beyond the age of

retirement was made in the Constitution to favour the then Chief Justice of the

Supreme Court who was supposed to be a friend of Bhutto.

b. Gen Zia-ul-Haq 1977 - 1988. During initial eight years of Gen Zia’s rule, there

has been no amendment in the constitution, amid non-existence of a

parliament. After the 1985 elections, Junejo as Prime Minister was though able

to lift the Martial Law but at the cost of Eight Amendment and validation of

‘Revival of the Constitutional Order’. Through eighth amendment, Junejo

successfully brought the office of the President of almost at par with that of the

Prime Minister, yet, Gen Zia under the Article 58(2) b accrued the power to

dissolve the National Assembly at his own discretion. After the passing of

Article 58(2) b; National Assemblies were dissolved on four occasions using

powers of this article. The Eighth Amendment is considered as a landmark in

the constitutional history of Pakistan. It not only altered the very form of the

Constitution from purely Parliamentary to semi-Presidential but also changed

the constitutional and political history of the country.

c. Nawaz Sharif 1997 - 1999. A number of very important Constitutional

Amendments were introduced during Nawaz Sharif's second term. These

include the termination of the Eighth Amendment {repealing of 58 (2) (b)},

passing of Thirteenth Amendment and the Ehtesab Act, 1997. These

amendments were politically triggered by Nawaz Sharif desire to accrue



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maximum powers and amid Nawaz’s experience of being victim of A rticle 58(2)

(b). Throughout Pakistan's political history, horse-trading and defection within

various parties created problems. Through the Fourteenth Amendment Nawaz

Sharif also addressed the problem of defection by parliament members. The

Fifteenth Amendment which could not be passed was also presumed to be an

effort by Nawaz to acquire additional powers for himself.

d. Gen Musharraf 1999- 2008. Legal Framework Order 2002 has been sanctified

by postulating that nobody can challenge it in any court of law "on any ground

whatsoever." Many believe that the L. F. O. 2000 has been enforced without

any regard for the Constitutional and democratic norms and proprieties. LFO

not only repealed the thirteenth amendment but also authorized the President to

enjoy the power of dismissing the Prime Minister along with his Cabinet and the

Parliament. With the adoption of the Legal Framework Order 2002, Pakistan

was virtually advanced from the parliamentary form of government to the

presidential system. Through Seventeenth Amendment basically the Legal

Framework Order 2002 was accepted as part of the Constitution with minor

modifications. 17th amendment also favoured the continuation of Gen

Musharraf’s as President by making Article 63(1) (d) of the Constitution

inoperative till December 31, 2004. Article 63(1) (d) deals with the

disqualification for membership of Parliament. Amid suspension of this article,

Gen Mushaarff became eligible to be elected as President while holding the

office of COAS.

a. Rationale for the Seventeen Amendments. If we carry out a critical appraisal

of the rationale / reasons which lead to these Seventeen amendments, it will be

evident to us that most of the amendments were either incorporated to benefit

the individual leaders and to extend / support tenure in their respective offices

or were triggered amid other political motives. The attached Annexure reveals

that very few Amendments were made to improve the Governance in the

country, to protect human rights or to strengthen the democracy. Since it’s been

39 years since the 1973 Constitution has been promulgated; therefore average



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median time the Constitution has been subjected to amendment comes to

around after every two years.

4. Rationales for Amendments in Contemporary Constitutions. After having done

the critical appraisal of rationales, which triggered the seventeen amendments in the

1973 Constitution of Pakistan, it was appropriate to do a comparative analysis with fewcontemporary constitutions of the world in order to ascertain similarities or differences of

the motives for amendments. In this milieu, we have selected the constitution of USA,

India and Nigeria. Brief case study of these contemporary constitutions shall only focus

to ascertain time median for amendments while identifying apparent rationale / pattern

for the amendments.

a. Constitution of USA. The original United States Constitution was assumed on

17 September, 1787. Over time, the US Constitution has been amended or

improved only 27 times. To amend the Constitution the procedure is divided into

two different parts. Firstly, in both Houses of the Congress there should be at

least 2/3 majority of votes that are supporting the proposal. Secondly, 3/4 of the

states or the majority of the state legislatures' votes should approve it. There

are total 27 amendments to the US Constitution. The attached Annexure

bring to light that out of the total 27x amendments, 17 x amendments in the

US constitution were made to protect the human rights of the people.

