The Eighteenth Amendment

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A. G. NOORANI*

Ever since its democratic Constitution of 1956 was abrogated by a military coup in 1958, Pakistan went through a series of convulsions, culminating in the end of President Pervez Musharraf’s rule in 2008. The country needed a New Settlement rooted in a national consensus. The Constitution (Eighteenth Amendment) Act 2010 is based on a consensus and Mian Raza Rabbani, Chairman of the Special Committee of Parliament for Constitutional Reforms, deserves high praise for the skill and patience with which he secured the consensus. But it was severely limited and concerned matters of the moment.

Pakistan needed a new carpet. The 18th Amendment is a patchwork quilt and some of the patches are likely to cause sores in the future. The Act is more populist than sound. It provides fodder to the cannon of judicial activism, addresses provincial concerns without striking a balance with national needs; retains some ugly and harmful features of the past, and reeks of thoughtless innovation which is either pointless or harmful. It does not reflect the careful thought based on learning from constitutional law and practice.

It rests on the mistaken, but  widely shared, notion that the 1973 Constitution established parliamentary democracy; a notion that is an article of faith with the Pakistan People’s Party set up by the man to whose special needs that Constitution was tailored – Zulfikar Ali Bhutto.

The  very  first part  of  the  Statement  of  Objects  and  Reasons, signed by Senator Rabbani says: “The Constitution of 1973 was not implemented in letter and spirit. The democratic system was derailed at different times. The non-democratic regimes which came into power at different times centralized all authority and thus altered the structure of the Constitution from a Parliamentary form to a quasi-Presidential form of Government through the Eighth and Seventeenth constitutional Amendments. Thus, the equilibrium established by the Constitution between various organs of State was disturbed which led to weakening of democratic institutions. This inter alia deprived the Provinces of their legitimate constitutional rights in governance and utilization of their natural resources. It also resulted in absence of rule of law, lack of confidence in the judicial system and distance between the Provinces and the Federation.”

However, it is the Constitution which itself established Prime Ministerial dictatorship and a highly centralised federation. Bhutto abused it to make matters worse, still.

The parliamentary system is based on checks and balances. It requires a head of state powerful enough to check an autocratic head of government yet not so powerful as to be able to subvert the system himself, and a Prime Minister powerful enough to foil the plans of such a President.

Mian  Mahmud Ali  Kasuri  resigned in  protest as  Chairman of the Constitution Committee and Law Minister in October 1972. The Constitution made the Prime Minister all powerful and crippled the President. He was shorn of his legitimate discretion on dissolution of the National Assembly (Art. 58) and the power to dismiss a Prime Minister [Art. 48 (1)], who subverts the Constitution. The President’s orders had to bear “the countersignature of the Prime Minister” [Art. 48 (3)]. This was omitted in 1985 and is absent now as well. The Cabinet system was undermined by empowering the Prime Minister to act directly [Art. 90 (2)]. He was made “the Chief Executive of the Federation” [Art. 90 (1)]. There were, however, two salutary provisions. The Prime Minister was to be elected by the National Assembly [Art. 91 (2)]. Germany’s “constructive vote of no confidence” was emulated. A motion of no- confidence must name the successor [Art. 96(2)]. These were based on the Basic Law of the Federal Republic of Germany. Needless to add that, though democratic, they also buttressed the office of the Prime Minister.

Under the conventions of the parliamentary system, recognized in the United Kingdom, Canada, Australia, New Zealand, and India, the head of state has the following rights: (1) to be consulted; (2) to demand information; (3) to select the Prime Minister if the elections yield a hung Parliament in which no party has a clear majority; (4) the discretion to dissolve a House; and (5) albeit in the very last resort, to dismiss the Prime Minister. The President must also have the power to force a dissolution and require the PM to face the electorate, but without dismissing him, if he goes flagrantly beyond his electoral mandate on a matter of fundamental importance.

The PM must have power to ask for dissolution, whether to seek a mandate or keep his flock in place. But he has no absolute right to demand it regardless of the circumstances. The President must have the discretionary power to refuse.

The locus classics, cited by every work on constitutional law, is a letter by ‘Senex’ published by The Times, London on 2 May 1950. He was none other than Sir Alan Lascelles, Private Secretary to the King. It bears quotation in full: “It is surely indisputable (and common sense) that a prime minister may ask – not demand – that his sovereign will grant him a dissolution of parliament and that the sovereign, if he so chooses, may refuse to grant this request. The problem of such a choice is entirely personal to the sovereign, though he is, of course, free to seek informal advice from anybody who he thinks fit to consult.

