Major Constitutional Amendments in Constitution of Pakistan 1973

Major Constitutional Amendments in Constitution of Pakistan 1973

1. Major Constitutional Amendments to the 1973 Constitution. Ahmad Nazir Warraich. Dean Executive Development Institute, NSPP.

2. Sequence of presentation. Introduction to Constitutionalism Rule of Law Definition Historical Development Common Law system 2

3. Constitution as social contract Definition: “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed”. “The system of beliefs and laws by which a country, state, or organization is governed: a document that describes this system” 3

4. “In public law, The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of Its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. In a more general sense, any fundamental or important law or edict”. 4

5. WILL OF THE PEOPLE AS EXPRESSED BY THE VAST MAJORITY THROUGH THEIR REPRESENTATIVES REGARDING THE STRRUCTURE OF THE STATE AND DIVISION OF POWERS BETWEEN VARIOUS ORGANS AND BROAD OUTLINES OF THE GOVERNMENT WILL RUN. 5

6. Normal Parliament drafted and adopted it . Not a Constituent Assembly. Dec, 1970 Elections-East Wing lost, however, the same Assembly adopted it. Unanimity and broad consensus gave legitimacy. Hence constitutional amendments always aim for unanimity – not as a legal requirement but as an element that gives legitimacy. 6

7. Main features of the 1973 Constitution. Total number of Articles: 280 Parts:12 Adopted by the Assembly elected in United Pakistan through the December, 1971 elections (first ever on adult franchise). 7

8. Parliament vs Constituent Assembly debate Supreme & Sovereign debate. (IHC). Main feature of the Constitution; Islamic, Socialism & Provincial Autonomy. 8

9. Nature of 1973 constitution Unanimous adoption-moral authority 1970 Elections. ( with a few abstentions) PPP-NAP- Jamiat - i -Islam (JUI) Socialist-Provincial Autonomy-Islamic provisions demanded. 9

10. PPP election slogans: i) “Islam is our faith” ii) “Democracy is our politics” iii) “Socialism is our economy” Hence Articles 2 & 3. Article 2 declared Islam as state religion Article 3 provided for the elimination of all forms of exploitation and equitable discrimination, 10

11. Another important point was the distribution of powers between the President and the Prime Minister. 11

12. Total number of Articles 280. 5 Schedules. 12 Parts [in brief the 12 parts deal with the following] Part I-deals with the Republic and its territories and other introductory matters. Part II- deals with fundamental rights and directive principles of policy. Part III- deals with the federation. Part IV- deals with the provinces. 12

13. Part V- deals with relations between the federation and the provinces. Part VI- deals with property, contracts, and suits Part VII- deals with judicature Part VIII-deals with elections Part IX- deals with Islamic provisions, and Part X- deals with emergency provisions 13

14. Part XI- deals with amendment of constitution, and Part XII- deals with miscellaneous, temporary, and transitional provisions. 14

15. Part I-deals with the Republic and its territories and other introductory matters Articles 1 to 6. 15

16. Part II- deals with fundamental rights and directive principles of policy. Article 7:Definition of the State Articles 8 to 28: Fundamental Rights Articles 29 to 40: Principles of Policy. 16

17. Part III- deals with the federation. Articles 40 to 49 : The President Articles 50 to 61 : The Parliament Articles 62 to 66 : Provisions as to Members of the Parliament. Article 67 to 69 : Procedure generally. Articles 70 to 77: Legislative procedure Article 78 to 89 : Financial procedure. Articles 90 to 100 : The Federal Government. 17

18. Part IV- deals with the provinces. Articles 101 to 105 : the Governors Articles 106 to 117 : Provincial Assemblies. Articles 118 to 127 : Financial Procedure Article 128 : Ordinances Articles 129 to 140-A : The Provincial governments. 18

19. Part V- Relations between Federation and Provinces. Articles 141 to 144 : Distribution of Legislative powers Articles 145 to 152 : Administrative relations between federation and provinces Articles 152-A to 159 : Special provisions. 19

20. Part VI- Finance, Property, Contracts, and Suits. Articles 160 to 163 ; Distribution of revenue between the federation and the provinces. 20

21. Part VII- deals with judicature Articles 175 & 175-A: The Courts Articles 176 to 191 : The Supreme Court of Pakistan Article 192 to 203 : The High Courts Articles 203-A to 203 J: Federal Shariat Court Articles 204 to 212-B : General Provisions Relating to the Judicature. 21

22. Part VIII-deals with elections Articles 213 to 221 : Chief Election Commissioner and Election Commissions. Articles 222 to 226 : Electoral Laws and Conduct of Elections. 22