Moreover 8 x amendments were made to strengthen democracy. Most

astonishing fact evident from this analysis is that no amendment was done to

benefit the individual leaders or to extend / support their tenure in their

respective offices. very few Amendments were made to improve the

Governance in the country, to protect human rights or to strengthen the

Rationale Based Categorization of Seventeen Amendments Total

HumanRights

GoodGovernance

StrengthenDemocracy

In Supportof Indl Ldrs

PoliticallyMotivated

Nil 03 03 06 05 17



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democracy. Interestingly, since it’s been 225 years since the US constitution

has been promulgated; therefore average median time the US Constitution has

been subjected to amendment comes to around after every eight years.

10. Constitution of India. Indian constitution was passed by the Constituent

Assembly on 26th November 1949. However it came into effect on 26 th January 1950. It

is the longest written constitution of any sovereign country in the world, containing 395

Articles in 22 parts and 14 schedules. In a span of more than 62 years, Indian

constitution has been subjected to total of 97 amendments. Amendments in Indian

constitution are made by Parliament, by a super-majority in each house, and certain

amendments must also be ratified by the states. The attached Annexure bring to

light that out of the total 97 x amendments, x amendments were made to protect the

human rights, 43 x amendments were made to strengthen democracy / federation

while 34 x amendments were made to improve day to day governance in the

country. Taking cognizance of culture of subcontinent, Indian constitution was

also subjected to 5 x amendments, which were brought in support of leaders /

Individuals at helm of affairs. Another fact about the amendment worth

highlighting is that 13 x amendments were incorporated to cater for aspiration of

scheduled casts, whereas 9 x amendments were made to curb the insurgency in

the State of Punjab.

Rationale Based Categorization of Amendments Total

HumanRights

GoodGovernance

StrengthenDemocracy


Politically Motivated

17 02 08 NIL NIL 27

Rationale Based Categorization of Amendments Total

HumanRights

GoodGovernance

StrengthenDemocracy


Politically Motivated

07 34 43 05 08 97



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11. Constitution of Nigeria and its Evolution. Nigeria has had a series of

constitutions. The current constitution was enacted on 29 May 1999, inaugurating

the Nigerian Fourth Republic. Nigeria's first constitution as a sovereign state was

enacted by a British order in council so as to come into force immediately upon

independence, on 1 October 1960. Under this constitution Nigeria was a Common

Wealth Monarchy sharing its ceremonial head of state with the United Kingdom and a

number of other countries such as Canada. Independent Nigeria's second constitution

established the country as a Federal Republic and came into force on 1 October 1963

(Nigeria's third anniversary as an independent nation). The 1963 constitution, which

was based on the Westminster system. This system continued in operation until a

military coup in 1966, which overthrew Nigeria's democratic institutions. The 1979

constitution, which brought in the Second Republic, abandoned the Westminster

system in favour of an American -style presidential system, with a directly elected

executive. The 1979 constitution was again overthrown by a military coup on the last

day of 1983. The 1993 constitution was intended to see the return of democratic rule

to Nigeria with the establishment of a Third Republic but was never fully implemented,

and the military resumed power until 1999. The 1999 constitution restored democratic

rule to Nigeria and remains in force today. In January 2011, two amendments of the

1999 constitution were signed by President Good luck Jonathan, the first modifications

since the document came into use in 1999.



20

PART – II

Generic Appraisal of 18th Amendment Act (1973 Constitution)

1. Composition - Parliamentary Review Committee.15 26 - Member all party

Parliamentary Committee on Constitutional Reforms was established on June 21, 2009

and formally it started its work in the second week of July. This committee was headed

by Senator Mian Raza Rabbani. The 26 members committee included only 11 members

from mainstream political parties, i.e. PPP and PML and PML (N). Party wise

composition of the committee was as under :