“In so far as this matter can be publicly discussed, it can be properly assumed that no wise sovereign – that is, one who has at heart the true interest of the country, the constitution, and the monarchy – would deny a dissolution to his prime minister unless he were satisfied that: (1) that the existing parliament was still vital, viable, and capable of doing its job; (2) a general election would be detrimental to the national economy; (3) he could rely on finding another prime minister who could carry on his government, for reasonable period, with a working majority in the House of Commons.” A Prime Minister whose advice to dissolve is rejected, can resign and force an election.

On dismissal, every work on constitutional law says that the Crown’s power does exist; it has not been exercised since 1783; but it has not become extinct either. Prof. Geoffrey Marshall writes: “Dismissal would be appropriate if a government, by illegal or unconstitutional administrative action, were to violate some basic convention of constitutional behavior. Even then it would be necessary for the breach to be a profound one for which no other remedy could be found.”

Prof. Vernon Bogdanor asserts that dismissal can be used “at the point at which the constitution itself, which determines the role of the head of state, appears to be under threat. At that point, it may be suggested, the sovereign has the right to exercise his or her discretion, to act as a constitutional guardian, to ensure that the values which lie at the foundation of a constitutional system are preserved. In such circumstances, some would suggest that the sovereign has the right, and perhaps indeed the duty, to act as a guardian of the constitution. The doctrine that the sovereign is required to act on the advice of ministers presupposes that ministers themselves act within the framework and presumptions of constitutional government.”

In his authoritative work on Dissolution of Parliament, Prof. Eugene A. Forsey writes: “It is probably safe to say that under modern conditions forced dissolutions will take place only if the Crown considers them necessary to protect the Constitution or to ensure that major changes in the economic structure of society shall take place only by the deliberate will of the people. In other words, the power to force dissolution is now likely to be used only negatively, preventively; never as a means of bringing about some positive and desired by the King himself or his representative.” The Crown will nonetheless need the PM’s advice to dissolve. If he refuses, he can be dismissed. The new PM will advise dissolution and the country will give its verdict.

Not one authority on the parliamentary system questions the head of state’s right, power and, indeed, the duty to dismiss the PM in extreme cases, though they stress the dangers of abuse.

The 18th Amendment does not even try to restore a proper parliamentary system which was established by the 1956 Constitution. It could have been improved by codifying the conventions in the light of experience in Pakistan and elsewhere. This is its single gravest blemish. Contrast this with Australia’s experience. On 11 November 1975 the Governor General, Sir John Kerr, dismissed from office Prime Minister Gough Whitlam, plunging the country into a constitutional crisis. But, instead of sterile rancour, a constructive course was adopted of holding All-Party Constitutional Conventions over the years. The Joint Select Committee of the Australian Parliament submitted in August 1999 its “Advisory Report on Constitution Alteration (Establishment of Republic) Bill 1999, and Presidential Nominations Committee Bill, 1999.” It was asked to consider what powers the President should have. It decided to retain those of the Governor-General.

The Republic Bill sought to insert Section 59 in the Constitution of Australia Act, 1900. Its clause (3) read thus: “The President shall act on the advice of the Federal Executive Council … but the President may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating to the exercise of that power.”

Para 4.10 of the Report spelt out those “reserve powers” explicitly: “It is generally accepted that there are probably only four such powers; namely, the power to appoint a Prime Minister, the power to dismiss a Prime Minister, the power to refuse to dissolve Parliament and the Power to force a dissolution of Parliament.”

A fair course was to restore the Constitution of 1973 with the President’s powers under the democratic Constitution of 1956, while also making clear his status as constitutional head of state bound by the Prime Minister’s advice, and codify the conventions of the parliamentary system in the Constitution itself in order to prevent abuse of power by both the Prime Minister and the President. The Reports of the Australian Conventions can help in this exercise.

One hopes that this task will be accomplished before long once the spirit of partisanship and the hero worship of the Bhuttos subsides. This was too much to expect after Benazir Bhutto’s tragic assassination on 27 December 2007. But the nation’s interests demand fulfillment of the task of restoration of parliamentary democracy in full vigour according to the recognized and time-honoured conventions of the parliamentary system.

It is, however, not only Z.A. Bhutto’s excesses but also those of Zia-ul-Haq, the most despicable of the dictators Asia has seen, which the 18th Amendment leaves untouched while rightly repealing the laws enacted in the Pervez Musharraf era (Section 2 of the Act of 2010).

Zia’s presidential order No. 14 of 1985 inserted Article 2A in the Constitution. The obscenity of an executive order amending the supreme law was enough. It was aggravated by the fact that the executive was a usurper of power. Article 2A reads thus:”The principles and provisions set  out  in  the  Objectives Resolution reproduced in  the Annex  are hereby made substantive part of the Constitution and shall have effect accordingly.”

