Table of contents

Background…………………………………………………………………………………………………………….pg2

Main features…………………………………………………………………………………………………………pg2

Analysis of 18th Amendment……………………………………………………………………………………pg3

Love affair with democracy……………………………………………………………………..pg3

Civil rights impotency………………………………………………………………………………pg3

Remedy for deprived classes & provinces…………………………………………………pg4

Empowering both houses…………………………………………………………………………pg4

Transferring of presidential powers………………………………………………………….pg5

Limitations of cabinets……………………………………………………………………………..pg5

Caretaker setup & election commission…………………………………………………….pg6

Fifth high court by provision………………………………………………………………………pg6

Concurrent list…………………………………………………………………………………………..pg7

Critics of the amendment…………………………………………………………………………..pg7

Ambiguity…………………………………………………………………………………………………..pg8

Conclusion……………………………………………………………………………………………………………….pg8

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18TH Amendment In Constitution Of Pakistan

Background:

The third and last constitution of Pakistan that is constitution of 1973 has observed several amendments
since its birth. It would be more interesting to know that same parliament which drafted it and passed it
had made six amendments within few years of its enactment. The other amendments were brought by
the later parliaments from time to time as per their necessities. Few amendments like 8 th and 17th were
adopted by military dictators for their benefits and open the illegal and unlawful doors over democratic
government.

Finally Eighteenth amendment was introduced and passed by the civilian parliament and government
unanimously. The eighteenth amendment was passed in April 2010; Senator Mian Raza Rabbani was
leading the Parliamentary committee on Constitutional reforms who also proposed the draft of
amendment before the parliament. It is said that this amendment regained the original status or image
of constitution of 1973. It is believed that 18th amendment was the historical achievement of the
parliament which passed it unanimously and on consent basis, and surely 18th amendment had a great
resemblance to the constitution of 1973. It is also said that for the first time in history a president
surrendered his powers to the prime minister willfully and almost all politicians showed consensus,
maturity and tolerance to each other’s view. It is very true that this amendment brought 30% changes

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into the constitution and 102 out of 280 articles were amended, inserted, added, substituted or deleted
by the amendment.

MAIN FEATURES:

1. The main feature of this bill is the relocation of executive power from the President to the Prime
Minister. Significantly, the bill repeals Article 58 2(b), which had allowed the President
extraordinary powers to dissolve the National Assembly as well as appoint the three Service
Chiefs and Provincial Governors.
2. The bill also proposes, amongst other things, the repeal of the Legal Framework Order of 2002
and the controversial 17th Amendment of 2003, which legitimised former President Pervez
Musharraf’s decrees.
3. The renaming of the North West Frontier Province (NWFP) as Khyber Pakhtunkhwa. * The
granting of greater provincial autonomy to the four provinces.
4. Greater transparency in the appointment of judges to the higher courts. These are in line with
the general thrust of the 1973 Constitution in which provincial autonomy and the independence
of the judiciary were key issues.
5. The bill aims to strengthen the independence of the judiciary through Article 175 by proposing
a more transparent process for judicial appointments. For example, there will be a judicial
commission headed by the Chief Justice, which will nominate potential judges to the Supreme
Court, High Court and the Federal Shariat Court, and a Parliamentary Committee made up of
Senate and National Assembly members, which will make the final approval.

Analysis of 18th Amendment

Love Affair with Democracy:

The amendment’s biggest achievement is considered that it had created a connection of love and a
desire for continuity of democratic system, while on other side it had showed hatred and sense of
avoidance towards dictatorial rule. The amendment created way for democratic rule and blocked all
possible ways for undemocratic, unlawful usurper. Senator Raza Rabbani who played pivotal and leading
role for documentation of the said amendment said that “it is beginning of the democratic era in the
country”. He further clarified that this amendment kicks out Legal Framework Order (LFO) issued in
2002, and chief executive’s orders of 2002 issued by a dictator who unlawfully encroached over a
democratic system. He further added that all laws including 17th amendment made by government of
General Parvaiz Musharraf as unlawful act with the constitution of 1973. He further said that
dictatorship has no place in the pages of constitution of Pakistan at least”.