a. PPP: 5

(1) Senator Mian Raza Rabbani

(2) Raja Pervez Ashraf, Minister for Water & Power

(3) Syed Naveed Qamar, Minister for Petroleum & Natural Resources

(4) Dr. Babar Awan, Minister for Law Justice & Parliamentary Affairs

(5) Senator Lashkari Raisani

b. PML (N) : 3

(1) Senator Muhammad Ishaq Dar

(2) Sardar Mehtab Abbasi, MNA

(3) Ch Ahsan Iqbal, MNA

c. PML (Q) : 3

(1) Senator Waseem Sajjad, Leader of Opposition

(2) Senator S. M. Zafar,

(3) Humayun Saifullah Khan, MNA

d. MQM : 2

(1) Dr Farooq Sattar, Minister for Overseas Pakistanis

(2) Syed Haider Abbas Rizvi, MNA

e. ANP : 2

(1) Senator Afrasiyab Khattak,

(2) Senator Haji Muhammad Adeel

15 Constitutional Reform Committee Report on 18th Amendment



21

f. JUI (F) : 2

(1) Maulana Fazal-ur-Rehman, MNA

(2) Senator Rehmatullah Kakar

g. Misc Parties : 9

(1) Senator Justice ® Abdur Razzaq Thahim, PML(F) Minister Local Govt

(2) Senator Israrullah Zehri, BNP(A), Minister for Postal Services

(3) Senator Prof. Khursheed Ahmed, JIP

(4) Senator, Dr Abdul Malik, NP

(5) Aftab Khan Sherpao, MNA, PPP(S)

(6) Ghulam Murtaza Jatoi, MNA, NPP

(7) Senator, Abdul Rahim Mandokhel, PKMAP

(8) Senator Shahid Hassan Bugti JWP

(9) Munir Aurakzai. MNA, IND

2. Time Template. 16It is pertinent to mention here that the 26-member Committee on

Constitutional Reforms was established on 21 June, 2009 and formally it started its

work in the second week of July. Committee proposed the 18th Amendment bill after

marathon sessions of 77 meetings with each meeting at an average lasting 5 hours,

thus the Committee has spent about 385 hours during its deliberations in nine months

and ten days. In the light of the above, the Committee proposed amendments to 97

Articles in the Constitution of the Islamic Republic of Pakistan, through (Eighteenth

Amendment) Bill, 2010.

3. Nascent Mandate. 17The original Mandate given to the committee was to propose

amendments for giving effect to the ‘Charter of Democracy’ signed between PPP and

PML (N). Nevertheless composition of the committee made it inevitable to arrive at

consensus reforms without going way beyond the original mandate. The committeeaccordingly extended its mandate to include following objectives / targets for the

proposed reforms:-

a. Transparency

16 Ibid.17 Ibid, pp 7



22

b. Reduction of Individual Discretion

c. Strengthening of the parliament and Provincial assemblies

d. Provincial Autonomy

e. Independence of Judiciary

f. Strengthening of Fundamental rights

g. Improving merit

h. Good Governance

i. Strengthening of institution

4. Experience Template – Key Members of Review Committee. Interestingly, there

is a similarity between the work of Abdul Hafeez Peerzada led the committee that

drafted the 1973 Constitution and the Senator Raza Rabbani-led committee. In both

committees all shades of political opinion in parliament were represented. It was also a

coincidence that S M Zafar, who was a member of the Raza Rabbani committee, was

adviser to the opposition in 1973 and was involved in the drafting of the Constitution.

Ghous Bakhsh Bizenjo, the father of member of the Rabbani committee Hasil Bizenjo,

had signed the 1973 Constitution. Interestingly S M Zafar was a key man in drafting the

17th Amendment and was involved in talks with the Muttahida Majlis-e-Amal in 2003

and now again played an important role in its undoing the 17th amendment. In nut shell

all key reformers have wide experience of legislation and have a long political legacy.

Low downs / profile of few important key members of the committee attached at

Annexure C to ………….analysis of the profile of key members of committee

points to following facts

a. ……..

b. ………………………

c. ……………………..

d. …………………….……………………………

4. Trigger / Political Environments Leading to 18th Amendment

a. Political expediencies and Competing political interest. Both major political

parties of Pakistan i.e. PPP and PML (N) were somehow or the other victims of

8th and 17th Constitutional Amendment. During Gen Musharraf’s rule, the two

main opposition leaders signed the “Charter of Democracy” in which they



23

committed to restore the 1973 Constitution and to initiate reforms aimed inter alia

at holding ‘free and fair’ elections. These environments made the political scene

conducive to develop a consensus on overthrowing the clauses /amendments

which have hurt either of the major political parties one time or the other. Beside

the broad consensus all political parties had their own individual agendas also,

which they were looking forward to contemplate through these amendments.

