A Technical Review of the Constitution (Eighteenth Amendment) Act 2010

Mohsin Abbas Syed, Director, Legislation & Parliamentary Affairs Government of Punjab, Lahore
Published in:All Pakistan Legal Decisions
Year of Publication:2011
Suggested Citation:2011 PLD Journal Section p.14

Constitution reflects aspirations of the people of a society. A citizen owes allegiance to the Constitution. In this sense, Constitution is a social contract between citizens of a State. It is the fundamental law of a nation, which describes the State and the extent of exercise of State authority. Preamble of the Constitution of the Islamic Republic of Pakistan says we, the people of Pakistan.................through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution[1]("#_edn1" "\"\""){#"_ednref1"}. It is peoples' document and the Constitution belongs to the people of Pakistan. This constitutional spirit has been reflected for the first time after the making of the Constitution in 1973, when the Parliamentary Committee on Constitutional[1]("#_edn2" "\"\""){#"_ednref2"} Reforms (Cit. p.15) developed a broader agreement on major constitutional issues. The Committee and especially its Chairman have done a marvellous job in developing the broader political consensus in an otherwise fragmented society.

Inclusion of the fundamental rights of fair trial and due process[2]("#_edn3" "\"\""){#"_ednref3"}, access to information[3]("#_edn4" "\"\""){#"_ednref4"}, free and compulsory education[4]("#_edn5" "\"\""){#"_ednref5"} will go a long way in the progress of the nation. The restoration of parliamentary form of Government[5]("#_edn6" "\"\""){#"_ednref6"}, enhancement of Provincial autonomy[6]("#_edn7" "\"\""){#"_ednref7"}, defence of the Constitution[7]("#_edn8" "\"\""){#"_ednref8"} and reforms in the appointment of Judges[8]("#_edn9" "\"\""){#"_ednref9"}, Chief Election Commissioner and members of the Election Commission[9]("#_edn10" "\"\""){#"_ednref10"} are the notable policy objectives of the reforms introduced through the Eighteenth Amendment Act. The Act is based on these excellent policy parameters but it is not without technical errors. Constitution and its various provisions are frequently cited in various writings and forums of the world. Even a small mistake in the Constitution that may be of a comma or full-stop should not have been an acceptable option. Here are some of the purely technical errors in the Eighteenth Amendment Act which require attention of the Parliamentarians and national leaders.

Modern legislative drafting favours the use of active and not the passive voice in structuring a legislative sentence[1]("#_edn11" "\"\""){#"_ednref11"}0. 'Who does what' should be the basic rule for structuring a legislative sentence[1]("#_edn12" "\"\""){#"_ednref12"}1. The Act predominately uses the passive voice in the structure of legislative sentences. Most of the provision of the Act do not answer the question 'who'. The expression 'provided that' has no clear meaning in the English language and it only confuses the reader[1]("#_edn13" "\"\""){#"_ednref13"}2. Hardly any modern legislative drafter uses this expression and use of separate legislative sentence as exception, condition or explanation brings clarity to the language of the law. This archaic vague legislative expression has frequently been used in the Act. There are about 46 provisos in the 18th Amendment Act.

(Cit. p.16) The laws especially the Constitution reflect the will of the people. They should know the precise date on which a new law or a legal provision becomes operative[1]("#_edn14" "\"\""){#"_ednref14"}3.. If there are provisions in an Act which become operative retrospectively or prospectively, additional of a schedule is a preferred mode for specifying the date of coming into force of that provision. It relieves the law from unnecessary burden of effectiveness provisions written alongside its main provisions. This rule has not been followed in drafting the Eighteenth Amendment Act. The provisions of Articles 59, 63A, 92, 130, 215, 267, 267B, 270B and 270BB unnecessarily burden the Constitution. Some of these provisions will become redundant after passage of requisite time. Repeated use of the words like 'mutatis mutandis, such, said, thereon, thereof, hereby, each, any, every, all etc.' in the Act is also against the norms of legislative drafting as these words are either not commonly understood or do not add clear meaning to a legislative sentence[1]("#_edn15" "\"\""){#"_ednref15"}4. Some of them are part of 'legalese', language of lawyers and Judges[1]("#_edn16" "\"\""){#"_ednref16"}5. Language of this peoples' document should have been as simple as possible.

