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> PILDAT Democracy & Governance Panel Issues Proposals for Constitutional Amendments; Calls for focus on early repeal of 17th Amendment
   
 

August 03, 2009
Islamabad


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Islamabad, August 3: The PILDAT Democracy and Governance Panel that comprises eminent legal and political experts and opinion leaders from across the country have issued a set of proposals for Constitutional Amendments for the consideration of the Parliamentary Committee on Constitutional Reforms.

 
 

The Democracy and Governance Panel agreed that the focus of the Parliamentary Committee on Constitutional Reforms should be on repealing the 17th Constitutional Amendment in the first phase. The panel recommended that the Parliamentary Committee may undertake the constitutional amendments in two phases. In view of the fact that the two largest parties have already agreed in principal on repealing the 17th amendment except certain parts and a general consensus exists in the country on the subject, the 18th Constitutional Amendment Bill be introduced in the Parliament at the earliest focussing on repealing certain parts of the 17th Amendment. An effort should be made to pass the bill at the earliest. Simultaneously, the committee should work on a 19th Constitutional Amendment Bill which should consist of all other required constitutional amendments. This bill should also be introduced in the Parliament as soon as the necessary consensus is reached on the contents of the bill.

 
 

While carrying out a review of the 17th Amendment, the panel proposed to retain article and clauses including Article 17 pertaining to the formation of political parties and intra-party elections; Article 51 relating to the composition of the National Assembly, the increase in its membership to 342, the reduction in the voting age to 18 years, the reservation of seats for women and non-Muslims in the National Assembly, the procedure for election of women and non-Muslims on reserved seats, etc. ; Article 59 pertaining to the increase in the membership of Senate to 100, allocation of the 100 seats between the Provinces and the Federal Areas and related matters; Article 63-A relating to disqualification on ground of defection, terming it as an improvement on the original provision through the change made in the 17th Amendment; Articles 70, 71, 73 and 75 pertaining to the introduction and passing of all bills, the working of the mediation committee in case of disagreement between the Senate and the National Assembly, the procedure with respect to money bills and the President’s assent to bills; Article 106 relating to the composition of the four Provincial Assemblies, the reservation of seats for women and non-Muslims in these assemblies, the reduction in voting age from 21 to 18 years, etc; Article 140-A prescribing that each Province shall by law establish a Local Government System and devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Government; Article 218 dealing with the composition of the Election Commission and Article 243 relating to the appointment of Service Chiefs to be made by the President on the advice of the Prime Minister.

 
 

The Panel, however proposed amendments in the following clauses:

  1. Musharraf-specific clauses - Article 41, Clauses (7), (8) and (9): These clauses, being Musharraf-specific, have outlived their utility and should, therefore, be omitted.

  2. President’s power to dissolve National Assembly - Article 58(2)(b):Article 58(2)(b) relating to the discretionary power of the President to dissolve the National Assembly should be omitted.

  3. Qualifications and Disqualifications for membership of the Parliament - Articles 62 and 63: Articles 62 and 63 relate to qualifications and disqualifications for membership of Parliament and the Provincial Assemblies. It was agreed that the changes made in these Articles through the 17th Amendment were arbitrary and unreasonable and should be reversed/omitted.

  4. Defection from a political party - Article 63-A: Article 63-A relates to disqualification on ground of defection. It was agreed that the changes made through the 17th Amendment were an improvement on the original provision and should be retained. However, in order to remove the lacuna which has enabled Speakers to avoid making references to the Election Commission on the ground that there is no definition of the term “head of a parliamentary party” in Article 63-A the following definition should be added in clause (7):

  5. “Head of a Parliamentary Party means the person elected as its head by members of parliamentary party within 7 days of the first session of the House after elections.”