This was worse than fatuous. This Resolution (1949) by its very terms ceased to have any relevance once the Constitution of 1956 was enacted. It simply expressed a resolve “to frame a Constitution for the sovereign independent State of Pakistan” and set out nine principles on which it should be based each beginning with the word “wherein.” It was put in the Preamble to the 1973 Constitution. The wily Zia had a design. He used Art. 2A as a cloak for his perverse plank of Islamization with lasting consequences. Yet this was left untouched.

Article 6 (1) of the Constitution said “Any person who abrogates or attempts or conspires to abrogate subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.” Clause (2) made aiding or abetting such acts also high treason, Clause (3) empowered Parliament to legislate “for the punishment of persons found guilty of high treason.” It did not deter Zia from staging the coup, four years later, nor save Bhutto from the gallows. It only made Zia more determined to secure his judicial assassination, the grave had room only for one corpse, he would say.

Centuries ago, Sir John Harington (1561-1612) wrote in his “Epigrams” in the book Of Treason “Treason doth never prosper; what is the reason? For if it prosper, none dare call it treason.” On 12 May 2000 none other than Justice Iftikhar Muhammad Chaudhry joined eleven other judges of the Supreme Court to hold that “On 12 October, 1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra constitutional measure became inevitable” and “the doctrine of State necessity is recognized not only in Islam and other religions.” As a Muslim, I wish the judges had spared us that. What were these circumstances to warrant the action? The “purported arbitrary removal” of General Pervez Musharraf from the post of army Chief? Justice Chaudhury not only took oath under the Oath of Office (Judges) Order, 2000 but joined the other judges on the Bench in this case in asserting that the cases of the former Chief Justice and Judges of the Supreme Court who had not taken oath cannot be reopened; this time, under “the doctrine of past and closed transaction.” It had no relevance. Their offence was not even a year old.

Article 6 is now amended by the 18th Amendment to add the words “holds in abeyance” – Zia’s pretext to escape Art. 6 – and “collaborating” to widen the reach of Art. 6. Clause (2A) is added to provide “An act of high treason …. shall not be validated by any Court including the Supreme Court and a High Court.” Would this have prevented C.J. Munir & colleagues from validating the coup of 1958, Chief Justice Anwarul Haq and colleagues from validating the coup of 1977 or Chief Justice Irshad Hasan Khan and others from validating the coup of 1999? If inclined, like these distinguished predecessors, those judges would also invoke the doctrine of state necessity, drag in the name of Islam to cover their treachery to the oath of office and – end up by saying that there was no “act of high treason,” after all.

The 18th  Amendment adds three fundamental rights – the rights to fair trial, to information, and to education. It redrafts Art. 17, the right to freedom of association, by adding “the interest of sovereignty or integrity of Pakistan” to the existing grounds on which the right can reasonably be restricted, namely “Public Order or morality.” But a most regressive provision is added in Clause (2) in respect of political parties. Parliament can make any law to empower the Federal Government to declare “that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan.” It shall thereupon refer the matter to the Supreme Court for its decision. A vital safeguard has been omitted. Section 3(2) of India’s Unlawful Activities (Prevention) Act, 1967 obligates the Central Government to “specify the grounds on which” the declaration against a secessionist body is made. Many a ban has been set aside by the Tribunals which adjudicated on the ban. Art. 17 (2) as inserted by the 18th Amendment imposes no such duty on the Government.

The 1973 Constitution provided (Art. 62) precisely worded qualifications for  membership of  Parliament. In  March  1985,  Zia, for reasons not hard to understand, added four grounds of his own; doubtless to empower himself to act against MPs. They are retained by the 18th Amendment. They read thus: “(d) he is of good character and is not commonly known as one who violates Islamic Injunctions; (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as well abstains from major sins; (f) he is sagacious, righteous, non-profligate, honest and amen, there being no declaration to the contrary by a court of law; (g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.”

The relationship between the President and the Prime Minister, under the 1973 Constitution, is retained in all material respects – dissolution of Parliament and dismissal of the PM. The referendum was a Zia innovation. The power to order one is now rightly transferred from the President to the Prime Minister but, on the condition that he must secure the approval of both Houses of Parliament at a joint sitting.

Zia’s innovation of “a caretaker Cabinet” to hold office during a general election is retained. He appoints its members in his discretion. Clause (5) says “notwithstanding anything contained in clause (1)” which makes the PM’s or the Cabinet’s advice binding on the President. This is replicated in the Provinces. Distrust of the PM has led to blind trust in the President.

