Constitutional Amendments- Till today

Dr Naazir Mahmood

This year, Pakistan is marking 50 years of the 1973 constitution that has experienced many mutilations at the hands of both civil and military rulers. Having remained in abeyance a couple of times, the constitution has survived all the vagaries in the past half century.

In a series of columns, we will discuss some of the amendments that have had an impact on the constitutional and judicial history of Pakistan. It is interesting to note that the first seven amendments Z A Bhutto introduced from 1974 to 1977 paved the way for further mutilations of the constitution in the years to come. Just to cite one example, the Bhutto government had planned the ban on the National Awami Party (NAP) in 1975 much earlier by introducing certain constitutional amendments to pave the way for the dissolution of the NAP.

There is no gainsaying the fact that military rulers have done more harm to this country than all civilian rulers put together; still we need to highlight that the civilians too – whenever they could – were not far behind in this race for MAD (mutually assured destruction).

A closer look shows that the first amendment was not as innocuous as it appeared. The government of Pakistan had already recognized Bangladesh as an independent country to ensure Mujibur Rahman’s participation in the Islamic Summit Conference in Lahore in February 1974; by amending Article 1 of the constitution in April 1974, the parliament of the rump Pakistan deleted any mention to the erstwhile eastern wing of the country – East Pakistan. But there were other aspects of the First Amendment that showed the government’s designs for implementing some hidden agenda too.

Article 17 of the constitution underwent some drastic changes, paving the way for curtailing the freedom of association. The government imposed new restrictions on this freedom to form associations and used as an excuse the question of the integrity and sovereignty of Pakistan. With the passage of this amendment, the Political Parties Act of 1962 changed shape and the federal government arrogated to itself the powers to declare any political party as working against the integrity and sovereignty of the country. The accused party would stand dissolved and the federal government could confiscate all its funds and properties.

Of course, the Supreme Court could overturn the government’s declaration, but keeping in mind the subservient judiciary it never happened. Apparently, there were two major motives behind this amendment: the Bhutto government not only wanted to destroy the main opposition that the National Awami Party was leading, but also had a feeling that some disgruntled elements within the government such as Ghulam Mustafa Khar and J A Rahim might decide to part ways and form a new political party. The Bhutto government wanted to keep the sword in its hands – to use when the opportunity arose.

The wheel started moving and would ultimately tear asunder the very fabric of this society. The year 1974 ended with J A Rahim being removed as the secretary-general of the Pakistan People’s Party and Dr Mubashir Hasan taking his place. The story of Rahim being maltreated by goons is well documented but even more surprising was the willingness of Dr Mubashir Hasan to take Rahim’s seat rather than voice his concerns. Little did he realize that soon he would also be on his way out.

The year 1975 saw another two amendments to the constitution, aimed at consolidating the federal government’s powers to victimize political opponents and curtail courts’ authority respectively. The federal government was becoming increasingly intolerant of the opposition’s repeated recourse to the judiciary against the government’s highhandedness. February 1975 was an eventful month; the National Assembly passed a bill for terrorism trials by special courts. The situation became clear on February 8 when senior PPP leader Hayat Mohammad Khan Sherpao – who was also a former governor of the NWFP (now KP) – lost his life in an attack in Peshawar and within a week the government banned the NAP and declared it an illegal party.

Within a couple of days, the Bhutto government introduced the third amendment to the constitution curtailing the rights of detainees, and extending the powers of the detaining authorities. The amendment also reduced some safeguards against preventive detentions and extended the period for such detentions from one month to three months without production before a review board. Now the government could detain any person indefinitely if they were ‘acting or attempting to act in a manner prejudicial to the defence, integrity, or security of Pakistan”.

The government also amended the Code of Criminal Procedure. Now the courts could not grant any bail before arrest to a person unless the police had registered a case against the accused. Such bails before arrest were a safeguard for political workers to save themselves from victimization, and a court could approve bails even if there was no case registered, but a victim anticipated that the police would file a case and make arrests before the accused could approach the court.

The purpose of these amendments was now evident as the National Awami Party became the main target of both. The entire NAP leadership including Abdul Wali Khan, Attaullah Mengal, Ghous Bakhsh Bizenjo and many other top and mid-level leaders found themselves behind bars. Using the constitutional amendments, the government and the establishment crushed the only major political party that stood for left-wing, progressive, and secular ideals, dealing a severe blow to the prospects of democractic norms and values in Pakistan. The same old spectacle that had previously portrayed Bengalis as traitors modified itself to include new villains supposedly working against the country that the new protagonist Z A Bhutto was trying to defend.

Whereas the state had previously accused Bengalis, now it charged the NAP leaders – mainly Baloch and Pakhtun – as Afghan agents. Bizenjo, Mengal, and Wali Khan were all towering personalities with a long history of democratic struggle and impeccable credentials as democrats.

Wali Khan’s entire family consisted of stalwarts such as his father Abdul Ghaffar Khan (Bacha Khan), brothers Abdul Ghani Khan and Abdul Ali Khan; and his uncle Dr Khan Saheb. None of the early amendments to the constitution granted more democratic rights to the people of Pakistan.