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For creating real affection with democracy the list of high treason acts further been expended by
inserting acts of mischief with the constitution, the suspension of constitution holding in abeyance,
abrogation or subversion. So that to hinder the possible ways of coup takeover. Even then those would
be held guilty of high treason who provided assistance either directly or indirectly, so that to prevent
every possible way of usurper.

Civil Rights Impotency:

The second mentionable achievement of Eighteenth amendment is its giving importance and especial
favor for fundamental rights. Exclusive rights of basic education, fair trail and right to information were
unanimously inserted and obviously in a case of arrest or detention, a fair trial was made obligatory.
Though the addition of new article 19A the right to information (RTI) been added. This says that anyone
can have the access to matters or information of public affairs, no one can be denied of such rights. It
was also admitted that the state shall have a responsibility to provide basic education to all children
aging from 5 to 16 years. Along with other rights, the right of association or joining in union has been as
a right to every citizen, all will have a free choice to join any group, party, or association, no one is
bound to not associate himself to any group.

Remedy for deprived Classes and Provinces:

Eighteenth amendment has also won another achievement that is to provide especial care for those
classes which have been neglected throughout, the amendment committed to keep especial eye to
deprived classes of the society, so as to compensate and provide remedy for the wrongful attitude that
they have faced, and so that the constitution may balance the equality among all classes of the society
and may do especial efforts for removing discrimination against any particular class.

To convert written theories into practical, it has been ratified that Non-Muslim communities (Minority)
will have 4 reserved seats in senate (upper house), after the eighteenth amendment for the next
election of senate one Non-Muslim from each province will be elected on reserved seat for senate.
Provinces which were neglected by the centre deliberately were supposed to be compensated after
enforcement of the amendment at any cost. The amendment provided more autonomy and federal will
have less involvement with affairs of the provinces.

Empowering both Houses:

The democratic institutions like Upper house (Senate) and lower house (National Assembly) were given
more authority power by the eighteenth amendment. This has been a remarkable achievement of the
said amendment. Authority like Prime minister’s referendum may be decided by joint parliament, prior
to this amendment parliament was only restricted for the procedure and compiling of the referendum
only. The legislation authority has also been limited to the parliament only, which means that the sole
authority to legislate any law would be parliament only, especial care has also been created so that not

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to delay, which is the time for consideration as any bill passed by the parliament in this context, the
president would have only 10days to consider, while previously president had 30 days for consideration
on any bill.

Besides exclusive powers on legislative sphere, parliament had been awarded further powers like in case
of emergency by president; the proclamation would be brought before both houses for approval which
indicates its impotency and worth. Along with such powers, parliament has also a vital role in
appointment of judges and election commission.

The senate’s role has also been enhanced, by doing this all units of federation will get proper and equal
importance. After enforcement of 18th amendment the President will have to submit report on
principles of policy not only before national assembly but also before Senate, as prior to this
amendment president was supposed to submit a report to national assembly only. The working days of
senate has been increased from 90 days to 110 days to make the institution more effective and
progressive. So to conclude this I may say that the powers, authorities and jurisdictions of the
democratic institutions have been enhanced a lot after the amendment, which not only strengthen the
institution but also the people indirectly.

Transfer of Presidential Powers:

One of the major achievements of the eighteenth amendment is that the Prime Minister has regained
constitutional powers as were awarded him by the constitution of 1973. The prime minister’s power
were snatched by the regime of General Zia ul Haq first then in the era of General Musharraf. After the
amendment the executive authority would have been exercised by the federal government and the
government would be consisted of federal ministers, and Prime Minister who would act as a chief
executive of the government. Also the President shall have no role in the appointment of Prime Minister
rather Prime Minister would be elected by voting of the national assembly members. The chief
executive will not be answerable to president for cabinet decisions, or his minister’s decision. Although
Prime Minister Will only have to keep President aware of Foreign Policy, internal affairs and legislative
moves taken by the government.