Clause by clause review of the Act reveals many more errors of drafting. Use of the word 'and' between 'Supreme Court' and 'a High Court' in Article 6(2A) would mean both the Courts jointly and not severally prohibited from validating an act of high treason. The word 'or' should have been the choice of the drafter of the Act to bring clarity in the provision. In Article 63(1)(c), the use of the word 'or' makes a Pakistani disqualified from being elected as member of the Parliament if he has, at any time, acquired citizenship of a foreign State but it does not disqualify a citizen of a foreign State who has become a citizen of Pakistan. If this is declared policy of the Committee then both the persons should have been disqualified. Article 63(3) makes the Election Commission as the only and final arbiter in case of alleged disqualification of a member of Parliament. No provision of even a single appeal is provided against the decision of Election Commission which is contrary to the fundamental norm of fair procedure for determination of rights enshrined in our legal system.

Article 63A(1)(b) does not specify how a Parliamentary Party will issue directions to its members and in the explanation, expression 'political party' should have been used instead of the word 'Party' while defining the term 'Party Head'. These defects in this Article may not achieve the desired objective of eradication of defections in the (Cit. p.17) Parliament. The proviso of Article 91(5) could have been avoided by repealing the law that imposes restriction on the number of terms for the office of the Prime Minister[1]("#_edn17" "\"\""){#"_ednref17"}6. The amendment in Article 122(2) omits proviso without substituting the colon with a full-stop. The Constitution consistently uses the words 'Election Commission' but the drafter of the Act has preferred to write 'Election Commission of Pakistan' in the Article 140A(2). Even the Article 218, under which Election Commission is established, does not call it 'Election Commission of Pakistan' but merely 'Election Commission'. Article 1(2)(b) confines the description of Islamabad Capital Territory to the words 'Federal Capital'. These words are also used in Articles 51, 59, 62 etc. to describe the Islamabad Capital Territory. Use of this description should have been preferred in the amendment in Article 175(1). The terms 'Treasury Benches', 'Opposition Benches', 'Leader of the House' and 'Leader of Opposition' are not defined in the Constitution but used in the Article 175A(10). Two separate sentences with a full-stop have also been combined in this clause which is unusual in numbering separate legislative sentences. In Article 198, name of a High Court has been used like Lahore High Court, High Court of Sindh, Peshawar High Court and High Court of Baluchistan but for the Islamabad High Court, the words 'High Court for Islamabad Capital Territory' have been used. The spellings of the Provinces of Baluchistan and Sindh have been changed in Articles 1, 51, 106 and 246 to 'Balochistan' and 'Sindh' but spelling of the name of these Provinces occurring in other Articles of the Constitution (including Articles 192 and 198) have not been changed.

Amendments in Article 213 uses the terms 'Treasury Benches', 'Opposition Parties' and 'Parliamentary Leaders' without defining them. These amendments do not provide solution in case of a deadlock in the Parliamentary Committee. These have also failed to complete the chain as the appointment of the Chief Election Commissioner has to be made by the President, on the advice of the Prime Minister, but there is no provision that the Parliamentary Committee will forward its recommendation to the President or Federal Government. Similarly, clause (2A) or Article 213 does not bind the Parliamentary Committee to (Cit. p.18) confirm one person from the names forwarded by the Prime Minister in consultation with the Leader of Opposition in the National Assembly. After the amendment in Article 216(2), there will be proviso (a) without (b) or (c). In view of insertion of Article 140A(2), the words 'local governments' should also have been specifically mentioned in the Article 218(1) which provides the purpose for having a permanent Election Commission. The retired Judges of High Courts have been made eligible to be appointed as members of the Election Commission without specifying their term/tenure of appointment and method or manner of removal and resignation. Amendment in Article 218(2) requires incorporation of additional provisions regarding the aforesaid matters. The word 'and' occurring at the end of paragraph (b) of Article 219 should have been omitted if the new paragraphs (d) and (e) are to be inserted.

Amendments in Article 224 disqualify the family members of the care-taker Prime Minister, Chief Minister or member of their Cabinet. This effectively penalizes a person who may not be the beneficiary of the care-taker Government. This could have been avoided by disqualifying the members of care-taker Cabinets to hold the position if any of their family members is contesting the elections during their tenure. The amendments, while making the Prime Minister and Chief Ministers Chief Executives, do not cater for the situation of their absence from office due to any cause like death etc. The President or a Governor can only summon a session of the National Assembly or Provincial Assembly on the advice of the Prime Minister or Chief Minister, as the case may be, even for election of the Prime Minister or Chief Minister. There is no concept of Cabinet without Prime Minister or Chief Minister. This situation also requires to be addressed for the Constitution that works.