23. Part IX- deals with Islamic provisions. Articles 227 to 231 : Islamic Provisions. 23

24. Part X- deals with emergency provisions Articles 232 to 237 : Emergency Provisions. 24

25. PART-XI AMENDMENT OF CONSTITUTION. PART-XII MISCELLANEOUS. Services, Armed Forces, General, Interpretation, Title, Commencement and Repeal & Transitional. 25

26. Bicameral & Federal Separation of Powers-implicit. 26

27. Preamble Procedure of adoption. 27

28. Amendments-procedure. Article 238 Article 239 (5) & (6) 28

29. Chronology of Amendments. Total Number of Amendments:26(23) 29

30. 1 st Amendment - May1974 Redefined the boundaries of Pakistan after recognition of Bangladesh. 30

31. 2 nd Amendment – Sep, 1974. Defined a Muslim and declared the status of Ahmadi as a minority and a non-Muslim. 31

32. 3 rd Amendment Feb, 1975. Extended the period of preventive detention. From one month to three months. 32

33. 4 th Amendment – Nov, 1975. Decreed additional seats for minorities, it also deprived courts of the power to grant bail to any person detained under any preventive detention. 33

34. 5 th Amendment – Sep, 1976. Establishment of a separate High Court for Baluchistan-earlier the Sindh High Court was the court of competence for Baluchistan as well. The powers of the High Courts under Article 199 to grant bail etc. were restricted. 34

35. 6 th Amendment – Dec, 1976. Extended the age of retirement of the SC judges to 65 and of the High Courts to 62. Five year term for CJ. 35

36. 7 th Amendment – May, 1977. Provision of ascertaining majority through a Referendum was inserted in the Constitution. Majority of the total votes cast required. 36

37. 8 th Amendment – Nov, 1985. An omnibus Amendment to give legal cover to Gen Zia ul Haq’s martial law and all laws, Orders and actions taken during that tenure. Converting the system from parliamentary to semi-presidential with a much enhanced role of the President. 37

38. Swing to strong President. 58(2)(b) (2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion, 38

39. (a) a vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the member’s of the National Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose; or 39

40. (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. 40

41. Gen Zia used it in May, 1988 to dismiss the Junejo Govt. Ghulam Ishaq Khan used it in August, 1990 to dismiss late Benazir Bhutto’s Government. Ghulam Ishaq Khan used it in 1993 to oust Nawaz Sharif Government Sardar Farooq Khan Leghari used it in 1996 to oust Benazir Bhutto’s Government. 41

42. (Repealed in 1997 through the 13 th Amendment) (Partially restored through the 17 th Amendment) (Repealed again through the 18 th Amendment). 42

43. Article 62 “A person shall not be qualified to be elected or chosen as a member of the parliament unless – (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than 25 years of age and is enrolled as a voter in any electoral roll for election to that assembly; 43

44. (c) he is, in the case of Senate, not less than 33 years of age and is enrolled as a voter in any area in a province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and (d) he possesses such other qualifications as may be prescribed by the act of parliament.” 44

45. Article 63 “A person shall be disqualified from being elected or chosen as, and from being, a member of the parliament, if — (a) he is of unsound mind and has been so declared by a competent court; or (b) he is an undischarged insolvent; 45

46. (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign state; or (d) he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; (e) he is so disqualified by an act of parliament.” 46

47. 9 th Amendment Not passed by National Assembly, only Senate-a Bill to impose Shariah as the supreme law of the country. 47

48. 10 th Amendment – March, 1987. Fixed the interval between two session of the National Assembly not to exceed 130 Days.(earlier it was 160 Days). 48

49. 11 th Amendment-1989 The Bill was withdrawn-hence not passed. It was regarding the revision of the reserved seats of women in the National and Provincial Assemblies. 49

50. 12 th Amendment - 1991 Establishment of Special Courts and Appellate Court 212-B 50

51. 13 th Amendment – 1997. Removal of 58(2)(b) Making the PM strong once again. 51

52. 14 th Amendment – July, 1997. 63-A Disqualification on the basis of defection. 52

53. 15 th Amendment – 1998. Supremacy of the Holy Quran and Sunnah. Amendment not passed. 53

54. 54 16 th Amendment-1999. The Quota system increased from 20 to 40 years.

