A brief history of our constitutional amendments
The smokescreen of the month has come in the form of a new debate on Ahmadis. The architect of the current controversy, quite predictably, has been the N-League, which is in a league of its own when it comes to obscurantism and intrigue. The issue was of course settled back in 1974 by the 2nd amendment, which through Art. 260 declared Qadianis and Lahoris non-Muslims, and therefore part of the minority community. It seems that this nation is condemned to ‘revisit’ the same old issues over and over. The 2nd amendment notwithstanding, the history of our constitutional amendments, too, has mostly been about revisiting the same issues again and again. Let’s take a cursory look at this ‘evolution’:
The 1973 constitution was passed, quite appropriately, in 1973; and there have been many amendments to it since. The 3rd (1975), 4th (1975), 5th (1976), 6th (1976), 10th (1987), 16th (1999), 19th (2010), 20th (2012), and 22nd (2015) amendments, being mainly procedural and/or boring, don’t help take our story forward or backward (or in any other direction for that matter), so let’s focus, albeit summarily, on those with some ‘action’.
The 1st amendment (1974) was forced upon the nation as soon as the constitution was passed. In fact, Bangladesh was already a reality when the constitution was being debated – only we recognised it in 1974. In addition to some other adjustments, the 1st amendment mainly redefined the territories constituting Pakistan. The 7th amendment (1977), through insertion of Art. 96A, gave the prime minister the option to take a vote of confidence directly from the public through a referendum. It was later removed.
The 8th amendment (1985), by giving the president (read Zia-ul-Haq) power to send the national assembly – and through governors – the provincial assemblies packing, tilted the balance heavily in favor of the president. The amendment also rendered, in back-date so to speak, all previous acts by the Zia regime (the Martial Law, the dissolution of assemblies, the holding in abeyance of parts of the constitution, the referendum, the ordinances, etc.) legal, notwithstanding a judgment from any court. It also had the infamy of quite literally adding Gen. Zia’s name to the constitution
The 13th amendment (1997) reversed the 8th amendment by stripping the power of the president to dissolve the assemblies. The 14thamendment further strengthened the PM by declaring the act of defection ground enough for disqualification of a member. Defection included abstaining or voting independently of the party decision. Rampant horse-trading therefore gave way to authoritarianism of the worst kind. The 17th amendment (2003) reversed the evils of the 13th by cutting the prime minister down to size yet again. Musharraf took this opportunity, as Zia had before him, to get his Martial Law and subsequent orders, proclamations, etc. validated by the supreme institute of the land. The 18th amendment (2010) reversed the wrongs of the 17th by restoring the prime minister’s powers yet again. Steps were also taken to safeguard the provinces’ fiscal autonomy. Other salient features were NWFP being renamed Khyber Pakhtunkhwa; Baluchistan respelled Balochistan; and Sind, Sindh. Zardari didn’t have the numbers but he got Sharif to cooperate in return for removing the two-term limit for becoming PM. Sharif could not be prevailed upon to agree to the removal of the sadiq and ameen clauses of the constitution – he preferred to have those hanging over Zardari’s and Khan’s heads.
The 12th amendment (1991), which ceased to be a part of the constitution after the expiry of three years, established special courts for speedy trials for heinous offences. The 21st (2015) and 23rd amendment (2017), valid for two years each, established military courts for terrorism related crimes. The last has been challenged in the Supreme Court on grounds of violation of fundamental rights. The fundamental rights in Pakistan of course include the right of every citizen to a trial that runs for at least 20 years. The good news is that terrorists apart, the rest of the citizenry will likely continue to avail of this right.
Some ‘failures’: Zia had of course been the de-facto Ameerul momineen since deposing Bhutto, but he was apparently not satisfied with the quality of his momineen. In 1985 he tried to make Shariah the supreme law of the land; and although the 9th amendment was passed by the Senate, it could never be presented to the National Assembly. Zia was running the country as he pleased anyway, so it wasn’t much of a setback. In 1998, Sharif, true to his promise of completing Zia’s mission, introduced the 15th amendment bill, which ‘empowered the government to take necessary steps to enforce Shariah’. Sharif went one step farther than Zia. Art. 239 (3A-D) allowed a constitutional amendment with a simple majority, provided the matter pertained to ‘removal of any impediment in the enforcement of Shariah’. The bill met the same fate as Zia’s (only this time it was passed by the NA but could not pass the Senate). Finally, the name that is conspicuous by its complete absence in the above ‘evolution’ has been Benazir Bhutto’s. Unlike Zia, Musharraf and Sharif, she never got the ‘mandate’ to bulldoze her favored amendments into the sacred document.