Article 267B should have been made part of clause 2 'repeal' instead of inserting the provision in the body of the Constitution. Numerous entries from the Concurrent Legislative List have been transferred to the Provinces by altogether omitting this List. There are number of laws under those entries which exist as Federal laws. These laws provide the territorial extent of the laws as whole of Pakistan. A Provincial Assembly can only legislate for the Province or a part thereof under Article 141 of the Constitution. Similarly, there are repeated (Cit. p.19) references to the Federal Government in these laws. A provision similar to Article 268(4) for adaptation[1]("#_edn18" "\"\""){#"_ednref18"}7 of these laws by the Provinces within a prescribed time period is required to smoothly implement transition of these laws from being Federal to Provincial. Article 270AA(8) only provides the process of devolution of the matters mentioned in the Concurrent Legislative List but does not authorize adaptation of the Federal laws made in pursuance to those matters.

A special procedure for amendment in the Constitution (Eighteenth Amendment) Act has been prescribed in Article 267A. Parliament in a joint sitting may, within one year, effect appropriate changes in the provisions of this Amendment Act through simple majority. It is an unnecessary burden on the Constitution as is operative only for a year and this special dispensation overrides the amendment clause which requires two third majority of the total membership of both the Houses of the Parliament for an amendment to the Constitution. If it is absolutely necessary, a sunset clause for this provision that provides for its automatic omission after 365 days should have been inserted in a section or schedule of the Act. Another option of making this provision part of the Amendment Act and not part of the Constitution is also better than the present provision. In all, the Act is an example of bad drafting that has the potential of defacing image of one of the best policy measures in the constitutional history of Pakistan. It provides great scope for lengthy Court hearings and different interpretations may be for decades to come.

[~1.~]("#_ednref2" "\"\""){#"_edn2"} Last paragraph of the preamble of the Constitution of the Islamic Republic of Pakistan.
[2]("#_ednref3" "\"\""){#"_edn3"} Article 10A of the Constitution.
[3]("#_ednref4" "\"\""){#"_edn4"} Article 19A of the Constitution.
[4]("#_ednref5" "\"\""){#"_edn5"} Article 25A of the Constitution.
[5]("#_ednref6" "\"\""){#"_edn6"} Sections 15, 17, 28, 29, 31, 35, 36, 37, 38, 40, 42, 43 & 46 of the Constitution (18th Amendment) Act, 2010.
[6]("#_ednref7" "\"\""){#"_edn7"} Sections 12, 34, 35, 37, 38, 42, 43, 46, 49, 53, 54, 55, 56, 57, 59, 60, 61, 65 and 101 of the Constitution (18th Amendment) Act, 2010.
[7]("#_ednref8" "\"\""){#"_edn8"} Sections 4 of the Constitution (18th Amendment) Act, 2010.
[8]("#_ednref9" "\"\""){#"_edn9"} Sections 67, 68, 69 & 74 of the Constitution (18th Amendment) Act, 2010
[9]("#_ednref10" "\"\""){#"_edn10"} Sections 77 & 80 of the Constitution (18th Amendment) Act, 2010.
[10]("#_ednref11" "\"\""){#"_edn11"} at pages 238 & 273 Legislative Drafting for Democratic Social Change: A Manual for Drafters 2004 edition by Ann Seidman, Robert B. Seidman and Nalin Abeysekere.
[11]("#_ednref12" "\"\""){#"_edn12"} ibid, at pages 234-237.
[12]("#_ednref13" "\"\""){#"_edn13"} ibid, at page 249.
[13.]("#_ednref14" "\"\""){#"_edn14"} at page 323, Legislative Drafting for Democratic Social Change: A Manual for Drafters 2004 edition by Ann Seidman, Robert B. Seidman and Nalin Abeysekere..
[14]("#_ednref15" "\"\""){#"_edn15"} ibid, at pages 240 & 274.
[15]("#_ednref16" "\"\""){#"_edn16"} ibid, at page 274.
[16]("#_ednref17" "\"\""){#"_edn17"} The Qualification to Hold Public Offices Order, 2002 (Chief Executive s Order No.19 of 2002).
[17]("#_ednref18" "\"\""){#"_edn18"} Adaptation order is a device historically used for adaptation of laws after distribution or redistribution of powers. Section of the Government of India Act, 1935 provided for issuance of adaptation order due to federal structure of the Act. Section 18 of the Indian Independence Act, 1947 envisaged adaptation order for new Dominions. Article 224 of the Constitution of Pakistan, 1956 protected the existing laws subject to necessary adaptation. Article 225 of the Constitution of Pakistan, 1962 provided for the adaptation of the existing laws by the President and the Governor of the Province in relation to the Federation or the Province respectively. Article 19 of the Province of West Pakistan (Dissolution) Order, 1970 also envisaged adaptation of laws. Article 268 of the Constitution of the Islamic Republic of Pakistan provides for adaptation orders and the adaptation orders have been made in 1975.

© 2020 PakistanLaw.pk, All rights reserved.