In Art. 41 Bhutto had whittled down the PM’s basic duty towards the President, the duty to inform him fully. It was revised by Zia in 1985 on the lines of Art. 78 of the Indian Constitution to read “It shall be the duty of the Prime Minister – (a) to communicate to the President all decisions of the Cabinet relating to the administration of the affairs of the Federation and proposals for legislation;  (b) to furnish such information relating to the administration of the affairs of the Federation and proposals for legislation as the President may call for; and (c) if the President so requires, to submit for the consideration of the Cabinet any matter on which a decision has been taken by the Prime Minister or a Minister but which has not been considered by the Cabinet.”

The 18th Amendment restores the vacuous 1973 provision (Art 46) which reads: “The Prime Minister shall keep the President informed on all matters of internal and foreign policy and on all legislative proposals the Federal Government intends to bring before Majlis-e-Shoora (Parliament).”

With the 18th Amendment the Samson in the President’s House stands mostly shorn of his locks. He is, in the main, reduced to the status of the President as conceived by Zulfikar Ali Bhutto in the Constitution of 1973, now effectively revived. He has less powers than the head of state of the UK, Canada, Australia and India. His trips abroad must be undertaken only on the advice of the Prime Minister. Rajiv Gandhi put an end to President Zail Singh’s trips abroad. Still less has he power to negotiate deals with representatives of foreign governments whether at home or abroad.

President Asif Ali Zardari, of course, has not conformed to these limits so far. Whether he does so after the 18th Amendment remains to be seen. What stands out like a sore thumb is his presidentship of a political party as well as the presidentship of the nation. This violates the oath of office by which he is sworn not to show favour. It violates the very basis of democratic governance. No law forbids the Queen from membership of the Conservative Party or the Indian President from membership of the Congress. But combination of the two posts, explicable in the Founding Fathers in the early years, tears apart the fabric of democratic governance. Not only must the head of state cease membership of a political party but also refrain – and be seen to refrain from any interference in the working of a political party.

By far the greatest damage is on the relations between the Federation and the provinces. The Fourth Schedule to the Constitution contained the Federal Legislative List, in Parts 1 and 2, and the Concurrent Legislative List. The Provinces had the residuary power; i.e., on matters not listed in either List. (Art. 142 (c) ).

By S. 101 (3) of the Act the entire Concurrent List, with its 47 entries is omitted, but with some provisos. Both Parliament and Provincial Assemblies will have power to legislate on criminal law, criminal procedure and evidence, the Federal law prevailing in the event of a conflict. Since the Provinces retain the residuary powers, the effect of the dropping of the Concurrent List is accretion of considerable power to the Provinces at the expense of the Federation.

However, the Federation will have exclusive power in respect of “Electricity, major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of port authorities therein. All regulatory authorities established under a Federal law. National planning and national economic coordination including planning and coordination of  scientific and    technological research.  Supervision and management of public debt. Census. Extension of the powers and jurisdiction of members of a police force belonging to any Province to any area in another province, but not so as to enable the police of one Province to exercise powers and jurisdiction in another province without the consent of the Government of that province; extension of the powers and jurisdiction of members of a police force belonging to any Province to railway areas outside that province. Legal, medical and other professions. Standards in institutions for higher education and research, scientific and technical institutions. Inter-provincial matters and co-ordination.”

The process of devolution of powers to the Provinces shall be completed by 30 June 2011 [S. 96 (87)]. The 9-member Parliamentary Implementation Commission resolved on 5 October 2010 that the deadline would be met at all costs. Executive power is co-extensive with legislative power. (Art. 97). More than a dozen federal ministries would have to be devolved to provinces leading to a reduction in the size of the Federal Cabinet (Ahmad Hassan; Dawn; 6 October 2010). The Commission was set up by the Federal Government under Art. 270 AA (9).

The Federation’s power to make a Proclamation of Emergency “due to internal disturbances beyond the powers of a Provincial Government to control” it, will require a Resolution from the Provincial Assembly. If the President decides to act on his own the Proclamation must be approved by both Houses of Parliament “within ten days.”

Article 243 is amended to provide in explicit terms that the President shall appoint the chiefs of the armed forces “on advice of the Prime Minister.”

Predictably Article 175A on the appointment of Judges to the Supreme Court, the High Courts and the Federal Shariat Court, inserted by Section 67 of the 18th Amendment, created a controversy. It envisages a Judicial Commission of Pakistan for making the appointments. It would comprise the Chief Justice of Pakistan; two of the  most senior Judges of the Supreme Court; a former Chief Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the two member Judges, for a term of two years; the Federal Minister for Law and Justice; the Attorney-General for Pakistan; and a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years. (The Composition is varied for appointing High Court Judges).