55. 55

56. 17 th Amendment 2003. Musharraf Era omni bus Amendment to give legal cover to the Legal Framework Order. Re introduction of the right to the President to dissolve Assemblies, but with court approval. Musharraf to hold dual office. Person specific law. PM limited to two terms. 56

57. 18 th Amendment- April,2010. [Details at slide 71 onwards] Deletion of the Concurrent Legislative List Greater powers given to the provinces Senate strengthened President made weaker Parliament made stronger. Details of the Act given below separately. 57

58. Election 2008 Total number PPP of seats in National Assembly :116 Number of MNAs needed to form Government :172 Total number of National Assembly seats :342

59. Election 2008 PPP total number of seats 116 Needed to form Government 172 Total number of National Assembly seats 342

60. 19 th Amendment – Dec, 2010. Provided for the appointment of the Judges of the Supreme Court of Pakistan and made amendments in the number of members of the parliamentary committee for the appointment of Chief Electoral Officers at Election Commission of Pakistan. Establishment of the Islamabad High Court. 60

61. 20 th Amendment – February, 2012. The Supreme Court of Pakistan had directed the Federation to constitute Election Commission of Pakistan in accordance with the amended provision of the Constitution of the Islamic Republic of Pakistan and to legally cover the bye-elections conducted by the Chief Election Commissioner in the interregnum. Further it is also necessary to give due independence to the Election Commission of Pakistan and to provide for the manifestation of the Interim Cabinets. In order to achieve the aforesaid objectives it is necessary to amend the Constitution of the Islamic Republic of Pakistan. 61

62. 21 st Amendment – Jan, 2015. Establishment of speedy trial military courts. 62

63. 22 nd Amendment – June, 2016. Election Commission of Pakistan. This Constitutional Amendment Bill seeks to alter eligibility criteria for appointment of the Chief Election Commissioner and Members of the Election Commission of Pakistan and to provide for other related matters. At present only Judges of Supreme Court or High Court are eligible for appointment as Chief Election Commissioner or Members, respectively. 63

64. After amendment, in addition to retired Judges of the Supreme Court or High Court, retired senior bureaucrats and technocrats will also be eligible for appointment as Chief Election Commissioner or a member. In order to give representation to all Provinces, out of four Members, one from each Province shall be appointed. Maximum age for appointment as Chief Election Commissioner (68 years) and a Member (65 years) is also being fixed. 64

65. 65 Another important change relates to continuity of the Commission, whereby instead of all four members retiring together, two of the members shall retire every two and a half years. For the first term, the Commission will draw a lot as to which two members shall retire after the first two and a half years.

66. 23 rd Amendment – Jan, 2017. The 23rd Amendment was passed to re-establish the military courts for further two years till 6 January 2019.  In 2015, National Assembly passed the 21st Amendment and created the military courts for the period of 2 years. The period of two years was expired on 6 January 2017 hence this 23rd Amendment was passed to re-establish the military courts for further two years till 6 January 2019.  66

67. 24 th Amendment – Dec, 2017. Reallocation of National Assembly seats among federating units and allowing election authorities to update boundaries of constituencies based on provisional results of 2017 Census of Pakistan. 67

68. 25 th Amendment – May,2018. Merger of erstwhile FATA with KPK. 68

69. 26 th Amendment The seats of tribal districts in the National Assembly of Pakistan will be retained at 12 while their seats in the Khyber Pakhtunkhwa Assembly have been increased to 24 from 16. 69

70. Amendments numbered but not passed. 9 th , 11 th & 15 th Amendments were not passed. 70

71. ROAD LEADING TO AND DETAILS OF 18 TH AMENDEMENT 71

72. Charter of Democracy The document is divided into 4 basic parts: 1-Constitutional Amendments 2-Code of Conduct 3-Free and Fair Electi0ns 4-Civil-Military Relations 72

73. Restoration of the Constitution to the 12 Oct, 1999 position with a few changes. Repeal of the 17 th Constitutional Amendment Appointment of Governors, three services chiefs and the Chairman Joint Chiefs of Staff Committee to be made by the Chief Executive (PM). Recommendations for appointment of superior judiciary through a Commission 73

74. No judge shall take oath under any PCO Reserved seats for women in the assemblies will be allocated on the basis of the number of votes polled by each party in the elections. Strength of the Senate shall be increased to give representation to minorities in it. Establishment of the Federal Constitutional Court Merger of FATA with NWFP(KPK). Etc. 74

75. Composition of the Parliamentary Committee on Constitutional Reforms 26 Members: PPP-5 members PML-N – members PML – 3 members MQM- 2 members ANP-2 members 75

76. JUI – 2 members BNP -1 member Jama’at Islamic – 1 member The National Party – 1 member PPP- Sherpao -1 member 76

77. National People’s Party -1 member Pakhtonkhwa Milli Awami Party – 1 member Jamhoori Watan Party – 1 member Independent – 1 member. 77