The aim of these amendments was to curtail judicial powers and destroy any possible opposition to the federal government. Since 1957, the National Awami Party had been at the forefront of democratic struggle in the country and also fought for the dissolution of the One-Unit scheme for 15 years from 1955 to 1970. Under authoritarian rules, the NAP raised the flag of democracy, provincial rights, and secularism; now it stood dissolved under the new constitutional amendments.

In 1975, with the National Awami Party (NAP) banned and all its properties and funds forfeited, the consequences of the early constitutional amendments came to the fore. While drafting the amendments, the Bhutto government had carefully selected every word to support its future actions.

The federal government was bent upon destroying the democratic forces that could stand up to the anti-democratic right-wing outfits that ultimately toppled ZA Bhutto. When the Supreme Court of Pakistan heard the case, the then chief justice Hamoodur Rahman – who had earned a respectable name in his judicial career and as the head of the Hamoodur Rahman Commission – mysteriously overruled Wali Khan’s objections against two judges on the bench who were well-known for their proximity to the prime minister.

It is surprising that a man of Rahman’s calibre – who himself hailed from the erstwhile East Pakistan and had closely observed the consequences of declaring political leaders as traitors – was unable to see the ruse behind the amendments. Even if Wali Khan and some of his colleagues were to receive sentences, the entire NAP political leadership and the party that had a major role in the struggle for the dissolution of ‘One Unit’ and restoration of democracy against military dictatorships became a target of the amendments. The amendments ended the NAP with ruthless force, and justice Hamoodur Rahman upheld these actions.

While the Supreme Court’s acceptance of press reports and intelligence officers’ statements as admissible still remains questionable, the court’s observation that Pakistan comprised just one nation and did not have any nationalities was purely statist and centrist, especially when Chief Justice Hamoodur Rahman himself had investigated the fallout of such assertions in East Pakistan. He tarnished his otherwise impressive career with this major judgment. There was not a single note of dissent against the constitutional amendments. All judges were unanimous that the NAP was indeed a threat to this country.

Justice Hamoodur Rahman retired in October 1975, just two days after delivering his ignominious verdict that dealt a severe blow to democracy in the country under the guise of constitutional amendments. He had served for seven years under two military dictators and a civilian ruler. One wonders how Wali Khan was freed within weeks after ZA Bhutto’s illegal removal and Gen Ziaul Haq’s ascendency to power. Though Gen Zia became a self-proclaimed defender of Pakistan’s ideology, he saw no contradiction in the release of Wali Khan whose party was declared as anti-state by the SC.

Justice Yaqoob Ali became the new chief justice of the SC. He took his oath on Nov 1, 1975; and the fourth amendment to the constitution was passed the same month, which curtailed the jurisdiction of courts. This amendment also curtailed the writ jurisdiction of the high courts under Article 199 in cases of preventive detentions. Now the courts could not grant bail to a person or prohibit such detention. Through a presidential ordinance all office bearers of the NAP stood disqualified from memberships of the national and provincial assemblies.

With a parallel ordinance, the government established special courts to try anyone it accused of anti-state activities. After these amendments and ordinances came into force, no high court had the jurisdiction to come to the aid of political victims and grant bail. The government handled the entire process of the fourth amendment cleverly by highlighting the other two positive elements of the amendments to dilute the more destructive ones. The government said that through the fourth amendment it had allocated six special seats to minorities in the National Assembly.

Minority seats also increased in the Punjab Assembly from three to five. The security staff of the National Assembly physically removed the opposition members who wanted a discussion on the proposed amendment, especially regarding limiting the powers of the courts. These opposition leaders included big names like Maulana Mufti Mehmood, Prof Ghafoor Ahmed, and Mahmud Ali Kasuri. After their removal, parliament passed the fourth amendment without any opposition. Interestingly, the PPP had a majority in parliament and it could have passed the amendment without resorting to use of force, but perhaps it wanted to be remembered for its notoriety.

In September 1976, the Bhutto government passed the fifth amendment widening the scope of restrictions on courts. The period of separation of judiciary from the executive increased from three to five years. The maximum tenure of the chief justices of the SC and high courts also became fixed as five and four years respectively. Now high courts could not issue any order subject to Articles 175 (2) and 199. The government could transfer the judges of the high courts without their consent to another high court, and that too without giving any reason.

If a high court judge refused to accept an appointment, the government could force them to retire under the fifth amendment. Even the chief justice could not intervene or give any advice or consultation in this matter. The fifth amendment altered 16 articles and the First Schedule of the constitution. For the first time the judges faced the consequences of the fifth amendment. Now the chief justice’s term in office was not solely dependent on age but also on a fixed period.

It was evident that the government wanted to secure certain changes in some of the appointments. The government sugarcoated this amendment as well by establishing separate high courts for Sindh and Balochistan and highlighting it more prominently than the restrictions on the high court jurisdiction to grant interim bails. Abdul Hafeez Pirzada was the federal education minister and he vociferously attacked the judiciary for encroaching upon the legislative and executive functions; sounds familiar? He believed if the judiciary deviated from the constitution it would be subversion and high treason – again familiar, isn’t it?

