ASSIGNMENT

8TH AND 17TH AMENDMENT TO 1973 CONSTITUTION

OF PAKISTAN

SUBMITTED TO

SIR ANEES IQBAL

LETCURER

CONSTITUTIONAL AND POLITCAL HISTORY OF PAKISTAN

KHYBER LAW COLLEGE, UOP

Submitted BY

HILAL SUBHAN

ROLL #

471

BS SEMESTER (FOURTH, 4TH )

KHYBER LAW COLLEGE

UNIVERSITY OF PESHAWAR
 DEFINITION OF AMENDMENT:
The process of altering or amending a law or document (such as a constitution) by
parliamentary or constitutional procedure.

WHAT IS AMENDMENT?
Amendment, in government and law, an addition or alteration made to a constitution, statute,
or legislative bill or resolution. Amendments can be made to existing constitutions and statutes
and are also commonly made to bills in the course of their passage through a legislature. Since
amendments to a national constitution can fundamentally change a country’s political system
or governing institutions, such amendments are usually submitted to an exactly prescribed
procedure.

ARTICLES DEALS WITH AMENDMENT IN 1973 CONSTITUYION OF PAKISTAN:

Part XI of 1973 constitution deals with the amendment to the 1973 constitution as per the
following articles:

238 Amendment of Constitution.

Subject to this Part, the Constitution may be amended by Act of [Majlis-e-Shoora (Parliament)].

239 Constitution Amendment Bill.

(1) A Bill to amend the Constitution may originate in either House and, when the Bill has
been passed by the votes of not less than two-thirds of the total membership of the
House, it shall be transmitted to the other House.

(2) If the Bill is passed without amendment by the votes of not less than two-thirds of the
total membership of the House to which it is transmitted under clause (1), it shall,
subject to the provisions of clause (4), be presented to the President for assent.
 (3) If the Bill is passed with amendment by the votes of not less than two-thirds of the
total membership of the House to which it is transmitted under clause (1), it shall be
reconsidered by the House in which it had originated, and if the Bill as amended by
the former House is passed by the latter by the votes of not less than two-thirds of its
total membership it shall, subject to the provisions of clause (4), be presented to the
President for assent.

(4) A Bill to amend the Constitution which would have the effect of altering the limits of a
Province shall not be presented to the President for assent unless it has been passed
by the Provincial Assembly of that Province by the votes of not less than two-thirds of
its total membership.

(5) No amendment of the Constitution shall be called in question in any court on any
ground whatsoever.

(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on
the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the
Constitution.

AMENDMENTS TO 1973 CONSTITUTION:

Technically there are 26 amendments but 23 amendments were made in constitution and three
were not passed by the parliament as the three amendments collapsed.
 8TH AMENDMENT TO 1973 CONSTITUTION:

INTRODUCTION:

The Eighth Amendment has a big change with Article 58 2(b), which in turn is considered to be
the provision that introduced the presidential power to dissolve the National Assembly at his
discretion where, in his opinion, appeal to the electorate was necessary. On such dissolution,
elections were to be called within one hundred days.

TRACE BACK HISTORY:

The 1973 Constitution of Pakistan has a Parliamentary System of government, with the balance
of power tilted towards the Prime Minister. The President could not exercise his powers
without the concurrence of the Prime Minister. The Eight Constitutional Amendment, however,
altered the form of the Constitution drastically. Passed by the Senate on November 14, 1985,
the Eight Amendment affected almost 19 clauses of the Constitution and brought the office of
the President of Pakistan almost at par with that of the Prime Minister.

The President was given the right to nominate the Prime Minister, Governors of the provinces,
and Judges of the High Court and Supreme Court, including the Chief Justice. Democratically
elected Prime Minister thus became subservient to the President. The most controversial
power awarded to the office of the President was under the Article 58(2) b, which was the
power of dissolution of the National Assembly at his own discretion.

The President so that in case of a political crisis, the Assembly could be dissolved and new
elections could be held and Martial Law could be avoided. The Article 58(2) b changed the
entire complexion of the Constitution. The Constitution was transformed from a Parliamentary
System into a Presidential one. This Amendment was like the proverbial Sword of Damocles for
the successive governments. After the passing of Article 58(2) b, the National Assemblies were
dissolved on four occasions using its powers. The dissolution of the Assembly by President Zia-
ul-Haq in 1988, President Ghulam Ishaq Khan in 1990 and in 1993, and President Farooq Leghari
in 1996 are subject to a lot of speculation.