Competing political interests / agendas of political parties were in shape of

omitting Intra party election, lifting of ban from third term of prime minister,

changing the name of provinces or repealing the qualification clauses for election

to the parliament. These interior motives of political parties coupled with genuine

need to restore the constitution in its original spirit and motivated them in

developing broad consensus on the policy of give and take. Individual aims /

agendas specific to a particular party shall be highlighted while we give an over

view of the 18th amendment. Under this prevailing favourable environments,

President Zardari asked the Speaker of the National Assembly to constitute an

all-party committee of both Houses of Parliament, to propose amendments to the

Constitution in light of the Charter of Democracy. It was commonly understood

that this was intended to rid the constitution of 17 th amendment and to bring it in

line with the spirit of Charter of Democracy.

b. Pressing Public / Provincial Demand. The provincial autonomy in Pakistan

regardless of the sanctimonious statements of politicians on the subject from time to

time is a dream that has practically eluded Pakistan. Spirit of 1973 Constitution

was originally was also based on Federal Parliamentary system with

Provincial Autonomy and independence of the Judiciary. Unfortunately,

this spirit could not be implemented in letter and spirit, amid derailing of

democratic system at different times. Alteration made in favour of presidential

form of government through 8th and 17th amendment led to a sense of deprivation

in provinces in general and people of these provinces in particular. Moreover,

provinces exceedingly felt deprived of their legitimate constitutional rights in

governance and utilization of their natural resources; which resultantly created a

state of alienation and confrontation between Provinces and Federation The



24

demands of amendments in the Constitution for giving the Provinces autonomy,

ensuring an independent and impartial Judiciary and equality in sharing of

resources were repeatedly raised by all political forces, provinces and the Media

from time to time. This demand was further strengthened after the signing ofCharter of democracy on 14th May, 2006. Pressing public demand, aspirations of

provinces and environments of competing political interests facilitated President

Zardari to constitute an all-party committee to propose amendments to the

Constitution in light of the Charter of Democracy. It was commonly understood

that this was intended to rid the constitution of 17 th amendment and to bring it in

line with the spirit of the Charter of Democracy.

5. Overview of Legislative Structure Envisaged in 1973 Constitution. The 1973

Constitution envisaged four legislative domains18, that is, exclusive Federal

Legis lative Lis t-I (FLL-I) , exclusive provincial domain (Residuary) and Concurrent

Legis lat ive List (CLL) with federal laws superseding the provincial laws in case of

inconsistency. Finally it also provided a mechanism of participatory and

harmonious functioning under Counci l o f Comm on Interests (CCI) , represented

by Federal and Provincial Governments, to formulate and regulate policies in

relation to matters in Federal Legislative L ist II. The Federal Legislative List I contained 59 subjects like defence, security, external affairs, communications,

currency, foreign exchange, public debt, federal services, major ports, intellectual

property, import and export, inter-provincial trade, State Bank, stock exchanges,

national planning and national economic coordination, national highways,

census, custom and excise duties, duties in respect of property, taxes on income

and corporations other than agricultural income, sales tax, taxes on mineral

resources, statistics and jurisdiction and powers of all courts except Supreme

Court. Parliament had the exclusive right to legislate on all these matters. The Federal

Legis lative List II FLL-II (8 subjects) contained subjects like railways, mineral oil and

natural gas, development of industries under federal law, establishments under the

control of federal government, CCI and fees, offences and statistics to any of the

18 Constitution of Islamic Republic of Pakistan



25

matters enumerated in this list. The Concurrent L egis lat ive List (CLL) (47 subjects)

contained provisions related to criminal law, criminal and civil procedure, evidence,

marriage, wills, bankruptcy, arbitration, contracts, transfer of property, removal of

prisoners, preventive detentions, explosives, drugs and medicines, environment,

population and social welfare, welfare of labour, trade unions, regulation of labour,

electricity, curriculum, syllabus, standards of education, Islamic education, Zakat,

tourism, legal, medical and other professions and fees and statistics related to any

matter in this list. These subjects fell under the concurrent domain of Parliament and

Provincial Assemblies. The residuary subjects (not contained in any list) fell under the

exclusive domain of provinces.