With this amendment in place, the judges were constantly under threat of transfer if they did not oblige government functionaries. Even the high court chief justices could not refuse their elevation to the SC for fear of compulsory retirement; the fifth amendment totally subdued and tamed the superior judiciary. The chief justices of the Lahore and Peshawar high courts, Justice Sardar Iqbal (father-in-law of Ayaz Sadiq) and Justice Ghulam Safdar Shah, had to quit after completing their four-year terms even when they had not reached the age of superannuation.

After Justice Safar Iqbal’s retirement, Justice Maulvi Mushtaq was the most senior judge of the Lahore High Court but the government bypassed him to appoint Justice Aslam Riaz Hussain as the chief justice. This cost Bhutto dearly; when Justice Mushtaq used insufficient evidence to sentence him to death after his unconstitutional removal from power by General Zia.

The Bhutto government introduced its penultimate amendment in Dec 1976 – the sixth amendment – in the last session before the general elections. The main content of the amendment was about extension in the tenure of justices of the SC and high courts beyond the retirement age of 65 and 62 respectively.

This amendment specifically gave a chance to Chief Justice Yaqoob Ali to continue after his superannuation in mid-1977, as he had not completed his term in office for five years.

The sixth constitutional amendment – passed in December 1976 – made a mockery of the constitution. It allowed the chief justice of the Supreme Court and high courts to complete five- and four-year tenure even if they got past the superannuation age of 65 and 62 respectively.

This seemed strange as not long ago, the Bhutto government had deprived the judges of continuing their job after completing their four-year term as chief justice even if they were as young as just 55.

The sixth constitutional amendment allowed Justice Yaqoob Ali to continue working after the age of 65 on the pretext that he had not completed his term as the chief justice of Pakistan. Later General Zia removed him by overturning the amendment to appoint Justice Anwarul Haq – his favourite – so that he could get the decision he wanted.

Following the sixth amendment, Bhutto prematurely dissolved the assemblies in January 1977, hoping to catch the opposition unaware and unprepared for general elections. The March 1977 elections were controversial as the opposition – the Pakistan National Alliance (PNA) – accused the government of malpractices and rigging. Bhutto was undoubtedly a popular leader and could have won the elections even without indulging in a spree of unopposed victories. The right-wing PNA used religion as its rallying cry, and unfortunately some left-wing politicians also sided with the party that wanted to establish theocracy in the country.

After two months of mass agitation that the ‘usual suspects’ tacitly approved and General Zia clandestinely supported, Bhutto introduced the seventh amendment in May 1977. It introduced a provision for a referendum because Bhutto did not want re-election after the opposition rejected the results of the March 1977 general elections. He wanted to hold a referendum so that people could once again demonstrate confidence in him; however, he could neither hold a referendum nor go for re-election as the army chief, General Zia, toppled his government in a bloodless coup on July 5, 1977.

The new military dictator – who had violated the constitution and had promised to hold fresh elections within 90 days – would soon start his own mutilations of the constitution. General Zia suspended the constitution and as chief martial law administrator (CMLA) started issuing orders that were in contravention to his promises and exposed his intentions of ruling the country for as long as possible.

First, General Zia arranged for a suitable court that could convict Bhutto for a murder he never committed. Then he hanged him in the dead of night and buried him without a single member of his immediate family allowed to attend the funeral, or visit his grave.

While General Zia held the constitution in abeyance for years, he kept issuing one martial-law order after another, targeting all those who demanded the restoration of democracy. He spent the next eight years as a self-appointed ruler of the country and used religion as his primary weapon to disguise his ambitions to remain a dictator forever. In December 1981, under the presidential order (PO 15 of 1981), he appointed the ‘Majlis-e-Shoora’ (advisory council) that he filled with conservative and right-wing advisors who shared his vision of destroying democracy in the country.

The council met for the first time in January 1982 and gave the pretence of controlled and limited political activities. For eight long years, there were lashes and torture for political activists and even journalists. The Movement for the Restoration of Democracy (MRD) that Begum Nusrat Bhutto and Benazir Bhutto led posed a serious threat to the dictator. The military government crushed the movement with full force and General Zia kept issuing presidential ordinances to serve his purposes. Finally in 1984, he decided to hold a referendum to gain at least some concocted legitimacy for his unconstitutional rule.

While the constitution was still in abeyance, the referendum in December 1984 failed to attract voters. Still General Zia and his administration declared that the people of Pakistan had approved his programme and claimed to have acquired the mandate to continue with his plans to put the country on a more religious path – he would remain president for the next five years. In the elections of February 1985, no political party could participate as they were non-party elections. The MRD could have asked its candidates to contest elections on an individual basis, but it opted to boycott.

Later, Benazir Bhutto regretted the decision and admitted that even in non-party elections the opposition should have participated. In March 1985, General Zia issued another presidential order (PO 14 of 1985) as the revival of the constitution order (RCO 1985) with which he made a large number of amendments in the constitution. This would later provide the backbone to the eight constitutional amendment.

The dictator appointed Muhammad Khan Junejo as the prime minister of Pakistan. Junejo had received a vote of confidence in the last week of March 1985. He reportedly threatened that if the bill did not go through, he would consider the possibility of dissolving the National Assembly and send everything packing once again. Most MNAs did not want to face that eventuality at the hand of the general. Then in August 1985, the situation on Independence Day also reinforced the supremacy of General Zia. He intimated that he would be taking the salute without the prime minister as according to the amended constitution only the head of the state had the entitlement to take the salute; the PM did not.