Clauses amended by the Eight Amendment dealt with the office of the Prime Minister, Senate,
and Governors. Article 51 increased the number of the National Assembly seats from 200 to
207. The number of the Senate seats was increased from 63 to 87 under Article 59. The Eight
Amendment also indemnified the entire President’s Orders, Ordinances, Martial Law
Regulations and Martial Law Orders, including the Referendum Orders made between July 5,
1977, and September 13, 1985.

The Eighth Amendment is considered as a landmark in the constitutional history of Pakistan. It

not only altered the very form of the Constitution from purely Parliamentary to semi-
Presidential, but also changed the constitutional and political history of the country.

Explanation of Eighth Amendment

Following are the points are important for explanation of eighth amendment with reference to its
effects on political or parliamentary system of Pakistan.

1. Dissolution of National Assembly

President could dissolve National Assembly when vote of no-confidence had been passed against
Prime Minister, and no other member of National Assembly had confidence of majority of
members of National Assembly in accordance with provisions of constitution.

President could dissolve National Assembly when a situation had arisen in which government of
federation could not be carried on in accordance with provisions of constitution and an appeal to
electorate had become necessary.

2. Semi Presidential System

Through the Eighth Amendment transformed parliamentary system of Pakistan into semi-
presidential system. In fact, this amendment granted vast powers to President, and these powers
made President more powerful than Parliament.

3. Effect on Political or Parliamentary System

Eighth Amendment produced negative effects on political or parliamentary system of Pakistan.

First it changed parliamentary system into semi-presidential system, and then caused dissolution
of five elected National Assembly with dismissal of five elected governments.
 EFFECT OF 8TH AMENDMENT ON DEMOCRACY:

General Zia-ul-Haq first used the amendment to dismiss Prime Minister Mohammad Khan
Junejo for alleged corruption in May 1988. The prime minister had wanted to roll back Zia's
authority. In 1988, Benazir Bhutto pledged to abolish the amendment in her election manifesto.
The amendment stayed on the books however, because she did not have a sufficient number of
seats in 1988 and again in 1993.[1] From 1988 to 1996, President Ghulaam Ishaq Khan made
extensive use of the eight amendment and the Article 58 2(b) to dissolve the National
Assembly. President Khan used the amendment to dismiss the elected governments of Prime
Ministers Benazir Bhutto and Nawaz Sharif. President Khan first used the VIII Amendment on
August 6, 1990, against Bhutto on alleged cases of nepotism and the corruption. In 1993,
President Ishaq Khan again used this amendment to dismiss the people-elected government of
Prime Minister Nawaz Sharif. In the second instance, Prime Minister Nawaz Sharif was
reinstated as prime minister by the Supreme Court, but the resulting stalemate ended with the
resignations of both Khan and Sharif. The use of Article 58 2(b) was almost exclusively justified
by the president as necessary, for the removal of corrupt governments that, it was asserted,
had lost the confidence of the people. Elections were held each time that caused the ruling
party to lose its majority or plurality in the National Assembly. It was again used in 1996 by
President Farooq Ahmad Khan Leghari against his own party leader Prime Minister Benazir
Bhutto in November 1996.

Conclusion

To conclude, it can be stated that amendments, which have been so far made in constitution of
Pakistan, can be divided into two kinds: some of the were passed by Parliament and other
amendments were inserted into constitution by military dictators. Eighth Amendment was that
Amendment, which was initially introduced by military dictator and which Parliament later on
had to pass, because it was mandatory for its won survival. In this way, acts of General Zia-ul-
Haq’s regime were protected under this Amendment.
 17th AMENDMENT TO 1973 CONSTITUTION OF PAKISTAN:

INTRODUCTION:

The constitution (Seventeenth Amendment) Act, 2003 was an amendment to the constitution
of Pakistan passed in December 2003, after over a year of political wrangling between
supporters and opponents of Pakistani President Pervez Musharraf. This amendment made
many changes to Pakistan’s constitution. Many of these change dealt with the office of the
President and the reversal of the effects of the Thirteenth Amendment.