6. Overview of 18th Amendment19. The Constitution20 (Eighteenth Amendment) Act,

2010 was unanimously passed with the support of all political parties in the Parliament

and was promulgated on 20 April 2010. The Act includes 102 amendments in all, which

amended, substituted, added or deleted various provisions of the Constitution of the

Islamic Republic of Pakistan. Beside its overall impact, the Amendment also has huge

implications on the allocation of legislative subjects between the Federation and the

provinces, entailing a structural shift in the roles and responsibilities at the provincial

level. An overview of major Clauses of 18th Amendment in the order of precedence /

linkage with scope of seminar are enumerated as under :-

a. Abolishment of Concurrent List.21 18th amendment, abolished the Concurrent

Legis lat ive List (CLL) bringing all subjects contained therein, with certain

exceptions, under the exclusive domain of provinces. Subjects like (Lotteries,

duties in respect of succession to property and estate duty in respect of

property ) were deleted from FLL-I bringing them in the exclusive domain of

provinces. Few subjects from FLL-I (major ports, national planning and national

economic coordination, census and extension of powers of police force to other

provinces) and CLL (electr ic i ty and legal , medical and other pro fessions )

were moved to FLL-II; besides, some new entries (regulatory authorities under

19 Constitutional Reform Committee Report on 18th Amendment, Annex E.20 Report, Strategic Appraisal of 18th Amendment , Senior Management Wing National Management College

21 Hamid, Shahid, Briefing Paper on 18 th Constitutional Amendment at PILDAT Jul 2010



26

federal law, supervision and management of public debt, standards in higher

education institutions and interprovincial matters and coordination) were added

thereby enhancing the list of subjects under the supervision of CCI. Moreover,

abolishment of Concurrent L egis lative List (CLL) has given the provinces

additional responsibilities to handle the business of 17 federal ministries.

Importantly, the provinces now have an exclusive role in policy-making in crucial

sectors such as health, education, agriculture and environment to name a few.

The effect of these changes is reduction in the exclusive domain of Parliament

and increased list of subjects for legislation by provincial assemblies, thereby

increased provincial autonomy in their affairs. This also means an enhanced list

of areas for CCI, providing a forum for provincial governments to voice their

opinion in these areas.

As per revision, Prime Minister is Chairman of CCI and the

Council should meet at least once in 90 days. Overall, due to this Amendment,

18 federal ministries would cease to exist, with most of their functions

devolved to the provinces.

(The aspect of devolution and its related ramification shall be handled in detail

in the next presentation / part)

b. New Entries in Federal List - Part II. In view of abolishment of concurrent list

few subjects enumerated below have been transferred to Part II of federal

legislative list22. The change means that all policy decisions on these subjects

will henceforth be within the domain of the Council of Common Interests:-

(1) Electricity.

(2) Major Ports.

(3) All regulatory authorities established under the federal Law.

(4) National planning, national economic coordination and scientific /

technological research.

(5) Supervision and management of public debt

(6) Census.

(7) Extension of powers and jurisdiction of police force belonging to

any province.

22 Ibid.



27

(8) Legal, medical and other professions.

(9) Standard in Institutions for higher education.

(10) Inter provincial matters and coordination.

c. Council of Common Interests (CCI). 23 Due to transfer of few subjects from

abolished Concurrent List and from Part I of Federal List to Part II of Federal

Legislative List, CCI now has much greater responsibilities. To cope up with

increased responsibilities; it has been adequately strengthened by making the

Prime Minister, its chairman. It shall comprise three Federal Ministers and

four Chief Ministers.

d. Devolution of Power - Subjects. After deletion of Concurrent List and transfer

of some subjects from deleted concurrent list to Part II of Federal List in the

manner described earlier, the further responsibilities that stand transferred to

the provinces now include24:-

(1) Civil procedure including law of limitation.

(2) Marriage, divorce, infants and minors adoption.

(3) Wills and succession

(4) Arbitration.

