Revisiting the 18th Amendment

May 02, 2010

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A BILL goes to the president after the two houses of parliament have passed it and it becomes an act when he signs it. The same happens with any constitutional amendments that parliament may have adopted. That is normal legislative procedure.

A couple of weeks ago the two houses of parliament, each with a unanimous vote, passed the 18th Amendment, which had the effect of repealing the 17th Amendment. In addition it incorporated numerous changes in the existing constitution proposed by a parliamentary committee. The 18th Amendment divested the president of all his executive authority and made him a ceremonial head of state. The president may now only act on the prime minister's advice.

The amendment in question went to the president for his signature. He could have signed it when it arrived at his desk and returned it to the official concerned. That is not what President Zardari did. He converted his signing of the amendment into a grand and lavish ceremony. Scores of persons — including the four provincial chief ministers and their associates, members of parliament, opposition leaders such as Nawaz Sharif, PPP dignitaries and other notables — were invited to witness the event. All this was followed by dinner which must have cost the exchequer a hefty sum of money.

He went for this lavish spending in spite of the fact that there was nothing in the amendment for him to celebrate on a personal level. His supporters may say that he wanted to place parliamentary government on a firm footing which this amendment did. He therefore did not mind the personal loss of power that it entailed. It should, however, be noted that while he has lost power as president, he continues to wield enormous influence in the management of public affairs because of his position as head of the PPP, the party that rules at the centre.

The adoption of the 18th Amendment was a historic event. Congratulations for this accomplishment are owed to parliament, which passed it unanimously, and not to Mr Zardari who had little, if anything, to do with its initiation and subsequent passage.

In spite of the amendment's generally acknowledged merits, sceptics are not entirely wanting. Abdul Hafeez Pirzada says the Supreme Court is likely to strike it down, because it transgressed the country's basic constitutional structure. In my view this interpretation is not viable. The basic structure he is referring to consists of an elected president with specified authority and functions, a parliament and an independent judiciary. It provides for elections at various levels of government, which individuals and political parties may contest. It specifies the distribution of powers and functions between the federation and the provinces. The 18th Amendment does not change any of this.

Some observers feel that the amendment goes to excess in providing for provincial autonomy, and that the provinces are not administratively equipped to exercise all the powers that have devolved upon them. If it transpires that they cannot exercise all their new powers, I imagine they can delegate the ones they cannot discharge to the central government. Alternatively, their administrative capabilities can be made commensurate with their new responsibilities by transferring relevant experts from the centre to provincial governments.

Some observers complain that the amendment detracts from the judiciary's independence and makes for a confrontation between the judiciary and parliament by giving a judicial commission and a parliamentary review committee a role in the appointment of judges. This is a complex issue that needs to be handled with care. According to the procedure followed to date, the Chief Justice of Pakistan proposes to the president names of individuals deemed fit to be appointed as judges. His recommendations are virtually binding on the president. This procedure works well, and I see no reason why it should not remain in effect.

Some observers object that since members of parliament do not elect other members, judges should also not be allowed to appoint fellow judges. This is fallacious reasoning. Parliament consists of the people's chosen representatives. A person can be its member only if the people have elected him to that station. Judges on the other hand do not represent the people and they are not accountable to them. They serve the public interest by acting as guardians of the rule of law and as enforcers of the supremacy of the constitution. But they are not the people's appointees. That which is right for members of parliament cannot be the norm for judges.

The Supreme Court has said more than once that there need not be any collision between the various organs of the state if they stay within their own prescribed bounds and abstain from transgressing the domains of others. These organs may have interlocking contacts but they do have their distinct identities and spheres of authority and functions. There is a common misunderstanding in this regard that needs to be removed. The idea of the separation of powers belongs to a presidential system such as the American. A parliamentary system is one of fusion, not separation, of powers.

The judiciary does indeed stand apart from the other two organs of the state. But that is not the case with the executive and the legislature. Here the ruling authority vests in parliament. If thieves and robbers walk free, it will be reckoned ultimately as parliament's failing. But since the National Assembly, a body of 342 members, cannot go out to catch them, it appoints a smaller committee of its members to make arrangements to catch and prosecute them. That committee is called the cabinet, headed by a prime minister. It is also known as the government of the day.

A conflict between the judiciary and the executive may already have surfaced. The impression is spreading that Prime Minister Gilani's government is reluctant to implement some of the Supreme Court's orders. It may not publicise its unwillingness.

It will more likely say that it does not have the means, in terms of the requisite funds and personnel, to fully implement the court's decisions. There is not much that the court can do to change this situation. Its verdicts will then remain dysfunctional and inconsequential. To a significant degree ours is a government of men, not of laws.

The writer is professor emeritus at the University of Massachusetts and a visiting professor at the Lahore School of Economics.

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