In September 1985, law and parliamentary affairs minister Iqbal Ahmad Khan tabled a draft bill which drew wide criticism both in and out of parliament. Ostensibly, the amendment aimed to bring about a ‘balance of power’ but in fact it was to empower the president to dissolve the National Assembly, dismiss the prime minister and provincial governments, and order them to seek a fresh mandate. Besides changes in other articles in the constitution, the addition of Article 58 (2) b would have the most devastating consequences for democracy in the country.

The self-appointed president General Zia who had been critical of Bhutto’s ‘authoritarian’ rule had already misgoverned the country for eight years and now was bent upon acquiring discretionary powers to dissolve the National Assembly at will. The amendment bill did create some uproar within the National Assembly and the general began making efforts to hold meetings with a number of MNAs to chalk out some way forward. By October, the eight amendment was ready for approval; the constitution incorporated it in November 1985.

Then, the cabinet and other institutions all worked only at the sole discretion of the president General Ziaul Haq, who had already awarded himself repeated extensions as the army chief as well. Without the president’s permission the entire parliament would be in a state of paralysis. Even more consequential was a blanket approval of all actions under the martial law government since the July 1977 takeover. The eight amendment indemnified all the unconstitutional actions of the military dictatorship against democracy in the country. All ordinances and martial-law orders that the general had issued over the past eight years as well as all decisions of the military courts became legalized.

The Objectives Resolution also became part of the constitution. The amendment changed the system of government from parliamentary to presidential and the prime minister became subservient to the president. It minimized the status of parliament much in the same fashion as General Ayub Khan had done with his constitution of 1962 or General Musharraf would do in 2002.

After General Ziaul Haq managed to arm twist the National Assembly in 1985 to pass the devastating 8th Amendment, he announced the withdrawal of martial law in December. Now the country was apparently under a civilian rule, alarmed by the spectre of the 8th Amendment.

Prime minister Muhammad Khan Junejo became the president of the Pakistan Muslim League. This signalled the revival of party politics in the assemblies, which officially had no parties since the party-less elections a year earlier. But it did not imply that General Zia’s influence was not there. After nearly nine years of absolute rule, his anti-democratic notions echoed everywhere in the country. Cumbersome requirements for political parties to get registered were in place and Gen Zia kept exhorting the assembly to pass more Islamic laws; he remained all-powerful as the army chief and president of Pakistan.

When Benazir Bhutto returned to Pakistan and an extremely large procession received her in Lahore in April 1986, it raised alarm bells in the government ranks and Gen Zia once again talked about the need for more Islamic laws in the country. With this background, the work on the 9th Amendment started. The bill would have imposed Shariah as the supreme law of the land by amending Articles 2, 203B and 203D of the constitution. Less than three months after Benazir’s arrival in the country, the Senate passed the Ninth Amendment Bill in July 1986 and sent it to the National Assembly.

General Zia and his machinery had a two-pronged strategy to counter the popularity of Benazir and prevent her from demanding fresh elections. In urban areas of Sindh, the MQM suddenly emerged as a potent force and Karachi and Hyderabad witnessed some of the worst ethnic riots in the history of Sindh. Second was the use of religion to persuade Pakistanis that a woman could not be the leader of an Islamic country. The Ninth Amendment Bill got stuck with the select committee of the National Assembly and it could not progress to change the constitution.

The National Assembly passed the 10th Amendment in March 1987 to reduce the duration of the interval between sessions of the National Assembly and the Senate from 160 days to 130 days. In the third year of his premiership, MK Junejo became increasingly assertive, much to the chagrin of General Zia who still wanted to call the shots. In April 1988, two significant events took place: on April 10, Rawalpindi witnessed one explosion after another as the Ojhri camp that stored ammunitions blew up with mysterious blasts; and on April 14, the Junejo government signed the Geneva Accord to pave the way for the withdrawal of the Soviet forces from Afghanistan.

By the end of May, it became clear that General Zia was not happy with the prime minister for his assurance to the nation that the Ojhri camp investigation report would be made public. General Zia was also not happy with the final agreement that the Junejo government had signed in Geneva without getting his approval on the final draft that did not include a provision to hand over power to the Mujahideen. At the same time, horrific killings in Karachi were going on unabated with unprecedented ethnic tensions across Sindh.

Now the 8th Amendment came in handy for the general who used it to dismiss MK Junejo unceremoniously on charges of corruption and inability to expedite the process of introducing more Islamic laws in the country. That was the first strike of the deadly 8th Amendment, and there were many more to come in the 1990s. Gen Zia announced that the country would go through another general elections. But before this, in August 1988, his plane exploded in mid-air, killing him and his colleagues. Senate chairman Ghulam Ishaq Khan assumed the office of president in accordance with the constitution.

Though Gen Zia had earlier announced non-party elections, the Supreme Court led by chief justice M Haleem – the longest serving chief justice so far – ordered party-based elections after hearing a petition by Benazir. After the death of Gen Zia, Haji Saifullah challenged the dissolution of the National Assembly under the 8th Amendment introduced by Gen Zia. The Supreme Court declared that the dissolution was unconstitutional but did not restore the assembly and allowed the planned elections to go ahead. In 1993, General Aslam Beg claimed that as the country’s army chief he had advised the Supreme Court not to restore the assemblies in October 1988.

