“Impossible is made possible!” intoned Prime Minister Yousuf Raza Gillani, now the most powerful person in Pakistan, in jubilant reaction to the National Assembly’s passing of the 18th Amendment to the Constitution, on 8 April. A week later, the amendment, which includes 95 changes, received a near-unanimous vote by the Upper House, after the Parliamentary Committee on Constitution Reforms had sat for a staggering 77 meetings and 385 hours to reach consensus among 15 political parties. Yet with President Asif Ali Zardari finally signing the amendment, that long-drawn-out process has seemed worthwhile. Now, the 18th Amendment is set to dramatically curtail the powers that had been amassed by the presidency after General Zia ul-Haq overturned the 1973 constitution. Pakistan’s legislature is thus set to regain its rightful position as the country’s most powerful branch of government, doing much to re-democratise the country after decades of military governments have taken their toll.
With these changes, key powers have been given back to the office of the (elected) prime minister, the position of which had been weakened through previous amendments aimed at strengthening the presidency. On paper, of course, the Pakistani state has always remained a parliamentary set-up; but on the ground it has long been presidential in form, as all key constitutional powers were in the hands of the president. Most particularly, these included the ability to dismiss the government, and to appoint both the heads of the armed forces as well as provincial governors. The president will no longer have the right to unilaterally dismiss Parliament, a ‘right’ that was originally included in the Eighth Amendment by Gen Zia, then removed by Prime Minister Nawaz Sharif in the 13th Amendment, and finally put back by Gen Musharraf during the last amendment exercise, in December 2003. Indeed, the new bill is the first in more than three and a half decades to empower Parliament at the cost of the presidency – during which time, importantly, Pakistan also became a nuclear-capable country.
Of the changes, one of the more controversial was the renaming of the Northwest Frontier Province (NWFP) as Khyber Pakhtunkhwa. This had long been a central demand of the Pashtun-nationalist Awami National Party, and the Pakistan People’s Party (PPP) of the late Benazir Bhutto (as well as the current president and prime minister) eventually supported its important coalition partner. The move is ostensibly an attempt to distance modern-day Pakistan from the remnants of Raj-era terminology, with ‘Baluchistan’ and ‘Sind’ having also now been officially replaced in the Constitution with ‘Balochistan’ and ‘Sindh’, respectively. However, the renaming issue has inevitably generated anger, even violence, among pro-establishment – both civil and military – forces, such as the Pakistan Muslim League, as well as non-Pashtun ethnicities in the erstwhile NWFP.
In particular, the ethnic Hazara community has brought parts of the province to a standstill over discussions of the name change, with some nine protestors killed in the week following the vote on the 18th Amendment. The Hazarwals’ demand for a separate province of their own, common when identity-based federal units are discussed, must now be discussed with due democratic process – even at the risk that this could in turn give rise to a host of new problems, given that the population of the Hazara Valley also includes Pashtun sub-groups such as the Jadoon and Tareen.
Either way, since the renaming was one of the issues that had held up the passage of the 18th Amendment, it was also one on which a realpolitik-tinged deal appears to have finally been made. And it was none too soon in the coming. Today, with Pakistan at the crossroads, facing home-grown and foreign-backed extremism and militancy that have wreaked havoc for the last three years, the renaming of the province will hopefully bring the ethnic Pashtun into mainstream politics, giving them ownership over the idea of a national identity. With this renaming, the Pashtun will inevitably become more apt to look to Pakistan than to Afghanistan, particularly given the continued lack of economic opportunities in the latter.
No fifth time?
Beyond the political compulsions that have led to the inclusion of ethnic identities in the Constitution of Pakistan, there remain other problem areas in the new amendment as well. Judges will be appointed by a newly set-up judicial commission that will have parliamentary oversight, which will help to ensure some transparency in the appointment of judges and thus make the judiciary more accountable. That is clearly a positive step. However, the number of petitions already filed in various courts challenging the 18 Amendment makes it apparent that the battle between the judiciary and the Parliament is far from settled. Indeed, their tussle for space in a broader democratic system is, and must be, ongoing, with each democratic debate and judicial pronouncement going towards building a stronger, more accountable democracy. India too has seen its share of judiciary-versus-parliament struggles, most notably in the Kesavananda Bharati case of 1973 (widely quoted in the Pakistani press in recent days), which decided that there was a ‘basic structure’ of the Constitution within which judicial intervention is not permissible. This is as it must be, since within any government the legislative arm, made up of elected members, must be supreme.
Yet the 18th Amendment seems not to have extended the same concern to ensuring the accountability of these elected representatives. The scrapping of the constitutional provision for intra-party elections, for instance, is problematic. Though this remains part of national legislation – the Political Parties Act – this is not nearly as strong a placement as when this was part of the Constitution, which remains the best place to enshrine provisions for the democratisation of institutions and increasing accountability. Finally, the new amendment includes a provision in which a member of a party could be disqualified from membership on grounds of defection. While this would seem to deal with political opportunism, in the context of feudal, family-run parties it holds out the danger of solidifying undemocratic leaders.
Despite these issues, the 18th Amendment marks a move towards solidifying democracy in Pakistan, a country desperately trying to cope with militancy, a growing energy crisis, food insecurity and a sinking economy. At the same time, one should not overestimate its impact in a country that has, as an independent nation, lived more under military rule than under democracy. There is no guarantee that the amendment has strengthened Parliament sufficiently to ensure that the country will not, again, come under military rule in future – which would constitute the fifth time in little over 60 years. But it will certainly make doing so far more difficult.