78. Federal Features of the 18 th Amendment. 4 Broad Thematic Areas ; Provincial Autonomy Reduction in Presidential Power and consequent increase in Prime Ministerial Powers Control of Discretion of Constitutional office holders Increase in powers of the Senate. 78

79. Division of the changes by Mr. Raza Rabbani. Refusal to validate Martial Law Provincial autonomy. Emergency provisions Legislative powers of Parliament. 79

80. Key institutions. Strengthening Parliament. Provincial assemblies. Senate’s Role Enhanced. 80

81. Restoration of Parliamentary form of Government. Removal of discretion. Fundamental rights & principles. Judiciary. Election Commission Auditor General. Miscellaneous. 81

82. Salient features of the 18 th Amendment. In total 102 articles were affected Although the committee met over 70 times however in the parliament it was discusses only for 6 days (a point of concern for some commentators) Renaming the NWFP as KPK Expanding the definition of high treason in Article 6, to include collaborators. Courts cannot validate such an act of high treason. Fundamental Rights-Articles 10A, right to a fair trial, Article 19A, Right to information, and Article 25A, right to education. 82

83. Right to a fair trial entails due process. Right to Information means that the reasons and noting of the decision shall be made Public. Right to education is now made compulsory, and age bracket has been defined to cover school going age. 83

84. INTRA-POLITICAL PARTY elections-article 17 amended to do away with this requirement. Safeguards against discrimination-Article 27, states that underrepresentation shall be rectified. Role of the senate has been enhanced: Ordinances cannot be issued while it is in session, Finance bill can be considered for 14 days 84

85. PM and Cabinet now responsible to both NA and the Senate. Number of Senate seats increased to 104 with a view to accommodate minorities Compulsory working days from 90-110. Annual reports of various bodies to be put before Senate as well. 85

86. QUALIFICATIONS FOR ELECTION TO THE PRESIDENT: Life time bars in case of conviction removed also with regard to dismissal from service and compulsory retirement. ORDINANCE: Can be issued by President, once, and Extended by NA or Senate once only. 86

87. DEFECTION FROM A POLITICAL PARTY. Reference to be made by Head of Party and Speaker time bound to forward it. EXECUTIVE AUTHORITY OF THE FEDERATION: Rules of Business shall be made by the Federal Government/ Provincial Government, not President/Governor. 87

88. Removal of 3 rd time PM and CM Ineligibility clause. SIZE OF CABINET: Only 11% of the total size. Provinces also 11% or 15 [Balochistan]. BAR ON PRIVATE PRACTICE-of Attorney General and Advocate Generals LOCAL GOVERNMENT – ARTICLE 140A retained and elections to be held under election commission-no deadlines. 88

89. Auditor General of Pakistan Given a constitutional 4 years term. Islamabad high court-established. Appointment of judges-new procedure Amended through 19 th amendment. High court benches-at turbat and mingora . Validity of interim orders-against Tax, levy for upto 6 months. 89

90. COMPULSORY RETIREMENT OF JUDGES- In case judges refuse to be transferred they shall not be deemed to be resigned. STRENGTHENING OF THE ELECTION COMMISSION OF PAKISTAN-further amended by 20 th Amendment. Appointment of permanent election commissioners. 90

91. CARETAKER GOVERNMENTS-to be established in consultation with the outgoing PM and Opposition Leader-further amended through 20 th Amendment. IMPOSITION OF EMERGENCY-consent of the concerned provincial assembly needed. OMISSION OF THE 6 TH AND 7 TH SCHEDULES. CHANGES TO THE OBJECTIVES RESOLUTION-’freely’ 91

92. REPEAL OF THE 17 TH AMENDMENT AND RELATED ORDERS. ABOLITION OF THE CONCURRENT LIST CHANGES TO THE FEDERAL LEGISLATIVE LISTS I & II 47 Articles of the Concurrent List One item (Boiler) has been shifted to Federal Legislative List I 92

93. Two items (Electricity and legal, medical and other professions ) Shifted to Federal Legislative List II Rest have been devolved to the provinces. 1 new item has been added the FLL I, that is ‘International treaties, conventions and agreements and arbitration.’ 93

94. The National Assembly shall meet by the twenty first day after the General Elections. The Governor shall act on the advice of the provincial government. Can ask for reconsideration within 15 days, if the same resent, than has to assent within 10 days. Governor has to give assent to a bill within 10 days. 94

95. OVERVIEW Press has focussed on the reduction in President’s powers, and executive – judicial institutional relations. The rest were not highlighted, although as discussed above, very important changes have been brought about. 95

