18th Amend: Need to discern potential operational problems

LAHORE - Former President Asif Zardari has involved the 18th Amendment in the investigations against him, thus making it clear that some sections see a problem with the 18th Amendment, making it appropriate to revisit it, particularly the former power of the President to dismiss the government.

Two factors require revisiting it: first, that it has been in operation for some time, and thus it is possible to discern potential operational problems, and second, that the Pakistan Tehreek-i-Insaf (PTI) has come to office for the first time, and might need to revise the provisions of the Constitution. Though the PTI has not indicated that it wants any changes in the Constitution, it would be counter-intuitive to expect as much tabdeeli as the PTI has promised, without some constitutional revision.

Such a revision has been ruled out by Federal Information Minister Fawad Chaudhry, but apart from the exigencies created by the PTI’s experience of office, the feelings of its military backers have to be kept in mind. One of the big differences made by the 18th Amendment was it abolished the President’s power to dissolve the National Assembly, first introduced in 1985 as part of the Eighth Amendment, but which was first abolished, and then reintroduced by the 17th Amendment, which led to the lifting of the Musharraf martial law.

The presidential power of dissolution was viewed by the military as an essential ‘safety valve’, but by civilian politicians as unwarranted interference by the military in politics. The President was seen as the guardian of the military, first under Ziaul Haque (and later Musharraf), by virtue of being COAS, and under Ghulam Ishaque Khan and Farooq Leghari as the commander-in-chief with the power of appointing the service chiefs in his discretion.

The use of this ‘safety valve’ meant that while martial law was not imposed, governments were dismissed by the President. Between 1988 and 1997, no less than four governments were dismissed by the President, and elections held in which the outgoing government was heavily disadvantaged. The abolition of the safety valve led to the imposition of martial law in 1999, and now, even with the 18th Amendment having abolished that power, the military continues to play a behind-the-scenes role, and it was widely accused of arranging for the dismissal of the Nawaz government, and for the backing of the PTI which saw it achieve office.

Another major impact of the 18th Amendment was the reduction of the role of the federal government by virtue of the devolution of powers to the provincial governments. Ancillary to this was the change of name of Khyber Pakhtunkhwa and the spellings of Balochistan and Sindh. There has been some complaint against this, particularly where it seems the provinces lack the capacity to exercise the devolved powers. The effect of devolution may have upset centralisers, who believe the centre should monolithically control all aspects of government, with the provinces merely acting as implementing agencies, as was the case under the British Raj.

It removed the name of General Zia from the Constitution, as well as indemnities to previous martial laws. Abolition would mean restoration, which would be a re-introduction of a deviation.

One reason why Zardari might be so sensitive about the 18th Amendment is that it was the fruit of his first spell in government, and apart from being the product of the consensus of all parties, was touted as a restoration of the Constitution to its original 1973 form. That Constitution was arguably that Parliament’s most lasting legislative achievement. It should also be kept in mind that the 18th Amendment was made possible only because the then government assembled a majority to pass it, not just in the National Assembly, but also the Senate. An attempt to repeal the 18th Amendment by the PTI government may see it produce the requisite two-thirds majority in the National Assembly, but it does not have even a simple majority in the Senate, let alone the needed two-thirds majority. It will not achieve that majority in the Senate even in 2020, when the next elections take place. The PPP will thus remain crucial to any constitutional amendment.

If nothing else, the importance of the ‘safety valve’ idea to the PTI’s military backers should be recognised. Considering that the military has been involved in the drafting of constitutions at least since 1962 (when Gen Ayub Khan promulgated a Constitution), and considering the persistence of the ‘safety valve’ (the presidential dissolution power) in the Eighth and 17th Amendments which were passed to end martial laws, it would be too much to expect the PTI not to introduce the idea.

If it does so, it would pass an important barrier. So far, political opinion has been unanimous in rejecting the ‘safety valve’. Even handpicked PMs like Muhammad Khan Junejo and Zafarullah Jamali were not happy about having it. The PTI would be the first party to take the concept on board, even though its government would perhaps be the first target of that provision.