Historic Indeed – by Battar Sattar

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The writer is a lawyer based in Islamabad.

Our nation has grown accustomed to receiving even delightful news with suspicion, if not disbelief. But the 18th Constitutional Amendment that proposes significant changes to our Constitution and our polity is probably the most momentous event in our contemporary history that deserves to be celebrated without cynicism. This is not simply a move to restore the Constitution of 1973 to its original form or transfer powers usurped by dictators back to the prime minister. It introduces normative, substantive and procedural changes to our fundamental law that will heal and strengthen the Constitution and provide a more sustainable framework to strengthen the relationship between the three institutional pillars of the state, the federating units and the centre, as well as the citizen and the state.

We must also acknowledge our measly approach to attributing credit. In this particular case our entire elected political class has won commendation. How can there be no legitimate disagreement when parliament sets out to undertake a task as Herculean as introducing 101 amendments to the Constitution? The unanimous agreement on the 18th Constitutional Amendment Bill is thus no mean achievement. It was not for Asif Zardari to surrender his presidential powers but for parliament to reassign them exercising its constitution-amending authority. Nevertheless, the draft amendment bill could never have seen the light of day had Mr Zardari decided to sabotage it using his authority and discretion as head of the PPP.

The PML-N had started out calling for immediate repeal of the 17th Amendment and was less interested in addressing the subject of provincial autonomy together with erasing Musharraf’s legacy. But it relented and agreed to discuss the repeal of the 17th Amendment and augmentation of provincial autonomy through the same constitutional amendment. While Nawaz Sharif’s press conference over the issue of judicial appointments and renaming of NWFP could have become a spoiler, sanity prevailed all around. The PPP, the ANP and the MQM refrained from mudslinging and name-calling, the PML-N backed off from an extreme position, and the overall spirit of consensus-oriented negotiations within the Parliamentary Committee for Constitutional Reform prevailed. The ANP agreed to a hyphenated name for NWFP in acknowledgment that many who comprise the province are not Pashto-speaking. The MQM might have wanted a smaller federal legislative list along with the dissolution of the concurrent list, but agreed to take one step at a time.

Each member of the PCCR deserves credit along with the leaders of their respective parties who afforded them the autonomy to agree to such wide-ranging amendments, amidst a national political environment that is rife with constant strife and a party culture that is extremely autocratic. But if ever an individual can be claimed as indispensable, it would have to be Raza Rabbani for seeing the 18th Amendment through. One cannot think of any other person within the fold of the ruling party who has the ability, sagacity, probity and calm (almost stoical in nature) to shepherd a process that demanded constant application of all these leadership qualities. Asif Zardari’s injudicious opposition to Senator Rabbani’s elevation as Senate chairman has turned out to be a blessing in disguise for this nation. Imagine the pits we would have been in had a Farouk Naik (author of the PPP’s judges’ restoration debacle) been in charge of the PCCR!

Coming back to the content of the 18th Amendment, it must be reiterated that a constitutionally weakened Zardari or the ability of Nawaz Sharif to get elected prime minister for a third time are by no means the most significant aspects of this bill. As a normative measure this amendment proposes to heal the injured morality of our Constitution – not religious morality as the word ‘morality’ is widely understood to imply, but removal of contradictions introduced into the text by khaki usurpers. In this regard the amendment of Articles 6 and 270 are noteworthy. Article 6 will explicitly prohibit judges from validating or justifying unconstitutional interventions into the working of an elected civilian government. And Article 270 will clarify that unconstitutional actions of dictators purportedly endorsed and underwritten by self-serving judges were never valid.

It is arguable that these changes might mean little to an adventurous khaki overwhelmed by the ‘saviour’ instinct. But removal of validation clauses that justified ‘extra-constitutional’ changes to the Constitution cleanses our fundamental law and makes it internally integrated. The 18th Amendment further introduces certain procedural or clean-up changes. These are too numerous to be recounted here. But inclusion of strict time frames for deciding the issue of disqualification of a member of parliament or limiting the size of the cabinet are examples. The PCCR has attempted to introduce various commonsense amendments into the Constitution that regulate the discretionary authority vested in holders of various constitutional positions liable to be abused and capable of fermenting political crises.

The substantive changes merit detailed comment and can’t even be listed here exhaustively. But if one were to identity the four most consequential, they would be (i) introduction of the fundamental right to education, (ii) move towards realising the promise of effective provincial autonomy, (iii) strengthening the independence of judiciary and (iv) transferring discretionary powers of the president back to the prime minister. The new Article 25A obliges the state to provide free and compulsory education to all children between ages five and fifteen. This is by itself an epochal change marking an overdue yet necessary first step to unlock the potential of Pakistan’s youth. In a country with half the population below the age of 18, genuine and effective budgetary and administrative measures to ensure that each and every citizen receives free high school education could foster a social revolution.

To further provincial autonomy, the 18th Amendment proposes to enhance the fiscal, administrative and legislative authority of the federating units. By erasing the concurrent legislative list, granting provinces greater control over their natural resources and proceeds, enhancing the role of the Senate and the Council of Common Interests, making it harder for the president to clamp emergency rule over a province and requiring that governors be residents of their respective provinces, the PCCR has begun implementing the promise made to provinces in 1973 and rejected the doomsday predictions of ensuing chaos due to a loosening of the centre’s control. How effectively provincial assemblies will use the exclusive authority to write laws on subjects listed in the concurrent list (which they previously shared with the centre) is debatable. But this change was essential symbolically as the demand for greater provincial autonomy in Pakistan had become tied to abolition of the concurrent list.

The PCCR had paid attention to practical matters by (i) including some concurrent list subjects within Part II of the federal legislative list, (ii) enhancing the role of the Council of Common Interests in relation to subjects of shared legislative interest between the centre and provinces, (iii) protecting existing federal laws related to concurrent list subjects, and (iv) appointing an Implementation Commission to oversee the transition over the next year. But there is no doubt that with empowerment comes responsibility. The provinces will have greater control over their fate and fortune. But they will need to quickly acquire the ability and the mindset to optimally exercise their legislative and administrative authority to protect and benefit their citizens. Otherwise the gap in the quality of life afforded to residents of various provinces could increase instead of narrowing.

And in this regard the role of the Implementation Commission will be crucial. The transfer of authority from the presently bloated federal government to the provinces is a huge administrative and legislative project, which will require introduction of new provincial departments and new and amending legislation. To guarantee that the promise of provincial autonomy doesn’t turn sour, the Implementation Commission must be appropriately empowered and headed by someone as fair-minded, diligent and capable as Raza Rabbani.



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