The ironic erosion of Provincial Autonomy by the Eighteenth Amendment:

Appointment criteria of the Worthy Advocates General

There can be little doubt as to the proposition that:

“4. …The provincial autonomy granted by the Constitution deserves the

highest respect and is sacrosanct…”

(Justice Ijaz-ul-Ahsan in Government of

Sindh through Secretary Health
Department v Dr. Nadeem Rizvi etc.)

The Preamble to the Constitution lays dissenting voices to rest when it states that it is “the
will of the People” to “establish an order”:

“Wherein the territories now included in or in accession with Pakistan and

such other territories as may hereafter be included in or accede to Pakistan
shall form a Federation wherein the units will be autonomous with such
boundaries and limitations on their powers and authority as may be
prescribed”

(Emphasis Supplied)

Indeed, so sacrosanct was such autonomy to the Parliamentary Committee on Constitutional

Reforms that was entrusted the task to prepare the Constitutional (Eighteenth Amendment)
Act, 2010, that the same, in its Report (accessible at:
http://www.na.gov.pk/uploads/documents/report_constitutional_18th_amend_bill2010_0204
10_.pdf), declared it to be an essential feature of the 1973 Constitution (at Paragraph 2):

“…The essential features of 1973 Constitution are that it would be based on

Islamic principles and be a Federal Parliamentary system with Provincial
Autonomy in which fundamental rights and the independence of the Judiciary
would be ensured.”

(Emphasis Supplied)
Likewise, consideration of “Provincial Autonomy” was a requirement imposed by the Terms
of Reference of the Committee itself. As noted in Paragraph 12 of the above-cited Report:

“12. In light of the Motions passed by the National Assembly and the Senate
of Pakistan, the Committee formed its Term of Reference as under:

“The Committee shall propose amendments to the Constitution

keeping in view of the 17th Amendment, Charter of Democracy (CoD)
and provincial autonomy, in order to meet the democratic and Islamic
aspirations of the people of Pakistan.””

(Emphasis Supplied)

If there was any doubt left, the Report further proceeds to note (at Paragraph 18) how
Provincial Autonomy was a relevant criteria kept in view by the Committee whilst examining
the various provisions of the Constitution:

“The Committee in addition to its Terms of Reference, while examining the

various provisions of the Constitution, 1973, kept in view the following
amongst other criteria:-

(4) Provincial Autonomy

…”

As per Rule 4 of the “Rules of Procedure for the Parliamentary Committee on Constitutional
Reforms” (Annexure B of the Report), it was also a functional imperative under which the
Committee operated:

“4. Functions of the Committee.- The Committee shall propose amendments

to the Constitution keeping in view of the 17th Amendment, Charter of
Democracy and Provincial Autonomy, in order to meet the democratic and
Islamic aspirations of the people of Pakistan.”

(Emphasis Supplied)
Considering such unwavering emphasis on “ensuring greater Provincial Autonomy”, it is no
wonder that the Eighteenth Amendment, despite its criticisms, is generally hailed as “the”
seminal step forward towards the emphasized end.

Undeniably, for such Amendment to, simultaneously, erode Provincial Autonomy would be
ironic to say the least.

Through the instant endeavour, one shall humbly seek to demonstrate that the Eighteenth
Amendment does exactly that insofar as a Province’s autonomy to appoint an Advocate
General of their choice is concerned.

The appointment of an Advocate General for a Province is provided for under Article 140(1)
of the Constitution:

“140 Advocate-General for a Province.

(1) The Governor of each Province shall appoint a person, being a person
qualified to be appointed a Judge of the High Court, to be the
Advocate-General for the Province.”

(Emphasis Supplied)

Article 140 of the Constitution, as it stands, remains unaltered in form since its inception in
the Constitution as originally enacted.

Of the 97 Articles of the Constitution to which amendments were proposed by the

Constitution (Eighteenth Amendment) Bill, 2010, Article 140 was not one.

Of course, amendment to the form of Article 140 is not the only means of modifying its
substance.
As manifest from a bare perusal of the above-reproduced provision, the appointment criteria
for an Advocate General of a Province is inextricably linked to the appointment criteria for a
Judge of the High Court.

A modification of the appointment criteria for a Judge of the High Court would invariably
modify the appointment criteria for an Advocate General.

This, naturally, necessitates reference to Article 193(2), which provides the appointment
criteria for a Judge of the High Court (relevant text of which is being reproduced below):

“(2) A person shall not be appointed a Judge of a High Court unless he…is
not less than forty-five years of age, …-

…”

When reading Article 140(1) in conjunction with Article 193(2), it becomes apparent that a
person shall not be appointed an Advocate General of a Province unless he is, amongst other
things, not less than forty-five years of age.

Let us, however, not forget; the Minimum Age Requirement, to be considered qualified for
appointment as a Judge of a High Court was not always “forty-five” years.

The Constitution, as originally enacted, prescribed “forty years” as the Minimum Age
Requirement, to be considered qualified for appointment as a Judge of a High Court.