By the end of 1988, 35-year-old Benazir became the youngest prime minister in the country’s history and the first woman leader in the Muslim world. Opposition members in the Senate presented the 11th Amendment in 1989 to restore reserved seats for women in the National Assembly to 20. The PPP government could have approved it but perhaps it did not want the then opposition to get credit.

Prime minister Benazir Bhutto assured that the PPP government would introduce the same bill on its own. So the bill was withdrawn, and like the ninth amendment, the 11th amendment also could not amend the constitution. By 1990, president Ghulam Ishaq Khan was ready to use the 8th Amendment once again to send the assemblies packing. Benazir wanted to exercise her authority with full powers but the president was not inclined to allow the government to work independently. When Benazir tried to assert her control as the head of government while making some crucial decisions, GI Khan struck with a vengeance. And on August 6, 1990 the 8th Amendment devoured its second victim since 1985, toppling Benazir’s government.

In her 20 months as prime minister, Benazir was unable or unwilling to introduce any new constitutional amendments. Ahmad Tariq Rahim challenged the dissolution of the assembly by the president but the Supreme Court upheld it. The newly installed Nawaz Sharif government introduced the 12th Amendment in July 1991 to establish speedy courts for the trial of dreadful offences for three years. The amendment also raised the salaries of the judges of the Supreme Court and the high courts. Apparently, prime minister Nawaz Sharif was pretty happy with the judges for not restoring Benazir’s government following the use of the 8th Amendment by president G I Khan.

By 1993, the third victim of the 8th Amendment was in order. The president was not happy with prime minister Nawaz making his decisions and not considering the president as an all-powerful head of state – capable of using the eight amendment once again to send a third prime minister home. As Nawaz asserted his authority and declared that he would not take any dictations, he sealed his fate. In April, the president used the 8th Amendment to strike again at the root of democracy in this country.

During its two-and-a-half years of rule, the Nawaz Sharif government passed the 12th Amendment. After Nawaz Sharif’s removal from office when chief justice Naseem Hasan Shah heard the petition, he went against the use of the 8th Amendment by the president. It is worth recalling that Justice Shah was one of the judges who had confirmed ZA Bhutto’s death sentence nearly 15 years earlier. Nawaz Sharif assumed office again in May 1993 but had to resign when army chief Gen Abdul Waheed Kakar forced both the president and the prime minister to resign in July 1993.

In 1993, Benazir Bhutto assumed office after winning elections under a caretaker government. She appointed Farooq Leghari as the new president of Pakistan, expecting to complete her five year term; this did not happen. In 1994, when chief justice Nasim Hasan Shah retired, she appointed Sajjad Ali Shah as the new chief justice.

Justice Sajjad Ali Shah had opposed the restoration of the Nawaz Sharif government in 1993, and Benazir thought that he would be sympathetic towards her; this never happened as well. As Benazir took him for granted and started interfering in judicial appointment much in the same fashion as her father had done nearly two decades earlier, Sajjad Ali Shah was not amused. Her relations with the president also nosedived, and in November 1996, president Farooq Leghari dismissed her on grounds of corruption and poor law and order. During her three year premiership, she did not introduce any amendments.

In 1997, Nawaz Sharif once again won elections with a controversial two-thirds majority and found himself in a position to do away with the notorious 8th Amendment. In April 1997, the new Nawaz Sharif government moved and passed the 13th Amendment within minutes, by relaxing the usual rules regarding such amendments.

The 13th Amendment undid the powers of the president including 58-2(b), but there were no changes in the religious contents of the 8th Amendment. It is wrong to assume that the 13th Amendment removed the 8th Amendment; it simply reduced the power of the president of Pakistan and transferred them to the prime minister. It deprived the president of Pakistan of his/her powerto dissolve the National Assembly, call for new elections or to dismiss the prime minister. Since the bill got through with a two-thirds majority that the second government of Nawaz Sharif enjoyed, nobody could challenge it. Now only the prime minister had the authority to advise the president on the appointments of chiefs of the armed forces. In addition, only a prime minister could appoint the chairman of Joint Chiefs of Staff Committee and governors.

The amendment also restored reserved seats for women in parliament that the Benazir government had refused in 1989 under the proposed Ninth Amendment Bill. The PPP had stopped the bill while promising to introduce a new one, which it never did. Now the governors of provinces did not have the authority to dissolve provincial assemblies under Article 112(2) of the constitution.

Essentially, the 13th Amendment was not a complete repeal of the 8th Amendment; it simply divested the president and the governors of their discretionary powers. Some democracy-loving people who believed in the supremacy of parliament naively hoped that after the dissolution of the four elected assemblies and the dismissal of the four elected prime ministers in eight years – Junejo (1988), Benazir Bhutto (1990), Nawaz Sharif (1993), and again Benazir Bhutto in 1996 –the 1973 constitution was finally back in place, not counting the religious insertions by Gen Zia.