The power of dissolution of national assembly by the President has also been limited, the amendment
restricted President’s power in this context, the President will have only power to dissolve assembly
when vote of no confidence has been passed by against the Prime minister, and in the other situation,
President can only dissolve national assembly when Prime minister advises him to do so, and then
President will have to announce a fix date of election within 90days and will appoint a care taker setup
to run the affairs of the country. President will have to appoint a care taker Prime minister and a care
taker cabinet with the consultation of outgoing Prime minister and opposition leader. The legislative
powers of President have also been minimized like the power for holding referendum on any issue of
national importance been transferred to Prime minister after the enforcement of the amendment.
Prime minister will hold any referendum with the approval of the joint sitting of the parliament.

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Limitation of Cabinet:

Another highly mentionable work of eighteenth amendment is that it had restricted number of federal
cabinet; this was highly appreciated by the all as major developed countries of the world have very
limited ministers even having large governmental system with highly population. This attitude of the
amendment received warmed welcome by the mass. The amendment has prescribed only 11% of the
total number of the parliamentarians who can constitute a federal cabinet. By limiting ministries the
burden of expenditures on national accounts would surely be reduced, prior to this amendment there
were maximum strength of ministers who have nothing to do but to hold a title and earn money
unjustifiably but the amendment put serious restriction so as to save national money which indeed have
to be invested upon nationals directly rather to fill bellies of the ministers.

The amendment had another admirable achievement that is it had also restricted advisors for chief
ministers of provinces to 5 numbers only, by this lot of money can be saved and can be used in a better
place. By restricting cabinet the amendment not only protected national accounts to be vested but also
reduced the chances of bribing to independent candidates of national or provincial assemblies by
offering ministries to them by the ruling government.

Caretaker setup and Election Commission:

New and improved rules by adopting eighteenth amendment have made the system to flourish without
flaws. The clear laws have provided a road map to keep system moving without hindrances. As the
amendment had made mandatory for caretaker Prime minister or his cabinet not to participate in any
election until the hold the office and even their spouse, children will not be eligible to contest the
election. The attitude provided by the amendment was to make sure the least chances of impartiality by
the caretaker setup, as human is full of errors, so to reduce the chances of any favoritism by the
caretaker setup they have been deprived of participation in any election until their time of office
finishes.

It had also been remarkable that for elections of Prime minister for federal or Chief ministers for
provinces there would be open ballet system for voting rather than secret system so that to make the
elections more transplant and reduce every possibility of horse-trading or vote purchasing or any factor
of influence over any member to vote in his favor. This amendment has also been appreciated and
welcomed because it had prescribed a procedure for appointment of chief election commission and
other four members of the commission. The procedure is that the Prime minister for the appointment of
the election commission would first consult with the opposition leader, and if the built a consensus then
Prime minister would forward 3 names to parliamentary committee which would have to announce or
short list anyone of them.

5th High Court by the Provision:

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Another beauty of the amendment is that it had added 5th high court in the country by a separate
provision. The amendment has also removed few ambiguities in the constitution which created troubles
for interpretation. It had made clear that if any court issued verdict against any member of the
parliament regarding his misconduct, honesty, any statement against integrity or sovereignty of the
state, and other so many things explained in article 62, 63 of the constitution of the 1973 would create
ground for disqualification of the member from the parliament and any kind of action can be brought
against him as per laws.

Concurrent List:

The 18th amendment has also abolished concurrent list of legislation, the concurrent list is the list of
items where both federal and its units(Provinces) has jurisdiction for legislation but in case of conflict of
legislation on same matter or subject then federal legislation would have more impotency and would
prevail. Initially this list was added in government of Indian act 1935(pre partition) era and was given by
our British colonial masters, then this list was added and dropped from Pakistani constitutions
throughout, this list was part of the constitution of 1973, but now after addition of 18 th amendment this
list has been removed. By this provincial autonomy has risen to some extent.

