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The 18th Amendment and Pakistan’s Political Transitions

The 18th Amendment and Pakistan’s Political Transitions

The passage of Pakistan’s 18th amendment to its constitution could mark a shift to a more representative federal system, writes Colin Cookman.

President Barack Obama, accompanied by Pakistani President Asif Ali Zardari, makes a statement in the Grand Foyer of the White House in Washington, Wednesday, May 6, 2009. (AP/Gerald Herbert)
President Barack Obama, accompanied by Pakistani President Asif Ali Zardari, makes a statement in the Grand Foyer of the White House in Washington, Wednesday, May 6, 2009. (AP/Gerald Herbert)

Pakistan’s offensives against militants based along its northwestern border with Afghanistan and its nuclear status are the most likely issues to draw American attention to the country. Equally important, however, are the political dynamics that shape the actions of its leaders and the country’s overall stability as it faces multiple crises of security, economics, and internal political legitimacy. The combined weight of these crises has the potential to destabilize not only a nuclear-powered country but an entire region, and Pakistan’s challenges and how its government chooses to deal with them have direct implications for U.S. national security.

With this in mind, the unanimous passage of the 18th amendment to Pakistan’s constitution by parliament last week and signature into law by President Asif Ali Zardari today is a major development and deserves the attention of outside observers for its attempt to establish a parliamentary government system. The amendment constitutes one of the most dramatic deconcentrations of power in Pakistan since the drafting of its 1973 constitution and reverses President Pervez Musharraf’s efforts to centralize power in the indirectly elected office of the presidency.

Pakistan’s parliament has institutionalized a new political consensus on the country’s legal and political framework with the 18th amendment’s passage. It gives the parliament, prime minister, judiciary, and the provincial governments greater autonomy under the constitution. While these changes represent an opportunity for Pakistan’s political parties to begin seriously addressing the country’s critical economic and security problems, the full impact of the amendment’s many changes will only be determined over time as the country’s major political players test their strengthened authorities within a political arena in which the military establishment remains the most powerful single actor.

The 18th amendment’s key aspects

The 18th amendment enacts more than 100 changes, both large and small to Pakistan’s constitution. The text of the amendment as introduced in parliament can be read here, and this annotated copy of the 1973 constitution identifies provisions introduced by President Pervez Musharraf, making it a useful companion piece for analyzing the scope of the new amendment’s changes.

Limits on presidential powers:The amendment limits presidential powers following years of a strengthened presidency under President Musharraf’s military regime in a number of different ways. These include:

  • Removing presidential powers to circumvent the normal legislative process and limiting the amount of time the president may consider bills passed by parliament before approving them (Article 75)
  • Transferring the power to submit matters directly to parliament for a yes or no vote to the prime minister (Article 48)
  • Removing the infamous Article 58-2(b) instituted by President Musharraf, which granted the power to unilaterally dismiss parliament under vague emergency provisions
  • Consulting with the outgoing prime minister and opposition leader on presidential appointments of caretaker governments to manage the transition to a new government when parliament is dismissed (Article 224)

Greater role for parliament and the prime minister: The amendment transfers greater authority to the parliament and prime minister through the following changes:

  • Establishes the prime minister and his ministers as the federal government and transfers the position of chief executive of the nation from the president to the prime minister (Articles 90 and 99).
  • Reduces the requirement for the prime minister to consult with the president to a duty to keep him “informed” of policy matters (Article 46).
  • Requires that the president consult with the prime minister—whose recommendations are binding—on all choices for provincial governors (Article 101) and military service chiefs (Articles 243 and 260), though the president remains the office charged with their appointments. President Zardari will likely retain influence over these appointments as party head of Prime Minister Yousuf Raza Gilani’s PPP, but Gilani may attempt to assert greater control over the party through this power.
  • Removes limits on prime ministers serving more than two terms (Article 91). This measure potentially paves the way for opposition leader Nawaz Sharif’s return to that office, though he has yet to contest a seat for the national assembly, instead of opting to lead his party from outside parliament.

Judiciary composition and appointments:Conflicts between the judiciary and President Zardari’s government over judicial appointments and the prosecution of corruption cases have steadily mounted over the past two years. Judicial appointment procedures have been one of the most contentious parts of the amendment, and despite compromise agreements essentially giving the chief justice the deciding vote on nominations Supreme Court Bar Association leaders have indicated their intentions to challenge the new system.

Pakistan’s civilian leadership has politicized many sectors of the country’s civil service, and lawyers’ movement leaders have fought for a more independent judiciary since the 2007 ouster of Chief Justice Iftikhar Chauhdry by then-President Musharraf. Greater independence for the judiciary may increase its willingness to go after political corruption, but it also risks entrenching a self-selecting judicial establishment with minimal options for public input on its actions or composition.