Almost everyone hoped that a complicated and sensitive constitutional issue had been resolved in an amicable way through consensus. The people of Pakistan anticipated that through the 13th Amendment, a new era of democratic freedom and political stability would usher in. But then Nawaz Sharif went on to become another authoritarian ruler. He and his party had a certain sense of immunity that placed Pakistan on the second worst score in the world on Transparency International’s Corruption Perception Index. A few months later, the 14th Amendment got through parliament. Three months after the 13th Amendment, in July 1997, the second Nawaz Sharif government introduced the 14th Amendment, which subjected members of parliament to fairly strict party discipline by giving party leaders unlimited authority to dismiss legislators who failed to vote per the directions of the party head. This eliminated any chances of a prime minister of losing his office as a result of defections from his party. Even a no-confidence motion could not remove a prime minister if his party members defected or sided with another party. This had both negative and positive implications, as has become evident recently too.

Soon enough, the second Nawaz Sharif government also became increasingly unpopular after these amendments even though it enjoyed a two-thirds majority in parliament.

Nawaz Sharif developed differences with army chief Jahangir Karamat, chief justice Sajjad Ali Shah, and president Farooq Leghari. The country was looking like a civilian dictatorship almost in the same fashion as the country had experienced under ZA Bhutto in the 1970s, of course without the notorious federal security force. The PPP under Benazir Bhutto had taken a big hit during the elections of 1997, and it was still wobbly.

Nawaz Sharif eroded his opposition easily, thanks to his absolute powers and the fact that any no-confidence motion had become impossible after the 14th Amendment. After the Supreme Court appointed five new judges, Nawaz Sharif did not like it and harshly criticized the SC, resulting in a contempt-of-court notice against him. Now the relationship between the chief justice and the PM became pretty bitter; Nawaz Sharif’s partisans stormed the Supreme Court of Pakistan and a judicial machination led by other judges forced the chief justice out of office. President Farooq Leghari – unable to do much – also had to resign from his post in December 1997.

In 1998, the Nawaz Sharif government introduced the 15th Amendment bill, which got through the National Assembly in August but when it moved to the Senate it could not get approval before the coup of General Musharraf. The proposed 15th Amendment included the addition of the new Article ‘2B’ in the constitution and an amendment to Article 239. It sought to impose Shariah as supreme law in Pakistan in accordance with the Objectives Resolution of Pakistan that Gen Zia had incorporated into the main constitution.

The proposed 15th Amendment would have placed the federal government under an obligation to take steps to enforce Shariah. The federal government could take necessary action against any state functionary for non-compliance of Shariah. The same year army chief Jahangir Karamat also had to resign. The 16th Amendment, passed in August 1999, increased the validity of the quota system from 20 to 40 years. Ultimately, the 13th and the 14th Amendments could not save the prime minister when he tried to remove army chief General Pervez Musharraf in October 1999.

To summarize, during the first 26 years of the constitution, there were 13 approved amendments; and three proposed amendments that could not pass through both houses. Of the 13 amendments, seven were passed in the first five years under the ZA Bhutto government from 1972 to 1977.

The 8th Amendment that Gen Zia introduced and imposed was the most devastating and severely hampered the progress of democracy in the country, besides devouring four elected national assemblies. Benazir Bhutto during her two governments – that lasted for less than five years combined – did not pass any amendment. Nawaz Sharif managed to pass the 12th Amendment during his first government and the 13th, 14th, and 16th Amendments during the second government from 1997 to 1999.

After usurping power illegally and unconstitutionally in October 1999, Gen Musharraf sought support to validate his usurpation by appointing himself chief executive of the country.

His proclamation enforced an emergency throughout the country and then he promulgated a provisional constitutional order (PCO). He issued the proclamation as the army chief and suspended all representative institutions; dissolution of the assemblies was done by the order of the self-appointed chief executive of the country. The imposition of these orders lacked any legitimacy as there was no constitutional breakdown necessitating the enforcement of emergency. Gen Musharraf held the constitution in abeyance but did not target the jurisdiction of the superior courts initially. Then he allowed only limited jurisdiction of the courts and limited their functions from examining the actions of the government.

At the opening stage of his military rule, he had allowed the judges of the superior courts to continue without taking oath under the PCO. But when the imposition of the military rule faced a challenge before the Supreme Court, the situation changed and the dictator-led government forced the judges to take fresh oaths in January 2000 under the PCO. It imposed limitations over the rights of the judges to continue with their offices to which they were constitutionally entitled. Judges were not at liberty to take a fresh oath but had to follow the dictation of the self-appointed chief executive of the country.

These limitations deprived the chief justice of Pakistan and other judges of the Supreme Court from their right under the constitution. The credibility and independence of the judiciary was at stake as the option of oath taking itself became a matter of choice with the military government to select the services of the judges of its own preference. The proclamation said that if the new regime did not invite some judges to take oath – or would not take oath under their own will within the time the chief executive fixed – they would cease to hold office.

The then CJ of Pakistan Justice Saeeduzzaman Siddiqui (born in Lucknow in 1939) could have continued for another four years but he refused to take oath under the PCO and resigned. So did Justices Mamoon Qazi, Nasir Aslam Zahid, KR Khan, Wajihuddin Ahmed, and Kamal Mansure Alam. Three of the justices taking oath became chief justices in quick succession from 2000 to 2005: Irshad Hasan Khan, Bashir Jenangiri, and Riaz Ahmed. The oath-taking judges – that new CH Justice Irshad Hasan Khan led – validated the military takeover under the dubious ‘law of necessity’ and granted the new regime authority to amend the constitution.