It is worth full to know that a federation is a multitiar system of government where there is a center
(Federal) and other units (Provinces), in this scenario both entities have jurisdiction to legislate as there
are almost 25 federal countries where both of governments have the jurisdiction to legislate. In the
constitution of 1973 there were 47 subjects in the concurrent legislative list few like marriage and
divorce, infant and minor adoption, arms, firearms and ammunition, environmental pollution and
ecology, population planning and social welfare, tourism and all such subjects were included in the
concurrent list where both federal and provinces had right to legislate, but after 18th amendment
federal has limited powers and it has surrendered its extra jurisdictional authorities to its units that are
provinces. After the implementation of the new amendment the devolution of ministries like
environment, health, education, agriculture, sports, food, women development, minority’s affairs, labor
and manpower are great steps to make provinces more autonomous.

Critics of the Amendment:

No one can have a same view, as there are two sides of the coin, one cannot deny the other side so as
the 18th amendment has its criticism too. The critics of the amendment say that in its most practical
terms the centre(federal) posses all powers and authorities with itself and had only transferred the
autonomy in papers. Critics believe that concurrent list has not been abolished fully rather some
conditions have been changed or replaced. The ministries that exist in province have the same existence
in the federal too.

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If we talk especially about province Balochistan then it would not be wrong to say that federal
government has more influence over the specific province more than other province. The federal
involvement had been caught continuously into affairs of the province like law and enforcement,
unlawful control over natural resources and political interference are clear evidence of involvement
where province has zero level of autonomy. If we shuffle the pages of history we shall come to know
that Baluchistan and Khyber Pakhtunkhwa endorsed the constitution of 1973 on condition that
concurrent list would be removed not late than 10 years, but promise yet not been fulfilled wholly as
claimed.

The amendment proclaimed that the province with natural resources and minerals will share 50:50% of
the total revenue with the federal government but its violation continuously exists, and it was decided
that natural resource producer province will first fill the needs of the province and then will share with
other province but we see that natural gas of Baluchistan is not been provided to the province but is
unjustifiably distributed to other provinces which is clear violation of the provisions . it is the biggest
critic that federal keeping all revenue generating ministries with itself and had only given non revenue
generating ministries to provinces and claims for awarding autonomy to provinces which is biggest lie
indeed. The critics believe that such all discrimination and unjust attitude of federal with provinces
especially small and deprived province are done deliberately so as to get benefits from them.

Ambiguity:

Some paradigm says about the 18th amendment that it possesses some ambiguity or vague provisions
which create room for confusion not only for commons but also for governments and legal communities
as well. The Planning Commission has inquired government to make clear stance about jurisdiction and
responsibility of province and federal on the oil and gas sector, so to avoid any confliction. They say that
with unclear rules and laws no company would be ready to invest healthy amount with risk, they believe
that there need to be mirror image rules to attract multinational companies for heavy investment, the
official of the Planning Commission said that in the situation of ambiguity about laws both federal and
provinces are giving their own versions or interpretations of rules which male ground for confusion.

Conclusion:

Eighteenth amendment in its true picture is the biggest achievement and change in the constitution so
far after the dictatorship era. The positive attitude of the President for surrendering his all executive
powers to Prime minister is really admirable. The previous amendments brought by military chiefs
changed the message and essence of the constitution of 1973, but new addition of amendment in the
shape of 18th amendment kicked out illegal and unlawful changes into the constitution. It is said that the
amendment if not wholly but brought the real image of the constitution of 1973. It was noticed that for
the first time in history political parties and politicians showed real maturity and built consensus while
keeping political heartedness aside.

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The unanimous bill passed was welcomed by the majority although there has been a lot of criticism on
the other side, some say about its vagueness on few provisions, some say that its only document with
zero enforceability, some say provinces are still not autonomous and have to take homework from the
federation and federal is playing double game by keeping revenue generating ministries with itself and
giving autonomy to provinces, such all views exist we have to see positivity and major changes brought
by the amendment are really enough for the start of democratic institution.