96. Council of Common Interests Purpose: The Council of Common Interests is meant for ‘participatory management both by the Federation and the Federating units through Council of Common Interests’. Composition: The Prime Minister-Chairman of the Council. The Chief Ministers of the Provinces. 96

97. Three Members from the Federal Govt. to be nominated by the PM. Functions: The Council shall formulate and regulate policies in relation to matters in Part II of the FLL, and shall exercise supervision and control over related institutions. 97

98. Operational arrangements : The Council shall be constituted within thirty Days of the PM taking oath. The Council shall have a permanent Secretariat And meet at least once every 90 Days. Earlier performance-convened only 11 times over a time of 38 years. 98

99. National Economic Council Purpose: Review overall economic condition of the country and shall formulate advisory plans with regard to the financial, commercial, economic and social policies, to ensure balanced development and regional equity. 99

100. Composition: PM as Chairman CMs and one member from each province 4 other members nominated by the PM. Working Council shall meet at least twice every year It shall be responsible to the Parliament. 100

101. Challenges Confronted. Gaps Implementation hiccups Dangers-Senator Raza Rabbani’s Fears: He expresses fears that there are strong forces within Pakistan which are against the spirit of devolution and suggests continued vigilance. 101

102. Gaps Issue of Drug Regulatory Authority Article 140A-aspirational- no deadlines provided. Intra party elections requirement removed from the Constitution. 102

103. Implementation Hiccups Theory is in place. Has the practice been adjusted. 103

104. Dangers Federal Bureaucracy. Paternalism. Centripetal Forces. Fiscal decentralisation-Popitz law Tussle between political parties (CCI) Competitive Federalism. 104

105. ‘Hammering out a political consensus in the Parliament where no party enjoys even a simple majority, let alone the required two-third majority to amend the Constitution, reflects the maturity of the elected representatives’. 105

106. Way Ahead The maturity of the political classes. The future of provision of solid fiscal base. Attitude of the Federal bureaucracy towards devolution of power. Overall, it has been hailed as a major step forward on the road to federalism and democracy. 106

107. COMPARATIVE JUDICIAL APPOINTMENTS PROCEDURE 107

108. Comparative Judicial Appointments Procedure UK. The Judicial Appointments Commission (JAC) is an independent commission that selects candidates for judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland. 108

109. The JAC selects candidates for judicial office on merit, through fair and open competition, from the widest range of eligible candidates. The Commission was set up on 3 April 2006 – under the terms of the Constitutional Reform Act 2005 –  in order to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable. 109

110. The JAC is an executive non-departmental public body, sponsored by the Ministry of Justice. Its aims and objectives are agreed with the Lord Chancellor. There are 15 Commissioners, including the Chairman. All are recruited and appointed through open competition with the exception of three judicial members who are selected either by the Judges’ Council or the Tribunals’ Council. Membership of the Commission is drawn from the judiciary, the legal profession, non-legally qualified judicial officer holders and the public. 110

111. India Per the constitution, as held by the court in the Three Judges Cases – (1982, 1993, 1998), a judge is appointed to the Supreme Court by the president on the recommendation of the  collegium   — a closed group of the Chief Justice of India, the four most senior judges of the court and the senior-most judge hailing from the high court of a prospective appointee. This has resulted in a Memorandum of Procedure being followed, for the appointments. 111

112. Judges used to be appointed by the president on the advice of the union cabinet. After 1993 (the Second Judges' Case), no minister, or even the executive collectively, can suggest any names to the president, who ultimately decides on appointing them from a list of names recommended only by the  collegium  of the judiciary. Simultaneously, as held in that judgment, the executive was given the power to reject a recommended name. However, according to some the executive has not been diligent in using this power to reject the names of bad candidates recommended by the judiciary. 112

113. The collegium system has come under a fair amount of criticism. In 2015, the parliament passed a law to replace the collegium with a National Judicial Appointments Commission (NJAC). This was struck down as unconstitutional by the Supreme Court, in the Fourth Judges' Case, as the new system would undermine the independence of the judiciary 113

114. USA. President nominates Senate Judicial Committee approves. 114

115. Current Scenario/Issues Quick passage through parliament meant lack of detailed open discussion, leaving some issues not having been fully thrashed Perceived capacity issues of provinces Financial issues of federal government Talk of presidential system and rolling back of 18 th Amendment by some opposition parties 115

116. Provincial assemblies are not bicameral. There is no requirement of committee stage. This in view of some commentators raises concerns regarding full deliberation of a proposed bill. 116

117. Q & A 117