The military government during the period of emergency promulgated Legal framework Order (LFO) 2002. The order provided for amendment to the constitution almost on the same lines as General Ziaul Haq had done 20 years earlier. The regime introduced significant alterations in dozens of articles of the constitution. These amendments redesigned the political system by making the cabinet and the entire parliament vulnerable to the whims of Gen Musharraf. The military ruler himself became dominant without having a presidential system under the constitution. A National Security Council came into being, with the chiefs of the three armed forces as its dominating members, changing the power structure.

The regime also held elections in 2002 to give the dictatorship a democratic facade. General Musharraf incorporated all the amendments to the constitution in the name of the LFO that had no approval of the new parliament. The unilaterally amended constitution governed the elections of 2002 but then the new parliament refused to recognize the LFO as a legal piece of legislation. The pro-Musharraf ruling party, PML-Q, tried to manipulate parliament with the help of any opposition party to get the required majority. The Muttahida Majlis-e-Amal (MMA), a coming together of some religious parties, cooperated with the government and passed the LFO as the 17th Amendment.

Just like all previous military dictators, Gen Musharraf never entirely depended on political forces for his support, as dictators are helped by their uniforms. The new civilian government was dependent on Gen Musharraf though the PML-Q leaders kept claiming that the dictator had transferred power to them. It is worth recalling that the people who advocated for Gen Musharraf and helped him mutilate the constitution also included lawyers.

Sharif Uddin Pirzada had served all dictators: under General Ayub Khan as attorney general and foreign minister; under General Yahya Khan as attorney general, under General Zia as attorney general and law minister for eight years. While serving Gen Musharraf he was already in his 80s. Aziz A Munshi was a nephew of I I Chundrigar and served as attorney general of Pakistan four times: twice under Gen Ziaul Haq and then under Gen Musharraf. They had a lot to answer for.

In December 2003, parliament passed the 17th Amendment to the constitution of Pakistan that made changes dealing with the office of the president and the reversal of the effects of the 13th Amendment. Gen Musharraf forced the incorporation of the LFO into the constitution much in the same fashion as Gen Zia had through the 8th Amendment in the 1980s. That allowed Gen Musharraf to continue but then in 2005 the situation changed when Justice Iftikhar Chaudhry assumed office as chief justice of Pakistan. By 2007, the general was not happy with the chief justice and filed a reference against him preventing him from functioning.

Then in Nov 2007, Gen Musharraf once again declared emergency, suspended the constitution and issued another PCO forcing all judges of high courts and the Supreme Court to take new oaths. Over a hundred judges including CJ Justice Iftikhar Chaudhry and a dozen Supreme Court judges refused, while Justice Abdul Hameed Dogar followed in the footsteps of Justice Irshad Hasan Khan, taking the new oath and assuming charge as the new chief justice. Those who refused to take oath found themselves under effective house arrest. Justice Iftikhar Chaudhry issued a restraining order but the general overruled him.

Chief Justice Dogar almost immediately declared Chaudhry’s ruling null and void, validating the PCO and the state of emergency. That was the last and the most devastating mutilation of the constitution under Gen Musharraf. Within a year he had to resign and in 2010 the 18th Amendment tried to rectify some of these mutilations.

Now comes the 18th Amendment.

To understand the significance of the 18th Amendment we need to keep in mind at least three earlier amendments: 8th, 13th, and 17th. In addition, the Charter of Democracy signed in 2006 also played a role during the development and drafting of the 18th Amendment.

The 18th Amendment

By Dr Naazir Mahmood

March 25, 2023

To understand the significance of the 18th Amendment we need to keep in mind at least three earlier amendments: 8th, 13th, and 17th. In addition, the Charter of Democracy signed in 2006 also played a role during the development and drafting of the 18th Amendment.

After the devastating nine-year dictatorship of General Musharraf from 1999 to 2008, the constitution of Pakistan was in a bad shape. Just like Maj-Gen Iskandar Mirza, Generals Ayub Khan, Yahya Khan, and Ziaul Haq, Musharraf too wanted to have a presidential veto in almost everything that the parliament or prime ministers did. The abrogation of the 1956 constitution by Iskandar Mirza, the introduction of the 1962 presidential constitution by Gen Ayub Khan, the promulgation of the LFO by Gen Yahya Khan, the 8th Amendment by Gen Zia and the 17th Amendment by Gen Musharraf, all had the same aim.

The second Nawaz-Sharif government, through the 13th Amendment in 1997, tried to undo the 8th Amendment and transferred most of the presidential powers to the prime minister. But within a couple of years the 13th Amendment and the constitution itself became paralysed by a military coup. In 2003, Gen Musharraf forced parliament to pass the 17th Amendment to formally undo the 13th. In 2006, Benazir Bhutto and Nawaz Sharif – leaders in exile of the two largest and most popular political parties – signed a Charter of Democracy and vowed to abide by it.

