POST-2010: LATEST CONSTITUTIONAL AMENDMENTS TO THE CONSTITUTION OF PAKISTAN

Introduction

Pakistan’s constitution is no stranger to amendments; extant written constitution of 1973 had as many as eighteen amendments till 2010. Much has been written about the amendments introduced to the constitution till that time; the purpose of this write-up is to consolidate and record the post-2010 (post-Eighteenth Amendment) constitutional amendments that have been made, and the draft amendments laid before the federal legislature for amending the constitution. The article, therefore, is divided into two parts: part one will present the constitutional amendments that have been made since 2010 and part two will discuss the draft constitutional amendments. In all, as of 16th July 2017, five (19th to 23rd) amendments have been introduced to the constitution (in post-18th Amendment scenario), whereas, the government has laid seven (24th to 30th) constitutional bills in the National Assembly for amending the constitution.

PART-I – Post-2010 Constitutional Amendments

Briefly, since 2010, five constitutional amendments have been introduced to the Constitution of Pakistan, which are:

1. 19th Constitutional Amendment (2011)

On 1st January 2011, the then President of Pakistan, Mr Asif Ali Zardari, while appending his assent to the Constitution (Nineteenth Amendment) Act, 2011, declared it ‘a New Year’s gift of democracy’ to the country. The bill was negotiated amongst the political parties and was passed by the National Assembly and the Senate in 2010. It was proposed and decided by the Parliamentary Committee on the Constitutional Reforms (that had earlier finalized the 18th Constitutional Amendment). The salient features of the 19th Constitutional Amendment may be noted as under:

i. It amended Articles 81, 175, 175-A, 182, 213 and 246 of the Constitution.

ii. Mainly, it provided for a new system of appointment of ad hoc judges to the Supreme Court of Pakistan. It took away the power of the Chief Justice (CJ) to appoint ad hoc judges and handed it over to the Parliamentary Committee (PC) on whose recommendations the President was empowered to appoint ad hoc judges.

iii. It also included tribal areas adjoining Tank and Lakki Marwat into the Federally Administered Tribal Areas (FATA).

2. 20th Constitutional Amendment (2012)

It amended Articles 48, 214, 215, 216, 218, 219, 224 of the constitution and added a new Article 224-A to it. The amendment, which was passed on 22nd February 2012, essentially made the Election Commission of Pakistan (ECP) an organic whole. It provided, through insertion of Article 224-A, the procedure to be adopted in case an outgoing Prime Minister and the Leader of the Opposition could not agree on a name for appointment of a caretaker Prime Minister. A parliamentary committee was proposed to resolve such a contingency. Similar arrangement was proposed in case of the provinces.

3. 21st Constitutional Amendment (2015)

Amongst the latest constitutional amendments, by far, the most prominent has been the 21st Constitutional Amendment, which provided legal basis for ad hoc military courts for a period of two years with a sunset clause; it did so by amending Article 175 of the Constitution of Pakistan, 1973, that deals with the establishment of an independent judicature. The amendment was introduced in the aftermath of the tragedy at the Army Public School (APS), Peshawar, in December 2014 where over a hundred and fifty innocent schoolchildren were ruthlessly killed by terrorists. With the end of the sunset clause in January 2017 (after 2 years of its inception), it came to an end, but was re-enacted through the 23rd Constitutional Amendment.

4. 22nd Constitutional Amendment (2016)

On 10th June 2016, Articles 81, 213, 215, 216, 217, 218, 219, 221 and 222 of the constitution were amended through 22nd Amendment. Quintessentially, it provided for legal basis to appoint senior civil servants and technocrats having more than twenty years of experience as members of the Election Commission of Pakistan (ECP); the earlier dispensation for appointment required only judges to serve as ECP members. With no executive experience with the members having judicial background, it was argued that there was need to appoint non-judicial members along with judicial members to make the ECP more functional.

5. 23rd Constitutional Amendment (2017)

Apropos the 21st Constitutional Amendment (2015), the sunset clause saw its fruition in January 2017. After the lapse of two years, and given the fact that much more work was required to be done by the executive as mandated to it by the National Action Plan (NAP), on 3rd April 2017, the earlier sunset arrangement of two years was re-enacted and the military courts were provided with temporal constitutional cover.

PART II – DRAFT CONSTITUTIONAL AMENDMENTS

The government has tabled seven constitutional amendment bills before the National Assembly; brief description of each is as follows:

1. Draft 24th Constitutional Amendment Bill

The draft 24th Constitutional Amendment Bill was moved by the government to translate the fair trial and due process constitutional guarantees into a reality. For this purpose, it had proposed amending Article 184 of the constitution by adding two caveats to it:

a. It was proposed that all the proceedings under Article 184 (3) (suo motu jurisdiction) shall be appealable;

b. It was suggested that a larger bench than the original bench that had passed the order must be constituted to hear the appeal.

