Tag Archives: 18th Constitutional Amendment

Supreme Court’s earlier judgement and the 18th amendment case

Faisal Naseem Chaudhry

The 18th Amendment case is likely to conclude soon and it is quite probable (courtesy of remarks of the Honourable Judges) that the SC may strike down a constitutional amendment finding it contrary to Independence of Judiciary; in other words finding it contrary to the ‘Basic Structure of the Constitution’.

Pasted below are some excerpts from a Five Member Bench Judgement of the SC delivered on 13 April 2005. The Judgement is known as Pakistan Lawyers Forum vs Federation of Pakistan and through this cluster of different petitions, the constitutionality of 17th Amendment was challenged before the SC. One of the grounds was that the 17th Amendment was violative of the Basic Structure of the constitution. As stated earlier, it was a Five Member bench and the then two members are still members of the Full Bench of today i.e. Chief Justice Iftikhar Chaudhry and Justice Javed Iqbal.

President Musharraf’s Uniform / Dual Office quite analogous to President Zardari’s Dual Office was also challenged in the same petition, and dismissed accordingly, but since that is not the subject today, so that part of SC’s wisdom as to how it handled that question in 2005 is ignored at this point of time to be discussed in future.

The five member bench in 2005 dismissed the petition and upheld the 17th Amendment. The court held that the Indian Doctrine of Basic Structure of the Constitution has never been accepted in Pakistan’s judicial history; and that the Court can strike down a Constitutional Provision only if it is not passed in accordance with the procedures provided by the Constitution itself. Once an amendment is passed, it is left to the wisdom of the Parliament which passed it to change it in future according to the aspirations of the people of Pakistan. Continue reading

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Pakistan: Clear and present danger

Raza Rumi

If the parliament and judiciary want to continue exercising their newfound powers, they have no option but to act strictly within the framework of the Pakistani Constitution

Pakistan is a surreal country. Only here we have long, protracted struggles for democracy and only here we are almost always ready to scuttle democracy. Perhaps Iskander Mirza was not all too wrong while making the assessment that democracy does not suit the genius of our people. An added qualification is that it does not suit the genius of the elites, in particular the unelected institutions of the state.

There is now a clear and present danger that the judicial review of the 18th Amendment will lead to a potential clash of the key organs of the state: the legislature and the judiciary. Pundits have also predicted that if such a situation arises, then a logjam will benefit the third force — Pakistan’s well organized formal institution, which is readily available to undertake crisis management. Perhaps such fears are slightly exaggerated and misplaced. But the reality is that Pakistani history teaches us some interesting though unsavoury lessons.

Curse of history

The Constitution of 1956 was drafted, almost after a decade of the new country’s formation, as the elites were not interested in changing the colonial structure of the state and its institutions. After much negotiation and a bit of arm-twisting, parity between the Eastern and the Western wings was achieved to finalise the basic law. However, the 1956 Constitution could not be enforced let alone implemented, as new elections were a risk for the national security establishment, which took charge of the country in 1958. The second moment arrived in 1970, when a political consensus arrived through election with divisive results, was once again scuttled by the unelected institutions and the West Pakistani elites. The results were tragic. 1977 was a third moment when the Bhutto administration and PNA movement agreed on a workable package for the future course of politics in the country. Even before this accord could reach the public domain, the Islamo-fascist General took the reins of power and thwarted the political consensus. There is a clear lesson here: a political consensus — wide-ranging, legitimate and inclusive — is a threat to the post-colonial state and the inherent contradictions of the Pakistani polity come into play the moment such compacts are arrived at. Continue reading

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Filed under Constitution, human rights, Judiciary, Justice, Law, lawyers movement, Media, minorities, Pakistan, Politics, public policy, Rights, secular Pakistan, Society, state

It is not perfect, but it is still a historic Constitutional Amendment

Daily Dawn Editorial, Published April 09, 2010

http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/editorial/historic-940

They’ve done it. Proving all the naysayers wrong, dismissing all the conspiracy theorists, rejecting all those who would be spoilers, the National Assembly of Pakistan has approved a constitution that for the first time in decades will have the broad support of the people’s elected representatives.

Such was the bonhomie in the house yesterday that regular watchers of parliament may have rubbed their eyes in disbelief: was that really Chaudhry Nisar, leader of the opposition, the PML-N attacker-in-chief, a seemingly perennially angry man, praising the PPP co-chairman, President Asif Ali Zardari? Yes, it was. It was that kind of a day. A historic day in Pakistan’s parliamentary history, one that the MNAs deserve a heartfelt thanks for.

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Filed under Democracy, Islamabad, Jinnah's Pakistan, Liberal Democratic Pakistan, Pakistan, Yusuf Raza Gillani, Zardari

Highlights of the 18th Constitutional Amendment

Posted by Raza Rumi

* Amendment to Article 6 seeks to pre-empt military coups in future
* Article 58(2b) to be repealed, substituted with ‘Dissolution of National Assembly’
* President may dissolve NA in case no-confidence vote passed against PM
* Total strength of cabinet should not exceed 11% of total membership of parliament
* Governor should be a resident and registered voter of his/her province, he/she would be appointed by president on prime minister’s advice
* Provinces required by law to establish local government systems, devolve political, administrative and financial responsibility and authority to elected representatives
* PM to be chairperson of CCI, members to include CMs, 3 members from federal govt
* Amendment to Article 157 says federal government must consult provincial government before installing hydroelectric power stations in any province
* PM to forward three names for office of CEC, in consultation with opposition leader in National Assembly, to a parliamentary committee for confirmation
* Committee proposes insertion of Article 175(a) to deal with appointment of judges to Supreme Court, high courts, Federal Shariat Court
* Committee proposes substitution of Article 243, says federal government ‘shall have control and command of armed forces, supreme command of armed forces shall [rest with] … president’
* President to appoint Joint Chiefs of Staff Committee chairman, chief of army staff, chief of naval staff, chief of air staff
* NWFP will be renamed ‘Khyber-Pakhtoonkhawah’
* State will provide free, compulsory education to children aged between 5 and 16 years Continue reading

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