Four members each from the Senate and the National Assembly in which the Treasury Benches and the Opposition will be equally represented. The Judicial Commission will nominate one person to the Committee for each vacancy.

The Commission sends its nomination to the Committee which may either confirm it by a majority of its total membership or reject it by a three fourth majority of its total majority in which case the Commission will send another nomination. The Committee forwards the nominee confirmed to the President. The validity of the 18th  Amendment was challenged in the Supreme Court, particularly Article 175 A, as an attack on the independence of the judiciary. Hearing began on 24 May 2010 before a full Court of 17 Judges.

The Court gave a ruling on 21 October, after reserving judgment on 30 September. Some 22 petitions were heard. It said: “The Court at this stage would not like to express its opinion on the merits of the issues raised and arguments addressed and would rather, in the first instance, defer to the parliamentary opinion qua Article 175A on reconsideration by it in terms of this order. We would thereafter decide all these petitions adverting to all the issues raised therein.”

It was concerned at the fact that “The inclusion of the executive members in the afore-referred bodies has not only minimized the role of the judiciary in the appointment process but is likely to politicize the entire exercise and thereby impinge on the constitutional guarantees provided to ensure its insularity and to restrict the legislative and executive control over it. The issues of elevation of a Chief Justice of a High Court or Judge of the said Court to the Supreme Court, if brought before the Parliamentary Committee and discussed is likely to be violative of Article 68 of the Constitution, which stipulates that: “No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.”

The world over the executive has a voice on judicial appointments as it did in Pakistan till 1996 when the Al-Jehad Trust case was decided and in India till 1993 when the Supreme Court Advocates-on-Record Association case was decided. In both, the Supreme Courts asserted an unheard of right to the last word on judicial appointments. The Supreme Court of Pakistan did not defer to Parliament as it has claimed. It has, on the contrary, reasserted the Al-Jehad ruling.

The Court held “Article 175A shall be given effect to in the manner as under: (i) In all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the names of candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by the respective Chief Justices. (ii) The Chief Justice of Pakistan as head of the Judicial Commission shall regulate its meetings and affairs as he may deem proper. (iii) The proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. The Parliamentary Committee shall send its approval of recommendations of the Judicial Commission to the Prime Minister for onward transmission to the president for necessary orders. If the Parliamentary Committee disagrees or rejects any recommendations of Judicial Commission, it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the Committee to the Chief Justice of Pakistan and the same shall be justiciable by the Supreme Court.

All cases of fresh appointments of Judges of the Supreme Court, of the Federal Shariat Court, of the High Courts and of Additional Judges of the latter Courts shall be processed forthwith under Article 175A.

To enable the Parliament to proceed and re-examine the matter in terms of the observations made above, these petitions are adjourned to a date in the last week of January, 2011.

The Registrar of this Court shall send a copy of this order to the Chairman Senate, the Speaker of the National Assembly, Mian Raza Rabbani,  Advisor  to  the  Prime  Minister/Chairman  of  the  Special Secretary Law & Justice, Human Rights Division of Pakistan.”

This is not a case of suggesting reconsideration but of demanding amending legislation on pain of striking down a constitutional amendment for the first time in Pakistan’s history. The judgment bristles with errors. Discussions by a Parliamentary Committee of a judge’s fitness for elevation is not a case of discussion of his “conduct” by Parliament in violation of Art. 68 of the Constitution. The Committee’s decision on the nominee is inherently not susceptible to judicial review or the merits. It cannot be “justiciable” since the assessment will be based on a host of factors, including intelligence reports. Finally, it is well settled that no Court can ask Parliament to legislate in a particular manner just as Parliament cannot ask a court to decide a case in a given manner.

Fundamentally, the framers of the 18th Amendment went wrong in giving politicians in Parliament any voice on judicial appointments The Al-Jehad case, like the Advocates on Record case in India, deserves an unceremonious burial. India’s Law Minister Veerappa Moily is at work on a suitable amendment. But the discourse in India on a Judicial Commission never includes politicians or MPs.

As an English jurist remarked in 2004 “Judges choosing judges is the antithesis of democracy.” Judicial appointments is a subject that deserves a detailed discussion. The American model is discredited. It involves politicians in the Senate in the appointment process. The Indian model is also discredited in India with self-serving judges usurping a power that does not belong to them under the Constitution and flouting its terms to give themselves a veto on appointments. India is at work on how to wipe out the rot by a proper balanced Judicial Commission. It would be a thousand parties if Pakistan were to follow an Indian model which India itself has decided to discard.