2. Draft 25th Constitutional Amendment Bill

The Statement of Objects and Reasons of the Bill reads:

“1. The Federal Government has increased the rate of pension admissible to the families of retired and deceased civil servants from 50% to 75% from the 1st day of July, 2010, vide Finance Division’s Office Memorandum No.2(3)Reg-6/2010-786, dated 2nd July 2010.

2. Paragraph 4 of the Fifth Schedule of the Constitution provides for payment of 50% pension to widows of Judges of the Supreme Court and the High Courts. On the same analogy, it is proposed to increase the entitlement of pension of widows of the Judges of Supreme Court of Pakistan and High Courts; from 50% to 75% by amending Paragraph 4 of the Fifth Schedule of the Constitution accordingly.”

Accordingly, it proposed to increase the pension of judges of the constitutional courts (i.e., Supreme Court and High Courts) by amending the Fifth Schedule of the Constitution.

3. Draft 26th Constitutional Amendment Bill

In the case of Messers Mustafa Impex (PLD 2016 SC 208), the Supreme Court of Pakistan redefined the federal government as: “The federal government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers.” The decision of the apex court shoved the federal and the provincial governments to reorganize their rules of business and convene cabinet meetings to decide on important matters. This led the government to move the bill. The bill proposed to redefine Articles 90, 99 and 139 (3) of the constitution, which were inserted through the 18th Amendment. It proposed to restore the original scheme of the constitution, wherein, the federal and provincial governments could delegate their functions to subordinate officers or authorities.

4. Draft 27th Constitutional Amendment Bill

The Parliamentary Committee on the Electoral Reforms (PCER) was constituted by the Speaker National Assembly on unanimous motions passed by the National Assembly and the Senate. The PCER appointed a subcommittee which proposed a constitutional bill to amend the constitution, as far as the matter of election reforms is concerned. Draft 27th Constitutional Bill is based on the report of the subcommittee, which had representation of all the major political parties. The bill mainly proposed:

a. That Articles 121 and 208 of the Constitution be amended to provide for inclusion of non-judicial background members of the ECP (as already provided in the 22nd Constitutional Amendment;

b. That Article 140-A (dealing with local government and introduced through the 18th Constitutional Amendment) be amended to include the announcement of programme of election within 120 days of the expiry of the term of a local government.

5. Draft 28th Constitutional Amendment Bill

It is a procedural draft and was moved as the time of two years i.e. the sunset clause, for 21st Constitutional Amendment had elapsed. In the meanwhile, however, the 23rd Constitutional Amendment was introduced and passed.

6. Draft 29th Constitutional Amendment Bill

The motivation for presenting the Draft 29th Constitutional Bill was same as that of the Draft 26th Constitutional Amendment Bill. It, however, in addition to redefining the federal government, proposed establishing executive magistracy by adding a new provision (Article 211-A) to the Constitution. It is the same executive magistracy that was the pride of district magistrates, but did not fit into the constitutional scheme of Pakistan that provided for separation of powers of the executive and the judicature. It also proposed to lower the age for appointment from 45 to 40 for the High Court judges by amending Article 193 of the constitution.

7. Draft 30th Constitutional Amendment Bill

The draft 30th Constitutional Amendment Bill proposed to amend Article 106 of the constitution. The Statement of Objects and Reasons can best explain the concept behind laying the Bill, which is reproduced hereunder, in verbatim:

“The Federal Cabinet in its decision on 2nd March 2017, in principle, approved the integration of FATA with the province of Khyber Pakhtunkhwa. FATA being a part of Khyber Pakhtunkhwa, after such integration, will require its representation in the Provincial Assembly of the province. Furthermore, post-integration scenario will see a substantial reduction in the Senate seats for FATA, which will be duly and adequately compensated through the creation of seats for FATA in the Provincial Assembly of Khyber Pakhtunkhwa according to their population. Creation of such seats is also of paramount importance for the fact that, if delayed, it will not only hamper the integration or the mainstreaming of FATA, but will also neglect a favourable opportunity, which might become a distant possibility before the next general elections in 2023.”

Conclusion

Stocktaking of the constitutional amendments and the draft constitutional amendments is a continuous process. For students of administration, law, public policy and politics, it needs to be more vigorously examined from all the perspectives to inform and enrich policy choices.