(5) Contracts including partnership and agency.

(6) Trusts and trustees

(7) Transfer of property.

(8) Removal of prisoners from one province to the other.

(9) Actionable wrongs.

(10) Preventive detention.

(11) Arms, fire arms and ammunition.

(12) Explosives.

(13) Opium.

(14) Drugs and medicines.

(15) Infections and contagious diseases.

(16) Mental Illness.

23 Ibid.24 Ibid.



28

(17) Environmental pollution and ecology.

(18) Population planning and social welfare.

(19) Welfare of labour.

(20) Trade unions.

(21) Labour Exchanges, employment information bureaus.

(22) Safety of Labour in Mines.

(23) Unemployment insurance.

(24) Shipping and navigation of inland waterways.

(25) Mechanically propelled vehicles.

(26) Newspapers, books and printing presses.

(27) Evacuee property.

(28) Ancient and historical monuments.

(29) Curriculum, syllabus planning policy and standard of Education, except in

Institutions of higher education.

(30) Islamic education

(31) Zakat

(32) Production, censorship and exhibition of films.

(33) Tourism.

(34) Auqaf

e. 7th National Finance Commission Award. The National finance Commission

shall not reduce the share of resources allocated25 to the provinces by

previous commissions. Provinces have become entitled to the entire

proceeds of the excise duty on oil in addition to excise duty on natural

gas. Other important provisions of the 7th NFC award are as under:-

(1) Distribution of Revenue. One percent of net proceeds of divisible

pool taxes shall be assigned to government of KPK to meet

expenses of war on terror . Balance of the net proceeds of divisible pool

taxes; 57.5 % shall be assigned to Provinces w.e.f. from fiscal year

2011-12. Share of federal governments shall be 42.5 % . Divisible pool

25 Constitutional Reform Committee Report on 18th Amendment



29

of taxes in each year shall consist following taxes levied by Federal

Government in that year:

(a) Tax on Income

(b) Wealth Tax

(c) Capital Value Tax

(d) Taxes on sales and purchases of goods imported, exported,

produced and manufactured.

(e) Export duties on Cotton.

(f) Custom duties.

(g) Federal Excise duty excluding the duty on gas 26charged at well

head.

(h) Any other tax which may be levied by Federal government

f. Repeal of 17th Amendment and Related Orders. 27 Through 18th amendment,

the constitution Seventeenth amendment act 2003 and all proclamation

orders by Gen Musharraf have been declared void. However, acts28 ,

notifications etc issued during Musharraf period have nevertheless been

validated, till set aside by the competent authority . The provisions are similar to

what happened after Gen Yahya Khan’s tenure.

g. Reduction in Power of President. 29The position and powers of President have

been considerably reduced. President’s powers to dissolve the National

Assembly or to refer a question to a referendum have been removed. The

president is now to appoint Governors, the Services Chiefs and the Chairman

Federal public Service Commission on the binding advice of the Prime Minister.

and

h. Defection from Political Parties. As per changes in article 63 A,

disqualification for defection will be triggered on the reference made by

Head of the Political Party in place of Head of Parliamentary Party. In

consequence of receipt of such reference speaker or Election commission will

26 Constitutional Reform Committee Report on 18th Amendment, Para 60.27 Ibid. Annex E28 Ibid29 Constitutional Reform Committee Report on 18th Amendment.



30

not be able to delay its processing. This clause virtually empowers the head

of the majority party or coalition of parties to dictate who the prime

minister will be.

i. Intra - Political Parties Elections. As per Article 17,30 beside other things

Intra Political parties Elections has been done away on the pretext that

Political parties act 1962 already provides for such elections . As per

analysis31 of Mr Asif Ezdi, ex member of Pakistan Foreign Service, The way has

thus been cleared for the seamless succession of the next generation illustrious

political dynasties of country, which dominate Pakistan’s political arena.

j. Removal of Ban – Third Term Office of PM / CM. The restriction on a person

to be a third time Prime Minister / or Chief Minster has been removed .

k. Renaming of NWFP / Provinces. The North West Frontier Province32 has been

renamed as Khyber Pakhtunkhwa. Although soon after being renamed, it has

become controversial especially in the Hazara Division.