This Minimum Age Requirement was first modified by General Pervez Musharraf; vide
Article 2(4) of the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No.
29 of 2002), the requirement of "forty" years, was substituted with "forty-five" (with effect
from October 9, 2002).

The said modification remained undisturbed by the Seventeenth Amendment, 2003.

So what did the Parliamentary Committee on Constitutional Reforms, tasked with the
Constitution (Eighteenth Amendment) Bill, do?

For starters, as noted in Paragraph 19 of the Report, the Committee “…proposed to declare
the LFO and its subsequent amendments as being without lawful authority and of no legal
effect…”

This was reflected in Section 2 of the Constitution (Eighteenth Amendment) Act, 2010, by
virtue of which the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order
No. 29 of 2002) was repealed.

If the Committee had stopped here, and done no more, then, perhaps, a greater service to the
cause of “ensuring greater Provincial Autonomy” would have been rendered than that which
the Eighteenth Amendment ultimately achieved.

For, with the repeal of the Legal Framework (Amendment) Order, 2002 (Chief Executive's
Order No. 29 of 2002), the Minimum Age Requirement, to be considered qualified for
appointment as a Judge of a High Court, stood reverted to “forty” years; along with the
Minimum Age Requirement to be considered qualified for appointment as an Advocate
General.

This would have restored to the Provinces the autonomy to appoint persons, aging between
“forty” and “forty-five” years, otherwise qualified in terms of the Constitution and law for
and thoroughly meriting appointment to the Constitutional post of Advocate General.

This autonomy, as may be recalled, the Provinces had been deprived of courtesy Article 2(4)
of the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002)
and the resultant increase in the Minimum Age Requirement, to be considered qualified for
appointment as a Judge of a High Court.

Alas, with the proposal of Section 69(ii) of the Constitution (Eighteenth Amendment) Bill,
2010, an integral element of the provincial autonomy, so strongly desired by the Committee,
stood eroded in a single stroke of pen:
 “69. Amendment of Article 193 of the Constitution.- In the Constitution, in
Article 193,-

(ii) in clause (2) for the word "forty" the word "forty-five" shall be substituted
and shall be deemed always to have been so substituted with effect from the
21st day of August, 2002.”

Essentially, a legal fiction was created in that the Minimum Age Requirement of "forty"
years, occurring in clause (2) of Article 193 of the Constitution of Pakistan, 1973, on 21st day
of August, 2002 (i.e. date of enactment of LFO), was substituted with "forty-five"; and
deemed to have been always so substituted, with effect from the said date.

By virtue of such fiction, it would appear that it was the Committee’s intention to endorse the
restriction imposed upon the autonomy of the Provinces to appoint persons, aging between
“forty” and “forty-five” years, otherwise qualified in terms of the Constitution and law for
and thoroughly meriting appointment as Advocate General.

Indeed, the Committee manifested such intention by proposing to maintain such erosion,
notwithstanding its Terms of Reference; or what it considered an “essential” feature of the
Constitution.

Of course, “essential” is synonymous with “salient”; to the extent that the reduction in the
Minimum Age Requirement, to be considered qualified for appointment as a Judge of a High
Court, erodes a Provinces autonomy to appoint an Advocate General of their choice, it may
also be argued to be a substantive alteration of a “salient feature” of the Constitution. As
such it would also, arguably, be justiciable; if one were to follow the majority opinion in the
21st amendment case (PLD 2015 SC 401) that is.

In a society governed by the rule of law, every restriction must have reasonable justification.
It is indeed this very requirement of a reasonable justification that separates an act under law
from an act arbitrary and/or excessive.

Whether a reasonable justification is available or forthcoming, in so far as the above

highlighted restriction on Provincial Autonomy is concerned, cannot, most humbly, be
discerned from the Committees report, even if otherwise available.
It may, however, be beneficial to conclude by making reference to the Charter of Democracy,
the main impetus behind the movement of reform, the culmination of which effort was the
Eighteenth Amendment:

“…Reaffirming our commitment to undiluted democracy and universally

recognised fundamental rights, the rights of a vibrant opposition, internal party
democracy, ideological/political tolerance, bipartisan working of the
parliament through powerful committee system, a cooperative federation with
no discrimination against federating units, the decentralisation and devolution
of power, maximum provincial autonomy, the empowerment of the people at
the grassroots level, the emancipation of our people from poverty, ignorance,
want and disease, the uplift of women and minorities, the elimination of
klashnikov culture, a free and independent media, an independent judiciary, a
neutral civil service, rule of law and merit, the settlement of disputes with the
neighbours through peaceful means, honouring international contracts,
laws/covenants and sovereign guarantees, so as to achieve a responsible and
civilised status in the comity of nations through a foreign policy that suits our
national interest…”

(Emphasis Supplied)

As noteworthy, “rule of law”, “merit” and “an independent judiciary” are accorded the same
significance as “maximum provincial autonomy”.