  • Neither president nor prime minister will have a direct role in judicial appointments under the 18th amendment. The appointments will instead be handled by a two-tier system—a Judicial Commission will propose nominees and a special parliamentary committee split evenly between the government and the opposition will confirm them (Article 175A). The seven-member Judicial Commission will be chaired by the chief justice, who will effectively control four of the seven seats (with the remaining three comprising the federal law minister, the attorney general, and a senior lawyer of the Pakistan Bar Council).
  • The addition of the seventh Judicial Commission member was a last-minute change forced by Nawaz Sharif’s PML-N, which has increasingly sought to associate itself with the lawyers’ movement. The addition has the effect of giving the chief justice the deciding vote in commission deliberations.
  • The Judicial Commission’s nominees appear to have their confirmation guaranteed absent an extremely high degree of parliamentary opposition to its suggestions. Rejecting a nominee requires a three-quarters majority from the parliamentary committee, and absent rejection a nominee is deemed confirmed within 14 days regardless of whether a vote was taken or not.

Federal and provincial balance of powers: Tensions between the central government and the provinces over the distribution of authority and revenues date back to Pakistan’s inception and have prompted some of its most traumatic upheavals, most prominently the 1971 secession of Bangladesh. Many of the country’s leading political parties have long demanded increased autonomy for the provinces. The 18th Amendment takes important steps toward resolving some of these tensions through a devolution of authority and a strengthened role for the Council on Common Interests, a joint federal-provincial forum.

  • The 18th amendment eliminates the “Concurrent List,” an enumeration of areas where both federal and provincial governments may legislate but federal law prevails. Laws governing marriage, contracts, firearms possession, labor, educational curriculums, environmental pollution, bankruptcy, and 40 other diverse areas will now devolve to the provinces with the list eliminated, and each provincial assembly will be responsible for drafting its own laws on the issues.

    Reformers have touted this measure as a necessary shift for a more federal system, but there are some concerns about the ability of provincial governments to assume effective regulatory authority in these areas, which they are now bound to do by June 30, 2011.

  • Another important but under-reported change now specifies that future National Finance Commission agreements—which set the distribution of national revenues between the central government and the provinces—cannot reduce the provinces’ share beyond that given in the previous agreement (Article 160). This is a move that may prompt intensified conflict between the central government and provinces in future rounds of revenue distribution negotiations.

Changing the Northwest Frontier Province’s name: The 18th amendmentcontains a substantive restructuring of the Pakistani government system, but it is the seemingly innocuous renaming of the country’s Northwest Frontier Province, or NWFP, that has produced some of the most heated political rhetoric thus far and rioting in some parts of the province that has killed up to 10. The Awami National Party, a nationalist party and governing coalition partner with its base of support in the NWFP’s Pashtun community, has long pushed for the renaming in order to bring it on par with the other provinces of Sindh, Balochistan, and Punjab—all of whom draw their names from their dominant ethnic groups.

Former Hazara Division residents (not to be confused with the ethnic Hazara people of Afghanistan) in the NWFP are culturally and linguistically distinct from the rest of the majority Pashtun province, and both the PML-N and PML-Q parties, which possess electoral footholds in the area, oppose the change. The PML-N finally agreed to the compromise name “Khyber-Pakhtunkhwa” at the end of March, but the PML-Q sharply opposed the prospective name change, seeing an opportunity to press its rivals. Leaders from both PML parties have since then endorsed protesters’ demands for a separate Hazara province entirely.

The increased power accorded to provincial governments under the 18th amendment is a potential incentive for parties to support the creation of more provinces. But it is unclear how much support these proposals will garner outside the current cycle of local identity politics—particularly given the military establishment’s longstanding opposition to strong provincialism within the country.

Unresolved questions remain

The 18th amendment does not fix all of Pakistan’s political problems. For one thing, the civilian government continues to hold limited powers of real oversight on the budgets or policies of the military, which retains a firm grasp on the country’s foreign and security policy and a large political and economic presence domestically. And though the amendment mandates the establishment of local governments in all four provinces, it provides little clarity on which administrative or financial authorities will be delegated to them or how they should be constituted. Further, while some measures are assumed to increase the provinces’ ability to retain control of their revenue, most taxes will continue to be redistributed through the federal center. Additionally, the Federally Administered Tribal Areas’ status as a border area largely outside of direct government control is not addressed, and the colonial-era Frontier Crimes Regulation remains the governing law for that area.

The amendment does deliver on promises by the main democratic parties in Pakistan to shift to a more democratic and federal system, and in this respect it represents a major accomplishment for a still young civilian government. But few Pakistanis are likely to cheer its passage for long if the parties do not use the new setup to more aggressively respond to the country’s deep economic and security challenges. The short lifespan of past constitutional setups and civilian governments cautions against easy predictions of the amendment’s long-term impact.

With President Zardari’s signing, the Pakistani public and outside observers will now have to wait and see how the country’s powerful interest groups—including the military, judiciary, and the drafting parties themselves—respond to and reinterpret the new rules of the game.

Colin Cookman is a Research Assistant for National Security at American Progress.

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Colin Cookman

Policy Analyst