l. Size of Cabinet. The Number of Ministers, inclusive of State Ministers has

been restricted to 11 % of the total membership of the parliament i.e. 49

out of 446 members parliament. Nevertheless, the provision is to be effective

after next general elections.

m. Appointment of Judges. The appointement of judges shall be done by

seven members’ judicial commission headed by the Chief Justice of

Pakistan. The recommendations of judicial commission shall be sent to an

eight member Parliamentary committee with power to reject the

recommendation by not less than three fourth majority.????(19 th

amendment)

(Eventual fate of this amendm ent has to checked)

n. Qualification for Election to the Parliament.33 In Article 62 & 63 relating to

qualification and disqualification for election to the parliaments and provincial

30 Hamid, Shahid, Briefing Paper on 18 th constitutional amendment at PILDAT Jul 201031

http://article.wn.com/view/2010/04/26/Monday_April_26_2010_By_Asif_Ezdi/

32 Constitutional Reform Committee Report on 18th Amendment.







31

assemblies there has been few positive and negative changes.

Disqualification clause on pretext of person convicted on moral turpitude /

false evidence has been removed. More over time limits for

disqualification have been reintroduced in place of life time bans. 18th

Amendment has also made it possible for the corrupt to be there in the

Parliament irrespective of the conviction awarded Pakistan the safest country in

the world for the corrupt politician. there has been few

o. Passing of the bills. Substitution34 in Article 70 with “Introduction of passing of

bills”, adding that a bill with respect to any matter in the Federal Legislative

List may originate in either house and shall, if it is passed by the house in

which it originated, be transmitted to the other house and if the bill is passed

without amendment by the other house also, it shall be presented to the

president for assent. Bills presented in the house but not passed within 90

days of laying in the House shall be considered in a joint sitting of parliament 35

p. Omission of Sixth and Seventh Schedule. The Sixth and Seventh Schedules

to the constitution have been omitted36. Sixth Schedule (attached as Annexure

.......) included thirty five laws, which could only be amended with the prior

consent of the President. Seventh Schedule included eight laws which could

only be amended in the manner provided for amendment of the constitution.

Now these laws will be treated as any other law on the statue books37.

q. Local Governments. Article 140-a related to devolution of power to local

Governments has been retained and expanded to provide that elections to

local Governments shall be held by the Election Commission of

Pakistan.38

r. Executive Authority of the Federation. After substitution of Article 90; Now the

Executive Authority of the Federation shall not vest in the President be

33Ibid, Para 20 & 2134 http://pkpolitics.com/2010/04/03/summary-of-18th-amendment/35 Constitutional Reform Committee Report on 18th Amendment, Para 2336 Ibid, para102 &10337 Hamid, Shahid, Briefing Paper on 18 th constitutional amendment at PILDAT Jul 201038 Ibid.



32

exercised in the name of President by the Federal Government comprising

Prime Ministers and Federal Ministers39

s. Expanding the Definition of Treason. The definition of high Treason has been

expanded. Now an act of suspending the constitution or holding it in abeyance

or an attempt to do so shall also be high treason. High treason cannot now be

validated by the Supreme or the High Court40.

t. Caretaker Governments. After dissolution of the assembly, the President

shall appoint a Care-taker Prime Minister in consultation with the outgoing

Prime Minster and leader of the Opposition. Similar provisions have been

provided for the Provincial Care-taker Governments(20th amendment)

u. Role of Senate. The role of senate has been substantially enhanced. Unlike

past, now President cannot promulgate an Ordinance while Senate is in

session.????? The Prime Minister and Cabinet will henceforth be collectively

responsible both to Senate and National Assembly.

v. Fundamental Rights. Fundamental Rights in the constitution have been

increased to include ‘Right of Fair Trial’, ‘Right of Information’, and the ‘Right to

Education’ (free education from age 5 to 16).

7. Overview of Take / Stance of Stake Holders on 18 th Amendment. Upon approval

of 18th Amendment received a mixed reaction / response from all tiers of society and

stake holders. Brief synopsis of the same is appended below:-,

(1) Political Parties’/ Members of Review Committee Stance. 18th

Amendment was unanimously approved by all political parties, yet every

political party has reservations with regard to few clauses / article and

they duly submitted those in shape of notes of reiteration to the reform

committee. Summary of major differences outlined in Annexure .........