By 2008, Benazir had lost her life for democracy and Gen Musharraf had to resign after the elections. Asif Zardari assumed office of the president and promised to undo the 17th Amendment through a parliamentary process. In April 2010, the National Assembly removed the power of the president to dissolve parliament unilaterally. From a semi-presidential system, the country once again became a parliamentary republic. Through the 18th Amendment the North-West Frontier Province received its new name, Khyber Pakhtunkhwa, whereas the provinces became more self-governing with more financial and legislative autonomy.

The amendment successfully countered the sweeping powers of the president that Gen Zia and Musharraf had amassed in their office; the then president Asif Zardari was willing to relinquish these powers. It aimed to decrease political instability in the country; it is mainly thanks to the 18th Amendment that the country has now seen three consecutive democratically elected parliaments complete their five years in office.

For the first time, Pakistan has experienced a 15-year spell of democracy, albeit unstable at times. The first democratic spell was for 11 years when Maj-Gen Iskandar Mirza and Gen Ayub Khan terminated in 1958. The second was for five years that Gen Zia aborted in 1977, and the third was from 1988 to 1999 that Gen Musharraf interrupted.

The 18th Amendment reversed many infringements on the constitution, and it was the first time in the history of Pakistan that a president voluntarily gave up most of his powers in favour of the prime minister. The amendment repealed the 17th Amendment and the LFO of Gen Musharraf and lifted the ban on anyone holding the office of prime minister or chief minister for a third time.

Gen Musharraf had done this to prevent both Benazir Bhutto and Nawaz Sharif from becoming prime ministers again as they had held the office twice in the 1990s, albeit without completing their terms. The change would benefit Nawaz Sharif; still the PPP government facilitated it and, in a way, paved the way for him to come back to power in 2013 – that was the beauty of democracy. Now holding the constitution in abeyance became tantamount to high treason. For the benefit of provinces, the Council of Common Interests (CCI) reconstituted with the prime minister as its chairperson; it had to meet at least once in 90 days.

The amendment also restructured the National Finance Commission (NFC) Award. An independent judicial commission would now recommend the appointment procedure of superior judges and a parliamentary commission would decide the final names of judges. Instead of the president appointing the chief election commissioner (CEC), now the amendment required that the treasury and the opposition hold consultations to develop a consensus for the appointment of the CEC. The amendment also established a high court in Islamabad and high-court benches in Mingora and Turbat. For the first time the government constitutionally recognized the children’s right to education by inserting a new section under Article 25A.

The amendment provided a constitutional guarantee that the state will offer compulsory and free education to all boys and girls up to age 16. Over a dozen ministries found themselves mostly devolved to the provinces after the 18th Amendment. These included the ministries of education, culture, special initiatives, labour and manpower, local government and rural development, minority affairs, population and social welfare, sports, tourism, women development, youth affairs, and zakat and usher. The 18th Amendment genuinely tried to improve transparency in the political system and minimize individual discretion, so vital for strengthening parliament and provincial assemblies.

The amendment altered nearly a third of the constitution and its impact was both legally and symbolically significant. It effectively countered the quest for absolute power by not granting the PM or the president all the powers, as previously used to happen. Now it became much harder to weaken parliament and subdue the judiciary, which ultimately Imran Khan tried to do with nearly unconditional institutional support – but failed. The 18th Amendment also attempted to reduce the erosion of civil liberties and political freedoms in the country.

Now targeting political opponents and human rights violations become much more difficult, which again Imran Khan tried with varying degrees of success. That a 27-member Parliamentary Committee on Constitutional Reforms – with Raza Rabbani as chairperson – drafted the amendment, testifies to its democratic credentials. The committee members had a free and frank atmosphere to discuss constitutional matters. They made their decisions based on their constitutional and political expertise rather than the whims of a military dictator who could mutilate the constitution at his discretion and get validation by the courts.

It is pertinent to note that the committee met 77 times and revisited all 280 articles of the constitution of which 102 articles underwent additions, amendments, or deletions. It was an unprecedented overhaul of the constitution, which by all means became a landmark achievement with cooperation from across the political spectrum. The inclusive nature of the process made it the best constitutional exercise in 50 years. The constitution now clearly stipulates that no court has the authority and power to validate any abrogation or subversion of the constitution, which is high treason.

The amendment also increased the number of fundamental rights in the constitution by inserting the right to a fair trial (Article 10A), right to information (Article 19A) and right to education (Article 25A). By transforming centre-province relations, the 18th Amendment redistributed power between the state and its federating unit, as it became a kind of reconciliation between the provincial aspirations and the central government. As the amendment also abolished the concurrent list it expanded the administrative and legislative responsibilities of the provinces. It devolved laws governing contracts, marriages, diseases, educational curriculums, environmental pollution, labour, trade unions, and 40 other areas, to the provinces.

The redistribution of resources enhanced provincial capacity to meet financial burden of new responsibilities by reconfiguring the inter-provincial revenue distribution formula which now considers the level of backwardness and poverty with inverse population density of a province. Unfortunately, the provinces have not been all willing to follow the amendment in letter and spirit, such as their reluctance to establish a local government system and devolve administrative, financial, and political authority to the elected representatives of local governments in accordance with Article 140A

.