social consensus across all the four provinces will be hard. But the possibility of a province such as Sindh taking the lead in grabbing our religious bigots by the horns is much higher.
The end of the concurrent list could also encourage provinces to introduce progressive commercial laws to attract business. For example, the state of Delaware in the US is a jurisdiction of choice for businesses due to its commercial jurisprudence. Pakistan’s provinces could similarly engage in healthy competition to emerge as the preferred territory for commercial activity.
The second argument against the abolition of the concurrent list – that neither the government nor any political party has done any homework on the impact of this huge change – is more logical and convincing. This is why the role, authority and composition of the Implementation Commission are crucial. Completing this transition within a span of one year is an ambitious target to start with. And the oversight commission should thus be equipped with ample authority as well as legal and administrative expertise to accomplish the needful.
The 18th Amendment is also commendable for strengthening the independence of the judiciary by introducing a consultative, thorough and transparent mechanism for judicial appointments. While the composition of the judicial commission gives serving judges a dominant say in selecting future judges, the process will ensure that no one individual or institution has arbitrary authority to determine who gets to wear the robes in Pakistan. Some lawyers do not want a representative of the bar council to serve on the commission for they hold bar council politics in low esteem. Others do not want the law minister or the attorney general to have any say, to exclude the ruling government from the process. Still others are averse to parliamentarians having any role in the matter. And we have all suffered poor choices of successive chief justices since they have had an exclusive authority to pick judges.
Notwithstanding the hangover of the lawyers’ movement and uber-enthusiastic bar leaders eager to grab a seat on the negotiation table in all political matters (yet completely unwilling to discipline and reform the bar itself), and the various writ petitions that are likely to be filed challenging the 18th Amendment, the new Article 175A is a major improvement over the existing mechanism for judicial appointments. Further, the legitimate creation of the Islamabad High Court is an extremely welcome step. There was no logical reason to continue to treat the federal capital as part of Punjab. And an effective and efficient high court in the capital comprising the most able judges from all four provinces and Islamabad will not only address the issue of inordinate delays in resolution of legal issues emanating from Islamabad but will also help develop specialised jurisprudence in regulatory and government-related matters.
The merit of erasing 58(2)(b) and transferring the president’s discretionary authority to make key executive appointments to the prime minister hardly needs any elaboration. The office of the president has traditionally played second fiddle to the khaki leadership controlling levers of powers from behind the curtain. While not relevant in the present scenario, given the identity of our president and the prime minister, this structural change will strengthen the office of the prime minister, parliament as well as democracy in the medium to long term. But Zardari-haters should take pause, as this transfer of authority will hardly dilute the power he presently exercises. We must remember that Mr Zardari’s power springs not from the Constitution but his position as party head in a political culture largely defined by autocratic tendencies of party leaders and sycophancy of party members.
Just as Nawaz Sharif and Altaf Hussain will continue to enjoy whimsical authority to dictate all party decisions until democracy begins to permeate through political parties as well, let us be clear that Mr Zardari will have his handprints on all government decisions while the PPP is in power. Further, the end of 58(2)(b) will not fix our civil-military imbalance overnight and neither will the augmented treason clause alone stop wannabe dictators in their tracks. These changes are incremental steps that will fortify the national consensus against praetorianism. But in the ultimate resort it will be (i) continuity of the political process and democracy, (ii) performing civilian governments that become conduits for transmitting the fruits of democracy to ordinary citizens, and (iii) dexterous baby steps in reclaiming the political and economic turf that the military has annexed to itself, that will prevent military intervention in politics.
The 18th Amendment squarely addresses the centre-province divide and indirectly helps fix lopsided civil-military structures. But it doesn’t touch upon the problem of religious obscurantism. While the name of Ziaul Haq has been deleted and provisions of Article 62 and 63 have been rationalised, the requirement that parliamentarians must be ‘sadiq and ameen’ has been retained. It appears that as a nation we are still not prepared to dispassionately debate the role of religion within our state and society or the need to exclude moral judgments and claims of religious righteousness from the domain of law. And this is what highlights the limits of constitutional texts.
The 18th Amendment deserves to be applauded for it improves the legal framework upon which the socio-economic contract between the citizen and the state is founded. But let us also remember that the Constitution is ultimately a text, and no text is self-executing. It is for our executive, our legislature, our judiciary and each one of us to ensure that the rights promised by our Constitution are protected and defended, and enjoyed by all citizens. There always remain gaps between principles and their practice. But this cannot be an argument to demonise principles themselves. Let us celebrate the improvement in the theory of our fundamental law, with the resolve to take meaningful measures and make its promises come true.
(Concluded)
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu
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