  6. Appointment of Provincial Governors - Article 101: Article 101 relates to method for appointment of the Provincial Governors. The original Constitution provided for such appointments on the advice of the Prime Minister. General Zia-ul-Haq’s Order 14 of 1985 empowered the President to make the appointments in his discretion. Under the 8th Amendment the appointments were to be made after consultation with the Prime Minister. The 13th Amendment of 1997 revived the original 1973 position. The 17th Amendment has revived the 8th Amendment i.e. appointments to be made by the President after consultation with the Prime Minister. After much discussion it was agreed to recommend that the change made through the 17th Amendment be reversed and the position as per 13th Amendment be restored which means that Service Chiefs be appointed at the advice of the Prime Minister and this advice is binding on the President.

  7. Governor’s power to dissolve a Provincial Assembly - Article 112(2)(b): Article 112(2)(b) relates to the discretionary power of the Governor to dissolve the Provincial Assembly if the Government of the Province cannot be carried out in accordance with the Constitution. It was agreed that it was an anti-democratic provision and should be omitted.

  8. Appointment of the Chief Election Commissioner - Article 213: Article 213 provides for the appointment of the Chief Election Commissioner by the President in his discretion. It was decided to recommend that the words “in his discretion” should be omitted and substituted by the words “after consultation with the Prime Minister, the Chief Justice of Pakistan and the Leader of the Opposition in the National Assembly.”

  9. Schedule of National Assembly Election - Article 224: Article 224 deals with the time of election and bye-elections. It was agreed to recommend as under:

    1. The re-substitution of the word “preceding” for the word “following” in clause (1). It was noted that the 17th Amendment change enabled Musharraf to claim re-election by the out-going Assemblies.

    2. The proviso to clause (1) which empowers the President and the Governors to appoint Caretaker Cabinets in their discretion should be omitted and substituted by the following:

    3. “Provided that simultaneously with the announcement of the dates for elections, the President shall in consultation with the out-going Prime Minister and the out-going Leader of the Opposition in the National Assembly, appoint a care-taker Prime Minister and the President shall appoint care-taker Federal Ministers in accordance with the advice of the Care-taker Prime Minister, and the Governor shall, with the previous approval of the President, appoint a Care-taker Chief Minister and the Governor shall appoint care-taker Provincial Ministers in accordance with the advice of the Care-taker Chief Minister.

    4. The changes in clauses (4) and (6) were clarificatory/desirable and should be retained.

    5. Clause (7) presently bars only the Caretaker Prime Minister and the Care-taker Chief Ministers from being candidates for election which they are supervising. This bar should also apply to all members of their Cabinets.

  10. Definition of ‘Consultation’ - Article 260: Article 260 is the definition clause. 17th Amendment has added a definition of consultation to the effect that consultations are not binding on the President. It was agreed that this definition should be omitted. It was noted that constitutional consultation means that the consultees come to a consensus/agreement.

  11. Sixth and Seventh Schedules - Article 268: The Sixth Schedule read with Article 268(2) protects 35 laws from alteration/repeal/ amendment except with the previous sanction of the President. 10 of these 35 laws have been added to the Sixth Schedule through the 17th Amendment There is also a list of 10 laws in the Seventh Schedule which cannot be amended except in the manner provided for amendment of the Constitution. It was agreed to recommend that the whole of the Sixth Schedule along with Article 268(2) and the whole of the Seventh Schedule along with Article 270A(6) should be omitted as there was no reasonable basis for protecting any of these laws from the normal process of Parliamentary scrutiny and legislation.

 
 

The members of the panel (listed in alphabetical order) who deliberated on the issue in a meeting in their personal capacity include Mr. Babar Sattar, Advocate; Dr. Ijaz Shafi Gilani, Chairman Gallup Pakistan; Mr. Ilahi Bukhsh Soomro, former Speaker National Assembly of Pakistan; Mr. Javed Jabbar, former Senator and Federal Minister for Information and Media Development; Mr. Mujib ur Rehman Shami, Editor Daily Pakistan; Mr. Sartaj Aziz, Vice Chancellor, Beaconhouse National University / Former Federal Minister for Foreign Affairs / for Finance; Mr. Shahid Hamid, Senior Advocate Supreme Court; former Governor of the Punjab; Ms. Sherry Rehman, MNA and former Federal Minister for Information and Broadcasting and Mr. Ahmed Bilal Mehboob, Executive Director, PILDAT.