39 Constitutional Reform Committee Report on 18th Amendment, Para 2840 Ibid, Para 4



33

,

(2) .

(3) Stance of Judiciary on 18th Amendment (spec on appointment of judges

in particular and overall 18th amendment in general).

(4) Provinces’ Stance / take on Amendment (Pre, Post and Now).

b. General Perception / Understanding of 18th Amendment.

(1) General Perception of People and Masses.

(2) Survey of Participants of NSWC 2012/ 13; based on Simple Key

Questions:-

(a) Has quality of Governance improved post 18th amendment?

(b) Has 18th Amendment achieved desired objectives?

(c) Has rationale for which 18th amendment was introduced met;

largely, partially, not at all?

(d) Is 18th amendment an end in itself or mean to an end?

(e) ______________________

(f) --------------------------------------------------

(g) ______________________

(h) ______________________

(These questions shall also form the basis of research for seminar and shall be On theomission of the Concurrent Legislative List, the

process of devolution of the matters mentioned in the said List to the

Provinces shall be completed by the thirtieth day of June, two thousand and

eleven.

(9) For purposes of the devolution process under clause (8), the

Federal Govefll!l1ent shall.conStitute an Implementation Commission as it

may deem fit within fifteen days of the commencement of the Constitution

(Eighteenth Amendment) Act, 2010.",

.

suitably dovetailed at appropriate place)

c. Panel Members General Perception before the Research (Optional)



34

PART – III

4. Devolution of Power to Provinces

a. Structure.

b. Revision of Federal / Provincial List (Subj added / omitted shall be shown in

tabulated form).

c. Council of Common Interest.

d. National Economic Council.

e. Federal Ministries Abolished (Incl subjects of abolished ministries retained / tfr to

other ministries / divisions).

5. Impact of Abolishment of Ministries on Governance / Service Delivery

a. Impact on Education.

b. Impact on Agriculture.

c. Impact on Health / Food.

d. Impact on Provincial Autonomy (Retention / tfr of func of abolished Ministries to

other Federal Ministries / Division.

e. Impact on functioning of Local Govt.

6. Strategic Impact

a. Impact on National Security

b. Impact on National Harmony, Uniformity, Culture and Social Fibre.

7. Assessment of the Progress on Devolution

a. State of Preparedness of Provinces.

b. Provinces Capacity to Handle Devolved Subjects / Ministries.

c. Abolished Federal Ministries’ Response / Perception on Devolution.

(Above research shall be based on structured interviews of related Secretaries /

Offrs of Cabinet Division / abolished Ministries).



35

d. Measures taken by Federal Govt for Smooth Devolution of Powers.

e. Panel’s View on Overall State of Governance (Post abolishment of Federal

Ministries and on Subjects made part of Federal Legislative List 2 {FLL2}).

8. Review of Devolution of Power Formula and Challenges

a. How much delivered and on what all subjects.

b. Fiscal space.

c. Political ownership.

d. Meeting International obligation.

e. Transition and sustainability.

f. Human resource issues.

g. Losses of discarded projects amid abolishment of Ministries.

h. Legal and contractual issues.

9. Reality Check – Impact of 18th Amendment

a. State of quality of Governance – improved or otherwise (Statistics / Pie charts).

b. Has Socio- Economic conditions witnessed change (Positive / Negative )? {area

of focus shall be health and education}.

c. Has Amendment strengthened democratic culture / values? (Statistics of post

18 th amendment voting trends in parliament in legislation can be focused).

d. Has 18th amendment achieved desired objectives?

e. Areas where changes brought in ( Statistics only)

PART – IV

10.Overview of Amendments Incorporated so far after 18th Amendment

a. 19th Amendment

b. 20th……………..

c. 21st ……………………

11.Need for Another Amendment to Offset Negative Impact of 18th Amendment

(OPTIONAL)



36

a. Identification of key area triggering another amendment of constitution.

b. Dividends of proposed amendments.

12.Recommendations

a. __________________

b. ____________________

c. ________________________

d. ___________________________

(Part IV shal l be deliberated / expanded, pos t requis ite research u ndertaken on

pr evio us part s i.e. Part II & III)

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