TRACE BACK HISTORY

Seventeenth Amendment is basically the Legal Framework Order 2002 that has been accepted
as part of the Constitution with minor modifications and may be, therefore, termed as an LFO-
amended Constitution. After a surprise deal between PML(Q) and MMA (Mutahida Majlis-e-
Amal), the 17th Amendment has now become part of the 1973 Constitution.

The amendment allows General Pervez Musharraf to serve out his term as President, which
ends in 2007, and formalize special powers he had decreed himself giving him the right to sack
the prime minister and disband parliament by decree. In return, Musharraf agrees to step down
as army chief, supposed to be the main source of his power, by December 31, 2004.

The seventeenth amendment now allows the provision for “vote of confidence for further
affirmation of the president in office by majority of the members present and voting, by
division or any other method as prescribed in the rules made by the federal government under
clause (9), of the electoral college consisting of members of both Houses of Parliament and the
provincial assemblies”. Accordingly a vote of confidence was passed in favor of the President on
January 1, 2004 by members of both National Assembly and the Senate. Despite the fact the
MMA abstained from giving the vote of confidence to the President, it has indirectly accepted
him as elected president by allowing vote of confidence from both houses of parliament and
provincial assemblies.

Under the Article 58(2)(b), “the President in case of dissolution of the National Assembly shall,
within fifteen days of the dissolution, refer the matter to the Supreme Court and the Supreme
Court shall decide the reference within thirty days whose decision shall be final”.

Likewise, under the Article 112, the governor in case of dissolution of the provisional assembly
shall also refer the matter to the Supreme Court with the previous approval of the president
and the Supreme Court shall decide the reference within thirty days whose decision shall be
final.

EXPLANATION OF 17TH AMENDMENT:

Due to following grounds, it can be opined that seventeenth amendment had produced some
effects on parliamentary democracy in Pakistan.

1. Vote of Confidence

This amendment has provided an opportunity to a non-elected President to become an elected

President and to hold office of President of Pakistan for next five years. Through this
amendment, an electoral college, which consisted of both houses of Parliament and all
Provincial Assemblies, was created and then non-elected President was to win vote of
confidence of such electoral college to become elected President of Pakistan. In this way, this
amendment had affected parliamentary democracy in Pakistan.

2. Legal Framework Order, (LFO) 2002

This amendment paved a way to incorporate Legal Framework Order of 2002 into constitution.
As Legal Framework Order consisted of various orders of a non-elected and unconstitutional
President, therefore this amendment allowed to incorporate non-constitutional orders into
constitution of Pakistan. In this way, this amendment had affected parliamentary democracy.

3. Dissolution of National Assembly & A Provincial Assembly

This amendment had again empowered President of Pakistan to dissolve National Assembly.
Even same power was also regained by Governor of every province to dissolve Provincial
Assembly. In this way, this amendment had affected parliamentary democracy in Pakistan.

4. Annulment of Article 152-A

This amendment had annulled an important article of constitution: Article 152-A, which was
about National Security Council, was omitted. In this way, this amendment had affected
parliamentary democracy in Pakistan.
 RESTORATION OF ARTICLE 58(2)(B) IN 17TH AMENDMENT:
Article 58(2)(B) was included in 17th amendment as it was included in LFO. Now,
president once again had an authority of dismissing National Assembly or
removing prime minister. Similarly, he/she along with governor can remove chief
minister of any province from his post. The modification in this amendment was;
president or governor will send a reference to Supreme Court within fifteen days
after using this authority about dismissing national or any provincial assembly
respectively. Supreme Court will take decision within thirty days. Its decision will
be final and obligatory for all.

Conclusion

To conclude, it can be stated that there emerged an apprehension of political conflict between
British Parliament and British king/queen after constitutional development especially with
Glorious Revolution. However, such apprehension vanished with the passage of time due
to effective conventions and influential acts of Parliament. Similarly, Pakistan has experienced
a king of political conflict between its President and Prime Minister. Thirteenth amendment and
seventeenth amendment were consequences of such political conflict. However, some of
recent amendments have made Prime Minister more powerful that President. These
amendments have aimed to finish political conflict between these two constitutional heads.