Constitutional adventures

Reviewed by Muhammad Ali Siddiqi |  | 2 days ago

THE 18th Amendment will go down in Pakistan’s history as the most important piece of constitutional legislation enacted by the National Assembly elected in 2008. In one go, it did away with decades-old “impurities” which, in the words of Raza Rabbani, the author of A Biography of Pakistani Federalism: Unity in Diversity, had been injected into a constitution that was uncompromisingly federal and parliamentary when it was unanimously passed by the National Assembly on April 10, 1973. As it stood in 2008, though, it was neither federal nor parliamentary, so mutilated it had been by the changes made by decree by General Ziaul Haq and General Pervez Musharraf and, more regrettably, validated by an obliging judiciary.

Musharraf’s ‘task’ was less egregious, because some of the amendments made by Zia were still there when he took over in October 1999. His changes were, therefore, on the periphery and aimed at creating a quasi-democratic system in which his rule would be absolute. There were some progressive moves, like the abolition of separate electorates, but he revived, with some modifications, some of Zia’s obnoxious articles, such as 58-2b.

Zia’s amendments were both sweeping and numerous and aimed at creating a fascist polity with a parallel ‘religious’ judiciary to turn Pakistan into a theocracy. In this system, the prime minister held office at the president’s pleasure, with the government and the assembly vulnerable to dissolution at the president’s discretion under article 58-2b, even if the prime minister commanded the house’s confidence. More important, the powers of the federating units were crippled, thus striking at the very roots of federalism.

In the spring of 2008, Senator Rabbani was elected chairman of the Parliamentary Committee on Constitutional Reforms, and was charged with the momentous task of removing the dictators’ legacy and restoring the constitution to its original federal, parliamentary character as visualised and piloted through the National Assembly by the man behind it, Z. A. Bhutto.
Established on June 23, 2009, the 27-person committee represented all political parties, including those who had boycotted the 2008 election, and finally came up, after about 10 months of laborious work, with almost unanimous recommendations, which the National Assembly approved on April 8, 2010.

The book is an insider’s story of the 18thamendment — from its visualisation by President Asif Ali Zardari in his address to the parliament, to the labour that went into scrutinising controversial clauses numbering over 100, preparing and agreeing on 62 pages of constitutional hair-splitting, its passage by the parliament and the presidential assent. Rabbani justly titles it “a biography” of Pakistani federalism as the book, which actually means Rabbani himself, was “witness to the historic […] moments of Pakistan’s constitutional history”.

The committee overhauled the constitution, going through the amendments article by article, with attention to details like where an “and” or an “or” or a comma or semicolon could mutilate the intended effect. Chapter 10, “The Constitution Defaced,” gives article by article details of the changes made by Zia and Musharraf, while Chapter 12, “Reclaiming Our Constitution,” details the undoing of the aberrations and the restoration of basic law to its original character. Each article is produced twice — as “prior” and “18th Amendment” — to highlight the difference which the new amendment made. According to Rabbani, the 18th Amendment is a milestone in Pakistan’s constitutional history because it restored provincial autonomy, abolished the concurrent list and transferred areas such as education, social welfare, labour, health, livestock and tourism to the federating units. It abolished the 17th Amendment, which had given protection to the Musharraf-era laws, and recast the method for the appointment of the three services chiefs and the judges of the higher judiciary, thus giving back to the prime minister the powers which had been snatched. (The Supreme Court returned the 18th Amendment to parliament with some objections, which were accommodated in the19th.)

A Biography of Pakistani Federalism is more than the story of the 18th Amendment for it has the potential to serve as a textbook for students of our constitutional history. It dwells on the constitutional and extra-constitutional processes that went into the doing and undoing of the constitutions and contains facts not available to the lay reader. As a scholar of constitutional law, Rabbani traces the roots of federalism in South Asia, reviewing various federal schemes under the Raj — the Montague-Chelmsford Reforms (1919), the Government of India Act (1935), Jinnah’s 14 points (1929), events leading to the Pakistan Resolution (1940), the various constitutional proposals by the Muslim League and Congress, the Cabinet Mission plan (1946) — the history of constitution-making after independence, the salient features of the 1956 and 1962 documents, and efforts that went into the framing of two (1972 and 1973) constitutions in three years.

Rabbani is categorical on one point: Pakistanis must abandon “the wrong-headed philosophy that a strong centre is the guarantee of a robust Pakistan”. He insists that it is by strengthening the provinces “that we will ensure a stable federation”. He gives credit to President Zardari, who, “in contrast to his predecessors, abdicated the powers of his office to the parliament”. As Rabbani points out, this is the first parliament in Pakistan’s history which didn’t approve a dictator’s instruments. Without political, social and fiscal federalism, Rabbani says, Pakistan will remain “a mere bonsai tree”, and likens his book to a “journey into participatory federalism through the vehicle” of the 18th amendment.

Some minor corrections need to be made in the next edition: Pakistan Resolution was passed on March 24, 1940, and not March 23 (p27), and the Rawalpindi conspiracy case occurred not during Ayub Khan’s era (p105) but in 1951 when Liaquat Ali Khan was prime minister. Also, the book has no index. At the same time, the full text of the Charter of Madina in English is a rarity and adds to the book’s value. On the whole it is a scholarly work by the man behind the 18th Amendment.

A Biography of Pakistani Federalism: Unity in Diversity
By Raza Rabbani

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